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Armstrong v. United States

October 12, 1960

HENRY ARMSTRONG, ADMINISTRATOR OF THE ESTATE OF ELLA ARMSTRONG, DECEASED, PLAINTIFF, APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT, V. CARRIE HOLMES AND SARAH DUHART, THIRD-PARTY DEFENDANTS.



Author: Kalodner

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

Plaintiff, Henry Armstrong, Administrator of the Estate of Ella Armstrong, deceased, brought suit against the United States seeking payment of $1,400*fn1 which the deceased had deposited during her lifetime in the Postal Savings System. The United States filed a third-party complaint against Sarah Duhart and Carrie Holmes, sisters of the deceased, premised on their receipt of the $1,400 from the Postal Savings System. The $1,400 had been paid to Sarah pursuant to a withdrawal order*fn2 executed by the deceased during her lifetime. Sarah, it appears had given $400 of the sum which she received to Carrie.

The District Court for the Eastern District of Pennsylvania, after trial, directed entry of judgment for the United States on the merits.*fn3 The issues raised by the third-party complaint against the sisters of the deceased were declared moot. The Opinion of the District Court, making detailed Findings of Facts and stating Conclusions of Law, is reported at 171 F.Supp. 835 (D.C.E.D.Pa.1959).

Only the facts stated are critical to our disposition inasmuch as they establish that the District Court lacked jurisdiction to entertain the action against the United States and should have dismissed it for that reason.

It is true that United States in its Answer to the plaintiff's Amended Complaint admitted jurisdiction, but it is settled that the United States Attorney has no power to waive jurisdictional requirements with respect to suits against the United States or to consent to such a suit. Munro v. United States, 1938, 303 U.S. 36, 39, 58 S. Ct. 421, 82 L. Ed. 633. It is also settled, that although the jurisdictional issue has not been raised by the United States on this appeal, we must consider the statutory requirements for maintaining an action against the United States, since, as we said in Rodinciuc v. United States, 1949, 175 F.2d 479, 481, certiorari denied 338 U.S. 895, 70 S. Ct. 234, 94 L. Ed. 550:

"A clear failure to comply with the conditions laid down by statute for suits against the United States may not be waived."

Anent the foregoing the plaintiff in Paragraph 1 of his Amended Complaint averred:

"This action relates to the Postal Savings System, and jurisdiction is founded upon the existence of questions arising under provisions of Act of June 25, 1948 c 646 62 Stat. 933 as amended, 28 U.S.C.A. 1346 (a) known as the Tucker Act, and under provisions of Act of August 24, 1912, c 389 Par. 10, 37 Stat. 559, 39 U.S.C.A. 768, and the Postal Laws and Regulations."

In Para. 3 of his Amended Complaint plaintiff averred:

"The Defendant is the United States of America acting at the times complained of by and through the Postal Savings System of the United States Post Office Department, a duly authorized and properly constituted Executive Department of said Defendant." (Emphasis supplied.)

The United States in its Answer stated in its "Second Defense":

"The United States of America admits the allegations contained in ...


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