Amicus Brief — United States v. Mitchell

Q

oe IN THE

= SUPREME COURT OF THE UNITED STATES

October Term 1979

No. 78-1756

UNITED STATES OF AMERICA,

Petitioner,

Ve

HELEN MITCHELL, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Claims

MOTION FOR LEAVE TO FILE BRIEF OUT OF TIME

and

BRIEF

of

CHLOE WHISKERS, ET AL., AS AMICI CURIAE

Richard W. Hughes

805 Tijeras, N.W.

Albuquerque, New Mexico 87102

Telephone: 505/842-6123

Counsel for Amici Curiae

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MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE OUT OF TIME

Chloe Whiskers, et al., the plaintiffs in

Whiskers v. United States, 600 F.2d 1332 (10th Cir.

1979), move the Court for leave to file the attached

brief as amici curiae in this proceeding. Consent

of the parties has been sought. Respondents have

consented, but the United States has refused to

consent.

Amici consist of a class of largely impoverished

southern Paiute Indians, most of whom live in desert

regions of Utah and Nevada. Their interest arises

from the cited decision, which raises an issue very

similar to the question under review here, albeit

under a different substantive statute. Amici are

preparing to petition for review of that decision.

This motion should be granted despite its late

submission for the following reasons:

1. Amici discuss a material point on which they

disagree with the briefs of both parties. Their view

may assist the Court, and the need to state it was

not known until the parties’ briefs were already on

file.

2. The point briefed is by its nature already

covered in the brief of the adverse party, the

United States. Therefore there is no prejudice from

the late filing.

Respectfully submitted,

Richard W. Hughes

805 Tijeras, N.W.

Albuquerque, New Mexico 87102

Telephone: (505) 842-6123

Counsel for Amici Curiae

ii.

AUTHORIT IES 7 . . oa . ° . . . . .

INTEREST OF AMICI ......2.246-.

ARGUMENT > . . . . . . . . . . . °

THE TUCKER ALT GRANTS THE

CONSENT OF THE UNITED STATES

TO BE SUED FOR BREACH OF A

STATUTORY TRUST, AND THE

SOLE ISSUE HERE IS WHETHER

PLAINTIFFS HAVE MADE OUT A

CAUSE OF ACTION TO RECOVER

MONEY DAMAGES AGAINST THE

UNITED STATES UNDER THE

STATUTES > . . . >. . . . . .

CONCLUSION. . « 2. © «© © © «© «

AUHTORITIES

CASES

Cort v. Ash, 422 U.S. 66 (1975)

Dalehite v. United States, 346

U.S. 15 (1953)

Duarte v. United States, 532

F.2d 850 (2d Cir. 1976)

Eastport S.S. Corp. v. United

States, 372 F.2d 1002 (Ct.Cl. 1967)

Fitzgerald v. United States

Civil Svc. Comm'n, 554 F.2d 1186

(D.C. Cir. 1977)

Henninger v. United States,

473 F.2d 814 (9th Cir. 1973)

Hill v. United States, 571

F.2d 1098 (9th Cir. 1978)

iii

PAGE

International Engineering Co.

v. Richardson, 512 F.2d 573

(D.C. Cir. 1975)

Jacobsen v. Tahoe Regional

Planning. Agency, 558 F.2d 928

(9th Cir. 1977)

Jentry v. United States 73

F.Supp. 899 (S.p. Cal, 1947)

Johnson v. Mathews, 539 F.2d

1111 (8th Cir. 1976)

Konecny v. United States, 388

F.2d 59 (8th Cir. 1967)

McCulloch Gas Processing Corp.

v. Canadian Hydrogas Resources

Ltd., 577 F.2d 712 (E.Ct. of App.

1978)

McMichael v. United States,

63 F.Supp. 598 (N.D. Ala. 1945)

Neely v. United States, 554

F.2d 114 (3d Cir. 1977)

Nelson v. United States, 341

F.Supp. 1353 (D. Mont. 1972)

Pasha v. United States, 484

F.2d 630 (7th Cir. 1973)

Polos v. United States, 556

F.2d 903 (8th Cir. 1977)

Porter v. United States, 496

F.2d 583 (Ct.Cl. 1974)

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978)

Soriano v. United States, 352

U.S. 270 (1957)

State of Texas v. United

States, 337 F.2d 466 (Ct.Cl. 1976)

iv

PAGE

Tatum v. Mathews, 541

F.2d 161 (6th Cir. 1976)

United States v. Cornell

Steamboat Co., 202 U.S.

