The opinion of the court was delivered by: JONES
This civil action, along with several others which have been consolidated with it before this Court, arises from the civil disturbances which followed the assassination of Dr. Martin Luther King in April, 1968. Plaintiff, a corporation primarily engaged in writing and issuing fire, extended coverage and other policies of insurance, paid claims to several of its insureds as a result of riot damage and is consequently subrogated to those claims which it asserts in this case. Defendants are The United States of America; The District of Columbia; Walter E. Washington, Commissioner of the District of Columbia; John B. Layton, who at the time in question was Chief of the Metropolitan Police Department of the District of Columbia; John Doe, Mary Doe, Richard Roe and Mary Roe, unknown citizens of the United States and residents of the District of Columbia.
The jurisdiction of this Court is invoked under 28 U.S.C. §§ 1343, 1346(a)(2), 1346(b), 2671 et seq., (1970) and D.C. Code § 11-521 (1967 ed.). Defendant United States of America has moved to dismiss the action for failure to state a claim upon which relief can be granted or in the alternative for summary judgment; defendants District of Columbia, Walter E. Washington, and John B. Layton have moved to dismiss for failure to state a claim upon which relief can be granted.
Plaintiff's complaint in several counts alleges essentially that the United States and the District of Columbia were negligent in their preparation and implementation of plans to suppress any riot or civil disturbance in the District of Columbia, and that their delay in sending in police and troops and their failure to assign forces properly constituted negligence and a taking of plaintiff's property* under the Fifth Amendment as well as a denial of the equal protection of the laws. Plaintiff bases its cause of action against the United States, the District of Columbia and the named officials of the District of Columbia on the following grounds: (1) violation of 42 U.S.C. § 1983 (1970); (2) violation of the Fifth and Fourteenth Amendments to the United States Constitution in that defendants' actions constituted a taking of its property for public use without just compensation and a denial of due process and of the equal protection of the laws; and (3) violation of a common law duty to protect plaintiff's property and to compensate it for losses resulting from civil disorders.
Claims Against the United States
In Count I of its complaint, plaintiff alleges that during twelve days of civil disorders in April, 1968, "all Defendants deprived Plaintiff's subrogors of their rights, privileges and immunities secured by the Constitution and laws in violation of 42 U.S.C. § 1983, and are liable for redress of damages therefor." By its terms, however, 42 U.S.C. § 1983 (1970) is inapplicable in suits against the United States.
That statute provides a remedy against persons acting under color of state authority and does not provide redress against the United States. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1967); Davis v. United States, 439 F.2d 1118 (8th Cir. 1971); Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S. Ct. 1345, 14 L. Ed. 2d 274 (1965); Broome v. Simon, 255 F. Supp. 434, 440 (E.D. La. 1966).
Counts II and VIII of plaintiff's complaint allege a violation by the United States of the Fifth and Fourteenth Amendments on the ground that the actions taken by the United States during the civil disorders in the District of Columbia constituted a taking of plaintiff's property for public use without just compensation and a denial of due process and of the equal protection of the laws. Each of those allegations will be examined separately.
The equal protection clause of the Fourteenth Amendment applies only to discriminatory state action and not to actions taken by the United States (or the District of Columbia), which are governed by the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954). Although plaintiff's complaint alleges a denial of due process as well as a denial of the equal protection of the laws, its claim of a denial of due process arises from its claim that the actions of the United States constituted a taking of plaintiff's property for public use without just compensation. That is the force of the allegation in Count VIII of plaintiff's complaint, which states that:
The defendants, United States of America and the District of Columbia, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, did effectively take the property of plaintiff's subrogors for public use without just compensation and did deprive them of real and personal property without due process of law.
In Part V of plaintiff's memorandum in opposition to the motion of the United States to dismiss or in the alternative for summary judgment, plaintiff contends that:
". . . defendant's failure to protect, and its deliberately not protecting, the insureds' properties and businesses in accordance with its legal duty to do so, deprived the insureds of their property without due process of law and, in contrast to cases in which the defendant, on the same or on other occasions, effectively acted to protect private property, deprived the insureds also of their right to equal protection of the laws, all in violation of the Fifth and Fourteenth Amendments to the Constitution." Plaintiff's Memorandum at 43-44.
