Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COBB v. UNITED STATES

April 22, 1965

P. COBB AND OSRO COBB, PLAINTIFFS,
v.
UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

There is before the court a motion filed by defendant March 31, 1965, to dismiss for lack of jurisdiction to adjudicate the instant controversy.

In passing on the motion the court has considered the allegations of the complaint, brief submitted by defendant in support of the motion to dismiss and the brief submitted by plaintiffs in opposition to the motion, together with the Mineral Lease that was executed March 1, 1953, by the plaintiff P. Cobb and the Director, Bureau of Land Management, Assistant Chief, Division of Minerals, on behalf of and for the United States of America.

On December 30, 1964, in the U.S. District Court, Eastern District of Arkansas, plaintiffs obtained a judgment for specific enforcement of their contract with National Lead. Prior to January 1962 plaintiffs had advised the Bureau of Land Management of their difficulties with National Lead and the impending court action for specific performance and asked that agency for suspension of the minimum royalties pending disposition of the litigation. There has been no production of the ore from the property subject to the lease, and the plaintiffs alleged that the failure to produce during the interval involved in their litigation with National Lead in no way adversely affected the interest of the United States. Prior to the execution of their lease with the United States, plaintiffs placed upon deposit a U.S. Government bond in the face amount of $1,000 to guarantee their obligations under the lease. Defendant United States, through the Bureau of Land Management, Department of Interior, declined to suspend the rentals, and the plaintiffs have been billed for rentals, as follows: $300.00 per year from March 1, 1961, to February 28, 1965, or a total of $1,200.00. Plaintiffs, however, admit rental of $300 due the United States for that period from March 1, 1961, to February 28, 1962.

It is further alleged as an additional ground of jurisdiction that the action of the governmental agency in denying plaintiffs' application for suspension of rentals was "arbitrary in character and offensive to the provisions of the lease agreement when construed as a whole." The complaint concludes with a prayer asking that the government bond be impounded and sold, and an order fixing the rentals due in the sum of $300, same to be paid out of the proceeds of the sale of said bond, with remainder to the plaintiffs.

The plaintiffs contend that jurisdiction is granted by the Tucker Act, 28 U.S.C. § 1346(a)(2), which provides that the District Court shall have original jurisdiction, concurrent with the Court of Claims, of "any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation 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."

The defendant contends that the consent of the Government to be sued under the Tucker Act is limited to suits for recovery of a money judgment and any incidental relief in equity in aid of such judgment, citing Blanc v. United States, (2 Cir. 1957) 244 F.2d 708. The defendant also contends that the Declaratory Judgment Act, 28 U.S.C. § 2201, 2202, does not give jurisdictional support to the plaintiffs' claim as the Declaratory Judgment Act does not enlarge the jurisdiction of the District Court, citing Skelly Oil Co. v. Phillips, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194, and Wells v. United States, (9 Cir. 1960) 280 F.2d 275.

As the court views the instant record the issues presented are thus: (a) whether the United States, by virtue of the Constitution or statute, has consented to such suit; (b) whether the instant controversy seeks the recovery of a money judgment; or (c) whether the action by the Governmental agency involved is subject to judicial review.

In Blanc v. United States, supra, the plaintiff brought an action to review a decision denying death benefits under the Federal Employees' Compensation Act. The District Court dismissed the suit after the appropriate administrative board denied the widow's claim. The Court of Appeals affirmed on the ground that no cause of action was stated under the Tucker Act, 28 U.S.C. § 1346(a)(2), and further that the court could not judicially review the administrative decision under Section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, because judicial review of that type of claim was expressly prohibited by the statute under which the benefits were claimed.

The defendant relies heavily upon Wells v. United States, (9 Cir. 1960) 280 F.2d 275, which states that the Declaratory Judgment Act does not in itself create jurisdiction but merely adds an additional remedy where the District Court already has jurisdiction to entertain the suit. In its brief the defendant quotes from page 277 as follows:

    "The Declaratory Judgment Act, 28 U.S.C.A. § 2201,
  upon which appellant relies as the basis for the
  relief sought herein, provides as follows:
      "`In a case of actual controversy within its
    jurisdiction, except with respect to Federal taxes,
    any court of the United States, upon the filing of
    an appropriate pleading, may declare the rights and
    other legal relations of any interested party
    seeking such declaration, whether or not further
    relief is or could be sought. Any such declaration
    shall have the force and effect of a final judgment
    or decree and shall be reviewable as such.'
  "It is well settled, however, that said Act does not
  of itself create jurisdiction; it merely adds an
  additional remedy where the district court already
  has jurisdiction to entertain the suit. See Brownell
  v. Ketcham Wire & Manufacturing Co., 9 Cir., 1954,
  211 F.2d 121. It is appellant's theory that the
  Tucker Act, 28 U.S.C.A. § 1346(a)(2), authorizes the
  present suit against the United States. That Act in
  relevant part reads:
    "`(a) The district courts shall have original
    jurisdiction, concurrent with the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.