The New York Supreme Court, acting under authority of § 795 of the New York Civil Practice Act, made an order authorizing respondent, as a judgment creditor, to maintain a suit under the Tucker Act of March 3, 1887, 24 Stat. 505, § 24(20) of the Judicial Code, 28 U.S.C. § 41(20), 28 U.S.C.A. § 41(20), to recover damages from the United States for breach of its contract with the judgment debtor. The question for decision is whether a United States District Court has jurisdiction to entertain the suit.
The order authorized respondent, who had recovered a judgment against Kaiser in the New York Supreme Court for $5,567.22, to bring suit against the Government to recover for breach of its contract with Kaiser for the construction of a post office building. The order directed that out of the amount recovered respondent should be entitled to a sum sufficient to satisfy his judgment with interest 'as well as costs, disbursements and expenses which may be allowed by the court'.
Respondent brought the present suit against the United States and Kaiser in the District Court for Eastern New York. By his complaint he set up the judgment and the order of the state court, the breach of contract by the United States, and the consequent damage to Kaiser in the sum of $14,448.49, and prayed judgment in the sum of $10,000. The order of the District Court dismissing the complaint for want of jurisdiction was reversed by the Circuit Court of Appeals for the Second Circuit, 112 F.2d 587, which held that under Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, respondent's 'capacity to sue' was governed by the law of New York which was his domicile; and that the order of the state court had conferred authority upon respondent to maintain the suit, the United States being a 'person indebted' within the meaning of § 795 of the Civil Practice Act which sanctions orders by the state court authorizing a suit by a judgment creditor against a 'person * * * indebted to the judgment debtor.' We granted certiorari November 18, 1940, 311 U.S. 640, 61 S.Ct. 171, 85 L.Ed. --, the question of the jurisdiction of the District Court under the Tucker Act being of public importance.
The United States, as sovereign, is immune from suit save as it consents to be sued, United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Kansas v. United States, 204 U.S. 331, 27 S.Ct. 388, 51 L.Ed. 510; Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 294, 83 L.Ed. 235; Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888. See cases cited in The Pesaro, D.C., 277 F. 473, 474, et seq., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. Minnesota v. United States, supra, 305 U.S. 388, 59 S.Ct. 295, 83 L.Ed. 235 and cases cited; cf. Stanley v. Schwalby, 162 U.S. 255, 270, 16 S.Ct. 754, 760, 40 L.Ed. 960. Jurisdiction to entertain suits against the United States to recover damages for breach of contract and certain other specified classes of claims was conferred on the Court of Claims by Act of February 24, 1855, 10 Stat. 612. With additions not now material, the jurisdiction was continued by paragraph First of the Tucker Act of March 3, 1887, 24 Stat. 505, which, as supplemented and re-enacted, is now § 145 of the Judicial Code, 28 U.S.C. § 250, 28 U.S.C.A. § 250. Section 2 which, as supplemented and re-enacted, is now § 24(20) of the Judicial Code, 28 U.S.C. § 41(20), 28 U.S.C.A. § 41(20), confers jurisdiction on the district courts 'Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded * * * upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, 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 * * *.'