The opinion of the court was delivered by: EGAN
This suit was brought by a well known Philadelphia law firm against the United States to recover a one-third portion of the amount remitted by the Pennsylvania Railroad Company direct to the Government in payment of a lien filed with the railroad by the Railroad Retirement Board under § 12(o) of the Railroad Unemployment Insurance Act of June 25, 1938, c. 680, 52 Stat. 1107, as added by § 323 of the Act of July 31, 1946, c. 709, 60 Stat. 740, 45 U.S.C.A. § 362(o).
The instant case is a suit against the United States to recover a proportionate share to a legal fee for services allegedly rendered to the United States in connection with a suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.
The plaintiffs are B. Nathaniel Richter, Joseph S. Lord, III, and Elwood S. Levy. The complaint alleges that plaintiffs, as attorneys for Peter J. Urban during March of 1960, effectuated by settlement a gross recovery from the Pennsylvania Railroad Company of the sum of $ 16,800 for injuries sustained in the course of his employment, that the railroad, in satisfaction of the lien of the Railroad Retirement Board, paid to the United States a portion of said recovery amounting to $ 2,210, said amount representing the benefits previously paid by the United States to the employee on account of disability arising from the said accident; that the railroad paid to the plaintiffs and the employee the sum of $ 14,590, being the difference between the agreed settlement of $ 16,800 and the sum of $ 2,210 paid by the railroad to the United States pursuant to the lien of the Railroad Retirement Board; that plaintiffs were retained as counsel by the employee on a contingent fee basis;
that the employee paid a contingent fee to the plaintiffs for their services of $ 4,639.41 based on the net recovery after litigation expenses and the aforesaid lien of the Railroad Retirement Board had been deducted; that the payment to the United States was made possible by, and a direct result of, the efforts and legal services of the plaintiffs who seek to be paid by the United States for these services; and that the reasonable and proper value of the services rendered by the plaintiffs for the benefit of the United States is $ 736.67.
The plaintiffs aver that the payment to the United States was the direct result of their legal efforts and services and seek to be paid on any of several theories. Since there is no statutory authority, their recovery must be based on a quantum meruit basis or on principles of implied contract or of quasi-contract, or on the equitable principle of having created the fund.
It is quite clear from reading the complaint that if the plaintiffs have any claim against the United States, it is on the basis of a contract implied in law as opposed to a contract implied in fact, or on the equitable principle of having created the fund. The United States has not consented to be sued in this action and federal jurisdiction recognizes no such equitable right. Therefore the District Court has no jurisdiction over this action.
Under the Tucker Act, (supra, footnote 1) jurisdiction is conferred upon the District Courts concurrent with that of the Court of Claims of 'any other 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. 28 U.S.C. § 1346(a)(2).
The courts have uniformly construed the above provision of the Tucker Act to provide that the implied contract must be one implied in fact as opposed to one implied in law. Goodyear Tire & Rubber Co. v. United States, 1928, 276 U.S. 287, 48 S. Ct. 306, 72 L. Ed. 575; United States v. Minnesota Mutual Investment Co., 1926, 271 U.S. 212, 46 S. Ct. 501, 70 L. Ed. 911; Sutton v. United States, 1921, 256 U.S. 575, 581, 41 S. Ct. 563, 65 L. Ed. 1099; Southern Pacific Co. v. United States, 3 Cir., 1951, 192 F.2d 438.
'* * * An implied contract in order to give the court of claims or a district court under the Tucker Act jurisdiction to give judgment against the government must be one implied in fact and not one based merely on equitable considerations and implied in law.'
This distinction between contracts implied in fact as opposed to contracts implied in law is well recognized and has been the subject of much comment by the Courts. The Third Circuit defined the distinction as follows in the case of American La France Fire Engine Co., etc. v. Borough of Shenandoah, 3 Cir., 1940, 115 F.2d 866, at page 867:
'* * * The distinction between express and implied contracts on the one hand and quasi-contracts on the other is basic. It has succinctly stated by Mr. Justice Stern in Cameron v. Eynon, 332 Pa. 529, 532, 3 A.2d 423, 424, thus: 'A quasi contract arises where the law imposes a duty upon a person, not because of any express or implied promise on his part to perform it, but even in spite of any intention he might have to the contrary. A quasi contract, which is a fictional contract, is not to be confused with a contract implied in fact, which is an actual contract, and which arises where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances."
The distinction was also set forth at some length in the case of G. T. Fogle & Co. v. United States, 4 Cir., 1943, 135 F.2d 117, at page 120:
'* * * The law, however, makes a distinction, absolutely vital here, between contracts implied in fact and contracts implied by law. This distinction is thus aptly stated in 17 C.J.S., Contracts, § 4, p. 320, 321: 'Contract implied in law distinguished. A distinction exists between contracts implied in fact and those which are implied in law. Thus, a contract implied in fact is a true contract, the agreement of the parties being inferred from the circumstances, while a contract implied in law is but a duty imposed by law and treated as a contract for the purposes of a remedy only. Another distinction between such classes of implied contracts lies in the fact that, * * * in the case of contracts implied in fact, there must be an assent of the parties, as in express contracts, whereas, * * * in the case of contracts implied in law, or more properly quasi or constructive contracts, such element of assent is lacking. The distinction has also been stated that a contract implied in fact is an implied contract in which the intention is ascertained and enforced, while a contract implied in law is a mere fiction, the intention being ...