Melo-Tone Vending, Inc. v. United States, 666 F.2d 687, 1st Cir. (1981)
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Scribd Government DocsMelo-Tone Vending, Inc. v. United States, 666 F.2d 687, 1st Cir. (1981)
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Scribd Government Docs666 F.
2d 687
MELO-TONE VENDING, INC., Plaintiff, Appellant,
v.
UNITED STATES of America, Defendant, Appellee.
No. 81-1280.
United States Court of Appeals,
First Circuit.
Argued Sept. 18, 1981.
Decided Dec. 4, 1981.
1
Ira H. Zaleznik, Boston, Mass., with whom Lappin, Rosen, Goldberg, Slavet,
Levenson & Wekstein, Boston, Mass., was on brief, for plaintiff, appellant.
Charles K. Mone, Asst. U. S. Atty., Boston, Mass., with whom Edward F.
Harrington, U. S. Atty., Boston, Mass., was on brief, for defendant, appellee.
Before BOWNES and BREYER, Circuit Judges, MURRAY, Senior District
Judge.*
FRANK J. MURRAY, Senior District Judge.
Plaintiff appeals from the district court's dismissal of its complaint. The action
was brought to recover $5854.88 (and interest thereon) for the value of property
allegedly taken from plaintiff by the United States without payment of just
compensation. Jurisdiction of the district court is asserted under 28 U.S.C.
1346(a)(2) (United States as defendant).1
The complaint, in substance, alleges that plaintiff made a loan of $5,000 to one
Peter Aver on Aver's promissory note, dated March 12, 1978, to repay the loan
in monthly installments; that subsequently Aver, apparently claiming to have
been involved in bribery transactions, agreed to furnish evidence of criminal
activity of other persons to the United States Department of Justice, which, in
exchange for such evidence, enrolled Aver in the "witness protection program" 2
to provide security to Aver as a needed witness; that the Department of Justice
has sought to conceal Aver's identity and whereabouts by assigning him a new
name and means of identification and locating him in a new home and job; that
Aver's whereabouts are unknown to plaintiff and others and "are purposefully
kept unknown through the Witness Protection Program"; that by such means of
concealment the United States has deprived plaintiff of its right to enforce
repayment of the loan under the terms of Aver's note; that defendant "has
neither condemned" plaintiff's property right "nor has it paid just
compensation" to plaintiff; that defendant has deprived plaintiff "of property
without due process of law,... in violation of the Fifth Amendment of the
Constitution of the United States".
7
Defendant moved to dismiss the complaint for lack of jurisdiction over the
subject matter, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon
which relief can be granted, Rule 12(b)(6). The district court granted the
motion to dismiss for lack of subject matter jurisdiction. Plaintiff contends the
district court erred in finding jurisdiction lacking, and argues that the complaint
states a sufficient claim for relief. Our task because of the present posture of
the case is necessarily limited to determining whether upon the complaint,
which should be construed most favorably to the pleader, the plaintiff is
entitled to have the claim judicially resolved.
Jurisdiction is conferred by 28 U.S.C. 1346(a)(2) on the district court over an
action brought for just compensation when property is taken by eminent
domain. United States v. Dow, 357 U.S. 17, 21, 78 S.Ct. 1039, 1044, 2 L.Ed.2d
1109 (1958); United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382,
1384, 91 L.Ed. 1789 (1947); Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267,
269, 76 L.Ed. 637 (1932). If the claim alleged in a complaint is wholly
frivolous or insubstantial, it may, of course, be dismissed for lack of
jurisdiction. For present purposes, however, where the defendant has moved for
dismissal of the complaint on the additional ground of failure to state a claim
upon which relief can be granted, "we follow ... the accepted rule that a
complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief". Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Scheuer v. Rhodes, 416 U.S. 232, 236,
94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Ferranti v. Moran, 618 F.2d 888,
890 (1st Cir. 1980); Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976);
Walgren v. Howes, 482 F.2d 95, 99 (1st Cir. 1973); Ballou v. General Electric
Co., 393 F.2d 398, 399 (1st Cir. 1968), cert. denied, 401 U.S. 1009, 91 S.Ct.
1253, 28 L.Ed.2d 545 (1971). Ordinarily the determination of whether the
harmful consequences of governmental action require just compensation
depends upon the peculiar facts and circumstances of each case. United States
v. Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228,
rehearing denied, 358 U.S. 858, 79 S.Ct. 9, 3 L.Ed.2d 91 (1958); United States
v. Caltex, Inc., 344 U.S. 149, 156, 73 S.Ct. 200, 203, 97 L.Ed. 157 (1952);
United States v. Commodities Trading Corp., 339 U.S. 121, 123, 70 S.Ct. 547,
549, 94 L.Ed. 707 (1950). Accordingly, we proceed to analyze the complaint
and the arguments of the plaintiff offered in support of its contention that the
complaint states a claim upon which relief may be granted.
