28 U.S. Code § 1346. United States as defendant
Based on title 28, U.S.C., 1940 ed., §§ 41(20), 931(a), 932 (Mar. 3, 1911, ch. 231, § 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, § 1310(c), 42 Stat. 311; June 2, 1924, ch. 234, § 1025(c), 43 Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, §§ 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, §§ 410(a), 411, 60 Stat. 843).
Section consolidates provisions of section 41(20) conferring jurisdiction upon the district court, in civil actions against the United States, with the first sentence of section 931(a) relating to jurisdiction of the district courts in tort claims cases, and those provisions of section 932 making the provisions of said section 41(20), relating to counterclaim and set-off, applicable to tort claims cases, all of title 28, U.S.C., 1940 ed.
Provision in section 931(a) of title 28, U.S.C., 1940 ed., for trials without a jury, is incorporated in section 2402 of this revised title. For other provisions thereof, see Distribution Table.
Words “commencing an action under this section” in subsec. (c) of this revised section cover the provision in section 932 of title 28, U.S.C., 1940 ed., requiring that the same provisions “for counterclaim and set-off” shall apply to tort claims cases brought in the district courts.
The phrase in section 931(a) of title 28, U.S.C., 1940 ed., “accruing on and after January 1, 1945” was omitted because executed as of the date of the enactment of this revised title.
Provisions in section 41(20) of title 28, U.S.C., 1940 ed., relating to time for commencing action against United States and jury trial constitute sections 2401 and 2402 of this title. (See reviser’s notes under said sections.)
Words in section 41(20) of title 28, U.S.C., 1940 ed., “commenced after passage of the Revenue Act of 1921” were not included in revised subsection (a)(1) because obsolete and superfluous. Actions under this section involving erroneous or illegal assessments by the collector of taxes would be barred unless filed within the 5-year limitation period of section 1113(a) of the Revenue Act of 1926, 44 Stat. 9, 116. (See United States v. A. S. Kreider Co., 1941, 61 S.Ct. 1007, 313 U.S. 443, 85 L.Ed. 1447.)
Words in section 41(20) of title 28, U.S.C., 1940 ed., “if the collector of internal revenue is dead or is not in office at the time such action or proceeding is commenced” were omitted.
The revised section retains the language of section 41(20) of title 28, U.S.C., 1940 ed., with respect to actions against the United States if the collector is dead or not in office when action is commenced, and consequently maintains the long existing distinctions in practice between actions against the United States and actions against the collector who made the assessment or collection. In the latter class of actions either party may demand a jury trial while jury trial is denied in actions against the United States. See section 2402 of this title. In reality all such actions are against the United States and not against local collectors. (See Lowe v. United States, 1938, 58 S.Ct. 896, 304 U.S. 302, 82 L.Ed. 1362; Manseau v. United States, D.C.Mich. 1943, 52 F.Supp. 395, and Combined Metals Reduction Co. v. United States, D.C.Utah 1943, 53 F.Supp. 739.)
The revised subsection (c)(1) omitted clause: “but no suit pending on the 27th day of June 1898 shall abate or be affected by this provision,” contained in section 41(20) of title 28, U.S.C., 1940 ed., as obsolete and superfluous. The words contained in section 41(20) of title 28, U.S.C., 1940 ed., “claims growing out of the Civil War, and commonly known as ‘war-claims,’ or to hear and determine other claims which had been reported adversely prior to the 3d day of March 1887 by any court, department, or commission authorized to have and determine the same,” were omitted for the same reason.
The words “in a civil action or in admiralty,” in subsection (a)(2), were substituted for “either in a court of law, equity, or admiralty” to conform to Rule 2 of the Federal Rules of Civil Procedure.
Words in section 41(20) “in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable” were omitted from subsection (a)(2) of this revised section as unnecessary. See reviser’s note under section 1491 of this title.
For jurisdiction of The Tax Court to review claims for refunds of processing taxes collected under the unconstitutional Agriculture Adjustment Act, see sections 644–659 of title 7, U.S.C., 1940 ed., Agriculture, and the 1942 Revenue Act, Act Oct. 21, 1942, ch. 610, title V, § 510(a), (c), (d), 56 Stat. 667. (See, also, Lamborn v. United States, C.C.P.A. 1939, 104 F.2d 75, certiorari denied 60 S.Ct. 115, 308 U.S. 589, 84 L.Ed. 493.)
