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OPTIPERU, S.A. v. OVERSEAS PRIVATE INV. CORP.

April 21, 1986

OPTIPERU, S.A., Plaintiff
v.
OVERSEAS PRIVATE INVESTMENT CORPORATION, Defendant



The opinion of the court was delivered by: HOGAN

 HOGAN, District Judge.

 Discussion

 I. The Complaint's Jurisdictional Contention: 22 U.S.C. § 2199(d)

 In its complaint, Optiperu asserts that the Court has jurisdiction over Optiperu's contract claim under 22 U.S.C. § 2199(d). Section 2199(d) identifies the general corporate powers granted to OPIC by Congress. OPIC is authorized, inter alia, "to sue and be sued in its corporate name . . . ." Although this "sue and be sued clause" clearly represents a waiver of sovereign immunity as to OPIC, Section 2199(d) contains no express grant of jurisdiction to this or any other court to entertain an action brought by or against OPIC for an alleged breach of contract.

 In Portsmouth Redevelopment and Housing Authority v. Pierce, 706 F.2d 471 (4th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392 (1983), the Fourth Circuit held that a "sue and be sued clause," standing alone, merely waived sovereign immunity but did not confer subject matter jurisdiction on the district courts. In Portsmouth, the plaintiff argued that the district courts had jurisdiction over a claim brought against the United States Housing Authority by virtue of 42 U.S.C. § 1404a, which provided that the Authority could "sue and be sued." Id. at 475. The plaintiff argued further that this clause of Section 1404a was the functional equivalent of another "sue and be sued" clause, found in 12 U.S.C. § 1702, which authorized the Secretary of Housing and Urban Development "to sue and be sued in any court of competent jurisdiction, State or Federal." Id. (emphasis added). The Fourth Circuit, in Ferguson v. Union National Bank, 126 F.2d 753, 756-57 (4th Cir. 1942), had earlier found that Section 1702 not only waived sovereign immunity, but also conferred subject matter jurisdiction on the district courts. The Portsmouth panel rejected the plaintiff's argument, however, drawing a critical distinction between the statute at issue in Ferguson and the statute at issue in Portsmouth : whereas Section 1702 contained an express jurisdictional grant, as found in the words "in any court of competent jurisdiction, State or Federal," Section 1404a did not. 706 F.2d at 475. The court concluded, therefore, that 42 U.S.C. § 1404a operated only as a waiver of sovereign immunity and not as a grant of jurisdiction to the district courts.

 In Van Drasek v. Lehman, 246 U.S. App. D.C. 86, 762 F.2d 1065, 1071 n.10 (D.C. Cir. 1985), the United States Court of Appeals for the District of Columbia Circuit cited approvingly the "sue and be sued" analysis of the Fourth Circuit in Portsmouth. In the present case, therefore, because 22 U.S.C. § 2199(d) authorizes OPIC only "to sue and be sued" in its corporate name, but fails to prescribe that suits brought by or against OPIC may be brought "in any court of competent jurisdiction, State or Federal," the Court holds that Section 2199(d) represents merely a waiver of sovereign immunity as to OPIC and not a grant of subject matter jurisdiction to district courts to entertain contract actions naming OPIC as plaintiff or defendant. Cf. Breitbeck v. United States, 205 Ct. Cl. 208, 500 F.2d 556, 557-58 & 560 n.2 (1974) (Saint Lawrence Seaway Development Corporation, which "may sue and be sued in its corporate name," amenable to Claims Court jurisdiction and perhaps to jurisdiction of specific district court, where, under 33 U.S.C. § 984(a)(6), corporation "shall be held to be an inhabitant and resident of the northern judicial district of New York within the meaning of the laws of the United States relating to the venue of civil suits"). Moreover, Optiperu has failed in its complaint to name any other statutory provision specifically regarding OPIC, see 22 U.S.C. §§ 2191-2200b (1982 and Supp. 1985), which could be so construed. Accordingly, because Optiperu, as plaintiff, bears the burden of establishing jurisdiction, and the basis of jurisdiction must appear on the face of the complaint, Optiperu's complaint shall be dismissed. Tavoulareas v. Comnas, 232 U.S. App. D.C. 17, 720 F.2d 192, 195 (D.C. Cir. 1983); Fed. R. Civ. P. 8(a)(1).

 II. The "Tucker Act" vis-a-vis 28 U.S.C. § 1349

 In its motion to dismiss, OPIC not only argues correctly that 22 U.S.C. § 2199(d) does not confer jurisdiction on the Court over Optiperu's claim, OPIC contends that Optiperu's contract action falls under the Tucker Act, 28 U.S.C. §§ 1346(a) and 1491, so that this case belongs properly before the United States Claims Court. In its opposition to the motion to dismiss, however, Optiperu contests OPIC's Tucker Act contention by raising a second ground for this Court's jurisdiction, 28 U.S.C. § 1349, which provides as follows: "The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock." (Emphasis added.)

 Although Optiperu raises Section 1349 in its opposition, it has failed to cite this ground for jurisdiction in its complaint or to move to amend the same to include this new ground. Rather than order Optiperu to amend its complaint and thereby delay resolution of the subject matter jurisdiction question, however, the Court has evaluated the merits of the Tucker Act/Section 1349 debate. After due consideration of the arguments raised and briefed by the parties in this regard, the Court concludes both that the Tucker Act applies to Optiperu's contract claim against OPIC, and that Section 1349 does not represent a manifestation of Congress' intent to establish this Court as an alternative forum to the Claims Court for the adjudication of Optiperu's contract action for more than $10,000 against OPIC. Therefore, jurisdiction over Optiperu's claim shall lie in the Claims Court.

 A. The Tucker Act: Claims for Money Damages Against the United States

 The Tucker Act consists of Sections 1346(a) and 1491 of Title 28 of the United States Code. 28 U.S.C. § 1346(a) provides in pertinent part as follows: "The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: * * * (2) Any . . . civil action or claim against the United States, not exceeding $10,000 in amount founded . . . upon any express or implied contract with the United States. . . . " (Emphasis added.) 28 U.S.C. § 1491(a)(1) provides in relevant part as follows: "The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States. . . ." (Emphasis added.) Thus, for money claims against the federal government up to and including $10,000, the Tucker Act grants concurrent jurisdiction to the district courts and the Claims Court. If a contract claim is for more than $10,000, however, this Circuit and others have held that exclusive jurisdiction lies in the Claims Court under Section 1491. See, e.g., Doe v. United States Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1101 (D.C. Cir. 1985); Graham v. Henegar, 640 F.2d 732, 734 n.5 (5th Cir. 1981); Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1132 (9th Cir. 1979).


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