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BOURNE v. CALLOWAY

February 2, 1977

MRS. BONNIE M. BOURNE
v.
JAMES R. SCHLESINGER HOWARD H. CALLOWAY LT. GEN. W. C. GRIBBLE, JR. WOODROW BERGE and JOSEPH H. COOKE



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 In this action plaintiff seeks judicial review of a decision by the Army Corps of Engineers on her claim for benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq. (the Act). Both the plaintiff and the defendants have moved for summary judgment. We have determined that the facts are not disputed and that these motions raise only questions of law. The undisputed facts are as follows:

 Plaintiff and her late husband acquired property and a house in Shawnee-on-the-Delaware, Pennsylvania in 1952. On June 15, 1970, the United States filed a Complaint in Condemnation with respect to plaintiff's property as part of the Tocks Island Lake Project. As a result of the acquisition plaintiff vacated the premises on July 17, 1971 and obtained replacement housing. On March 20, 1972, plaintiff filed an application with the United States Army Corps of Engineers in Philadelphia (Corps) requesting relocation payment in the amount of $500 as reimbursement for moving expenses and replacement housing payment in the amount of $34,412.93. Plaintiff was notified by Joseph H. Cooke, the Chief of the Real Estate Division of the Army Corps of Engineers, that her $500 claim for moving expenses was granted but that her claim for $34,412.93 was denied. The denial of the replacement housing payment was based on the Corps' finding that her condemned house was not her permanent residence and therefore not a "dwelling" within the meaning of 42 U.S.C. § 4623 or § 4624.

 Plaintiff filed an appeal with the District Office of the Corps which was denied by Woodrow Berge, Director of Real Estate of the Corps, on June 14, 1974. Plaintiff then filed, on December 4, 1974, a Petition Supplementary to Appeal, requesting reconsideration of the decision. The Corps' Director of Real Estate reversed his previous decision and ruled on February 10, 1975 that plaintiff's house was a "dwelling" within the meaning of the Act. He also determined that pursuant to the Act plaintiff was not an "owner" and could not receive the benefits payable to an owner pursuant to 42 U.S.C. § 4623, but that she could receive the lower payments awarded to a tenant pursuant to 42 U.S.C. § 4624. In order to determine the amount to which plaintiff is entitled, the District Office requested plaintiff to provide a copy of the closing statement on the replacement dwelling that she acquired. A final determination of the payment due plaintiff has not been made because she had not, at the time of the filing of this action, supplied the requested information.

 Plaintiff filed this action on March 11, 1975, requesting this Court to reverse the decision of the Corps that plaintiff was not entitled to the benefits provided for an owner under 42 U.S.C. § 4623. The final determination of the Corps was that the plaintiff is entitled to payment under 42 U.S.C. § 4624. The Corps apparently based its determination on the fact that the plaintiff's property was condemned on June 15, 1970, prior to the enactment of the Uniform Relocation Act on January 2, 1971.

 Plaintiff alleges jurisdiction pursuant to 28 U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. § 2201; the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706; and the Uniform Relocation Assistance and Real Property Acquisition Act, 42 U.S.C. § 4601 et seq.

 The defendants' only attack on jurisdiction is their contention that because the plaintiff seeks a money judgment against the United States and the United States has not consented to be sued, the doctrine of sovereign immunity bars the suit.

 The defense of sovereign immunity is jurisdictional. United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058 (1941). The test to determine whether a suit is against the sovereign is set forth in Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1963):

 
[the] general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," Land v. Dollar, 330 U.S. 731, 738, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947), or if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act." Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S. Ct. at 1468; Ex parte New York, 256 U.S. 490, 502, 41 S. Ct. 588, 591, 65 L. Ed. 1057 (1921).