See, also, reviser’s note under section 1491 of this title as to jurisdiction of the Court of Claims in suits against the United States generally. For venue of actions under this section, see section 1402 of this title and reviser’s note thereunder.
Minor changes were made in phraseology.
The provision of title 28, U.S.C., § 932, which related to application of the Federal Rules of Civil Procedure, were originally set out in section 2676 of this revised title, but such section 2676 was eliminated by Senate amendment. See 80th CongressSenate Report No. 1559, amendment No. 61.
This section corrects typographical errors in section 1346(a)(1) of title 28, U.S.C., and in section 1346(b) of such title.
Sections 6226, 6228(a), 7426, 7428, and 7429 of the Internal Revenue Code of 1986, referred to in subsec. (e), are classified to sections 6226, 6228(a), 7426, 7428, and 7429, respectively, of Title 26, Internal Revenue Code. Section 6226 of Title 26 was repealed and reenacted by Pub. L. 114–74, title XI, § 1101(a), (c)(1), Nov. 2, 2015, 129 Stat. 625, 630, and as so reenacted no longer relates to judicial review, see section 6234 of Title 26. Section 6228 of Title 26 was repealed by Pub. L. 114–74, title XI, § 1101(a), Nov. 2, 2015, 129 Stat. 625.
1996—Subsec. (b). Pub. L. 104–134 designated existing provisions as par. (1) and added par. (2).
Subsec. (g). Pub. L. 104–331 added subsec. (g).
Subsec. (e). Pub. L. 97–248 substituted “section 6226, 6228(a), 7426, or” for “section 7426 or section”.
1978—Subsec. (a)(2). Pub. L. 95–563 excluded from the jurisdiction of district courts civil actions or claims against the United States founded upon any express or implied contract with the United States or for damages in cases not sounding in tort subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978.
1972—Subsec. (f). Pub. L. 92–562 added subsec. (f).
1970—Subsec. (a)(2). Pub. L. 91–350 specified that the term “express or implied contracts with the United States” includes express or implied contracts with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration.
1966—Subsec. (e). Pub. L. 89–719 added subsec. (e).
1964—Subsec. (d). Pub. L. 88–519 struck out provisions which prohibited district courts from exercising jurisdiction of civil actions or claims to recover fees, salary, or compensation for official services of officers or employees of the United States.
1958—Subsec. (b). Pub. L. 85–508 struck out reference to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska.
1954—Subsec. (a)(1). Act July 30, 1954, struck out language imposing jurisdictional limitation of $10,000 on suits to recover taxes.
1951—Subsec. (d). Act Oct. 31, 1951, inserted references to “claim” and “employees”.
1949—Subsec. (a)(1). Act May 24, 1949, § 80(a), inserted “, (i) if the claim does not exceed $10,000 or (ii)”.
Subsec. (b). Acts Apr. 25, 1949, and May 24, 1949, § 80(b), made a technical change to correct “chapter 173” to read “chapter 171”, and inserted “on and after January 1, 1945” after “for money damages”.
Amendment by Pub. L. 97–248 applicable to partnership taxable years beginning after Sept. 3, 1982, with provision for the applicability of the amendment to any partnership taxable year ending after Sept. 3, 1982, if the partnership, each partner, and each indirect partner requests such application and the Secretary of the Treasury or his delegate consents to such application, see section 407(a)(1), (3) of Pub. L. 97–248, set out as a note under section 702 of Title 26, Internal Revenue Code.
Amendment by Pub. L. 95–563 effective with respect to contracts entered into 120 days after Nov. 1, 1978 and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95–563, Nov. 1, 1978, 92 Stat. 2391, formerly set out as an Effective Date note under section 601 of former Title 41, Public Contracts.
Amendment by Pub. L. 85–508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, set out as a note under section 542 of Title 6.
For termination of the United States District Court for the District of the Canal Zone at end of the “transition period”, being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70, title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to 3843, respectively, of Title 22, Foreign Relations and Intercourse.