184 (1906)

United States v. Jones,

131 U.S. 1 (1889)

United States v. King,

395 U.S. 1 (1969)

United States v. Mason,

412 U.S. 391 (1973)

United States v. Sherwood,

312 U.S. 584 (1941)

United States v. Testan,

424 U.S. 392 (1976)

Vigil v. United States,

293 F.Supp. 1176 (D. Colo.

1968)

Whiskers v. United States,

600 F.2d 1332 (10th Cir.

1979)

STATUTES

10 Stat. 612

12 Stat. 765

Act of Mar. 3, 1887, ch. 359,

24 Stat. 505 (1887)

62 Stat. 940

28 U.S.C. 1491

OTHER

18 Cong. Rec. (1887)

H.R. Rep. No. 1077,

49th Cong., lst Sess.

(1886)

PAGE

H-R. Rep. No. 308, 80th

Cong., Ist Sess. (1947)

14 Wright & Miller,

Federal Practice and

Procedure, § 3656 (1976)

vi

BRIEF OF AMICI CURIAE

INTEREST OF AMICI

The interest of amici curiae is set out in the

Motion for Leave to File Brief of Amici Curiae, ante

ae as

ARGUMENT

THE TUCKER ACT GRANTS THE CONSENT OF

THE UNITED STATES TO BE SUED FOR

BREACH OF A STATUTORY TRUST, AND THE

SOLE ISSUE HERE IS WHETHER PLAINTIFFS

HAVE MADE OUT A CAUSE OF ACTION TO

RECOVER MONEY DAMAGES AGAINST THE

UNITED STATES UNDER THE STATUTES

The court below correctly defined the issue

in this case as whether 28 U.S.C. 1491 embraces

actions against the United States for breach of a

statutory trust. Some passages in the United States'

brief attempt to equate this issue with the distinct

question of consent of the United States to be sued.

Pet. Br. 11-21. Respondents do not dispute that charac-

terization. See, Resp. Br. 14-45. Amici urge that

the history and language of the Tucker Act and decisions

of the courts interpreting it make clear that by the

Tucker Act the United States consents to be sued in

actions founded on a statute. The only valid inquiry

here is whether there is a cause of action for damages

1

against the United States under the particular

statutes at inaue 2!

The Court of Claims was created in 1855. 10

Stat. 612. Though called a court, its function was

only to investigate claims against the United States

“founded upon any law of Congress, or upon any regu-

lation of an executive department, or upon any con-

tract, express or implied, with the Government of the

United States" and to report its findings and re-

commendations to Congress. Id. §§ 2, 7. In 1863

the Court was empowered to render final judgments,

from which appeals to this Court could be taken.

12 Stat. 765. There is no published legislative ,

2

history of these acts bearing on the instant case,—

1/ On this point amici agree with the decision of

the Court of Claims for the reasons stated in its

opinion. Also, the Court in United States v. Mason,

412 U.S. 391 (1973), decided an Indian's breach of

trust claim on the merits, noting that jurisdiction

was based on the Tucker Act. 412 U.S. at 394 n.5.

Jurisdiction had been adjudicated in the Court of

Claims, but the United States abandoned the issue

before this Court.

2/ 4H.R. Rep. No. 1077, 49th Cong., Ist Sess. (1886),

the report that accompanied Rep. Tucker's bill (H.R.

6974), contained lengthy excerpts from an article by

the Chief Justice of the Court of Claims in Southern

Law Review of March 1882, giving the history of the

court from its origin and discussing Congress's

consideration of the 1855 and 1863 Acts.

eee — am — iutieneeiinindnetinnetdilineteesinde tee 2 =

In 1886 Representative Tucker of Virginia,

chairman of the House Judiciary Committee, introduced

the bill which became the Act of that name, H.R. 6974,

49th Cong., lst Sess. (1886). The history of the

Act makes it clear that all concerned viewed the Act

as a substantive waiver of the United States" sover-

eign immunity in favor of the "honest private claims"

of the citizenry. H.R. Rep. No. 1077, 49th Cong.,

lst Sess. 4 (1886).