 Applying the general rule recognized by the Supreme Court, this action is not one against the sovereign. *fn1" The thrust of the plaintiff's complaint is that she is seeking a judicial review of the administrative determination that she was not an owner pursuant to 42 U.S.C. § 4623. In addition, the plaintiff in her memorandum of law filed in opposition to the defendants' motion specifically states that this action is "what it claims to be, to wit, a petition for judicial review of a Federal administrative determination." *fn2"

 Several Courts have reviewed the provisions of the Uniform Relocation Act. Parlane Sportswear Company, Inc. v. Weinberger, 513 F.2d 835 (1st Cir. 1975), cert. denied, 423 U.S. 925, 46 L. Ed. 2d 252, 96 S. Ct. 269; La Raza Unida of Southern Alameda County v. Volpe, 488 F.2d 559 (9th Cir. 1973), cert. denied, 417 U.S. 968, 94 S. Ct. 3171, 41 L. Ed. 2d 1138; Descalakais v. Department of Housing and Urban Development and RDA, C.A. No. 75-2060, filed January 21, 1977 (E.D. Pa.); Lewis v. Brinegar, 372 F. Supp. 424 (1974); Young v. Harder, 361 F. Supp. 64 (D. Kansas 1973); Keith v. Volpe, 352 F. Supp. 1324 (C.D. Cal. 1972); Rubin v. Department of Housing and Urban Development, 347 F. Supp. 555 (E.D. Pa. 1972). The Uniform Relocation Act was enacted and became effective on January 2, 1971. The purpose of the Act is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and Federally assisted programs. *fn3" Section 202 of the Act (42 U.S.C. § 4622) provides for the payment of moving and related expenses for property acquired by a Federal agency. In addition, Section 203 (42 U.S.C. § 4623) provides for replacement housing benefits to homeowners in an amount not to exceed $15,000. Such homeowner benefits are payable to any displaced person who is displaced from a dwelling that is owned and occupied by him or her for not less than one hundred and eighty days prior to the initiation of negotiations for the acquisition of the property. "Displaced person" is defined in Section 101 (42 U.S.C. § 4601) as any person who, on or after January 2, 1971, moved from real property as a result of the acquisition of such real property for a program undertaken by a Federal agency. Section 204 of the Act (42 U.S.C. § 4624) provides for a payment not to exceed $4,000 for tenants and others. These benefits are payable to any displaced person who is not eligible for the homeowner benefits under Section 204 of the Act and whose dwelling was occupied by such displaced person for not less than ninety days prior to the initiation of negotiations for acquisition of such dwelling.

 In 52 C.G. 300 (November 28, 1972), the Comptroller General considered the question presented herein and ruled that persons whose real property was acquired for public use prior to January 2, 1971, the effective date of the Uniform Relocation Act, but who did not vacate the property until on or after that date were not entitled to benefits as owners under Section 203 but were entitled to benefits as tenants under Section 204. In his decision, the Comptroller General pointed out that pursuant to 10 U.S.C. § 2667, when property is not needed immediately for project requirements, the established policy of the Corps is to permit former landowners and tenants to remain on the acquired Federal property on a priority basis as lessees. In holding that the owners of real property acquired by the Federal government prior to January 2, 1971 were not entitled to benefits under Section 203, but were entitled to benefits under Section 204, the Comptroller General relied on Taliaferro v. Stafseth, 455 F.2d 207 (6th Cir. 1972). In Taliaferro, the Circuit Court held that under the provisions of the Federal Highway Act *fn4" (which are quite similar to the provisions in the Uniform Relocation Act) *fn5" a person whose property was acquired by condemnation prior to the effective date of the Federal Highway Act but who did not vacate until after that date was not entitled to the benefits afforded displaced owners. In reaching this decision the Court stated that acts of Congress are generally to be applied uniformly from the date of effectiveness onward and that it is incumbent on the person who argues for retrospective application to show that Congress intended for an act to be applied in that fashion.

 After the decision of the Comptroller General on November 28, 1972, the Corps, on May 23, promulgated ...


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