United States v. Perry, 706 F.2d 278 (8th Cir. 1983). · Go Syfert
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United States v. Perry, 706 F.2d 278 (8th Cir. 1983). Cases Citing This Book View Copy Cite
11 citation events (1 in the last 25 years) across 5 distinct courts.
Strongest positive: Knight-Bey v. Bacon (ned, 2020-04-21)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Knight-Bey v. Bacon
D. Neb. · 2020 · confidence medium
United States v. Perry, 706 F.2d 278, 279-80 (8th Cir. 1983) (dismissing tort counterclaim against FmHA because Eighth Circuit case law recognizes that 28 U.S.C. § 2680 (h) bars tort claims against federal agencies based on fraud and negligent misrepresentation); United States v. Longo, 464 F.2d 913, 915 (8th Cir. 1972) (section 2680 specifically bars actions against the government based on misrepresentation or deceit).
discussed Cited as authority (rule) Shanti, Inc. v. Reno
D. Minnesota · 1999 · confidence medium
Chapter 12 provisions such as § 1252(a)(2)(B) and § 1252(g), 8 U.S.C. § 1329 does not deprive this Court of general federal question jurisdiction under 28 U.S.C. § 1331 , which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Nonetheless, 28 U.S.C. § 1331 does not create any substantive right against the United States for monetary damages, see United States v. Testan, 424 U.S. 392, 400-02 , 96 S.Ct. 948, 954-55 , 47 L.Ed.2d 114 (1976); United States v. Perry, 706 F.2d 278…
discussed Cited "see" United States v. James Burton Johnson, James Burton Johnson v. United States
8th Cir. · 1988 · signal: see · confidence high
See Perry, 706 F.2d at 279 (defendant sought relief different in kind than that sought by the government, because government sued for foreclosure while defendant sought damages, contract reformation, and injunction); Longo, 464 F.2d at 915 (fraud asserted by defendant was not based on same transaction that gave rise to government’s claim).
cited Cited "see" Henry H. Hagemeier, and Mary L. Hagemeier, His Wife v. John Block, Individually and in His Capacity as Secretary of the United States Dept. Of Agriculture Allen Brock, Individually and in His Capacity as Acting Assistant Administrator for Farmer Programs and Former Acting Administrator of the Farmers Home Administration, Charles Shuman, Individually and in His Capacity as Administrator of the Farmers Home Administration John O. Foster, Individually and in His Capacity as State Director of Missouri Rande S. Bryan, Individually and in His Capacity as District Director Terry A. Luetkemeyer, Individually and in His Capacity as County Supervisor, United States Department of Agriculture, Charles Rule, Jr. And Wanda F. Rule, His Wife v. John Block, Individually and in His Capacity as Secretary of the United States Department of Agriculture Allen Brock, Individually and in His Capacity as Acting Asst. Adm. For Farmer Programs and Former Acting Adm. Of the Farmers Home Adm. Charles Shuman, Individually and in His Capacity as Adm. Of the Farmers Home Adm John O. Foster, Individually and in His Capacity as State Director for Mo William T. Shay, Individually and in His Capacity as District Director and Ronald Moody, Individually and in His Capacity as County Supervisor, U.S. Dept. Of Agriculture Robert Noellsch, Individually and in His Capacity as County Supervisor U.S. Dept. Of Agriculture
8th Cir. · 1986 · signal: see · confidence high
See United States v. Perry, 706 F.2d 278, 279 (8th Cir.1983); DeVilbiss v. Small Business Admin., 661 F.2d 716 , 718 (8th Cir.1981) (per curiam).
cited Cited "see" Hagemeier v. Block
8th Cir. · 1986 · signal: see · confidence high
See United States v. Perry, 706 F.2d 278, 279 (8th Cir.1983); DeVilbiss v. Small Business Admin., 661 F.2d 716 , 718 (8th Cir.1981) (per curiam).
Retrieving the full opinion text from the archive…
United States
v.
Charles E. Perry and Shirley A. Perry, New Salem Farmers Union Elevator Company Alfred Slavick Ila Slavick Bank of North Dakota Harley Thom, D/B/A Farmers Supply Co., Norwich, North Dakota Ray and Hildegard Fitterer, D/B/A Fitterer Oil, Flasher, North Dakota and Medical Collections, Bismarck, North Dakota
82-1403.
Court of Appeals for the Eighth Circuit.
May 20, 1983.
706 F.2d 278
Published

706 F.2d 278

UNITED STATES of America, Appellee,
v.
Charles E. PERRY and Shirley A. Perry, Appellants,
New Salem Farmers Union Elevator Company; Alfred Slavick;
Ila Slavick; Bank of North Dakota; Harley Thom, d/b/a
Farmers Supply Co., Norwich, North Dakota; Ray and
Hildegard Fitterer, d/b/a Fitterer Oil, Flasher, North
Dakota; and Medical Collections, Bismarck, North Dakota.

