Opposition Brief — Bibbs v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-274

REBECCA BIBBS, ADMINISTRATOR OF THE

ESTATE OF WAYNE BIBBS, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners’ son Wayne, when he was 17 years of age

enlisted in the United States Army with their consent,

which they claim was given only after the recruiter assured

them that pursuant to Army regulations no recruit under 18

years of age could be sent into a combat zone.' After

completing basic training in the United States, Wayne

was sent to South Vietnam as a helicopter gunner and

was killed by enemy fire.

'10 U.S.C. 505(a) provides in pertinent part: “{N]o

male person under eighteen years of age * * * may be originally

enlisted without the written consent of his parent or guardian, if he

has a parent or guardian entitled to his custody and control.”

Army Regulation 614-30, para. 8-1j(3) (0) (July 31, 1970) provides

in pertinent part: “Individuals who have not attained their 18th

birthday are not eligible for assignment to a hostile fire zone.”

(1)

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Petitioners brought this suit in the Court of Claims on

June 10, 1974, seeking damages for their son’s death.

On April 25, 1975, the Court of Claims dismissed the suit.

holding that the complaint sounded in tort and was there-

fore beyond its jurisdiction under the Tucker Act.

28 U.S.C. 1491 (Pet. App. la-2a). A petition for

reconsideration was denied on May 30, 1975 (Pet.

App. 3a-4a).

1. The Tucker Act confers upon the Court of Claims

jurisdiction to render judgment on any claim against

the United States founded upon, inter alia, “any reg-

ulation of an executive department, or upon any express

or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding

in tort.” 28 U.S.C. 1491 (emphasis supplied). Petitioners

claim that the Court of claims had jurisdiction in this

case because their complaint was based on a “contract

with the United States” within the meaning of the Act.

In determining whether it has jurisdiction over a partic-

ular claim, a court must “look beyond the literal

meaning of the language to ascertain the real cause of

complaint.” United States v. Neustadt, 366 U.S. 696,

703 (quoting from Hall v. United States, 274 F.2d 69,

71 (C.A. 10)). An examination of the “real cause of

[petitioners’] complaint” demonstrates that the facts

pleaded make out a case either for a violation of a

standard of care established by regulation amounting to

negligence, or for wrongful death. The Court of Claims

therefore properly concluded that “the action though

pleaded in a contract form is an action sounding in

tort” (Pet. App. la). The Tucker Act by its terms

excludes from the jurisdiction of the Court of Claims all

actions “sounding in tort.” See Pearson v. United

States, 267 U.S. 423; Basso v. United States, 239 U.S.

602, 606-607; Schillinger v. United States, 155 U.S. 163.

3

2. Petitioners’ alternative contention that their claim is

founded on a “regulation of an executive department,”

within the meaning of the Tucker Act, is also without

merit. Many harms caused by agents of the government

could be said to violate some statutory or regulatory

directive. But the historical intention of Congress to

grant Tucker Act jurisdiction only over claims “not

sounding in tort” precludes petitioners’ construction

of the Act. See Schwartz and Jacoby, Litigation With

the Federal Government §8.105 (1970). Thus, it is

established that “not every claim involving or invoking

* * * a regulation” is cognizable in the Court of Claims.

Eastport Steamship Corp. v. United States, 372 F.2d 1002,

1007 (Ct. Cl.). For there to be jurisdiction in the

Court of Claims, the allegation must be that “some speci-

‘fic provision of law [or regulation] embodies a command

to the United States to pay the plaintiff some money,

upon proof of conditions which he is said to meet.”

Id. at 1008. Monetary claims that do not flow from a

regulation that can fairly be interpreted as mandating

compensation are beyond the Court of Claims’

jurisdiction, even though they “may intimately involve”

an executive regulation. /d. at 1008-1009.2 “Thus,

conduct by a government servant, familiar as a classic

tort,” even though in some way involving or implicating

an executive regulation, is not within the Tucker Act

?Four of the five cases relied upon by petitioners (Pet. 12),

involved statutes or regulations mandating the payment of money.

The fifth case, Cutler-Hammer, Inc. v. United States, 441 F.2d 1179

(Ct. Cl.), was a contract case involving the question whether a

particular Treasury Department regulation constituted an offer; the

Court of Claims concluded that it did not.

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jurisdiction as a claim founded upon a regulation.

Schwartz and Jacoby, supra, §8.105.?

The regulation involved here merely provides that

individuals who have not attained their eighteenth

birthday are not eligible for assignment to a hostile fire

zone. It in no way gives an individual under 18 who is

sent to a combat zone in violation of the regulation

a right to compensation for the Army’s failure to

follow the regulation. Thus, the death of petitioners’ son

resulting from an alleged violation of the regulation by

the Army “smacks more of tort than of non-tortious

obligation.” Eastport Steamship Corp. v. United States,

supra, 372 F.2d at 1010. See also Clark v. United States,

461 F.2d 781 (Ct. Cl.), certiorari denied, 409 U.S. 1028.4

Whatever the characterization given the complaint by

petitioners, “the gravamen of the cause of action, under

normal legal theory, would be tortious as between private

3In Eastport Steamship Corp. v. United States, supra, 372 F.2d

at 1009, the Court of Claims noted that in order to determine

the limits of its jurisdiction under the Tucker Act “what one must

always ask is whether * * * the legislation [or regulation] which

the claimant cites can fairly be interpreted as mandating compensa-

tion by the Federal Government for the damage sustained. If not.

{the Court of Claims] cannot give relief under [that part of the

Tucker Act codified in 28 U.S.C. 1491], although some separate

general! principle —arising, for example, from tort law-—-might lead to

a remedy in another forum or under some special relief provision.”

4In Clark, Air Force Reservists sought compensation when the Air

Force failed to reassign them to the Standby Reserve when their

Ready Reserve Agreements expired, as the Air Force Manual

required. The Court of Claims held (461 F.2d at 783): “It is clear

that the claims of the plaintiffs sound in tort. They are based on the

violation of the above-cited regulation by the Air Force. This court

does not have jurisdiction of tort claims.”

“SE OSIRIA IER, URL E FEC ASIEN EE EID COE,

RBS EN RLS PEPE ALICE NILA BLE LOADS

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parties.” Eastport Steamship Corp. v. United States.

supra, 372 F.2d at 1013. The Court of Claims applied the

same standard here and properly dismissed petitioners’

complaint for lack of jurisdiction.®

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Ropert H. Bork,

Solicitor General.

OcTOBER 1975.

STo read the Tucker Act as a grant of jurisdiction in this kind

of case would impute to Congress an intention, in the Tucker Act.

to vest the Court of Claims with jurisdiction over the torts that it

excluded from the coverage of the Federal Tort Claims Act. such

as claims arising out of the combatant activities of the military

forces during time of war (28 U.S.C. 2680(j)) and claims arising

in a foreign country (28 U.S.C. 2680(k)). None of the cases relied

upon by petitioners (Pet. 12) suggests that Congress intended the

Tucker Act to be read in this way and none involved claims,

such as petitioners’ here, sounding in tort.

DO5J-1975-10

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