In this action the plaintiff, Samuel H. McLean, seeks judgment for damages in the sum of $5,000, against the United States, under the provisions of the act of May 24, 1938, 52 Stat. 438, 18 U.S.C.A. §§ 729, 730. 1 In his complaint he alleges that he was wrongfully convicted of manslaughter by United States Navy Court Martial on Iwo Jima, Volcano Islands, in 1945, and was sentenced to imprisonment at hard labor for five years, and to a dishonorable discharge; that he entered upon the service of his sentence and after being in prison for approximately six months at the Navy Disciplinary Barracks, at San Pedro, California, his conviction was set aside by the Judge Advocate General of the Navy who adjudged that he was not guilty of the crime of which he was convicted and that his conduct in connection with said charge did not constitute a crime against the United States or against any State, territory or possession of the United States or of the District of Columbia; that he did not, intentionally or by willful misconduct, contribute to bring about his arrest or conviction.
The case is before me on motion of the defendant to dismiss the action on two grounds, namely, (1) The District Court lacks jurisdiction of the subject matter because exclusive jurisdiction is in the *777 Cоurt of Claims; and (2) the complaint fails to state a claim against the defendant upon which relief can be granted. The defendant also moves for summary judgment upon the ground that the plaintiff did not have a certificate of a сourt containing recitals or findings required by the statute.
To support its first ground to dismiss the defendant relies upon the following provisions of the statute: “may, subject to the limitations and conditions hereinafter stated, and in accordance with the provisions of the Judicial Code, maintain suit against the United States in the Court of Claims for damages sustained by him as a result of such conviction and imprisonment.” The defendant contends that this gives the Court of Claims exclusive jurisdiction of the suit. On the other hand, the plaintiff contends that 28 U.S.C.A. § 41(20) (The Tucker Act) gives the District Court concurrent jurisdiction with the Court of Claims in this action. The section relied upon by the plaintiff is as follows: “The district courts shall have original jurisdiction as follows: * * * (20) Suits against United States. Twentieth. Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or 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 оf law, equity, or admiralty, if the United States were suable, * * 28 U.S.C.A., § 41(20). The purpose of the Tucker Act was declared by the Supreme Court in Bates Mfg. Co. v. United States,
It thus appears that one very important purpose of the Tucker Act was to make it possible for aggrieved persоns with comparatively small claims against the United States to prosecute their cause in their own district. This has many advantages for the private litigant and although the Tucker Act has been in force for many years, no undue burden or hardship has been placed by it upon the government.
From the wording of the Tucker Act, and the decisions construing it, it is clear that the District Court has concurrent jurisdiction with the Court of Claims of all cases not sounding in tort where the amount involvеd does not exceed $10,000. Bates Mfg. Co. v. United States,
To sustain its second ground to dismiss, defendant contends that the statute (18 U.S.C.A. § 729) does not cover a conviction in a court martial. The Act provides that, “Any person who, having been convicted of any crime or offense against the United States * * * may * * * maintаin suit against the United States * * * for damages sustained by him as a result of such conviction and imprisonment.” One tried by a court martial is tried for an offense against the United States. The basis for any prosecution in a Navy court martial is necеssarily a violation of the Articles for Government of the Navy. These Articles were enacted
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by an Act of Congress. 34 U.S.C.A. § 1200. A violation of an Act of Congress is necessarily an offense against the United States. The statute (18 U.S.C.A. §
729)
includes any pеrson who is convicted of any offense against the United States; it therefore, covers a conviction in a court martial. Grafton v. United States,
Section 730 of the Act provides that, “The only evidence admissible on the issue of innocence of the plaintiff shall be a certificate of the court in which such person was adjudged not guilty or a pardon or certified copy of a pardon, * * The defendant contends that the Navy Court Martial which cоnvicted this plaintiff, and the Judge Advocate General who reversed his conviction are not “Courts” within the meaning of the statute.
Courts martial are lawful tribunals existing under the Constitution and Acts of Congress, having plenary jurisdiction of offenses committed to them by the military law, and they are supreme while acting within the sphere of their exclusive jurisdiction. Carter v. Roberts,
Article 54(b) of the Articles for Government of the Navy, 34 U.S.C.A. § 1200 (54(b), gives the Secretary of the Navy authority to set aside a proceeding of a Navy court martial or to remit or mitigate any sentence imposed. The review of a court martial prоceeding is a judicial act. 6 C.J.S., Army and Navy, § 57, p. 462; United States v. Fletcher,
The action of the Secretary of Navy in reviewing a court martial cannot be further reviewed in the civil court and is res judicata. 34 Op.Atty.Gеn. 162.
From the foregoing it is clear that a court martial and the review by the Judge Advocate General are judicial proceedings and certainly would come within the meaning of the word “Court” as set out in the statute, especially when the purpose of the statute is kept in mind.
In an able and interesting opinion, the legislative history of this section has been set out fully in United States v. Keegan, D.C.,
This Act is a remedial act designed by a fair-minded government as a means of at least partially righting an irreparable wrong done to one of its dti *779 zens. It has the beneficent purpose of attempting to compensate, as well as money can compensate for such an injury, the plaintiff for the loss of his liberty through an error on the part of his government. One convicted in a court martial is just as effectively deprived of his liberty as one convicted in the district court of the United States. The same sovereign is responsible for the wrong that has brought about his suffering. It is, therefore, my opinion that the Act covers a conviction in a court martial.
For the foregoing reasons, the defendant’s motion to dismiss should be denied, and it is so ordered.
As to the motion for summary judgment, possession or non-possessiоn of the certificate required by the statute is an evidentiary matter and cannot be disposed of on the pleadings. Motion for summary judgment is, therefore, denied.
Notes
“§ 729. Erroneous conviction; authorization of suit against United States. Any pеrson who, having bee.n convicted of any crime or offense against the United States and having been sentenced to imprisonment and having served all or any part of his sentence, shall hereafter, on appeal or on a new trial or rehearing, be found not guilty of the crime of which he was convicted or shall hereafter receive a pardon on the ground of innocence, if it shall appear that such person did not commit any of the acts with which he was charged or that his conduct in connection with such charge did not constitute a crime or offense against the United States or any State, Territory, or possession of the United States or the District of Columbia, in whiсh the offense or acts are alleged to have been committed, and that he has not, either intentionally, or by willful misconduct, or negligence, contributed to bring about his arrest or conviction, may, subject to the limitations and cоnditions hereinafter stated, and in accordance with the provisions of the Judicial Code, maintain suit against the United^ States in the Court of Claims for damages sustained by him as a result of such conviction and imprisonment.
“§ 730. Same; certificаte of innocence; admissibility; contents. The only evidence admissible on the issue of innocence of the plaintiff shall be a certificate of the court in which such person was adjudged not guilty or a pardon or certifiеd copy of a pardon, and such certificate of the court, pardon, or certified copy of a pardon shall contain recitals or findings that—
“(a) Claimant did not commit any of the acts with which he was charged; or
“(b) that his conduct in connection with such charge did not constitute a crime or offense .against the United States or any State,"'Territory, or possession of the United States or the District of Columbia, in which the offense or acts are alleged to have been committed; and
“(c) that he has not, either intentionally, or by willful misconduct, or negligence, contributed to bring about his arrest or conviction.”