v. Heller, D.C.E.D.Pa.1948, 79 F.Supp. 476; Keil v. United States, D.C.D.Md.1946, 65 F.Supp. 431.
If the statute were merely procedural, no problem would have arisen. As such, an amendment merely correcting the name of the party defendant would have been proper and would have related back to the date of the original complaint. Fed.R.Civ.P. 15(c); Mellon v. Weiss, 1926, 270 U.S. 565, 46 S. Ct. 378, 70 L. Ed. 736; United States v. A. H. Fischer Lumber Co., 4 Cir., 1947, 162 F.2d 872; Clinchfield R. Co. v. Dunn, 6 Cir., 1930, 40 F.2d 586; Wagner v. New York, Ontario and Western Railway, D.C.M.D.Pa.1956, 146 F.Supp. 926; Kerner v. Rackmill, D.C.M.D.Pa.1953, 111 F.Supp. 150; Florentine v. Landon, D.C.S.D.Cal.1953, 114 F.Supp. 452; Sechrist v. Palshook, D.C.W.D.Pa.1951, 97 F.Supp. 505; Godfrey v. Eastern Gas & Fuel Associates, D.C.D.Mass.1947, 71 F.Supp. 175; Sanders v. Metzger, D.C.E.D.Pa.1946, 66 F.Supp. 262.
However, the remedy relied upon in the instant case is a statutory remedy and must be subject to the conditions imposed by Congress relating to the limitation of the action. The plaintiff having instituted his claim against the United States subsequent to the running of the statute has not met the conditions of the Tort Claims Act and therefore should be precluded from going forward with this action.
But the plaintiff contends that the stipulation amending the complaint operated as a waiver to defense of the statute of limitations by the defendant and that the latter should be estopped from pleading that defense in this motion. As far back as 1887, the Courts have held that the United States is not bound nor estopped by the acts of its officers or agents in entering into agreements contrary to the Congressional enactments.
'The general rule that limitation does not operate by its own force as a bar, but is a defense, and that the party making such defense must plead the statute if he wishes the benefit of its provisions, has no application to suits in the court of claims against the United States. An individual may waive such a defense, either expressly or by failing to plead the statute; but the government has not expressly or by implication conferred authority upon any of its officers to waive the limitation imposed by statute upon suits against the United States in the court of claims * * *'. Finn v. United States, 1887, 123 U.S. 227, 232, 8 S. Ct. 82, 85, 31 L. Ed. 128. (Emphasis supplied.)
Judge Frank, speaking for the Court of Appeals for the Second Circuit, went even further when in a case in which Government counsel consented to the reinstatement of a dismissed action, he said:
'If the defendant were a private person, that consent would conclude the matter and Wallace's (plaintiff) judgment would be unassailable. But, assuming for the moment, that absent such consent by defendant's counsel, the trial court could not properly enter the vacating order * * *, the question arises whether a government counsel has implied authority (there being no express authority) by such a consent to eliminate the defense of the statute of limitations. We are constrained in the negative. The Supreme Court has held inapplicable to suits against the United States the well-established rule that a defendant, either expressly or by failure to assert it may waive that defense.' Wallace v. United States, 2 Cir., 1949, 142 F.2d 240, 242.
Thus, it is quite clear that in suits against the United States the statute of limitations can be successfully urged as a defense even where there is an apparent waiver of the defense. The fact that Congress has seen fit to place a limitation on the action should be a sufficient reason alone to preclude a waiver of that condition by anyone other than the legislature itself. A contra holding would subject the United States to suit at the discretion of its officers, thus consenting, in fact, to actions not contemplated by Congress. Obviously, such a result was not intended. This is well settled. State of Minnesota v. United States, 1939, 305 U.S. 382, 59 S. Ct. 292, 83 L. Ed. 235; Munro v. United States, 1938, 303 U.S. 36, 58 S. Ct. 421, 82 L. Ed. 633; Gans S.S. Line v. United States, 2 Cir., 1939, 105 F.2d 955; Pacific Mills v. Nichols, 1 Cir., 1934, 72 F.2d 103; Keil v. United States, D.C.D.Md.1946, 65 F.Supp. 431; see also, Government of Virgin Islands v. Gordon, 3 Cir., 1957, 244 F.2d 818; Poindexter v. Folsom, 3 Cir., 1957, 242 F.2d 516. The stipulation executed by the parties is therefore nugatory.
And while it may seem harsh to deprive the plaintiff of his remedy because of his error in instituting his action against the wrong party, the conditions upon which suit may be brought against the United States have been set forth, and it is not within the power of the United States Attorney, nor within the power of this Court, to make exceptions thereto. The plaintiff's only appeal would be to the legislature.
Because of the hardship that will be visited upon plaintiff, we reach this conclusion with great reluctance. It may well be argued that by suing the 'United States Post Office Department' the United States of America was sued, and is the real defendant, and that the words 'Post Office Department' are surplusage; that the Attorney General and the United States Attorney were served and that by the filing of the written stipulation that service was validated and that the United States was in Court.
This reasoning does violence to the language of the Tort Claims Act, which, as we have seen from the foregoing decisions, must be strictly construed.
The time limitation under Section 2401(b) of 28 U.S.C.A. having expired, this Court does not have jurisdiction. The defendant's Motion to Dismiss will be granted and an order will be entered accordingly.