9
The property of which plaintiff is allegedly deprived by defendant is its "right
to collect and enforce repayment of its loan under the terms of the promissory
note". (Complaint para. 8). Neither from the complaint as a whole nor from
plaintiff's arguments do we reach the conclusion that defendant made a taking,
or actually deprived plaintiff, of the note itself. According to plaintiff's brief,
the note remains in plaintiff's possession and under its control. (Brief for
Plaintiff at 17). That fact is consistent with the allegation that there has been no
condemnation of plaintiff's property (Complaint para. 9), and with the absence
of any allegation or claim that defendant has appropriated plaintiff's rights as
payee or holder of the note. Moreover, no claim is made that the statutory
witness protection program or any regulation has temporarily or permanently
denied plaintiff access to the courts to seek "to collect and enforce repayment of
its loan under the terms of the promissory note". The gravamen of the
complaint is that because Aver's whereabouts are unknown, due to the witness
protection program, plaintiff cannot find Aver and is thereby delayed and
frustrated in its attempt to collect the debt owed by Aver.
10
No contention is made that Aver's enrollment in the witness protection program
was not pursuant to lawful governmental action. It is neither alleged nor argued
that the exercise of governmental power in implementing the witness protection
program in this instance was with the intent and purpose of extinguishing
Aver's debt to plaintiff. It is argued, however, that the program constitutes a
"direct and foreseeable interference" with plaintiff's property right "to the use
and for the benefit of the United States". We are not persuaded by this
argument, first, because, as plaintiff concedes, the defendant has not
condemned plaintiff's property right in Aver's debt, and, secondly, the
governmental action here was not directed at or toward the plaintiff's property
right, and any interference with that right, the evidence of which plaintiff still
retains, is at most an indirect consequence of the exercise of lawful
governmental power. Omnia Commercial Co. v. United States, 261 U.S. 502,
510, 43 S.Ct. 437, 438, 67 L.Ed. 773 (1923); Legal Tender Cases, 12 Wall. 457,
551, 79 U.S. 457, 551, 20 L.Ed. 287 (1870).
11
Not every governmental act which interferes with, impairs, or ultimately
destroys property rights constitutes a taking of property for which compensation
is due under the fifth amendment. Penn Central Transp. Co. v. New York City,
438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Omnia Commercial Co.
v. United States, supra, 261 U.S. at 508-10, 43 S.Ct. at 437-38. In this instance,
all that defendant has done is to exercise power to provide for the security of
Aver under the congressionally authorized witness protection program "for as
long as the Attorney General determines (that) jeopardy to his life or person
continues". See note 2, supra at 688. It is clear from the nature, purposes and
objectives of that program that the authorized governmental power is not the
power of eminent domain. We recognize it is not unlikely that the
consequential effect of governmental action in carrying out the program may be
to delay, or make inconvenient or difficult, plaintiff's enforcement of Aver's
financial obligations while he continues in the program. However, the
interference here with plaintiff's right to collect and enforce payment of the
note cannot be characterized as a taking of its property.
12
Neither do the provisions of 28 U.S.C. 1346(a)(2) create any enforceable
right against the United States for money damages for loss of, or injury to,
property resulting from lawful governmental actions under the witness
protection program; the statute itself is only a jurisdictional statute. United
States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1352, 63 L.Ed.2d 607
(1980). We have not been referred to any federal statute which can be fairly
interpreted as mandating compensation by the Federal Government for injury
or loss resulting from the lawful administration of the program. "In a suit
against the United States, there cannot be a right to money damages without a
waiver of sovereign immunity ...", United States v. Testan, 424 U.S. 392, 400,
96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976), and waiver of immunity must be
"unequivocally expressed", United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501,
1503, 23 L.Ed.2d 52 (1969). We conclude that plaintiff can prove no
combination of facts in support of its complaint which would entitle it to relief,
and that the complaint was properly dismissed in the district court.
13
AFFIRMED.
Of the District of Massachusetts, sitting by designation
In pertinent part, 28 U.S.C. 1346(a)(2) provides:
(a) The district courts shall have original jurisdiction, concurrent with the Court
of Claims, of:
(2) (a)ny ... 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,....
2
Title V of the Organized Crime Control Act of 1970 in pertinent part provides:
Sec. 501. The Attorney General of the United States is authorized to provide
for the security of Government witnesses, potential Government witnesses, and
the families of Government witnesses and potential witnesses in legal
proceedings against any person alleged to have participated in an organized
criminal activity.
Sec. 502. The Attorney General of the United States is authorized to rent,
purchase, modify, or remodel protected housing facilities and to otherwise offer
to provide for the health, safety, and welfare of witnesses and persons intended
to be called as Government witnesses, and the families of witnesses and persons
intended to be called as Government witnesses in legal proceedings instituted
against any person alleged to have participated in an organized criminal activity
whenever, in his judgment, testimony from, or a willingness to testify by, such a
witness would place his life or person, or the life or person of a member of his
family or household, in jeopardy. Any person availing himself of an offer by
the Attorney General to use such facilities may continue to use such facilities
for as long as the Attorney General determines the jeopardy to his life or person
continues.
Pub.L.No. 91-452, 84 Stat. 922, reprinted in (1970) U.S.Code Cong. &
Ad.News 1086-87.