The Act itself was entitled 'An Act to provide

for the bringing of suits against the United States."

Act of Mar. 3, 1887, ch. 359, 24 Stat. 505 (1887).

It effected a complete overhaul of the Court of

Claims organization and procedure and broadened

the jurisdictional grant to include claims "for

damages liquidated or unliquidated, in cases not

sounding in tort, in respect of which claims the

party would be entitled to redress against the

United States either in a court of law, equity or

ad:liraity, if tne United States were suable...."

oo : , .

Id. § 1.— The committee believed this phrase

3/7 In the 1948 revision of 28 U.S.C., 62 Stat. 940,

the codifiers omitted from § 1491 (§ 1 of the Tucker

Act) the language following "cases not sounding in

tort," which had been in the statute since the Act

was passed in 1887. See 28 U.S.C. 1491. The legis-

lative history, H.R. Rep. 308, 80th Cong., Ist Sess.

138 (1947)(reprinted at 28 U.S.C.A. 1491 Reviser's

Note), states that the language was viewed as surplus-

age:

embraced "a large class of cases," H.R. Rep. No.

1077, id., at 3 Af The title and language of the

bill sufficiently demonstrate that one of its princi-

pal purposes was to waive the Government's immunity.

The debates in the House leave no room for further

doubt. When the bill was first considered on January

13, 1887, the following exchange occurred between

Rep. Tucker and Rep. Reed:

MR. REED. Is the bill sufficiently broad to

cover all claims against the United States?

Does it give the right to sue the United

States in all cases?

MR. TUCKER. Not in all cases.

MR. REED. I mean in all cases where there

is a claim of right in law or equity, techni-

cally so called.

3 cont'd/ [The] [w]Jords "in respect of which claims

the party would be entitled to redress

against the United States either in a

court of law, equity, or admiralty if

the United States were suable" were

omitted as unnecessary since the Court

of Claims manifestly, under this section

will determine whether a ‘petition against

the United States states a cause of action....

That change, of course, had no impact on the scope or

effect of the Act.

4/ The bill on which the committee reported, H.R.

6974, did not contain the language "in cases not

sounding in tort." See e. g. 18 Cong. Rec. 623

(1887). That addition was made on the Senate floor,

Id. at 2175. Presumably, the "large class of cases"

was substantially diminished by the exclusion of

tort cases.

ie, — TT en

MR. TUCKER. Yes; equity and admiralty. The

only cases not provided for are suits upon the

use of a patent right by the Government and

suits in reference to captured and abandoned

property which are now barred by the statutes

of limitations. This bill extends the juris-

diction of the Court of Claims to all cases

which arise, not only ex contractu but ex

delicto, and to cases in admiralty, so that

it will take the whole mass of these claims

away from Congress.

= of &

MR. REED. As this is a somewhat long bill, I

desire to ask another question. As I under-

stand, the effect of the bill is that the

United States can be made a party defendant in

any suit where dn individual could be made a

party defendant.

MR. TUCKER. Yes, sir.

18 Cong.Rec. 622 (1887). Two months later, after

the Senate had passed the final version of the bill

and it was before the House for final action, Rep.

Townshend of Illinois spoke in opposition to it,

saying that "If this bill should pass it will make

the government a defendant in nearly all cases where

a private citizen could...." 18 Cong.Rec. 2679

(1887). Rep. Bayne concluded the debate, urging

that the bill pass so as to

give the people of the United States what

every civilized nation of the world has

already done -- the right to go into the

courts and seek redress against the

government for their grievances.

be

Id. at 2680. Moments later the Tucker Act became law.

This Court first considered the scope of the

Tucker Act's jurisdictional provision in United States

v. Jones, 131 U.S. 1 (1889), and there held that it

did not include suits for equitable relief only.

The Court described the issue before it as being the

extent to which the legislature had subjected "govern-

ment itself, equally with individuals, to the juris-

diction of its own courts...." Id. at 19.