No. 82-1403.

United States Court of Appeals,
Eighth Circuit.

Submitted Jan. 10, 1983.
Decided May 20, 1983.

Sarah M. Vogel, Bismarck, N.D., Robert Vogel, Grand Forks, N.D., Irvin B. Nodland, Bismarck, N.D., for appellants.

Rodney S. Webb, U.S. Atty., Jerome C. Kettleson, Asst. U.S. Atty., Bismarck, N.D., for appellee.

Before ROSS and FAGG, Circuit Judges, and BEAM, District Judge.[*]

ROSS, Circuit Judge.

[*~278]1

Charles and Shirley Perry were farmers in North Dakota who had loans financed by the Farmers Home Administration (FmHA). On July 31, 1979, FmHA filed a complaint in federal district court for the foreclosure of Perrys' property on which the mortgage was held. Perrys asserted a counterclaim alleging that FmHA acted unlawfully and in violation of Perrys' constitutional rights in accelerating the loan. Perrys sought damages, an order of reformation of the contract and an injunction to bar FmHA from denying Perrys' constitutional rights.

2

The district court[1] dismissed the counterclaim for lack of jurisdiction because Perrys had asserted no exception to the United States' defense of sovereign immunity. Perrys appealed from the dismissal. This court determined that the order was not a final appealable order and remanded to the district court for a determination of the appealability under Fed.R.Civ.P. 54(b). The district court found that there was no reason for delay and entered a judgment in accordance with Rule 54(b). An appeal followed and this court again remanded the case to the district court with directions that the district court expressly state its reasons for certification of the appeal under Rule 54(b). On review of the district court's order of March 25, 1983, we are satisfied that there is no just reason for delay and that this appeal is proper.

3

The district court held: "A review of the counterclaim does reflect that the wrongs alleged all lie in tort." Perrys asserted the government was liable for negligence, malicious abuse of administrative process, business slander, and usury. We find no waiver of sovereign immunity and accordingly affirm the district court's dismissal of the counterclaim for lack of jurisdiction.

4

Perrys do not dispute the fact that 28 U.S.C. Sec. 1346 does not create any substantive right against the United States for monetary damages. Army and Air Force Exchange Service v. Sheehan, --- U.S. ----, ----, 102 S.Ct. 2118, 2123, 72 L.Ed.2d 520 (U.S.1982). Perrys argue that 28 U.S.C. Sec. 1331(a) grants jurisdiction over their equitable claims, but as the district court held: "in the absence of a waiver of sovereign immunity, this statutory provision affords no jurisdictional grounds." See DeVilbiss v. Small Business Administration, 661 F.2d 716, 718 (8th Cir.1981). Thus, neither of these statutes affords a waiver of sovereign immunity.

5

In United States v. Longo, 464 F.2d 913, 915 (8th Cir.1972) this court held that counterclaims against the Federal Housing Authority based on fraud and negligent misrepresentation were barred by 28 U.S.C. Sec. 2680(h) which specifies that sovereign immunity is not waived as to certain causes of action:

6

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

7

We agree with the district court that the counterclaims asserted by Perrys are barred by section 2680(h).[2]

[*~279]8

The judgment of the district court dismissing the counterclaim by the Perrys is affirmed.

*

The Honorable C. Arlen Beam, United States District Judge for the District of Nebraska, sitting by designation

1

The Honorable Bruce M. Van Sickle, United States District Judge for the District of North Dakota

2

Perrys argue Rowe v. U.S., 633 F.2d 799 (9th Cir.1980) holds that section 1331(a) provides jurisdiction and a waiver of sovereign immunity in an action for relief other than money. We find Rowe inapplicable to the present case because here review is precluded by 28 U.S.C. Sec. 2680(h). In Rowe no preclusion statute was asserted. See id. at 802