But such a claim of denial of due process and of equal protection of the laws is actually founded on some "negligent or wrongful act or omission," 28 U.S.C. § 2671 (1970), which gives rise to a cause of action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1970), and again a constitutional claim based on the same matter is superfluous.
Plaintiff contends nevertheless that "the due process and equal protection clauses define substantive rights in that they measure defendant's constitutional duties, and that plaintiff has a cause of action to recover damages for defendant's violation of these 'federally protected rights' by virtue of the jurisdictional statutes cited in the complaint, namely, Title 28, United States Code, Section 1346(a) and Section 1346(b) . . . ('negligent or wrongful act or omission')." Plaintiff's Memorandum at 44.
Again plaintiff links its constitutional claims to recognized causes of action authorized by Congress in 28 U.S.C. §§ 1346(a)(2) and 1346(b) (1970). Plaintiff, however, reads into 28 U.S.C. § 1346(a)(2) a cause of action against the United States for damages based on the violation of any constitutional provision.
In light of that position and in light of this Court's finding, set out more fully below, that the plaintiff has not shown a taking of its property by the United States without just compensation and that the plaintiff's claim under the Federal Tort Claims Act must fail by reason of the discretionary function exception under 28 U.S.C. § 2680(a) (1970), it should be made clear that plaintiff under the circumstances of this case has no independent cause of action for damages against the United States based upon a claim of violation of the due process and equal protection clauses of the Constitution.
A suit to recover damages suffered as a result of a denial of a constitutional guarantee can be brought against the United States only if a cause of action has been created by Congress. Because the sovereign is immune from suit absent its consent to suit, federal jurisdiction is lacking in suits not based upon a Congressionally created cause of action. As the court stated in Laycock v. United States, 230 F.2d 848 (9th Cir.), cert. denied, 351 U.S. 964, 76 S. Ct. 1028, 100 L. Ed. 1484 (1956):
"It is axiomatic that: 'Consent alone gives jurisdiction to adjudge against a sovereign.' . . . This is so, even in cases grounded upon alleged violations by the Government of Federal constitutional rights." Schillinger v. United States, 155 U.S. 163, 168, 15 S. Ct. 85, 39 L. Ed. 108 (1894). 230 F.2d at 850.
Cf. Bell v. Hood, 71 F. Supp. 813 (S.D. Cal. 1947), on remand from 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); United States v. Faneca, 332 F.2d 872 (5th Cir.), cert. denied, 380 U.S. 971, 85 S. Ct. 1327, 14 L. Ed. 2d 268 (1964); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 409 F.2d 718 (2d Cir. 1969), rev'd 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
In Bivens, supra, the Supreme Court recently held that federal courts have the power, even in the absence of a federal statute specifically authorizing such a cause of action, to award damages to an individual in a suit against federal agents based upon a violation of the Fourth Amendment's restriction against unreasonable searches and seizures. Because the Court of Appeals had not ruled on the question of immunity of the federal agents from liability by virtue of their official position, the Supreme Court did not reach that question. On remand, the Court of Appeals held that federal agents enjoy no official immunity from suits in federal courts for tortious activity in the execution of a search or arrest. 456 F.2d 1339 (2d Cir. 1972). It should be noted that on remand the Court of Appeals ruled only on the issue of official immunity -- it did not decide whether the Government should be liable on the common law theory of respondeat superior for the constitutional torts of its agents.
Thus, the instant case must be distinguished from the Bivens case on the ground that plaintiff here brought its suit not against federal agents but against the United States, which remains immune from suit except in those limited situations in which consent to suit has been authorized by a statute of Congress.
Plaintiff's claims against the United States of a denial of due process and equal protection of the laws, therefore, add nothing to its complaint, and its cause of action in the circumstances of this case must be adjudicated within the provisions of the Tucker Act, 28 U.S.C. § 1346(a)(2) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1970).