Builders Corp. v. United States (320 F.2d 425, 1963)

BARNES, Circuit Judge.

Chapter 171 of Title 28 United States Code, and specifically Section 2674 thereof, provides in material part:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * *

Section 2680(a) of Title 28 United States Code, provides certain exceptions to the liability created by the entire Chapter 171 of Title 28 United States Code. Section 2680 reads, in material part:

“The provisions of this chapter * * * shall not apply to—

“(a) Any claim * * * based upon * * * the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

By virtue of the same section (2680), if such discretionary function or duty is involved, no jurisdiction exists in the federal courts under § 1346(b) of Title 28 United States Code, to hear this claim.

The waiver of the sovereign right created by the statutes above mentioned, did not create new causes of action where none existed before, nor did it foist novel and unprecedented liabilities upon the federal government. National Mfg. Co. v. United States, 8 Cir. 1954, 210 F.2d 263, certiorari denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108.

The rule of liberality of construction, in favor of the exceptions, applies. Mid-Central Fish Co. v. United States, W.D.Mo.1953, 112 F.Supp. 792, 8 Cir. 1954, 210 F.2d 263, certiorari denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108.

The exceptions are not to be nullified through judicial interpretation, since Congress clearly delineated the areas in which it did not intend to forfeit its immunity from suit. Toledo v. United States, D.Puerto Rico 1951, 95 F.Supp. 838, Hernandez v. United States, D.Hawaii 1953, 112 F.Supp. 369.

Acts of a governmental nature were never intended to be within the scope of the liability created. Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, rehearings denied, 346 U.S. 841, 74 S.Ct. 13, 98 L.Ed. 362, 346 U.S. 880, 74 S.Ct. 117, 98 L.Ed. 386, 347 U.S. 924, 74 S.Ct. 511, 98 L.Ed. 1078; Wheeldon v. United States, N.D.Cal.1960, 184 F.Supp. 81.

With the applicable law in mind we turn to the case before us, and the specific facts involved. We find them adequately, fairly and accurately stated in the memorandum opinion of the district court. We use and adopt a large portion of such memorandum opinion in the margin.

The district court then considered the three communications between the Commanding General of the Sixth Army and the Commanding Officer of the Depot, dated January 13, 1954, April 28, 1954 and July 10, 1954, respectively (each in evidence herein as Plaintiff’s Exhibits Nos. 19, 21 and 30). The trial judge ruled the first two letters contained no direct or specific orders and were merely statements of existing and future policy. We agree. The third letter the trial judge ruled was an order which directed certain things to be done, but which did not go £0 far as to order eviction of anyone ■from their then present housing. We :need not pass on whether or not the July .10, 1954 letter was an order, in view of