Hillier v. Southern Towing Co.

NICHOLS, Circuit Judge, with whom COFFEY, Circuit Judge,

joins, concurring.

I have elected to join in Judge Posner’s able opinion because I think its analysis is correct though giving the appellants the benefit of some very dubious postulates. It deals with issues that are jurisdictional. The consent of Congress to waive sovereign immunity and subject the treasury to money liability “cannot be implied but must be unequivocally expressed.” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) and by the same authority, limitations on consent define the jurisdiction of the court to entertain the suit. On the other hand, though the consent cannot be implied, limitations on the consent can be. Thus in United States v. Erika, Inc., 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982), limitation on the right of a Medicare B provider to sue over a dispute about cost reimbursement is implied from the completeness of provision for judicial review for Medicare A decisions, in juxtaposition to the absence of such provision for Medicare B.

*725I take it that the Feres doctrine is an example of such implied limits on consent. The parties have briefed and argued the Feres doctrine and are entitled to know how we view it. But in my view, there is a shorter and better marked path to the same conclusion. Probably the public interest in the publication of judicial opinions is in this particular case best served by the publication of both our opinions, though at the intermediate appellate level this is more usually not so.

I think whenever a money liability is asserted against the United States that is in any way novel, as the claim is here and as the Medicare B issue was in Erika, the parties and the courts ought to deal with first things first, and the first thing is the statute, here, the Suits in Admiralty Act, 46 U.S.C. § 742, that is alleged to consent to the suit. The parties and the court in my view approach the house back door first, and fail to take a really hard look at the thing they encounter first and take for granted, at the front door, the threshold issue, the meaning of that statute. In my view, the district court lacked jurisdiction of the third party complaint because the claim asserted is unconsented for other reasons besides the Feres doctrine.

The court correctly points out that such jurisdiction exists, if at all, by virtue of the 1960 amendments to the Suits in Admiralty Act, 46 U.S.C. § 742. These amendments were part of Pub.L. No. 86-770, Act of Sept. 13,1960, 74 Stat. 912. Section 3 is the controlling section, but sections 1 and 2 provide a useful context for consideration by “noscitur a sociis.” They authorized the transfer of “misfiled” cases if “in the interest of Justice,” whenever a case in the exclusive jurisdiction of the Court of Claims is filed in a district court, and vice versa. Section 3 amended the first sentence of section 2, Act of March 9, 1920 (46 U.S.C. § 742) to read as follows:

In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States or against any corporation mentioned in section 1 of this Act. [I.e., any government corporation, the reference was to the Emergency Fleet Corp. of World War I fame.]

Before turning, as we must, to the legislative history to ascertain what was intended, it is helpful to go briefly over a bit of prior history. Obviously, as appears from sections 1 and 2, misfiling of (admiralty) (contract) claims against the United States was the problem. The Tucker Act of March 3, 1887, 24 Stat. 505, had granted consent to suits against the United States on “contracts express or implied” and various other categories of nontort claims—

[I]n respect of which claim 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.

Thus, that court entertained admiralty claims sounding in contract, e.g., Alaska Exploration Co. v. United States, 44 Ct.Cl. 392 (1909), a claim for salvaging a government steamer. The 1920 Suits in Admiralty Act, now 46 U.S.C. § 741 and ff, was at first not taken as ousting the Court of Claims, thus we find there similar claims after 1920. Bull Insular S.S. Co. v. United States, 62 Ct.Cl. 338 (1926). However, in Matson Navigation Co. v. United States, 284 U.S. 352, 52 S.Ct. 162, 76 L.Ed. 336 (1931), the Court, affirming a decision below on other grounds, held that the Court of Claims was ousted of jurisdiction by the Suits in Admiralty Act in any case where that Act conferred jurisdiction on the district courts. This was obviously unforeseen and not prepared for in the legislation construed. It has generally remained the law, and the reference to admiralty is no longer found in the present day Tucker Act, 28 U.S.C. § 1491. It remained true, however, that the Suits in Admiralty Act did not describe all possible maritime claims (nor does it yet) and many, if sounding in contract, still lay in the Court of Claims, and others died as unconsented to anywhere. There was much uncertainty where to sue *726and a wrong choice might mean death to the claim.

