United States v. Shafter

PER CURIAM.

Although we affirmed this case in open court we believe it advisable briefly to set forth our reasons.

We have jurisdiction to hear this appeal on two alternate grounds: (1) on the assumption that the application before the lower court may be treated as one for intervention as of right, and (2) that the proper evidence of substitution of attorneys and representatives, though not before Judge Mansfield at the time of his opinion, has been subsequently filed.

Upon the merits, we affirm on Judge Mansfield’s thorough opinion, reported at 49 F.R.D. 164 (1969). We believe that the wrongful death and personal injury counterclaim was covered by the NATO-SOFA agreement, and thus not within the jurisdiction of the District Court.1 See Shafter v. United States, 273 F.Supp. 152, 153-156 (S.D.N.Y.1967), aff'd per curiam, 400 F.2d 584 (2d Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 871, 21 L.Ed.2d 779 (1969).

1 Appellant appears to have abandoned his counterclaim for lost business; in any case he does not urge that we review that portion of the judgment on appeal.