Schubert v. United States
Schubert v. United States
Opinion of the Court
Alvin H. Schubert and wife, Alvina Schubert, are suing the United States of America under the Federal Tort Claims Act, 28 U.S.C., § 1346(b). The Plaintiffs reside and have their home on a 200-acre tract of land owned by them and situated adjacent to the Kingsville Naval Air Station near the City of Kingsville, Kleberg County, Texas. They are seeking to recover damages from the Government that they claim they have suffered as a result of the noise caused by a jet engine testing facility that is situated on the Naval Air Station. In response to the Plaintiffs’ Original Complaint, the Defendant, United States of America, filed a motion to dismiss for failure to state a claim on which relief could be granted, or, in the alternative, for a more definite statement. This Court denied the motion to dismiss and granted the motion for more definite statement.
The Plaintiffs then proceeded to file an Amended Complaint, asserting, generally, two alternative claims. The first claim alleges that in connection with the Naval Air Training Station the Navy operates testing facilities on the westernmost portion of the base and to the east of Plaintiffs’ premises and home; that these testing facilities are being used to check the engines on jet aircraft, and that
Their alternative claim is one which Plaintiffs claim is under the Constitution of the United States, for a wrongful taking of their property without compensation, for which they seek the sum of $225,000.00.
A pretrial was held in this cause and the question of jurisdiction was raised by the Government which had again filed, in answer to the Amended Complaint, its motion to dismiss, not only for lack of jurisdiction, but that the Plaintiffs’ complaint still did not state a claim on which relief could be granted.
The parties were given an opportunity to file briefs on the Government’s motion, and said motion is what is before the Court at this time.
The question of jurisdiction to entertain the alternative plea of wrongful taking of property is easy to dispose of. This Court, under Title 28 U.S.C. § 1346(a) (2), would have jurisdiction over such a claim if the amount claimed was not in excess of $10,000.00; but since the claim under this alternative plea is for $225,000.00, this Court clearly has no jurisdiction, and such jurisdiction lies m the Court of Claims.
The Government’s motion to dismiss the second alternative claim will be granted; and
It is hereby ordered, adjudged and decreed that said claim be, and the same is hereby dismissed.
The first claim, based on the Federal Tort Claims Act, is not so easy to dispose of. The Plaintiffs allege that the United States has failed to exercise reasonable care in the following respects:
a) In locating its engine testing facility on the westernmost portion of the Naval Air Station ;
b) In failing to locate the engine testing facility on a remote portion of the Naval Air Station, away from residential areas;
c) In conducting its engine testing during the late hours of the night; and
d) In not installing, maintaining and using modem noise arresting equipment in Defendant’s possession which would greatly reduce the unreasonable noise.
Title 28 U.S.C. § 2680, is a limitation on the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and specifically bars claims based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
The Government certainly has a right to operate a Naval Air Station and test its airplane engines. The present allegations of the first claim in the complaint would all seem to fall within the exception to the Federal Tort Claims Act.
Since the Plaintiffs have not identified in their complaint any act or omission by any Government employee, which they claim to be negligent, and their complaint shows that the acts complained of are done in the exercise of a discretionary function, their complaint fails to state a cause of action.
Reference
- Full Case Name
- Alvin H. SCHUBERT and Alvina Schubert v. United States
- Status
- Published