The Admiralty bar in 1960 proposed the first two sections of Pub.L. No. 86-770 as a remedy, and this was all the original House-passed bill provided. The legislative history (2 U.S.Code Cong. & Ad.Serv. (1960) 3583 and ff) shows, however, that the Commerce Department (with concurrence of the Justice Department) reported to the Senate that sections 1 and 2, if that were to be all, were the aspirin for the man with cancer. Sending misfiled cases to the right court would solve only part of the problem and make other parts worse. There were uncertainties as to jurisdiction the bill would not answer. Sections 1 and 2 should clarify that transfer should be allowable only if the misfiling was excusable, and if a case was transferred after limitations had run in the court in which filed, still limitations should not have run if the date of the original filing satisfied the law of the court to which transferred. This alluded to the disparity in limitations periods, 6 years under the Tucker Act and only two for the Suits in Admiralty Act, then and today a direful trap for the unwary. But the problem also required an amendment to “clarify the jurisdiction of the district courts.” The “present language * * * has given rise to judicial problems which involve questions of jurisdiction and uncertainties as to the proper forum about which proponents of the bill complain.” They proposed added language substantially the same as section 3 as enacted.

The Senate Committee, having accepted this idea, says the purpose of section 3 is to “prevent the repetition of misfilings in the future. It restates * * * the now existing exclusive jurisdiction conferred on the district courts * * *.” It gives in its report horrible examples of judicial decisions under the then law. They are of special interest as showing what the Committee intended the new law should not be. Ryan Stevedoring Co. v. United States, 175 F.2d 490 (2d Cir.1949) involved an effort to hold the government liable for an inflammable and explosive liquid in drums, consigned to Russia, awaiting loading on a pier, and caused to burn by a careless stevedore. The fire spread to the lighter of the original libelant, alongside the pier; it sued the stevedore, who sought to implead the United States. Held, the then Suits in Admiralty Act did not apply because the dangerous drums were not yet “cargo” under the Act. It was noted that the claim sounded in tort and would have been maintainable under the Tort Claims Act if that law’s original effective date had not postdated that of the tort, 1944. A government contract to indemnify the stevedore for liability over $250,000 might be enforceable under the Tucker Act, but was speculative until the stevedore’s liability to the lighterman and others were definitely established.

Continental Casualty Co. v. United States, 140 Ct.Cl. 500, 156 F.Supp. 942 (Ct. Cl.1957) also marches in the parade of horribles. This was under a contract to repair laid up merchant vessels. The Court of Claims held it had jurisdiction over this traditional class of admiralty litigation because the Suits in Admiralty Act, as then worded, applied only to an involved vessel “employed as a merchant vessel,” and being laid up the ships were not so employed. The case might not seem so horrible to some, as the Court of Claims was able to afford complete relief, but it appeared horrible to minds imbued with the idea that the Court of Claims ought not to be meddling in any admiralty jurisprudence.

The new language adds to cases where government vessels or cargo are involved, cases—

[I]f a private person or property were involved, a proceeding in admiralty could be maintained.

The purpose thus was to “prevent misfilings” and, apparently, to correct misconstructions of congressional intent. The language can easily be read as applying to a case where the government involvement is of the same nature as the possible involvement of a private person or property. It would thus naturally extend to government commercial involvement as a shipper such as that in the Ryan case, supra. But a *727private person could not be involved as a government inspector is involved. A private person cannot by definition be involved in that manner; if he is, he is not a private person. To extend the language to an inspector is to read the word “private” out of the statute. Of course this is not the only possible reading of the language, but it is the reading most consistent with the legislative history. It is clear from the report that the main thrust of the amendment was to get into the admiralty court exclusively claims that had been consented to in some other court, or under some other kind of procedures: Tucker Act or Tort Claims Act cases.