Later opinions of the Court have consistently

recognized that the Tucker Act, and its predecessor

acts, constituted waivers of the government's sovereign

immunity. For example, in Dalehite v. United States,

346 U.S. 15, 26 n.10 (1953), the Court said:

In 1855, Congress established the Court

of Claims and consented to suit therein

on claims based on contract or federal

law or regulation. This consent was

enlarged in 1887 to include all cases

for damages not sounding in tort.

To the same effect is Soriano v. United States, 352

U.S. 270, 273 (1957).

The Court's most extensive discussion of the

consent-to-suit aspect of the Tucker Act was in

United States v. Sherwood, 312 U.S. 584 (1941).

Sherwood involved the question whether under the

5/ See United States v. King, 395 U.S. 1 (1969),

in which the Court held the Court of Claims had no

jurisdiction to grant relief under the Declaratory

Judgment Act, 28 U.S.C. § 2201.

6

Tucker Act, a judgment creditor could sue the United

States as subrogee of his debtor's claim against the

United States for breach of contract. In answering

the question in the negative, the Court examined the

Tucker Act carefully, saying (at 590):

The section must be interpreted in light

of its function in giving consent of the

Government to be sued, which consent,

since it is a relinquishment of a

sovereign immunity, must be strictly

interpreted,

Numerous other passages throughout the opinion in

Sherwood refer to the Tucker Act as "a waiver of

sovereign immunity," id., "the Government's consent

to be sued," id. at 591, 592, and comparable terms.

Sherwood is so clear on this point that no other

authority should be necessary to establish that

the Tucker Act constitutes both a grant of juris-

diction and a waiver of sovereign immunity for those

cases within its terms. Numerous other authorities

may be found, however, throughout the body of federal

se law. - And see 14 Vright & Miller, Federal

6/ Porter v. United States, 496 F.2d 583, 586 (Ct.

Cl. 1974); Pasha v. United States, 484 F.2d 630, 633

(7th Cir. 1973); Konecny v. United States, 388 F.2d

59, 62 (8th Cir. 1967); Jacobsen v. Tahoe Regional

Planning Agency, 558 F.2d 928, 940 (9th Cir. 1977);

Whiskers v. United States, 600 F.2d 1332, 1335 (10th

Cir. 1979); International Engineering Co. v. Richardson,

512 F.2d 573, 577 (D.C. Cir. 1975); Nelson v. United

States, 341 F.Supp. 1353, 1354 (D. Mont. 1972); Vigil

v. United States, 293 F.Supp. 1176 (D. Colo. 1968);

Jentry v. United States, 73 F.Supp. 899, 901 (S.D. Cal.

1947); McMichael v. United States, 63 F.Supp. 598, 599

N.D. Ala. 1945). .

7

Practice and Procedure, § 3656, p. 202 (1976):

Probably the two best-known exceptions

to the soyereign immunity doctrine are

the Tucker Act and the Federal Tort

Claims Act.

It is abundantly clear that from its enactment

forward the Tucker Act has been viewed as granting

the consent of the United States to be sued in

those categories of cases therein enumerated. Were

that net so, there would be no other way for contract

claims to be brought against the United States. If

the Act does not grant the Government's consent to

be sued on such claims, the claims cannot be enter-

tained. No federal contract grants consent, nor does

any federal contracting officer have the authority

to waive the government's immunity. Henninger v.

United States, 473 F.2d 814, 816 (9th Cir. 1973).

The same is true of claims founded upon "any regu-

lation of an executive department," 28 U.S.C. 1491.

The source of confusion on what had been settled

law is a few passages in the Court's decision in

United States v. Testan, 424 U.S. 392 (1976). Testan

has caused difficulty for some lower courts .—

7/ See, e.g., State of Texas v. United States, 537

F.2d 466, 473 (Ct.Cl. 1976), concurring opinion of

Nichols, J. Several federal courts of appeals have

held, on the strength of Testan alone, that the Tucker

Act is not a consent to suit. Johnson v. Mathews, 539

F.2d 1111, 1122 (8th Cir. 1976); Tatum v. Mathews, 541

F.2d 161, 165 (6th Cir. 1976); Fitzgerald v. United

States Civil Svc. Comm'n, 554 F.2d 1186, 1189 (D.C.

