# Amicus Brief — United States v. Mitchell

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0230%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 535

## Text

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

Pag hp Air BGs sn Bape EE Ok, ny er

ane ate Pe a

tae eh DOU ARDS SI AM sa tT AN Me RAIN CLO ha a DS ROBO ei PG asl

ee a eee Pe

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0230%3A8. Public record. Not legal advice.