Anyone who has followed legislation to enlarge the scope of the government’s consents to be sued knows that the traditional and usual stance of the government’s law officers is to recommend against any enlargement. This is natural since the gaps and lacunae in existing consents are the means of winning a good many cases, and it is hard to view them as evils to be corrected. Here, however, section 3 was actually recommended by these officers speaking through the Secretary of Commerce. It would be most surprising if they were aware they were agreeing to enlarge the scope of consent, and still more remarkable if neither they nor the committee thought fit to mention the fact. Most likely they thought the main impact would be to shorten the time for bringing suit.

In Amell v. United States, 384 U.S. 158, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966), the Court considered the impact of the 1960 amendments on wage claims against the government by civilian seamen employed in noncombat government vessels such as the Military Sea Transport Service. The Court of Claims dismissed the petitions on the ground that the class of claims was within the exclusive jurisdiction of the district courts under the Suits in Admiralty Act. As the petitions were filed more than 2 years after accrual of the claims, they could not be transferred and must have died. The Supreme Court reversed, saying that Congress conceived of the claimants—

[M]ore as government employees who happened to be seamen than as seamen who by chance worked for the Government.

[Id. at 163, 86 S.Ct. at 1387.]

Discussing the 1960 amendments more specifically, the Court said—

The Government would have us believe that this oblique reference to private “persons” was designed to make inroads on the right of government employees to sue in the Court of Claims. We reject this argument. The legislative history surrounding this enactment contains no discussion whatever concerning claims brought by government-employed seamen. This is highly significant because of the active interest in nautical legislation generally taken by the maritime labor unions. If Congress had meant to lower the limitations period from six to two years, surely these unions would have been privy to the decision; this is all the more true when one considers that seamen are often stationed far away from their home ports and need a lengthy period in which to register their claims. If they were governed by the maritime Act, they would be required not only to sue but to exhaust administrative remedies as well within the shorter period, 46 U.S.C. § 745 (1964 ed.).

[Id. at 165, 86 S.Ct. at 1388.]

This case is not entirely on point here, inasmuch as the effect of the Suits in Admiralty Act is determined in a wholly different class of case. However, it is on point so far as it teaches hesitation in construing the Act so as to interfere with or modify the legal relationship of the government with its own employees. Surely there could be no more traditional subject of admiralty jurisdiction than the wage claims of seamen. In that regard the case falls right in with the doctrine that the relationship between the government and its own employees is governed by law peculiar to that situation and not by general employer-employee law. The very able dissent by Justice Harlan points out correctly that as construction of admiralty law, and of the Suits *728in Admiralty Act, the decision and its result are anomalous. It is also, I believe, the only instance when the former Court of Claims was ever reversed by the Supreme Court on account of having construed its own subject matter jurisdiction too narrowly-

Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963) deals with a 1955 collision between a United States “public vessel” and Weyerhaeuser’s. It was not directly subject to the Suits in Admiralty Act, but rather to the Public Vessels Act, 46 U.S.C. § 781 and ff, to which an amendment such as we are here concerned with was not made and which came 5 years after the collision. Therefore, the holding does not construe it, and the liability of the United States did not depend on the 1960 amendments. It resulted from a collision for which the United States shared the fault. The only question was whether the measure of damages included Weyerhaeuser’s payments to Mr. Ostrom, a United States civil servant, who was covered by and had been compensated by the Federal Employees Compensation Act. If Mr. Ostrom had been a Coast Guard officer, the result might have been the same, and yet in no way have called into question the conclusion I urge which is simply that the United States did not, by the 1960 amendments to the Suits in Admiralty Act, consent to be sued on the type of claim at issue here. The consent in Weyerhaeuser was undoubted and never denied.