8

While the decision is releyant to the instant case,

it did not rewrite the Tucker Act.

Before this Court, the Testan plaintiffs argued

that the Tucker Act waived sovereign immunity and

granted jurisdiction over every claim that a sub-

stantive right created by federal statute had been

violated. The Court disagreed, holding that only

Statutes (or regulations) that clearly mandate pay-

ment of money to identifiable persons or groups give

rise to a cause of action for damages against the

United States. The opinion established a relatively

strict standard, taken from Eastport S.S. Corp. v.

United States, 372 F.2d 1002 (Ct.Cl. 1967), for deter-

mining which statutes should be held to establish

such causes of action.

Essential to the Court's ruling was the distinc-

tion between subject matter jurisdiction over a claim,

waiver of one « immunity, and the existence of a

cause of action,— The Tucker Act describes certain

types of causes of actions against the United States,

7 cont'd/ Cir. 1977); Hill v. United States, 571 F.2d

1098, 1101 (9th Cir. 1978); Polos v. United States, 556

F.2d 903, 906 (8th Cir. 1977); McCulloch Gas Processing

Corp. v. Canadian Hydrogas Resources, Ltd., 577 F.2d 712

716-17 (E.Ct. of App. 1978).

8/ The jurisdiction/cause of action distinction is

discussed at length in Cort v. Ash, 422 U.S. 66 (1975).

And see Santa Clara Pueblo v. Martinez, 436 U.S. 49

—_-__

(1978).

for which it confers jurisdiction on the Court of

Claims (and the district courts for claims for less

than $10,000) and waives the government's immunity

from suit. The jurisdictional grant and the waiver

of immunity are completely congruent; as stated in

United States v. Sherwood, supra, (312 U.S. at 591):

This matter is not one of procedure

but of jurisdiction, whose limits are

marked by the Government's consent to

be sued.

And see United States v. Testan, supra 424 U.S. at

399, quoting Sherwood. The determination of what

causes of action fall within those limits can be a

more detailed inquiry. Contract claims constitute

a reasonably clear category, but claims "for liqui-

dated or unliquidated damages in cases not sounding

in tort," 28 U.S.C. 1491, do not. The Court of Claims

once referred to that phrase as an"amorphous and un-

familiar part of our jurisdiction." Eastport S.S.

Corp. v. United States, supra,372 F.2d at 1013.2-/

Testan involved the question of when a Tucker Act

claim may properly deemed "founded upon an Act of

Congress." The Court said that the "grant of a right

of action must be made with specificity," 424 U.S.

9/ But see United States v. Cornell Steamboat Co.,

202 U.S. 184 (1906), where jurisdiction over a libel

for salvage was sustained on the basis of that pro-

vision.

10

at 400, and the Court found no such cause of action

in the statutes at issue. See Duarte vy. United -

States, 532 F.2d 850 (2d Cir. 1976).

The language of the opinion, however, is asserted

by the Government to mean that the Tucker Act does not

waive sovereign immunity at all, and that for an Act

of Congress to give rise to a claim for damages

against the United States that Act must not only

intend a cause of action but must separately and dis-

tinctly contain a waiver of sovereign immunity. The

error of that interpretation is apparent when con-~

sidered in light of claims founded upon contracts and

regulations. Cf. Neely v. United States, 554 F.2d

114, 115 (3d Cir. 1977). Even in the context of acts

of Congress, it would preclude virtually all claims,

since Congress does not normally add waivers of

sovereign immunity to its enactments. Respondents'

Brief (at 14-41), provides an example of the confu-

sion and uncertainties that would be erroneously

introduced into the field of Tucker Act litigation,

should the reading given Testan by the Government

here be accepted by the Court. Amici submit that

acceptance of this view of Testan would set liti-

gation in the Court of Claims back 125 years. Sov-

ereign immunity may be a time-honored doctrine, but

there is no need today for it to be restored to the

position it occupied in 1855.

11

CONCLUSION

For the reasons stated, the decision of the

Court of Claims should be affirmed.

Respectfully submitted,

Richard W. Hughes

805 Tijeras, N.W.

Albuquerque, N.M. 87102

Telephone: (505) 842-6123

Counsel for Amici Curiae

November 1979

12