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270 (2d Cir.1968) is the only case referred to by the court or known to me where the injured government employee was an inspector, an immigrant inspector, a civilian, in that case. Injured while on board ship, he sued the owners, who filed a third party complaint against the United States, alleging its “active negligence and breach.” The United States got itself dismissed upon its summary judgment motion. It does not appear the shipowner relied on the 1960 amendments and the citations of statutes relied on by it appear inapposite. The dismissal is based on three grounds: (1) there must be some foundation in the law of tort or contract for the government to be thus impleaded; (2) the shipowner on summary judgment failed to disclose any legal or factual basis for tort liability as under Fed.R.Civ.P. 56 it must; and (3) there is in the authority and duties of an immigrant inspector no basis for any express or implied contract between the shipowner and the government. I would have asked where was the waiver of sovereign immunity and consent to suit? The Second Circuit did not expressly pose that question, but I deem it was asked by implication and indirectly. The result reached is clearly correct, and I point particularly to the stress laid by that court upon the statutory authority by which the inspector was performing his duties on shipboard: law making his case entirely unlike that of, e.g., a passenger, or a longshoreman, or of course anyone employed by the vessel. The case certainly stands as authority that there is no special mystique of admiralty law to make the government liable to shipowners to indemnify or contribute to their liability for their negligence, if government liability is not founded upon recognized principles of tort or contract law.

I do not think any of the other cases cited by the court require notice in connection with analysis of the consent to suit problems.

Schwartz may be read with Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967). That was a claim for damages suffered by loss of a favorable opportunity to sell a ship to a foreign buyer. The statute required a license by the Maritime Commission and the Commission held up the license until the opportunity had passed, because it was effectuating a scheme ultimately held illegal, to exact money payments for granting such licenses. The claim was viewed as a loser as a tort claim, because of the discretionary function exception. As a claim founded on statute, it failed because the statute requiring such license did not say expressly as by necessary implication that a monetary liability was accepted for failure to grant licenses when they should be granted. It could not “fairly *729be interpreted as mandating compensation for the damage sustained.” Thus, it is clear that there are many acts of misgovernment, causing pecuniary injury to others, that are not consented to either under the Tort Claims Act, 28 U.S.C. §§ 1346, 2680, or as nontort or contract claims under the Tucker Act, 28 U.S.C. § 1491, and therefore are outside the normal nonmaritime jurisdiction of all federal courts. The Eastport opinion has long been recognized as leading in its field, being cited with approval, e.g., United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). See also City of Manassas Park v. United States, 224 Ct.Cl. 515, 633 F.2d 181 (1980). There exists, therefore, a category of injuries by misgovernment, of which Eastport is typical, for which the Congress has never consented to make the United States liable in money, still less has conferred subject matter jurisdiction upon any court to entertain suits for recovery of such money. I believe the injury the government is alleged to have inflicted upon Southern Towing is in that class. Testan teaches all federal courts that they must consider these matters whenever asked to consider the possibility of a novel type of liability.

As stated in Testan, 424 U.S. at 399, 96 S.Ct. at 953, the substantive liability of the United States “cannot be implied but must be unequivocally expressed.” I think it is not too much to say, as a rule of thumb, if the court, having a money claim against the government before it, is in bona fide doubt whether the suit is a consented one, then it is not consented and the court therefore lacks jurisdiction.

Certainly, therefore, a summary judgment motion by the government, as here, throws upon the claimant a burden to disclose the facts upon which he relies, and the manner in which the Congress has consented to the suit. Here all we have is a bald unexplained reference to a statute, the Suits in Admiralty Act, 46 U.S.C. § 742, which is vaguely worded and most probably never was intended to be put to the use the claimant proposes. If it is a consent to pay a claim for sending an untrained and ill-equipped inspector on board a ship — a claim not by the inspector but by the vessel owner — it is not so “unequivocally,” and is so only by implication, which is not enough. I do not think the court is required to or should speculate on the possible existence of some doctrine under which the suit could be maintained. On summary judgment, the claimant must disclose an adequate basis for his suit, or he is finished. Here he disclosed nothing that was pertinent. Any cases where the government, as in Weyerhaeuser, was before the court by unchallengeable consent, is entirely different and is in no way a controlling precedent. I do not, therefore, make the result turn on whether the inspector was a civilian or a member of the armed forces, any more than on whether the injury to him was committed on the water or on land.