
    No. 106-80C.
    July 3, 1980
    Vernon and Dora Prairie
    
      Vernon Prairie and Dora Prairie, pro se.
    
      Thomas W. Petersen, with whom was Assistant Attorney General Alice Daniel, for defendant.
   Pleading and practice; motion to dismiss; clarification of petition. — On July 3, 1980 the court entered the following order:

Before Davis, Judge, Presiding, Kunzig and Bennett, Judges.

Plaintiffs in this case, pro se, allege the actions of the Government have somehow caused their land to be flooded. As best the court can determine, plaintiffs contend the Government has harmed them by lending money to an unspecified power company or association which is in turn supplying electricity to an individual who wrongfully runs an electric water pump flooding plaintiffs’ property. Other allegations of misconduct by a "Federal Land Bank” are included in plaintiffs’ petition. The Government has moved to dismiss the petition on the ground it states a cause of action in tort, beyond this court’s jurisdiction.

Plaintiffs petition requires further clarification before it can be ruled on by this court. Defendant chose not to file any affidavits refuting plaintiffs’ allegations, indeed, it did not even file an answer in which it may have responded more specifically to the complaint’s contentions. The Government’s response has been simply to file a motion to dismiss, perhaps not appreciating that in the context of defendant’s motion to dismiss we accept the facts as alleged by plaintiff to be true. See Featheringill v. United States, 217 Ct. Cl. 24 (1978); New York Shipbuilding Corp. v. United States, 180 Ct. Cl. 446, 451, 385 F.2d 427, 430 (1967). On the record before us, we cannot confidently say that plaintiffs have no cause of action against the United States. Yet plaintiffs have failed to provide in their complaint sufficient information to enable defendant to prepare an adequate response. Rule 38(e); Wright v. United States, 221 Ct. Cl. 913 (1979). In view of the foregoing, plaintiffs are ordered to file an amended petition within sixty days providing further specification of the nature of their claims against the Government. The amended petition shall include, inter alia:

1. The name, location, and description of the organization ("R.E.A.”) allegedly supplying electricity to the individual allegedly flooding plaintiffs’ land. Furthermore, a more complete statement detailing the conditions under which electricity is supplied to customers, with citation to any pertinent federal and state statutes or regulations.

2. A description of the relationship between the federal Government and the above described organization, including any loans or grants provided by the Government and a statement of the provisions of any loan or grant agreement.

3. The names of any Government personnel contacted by plaintiffs, their positions, a statement of the representations they made to plaintiffs, and the dates when any such representations were made. Copies of correspondence shall be included, as appropriate.

4. Further specification of plaintiffs’ claim against the "Federal Land Bank,” particularly including the amount of money allegedly withheld and the dates when any allegedly wrongful conduct occurred.

5. Any other facts, information or citations of law considered necessary or relevant.

This information shall be supported by reference to specific names, dates, statutory citations, agreements, contracts or regulations as appropriate. Copies of important supporting documentation must be supplied with plaintiffs’ amended petition. The advice of counsel would undoubtedly be useful in helping plaintiffs revise their petition and in assessing the merits of any potential action against the Government.

Defendant’s motion to dismiss shall be suspended for the sixty days given to plaintiffs to amend their petition. In the event plaintiffs fail to file an amended petition within the sixty days granted, the motion to dismiss shall be granted by the clerk without further action by this court. If, however, plaintiffs file an amended petition as called for by this order, defendant may renew its motion to dismiss, in its discretion.

Accordingly, it is therefore ordered, upon the parties’ submissions and without oral argument, that defendant’s motion to dismiss is suspended for sixty days. Plaintiffs are directed to file an amended petition, as described herein, within sixty days. If plaintiffs fail to file an amended petition within the sixty days granted, the clerk of the court shall grant defendant’s motion and plaintiffs’ petition shall be dismissed.

Bennett, Judge,

dissenting:

Respectfully, I think that the order of the court in this case proposes a course of conduct that will be an expensive exercise in futility. It has recommended that plaintiff get legal assistance to answer a series of questions propounded by the court.

As to the claim we are asked to take recognition of plaintiff states as follows:

The Federal Government through the R.E.A. are [sic] supplying electricity to Francis Diken to pump water from Sec. 17 Fairview township Lyon County Minn to and trough [sic] my land enunding [sic] the land. * * *

So, what we have here in simple terms is that plaintiff says the Rural Electrification Administration (R.E.A.) is selling electricity to Mr. Diken who runs an electric pump that spreads water over plaintiffs land. His theory seems to be that the United States is liable for the alleged damage. If someone’s loud, stereo music flooded a neighbor’s property so that he considered it offensive and damaging, could the neighbor sue the bank that loaned the power company money to generate electricity for sale to the stereo owner? That appears to be what plaintiff is attempting to do. His flood is water, not noise, but a tort nevertheless, over which this court has no jurisdiction. However, I will consider that plaintiff is claiming a fifth amendment taking, over which we do have jurisdiction in a proper case.

The Rural Electrification Administration finances nonprofit electric and telephone companies or associations in rural areas by making them low-cost loans at 2 to 5 percent interest. It does not itself own or operate any electrical facilities. Plaintiff alleges it does supply electricity to his offending neighbor, which is thus not so. R.E.A. receives its money through collections on outstanding loans, through Treasury borrowings, and through sales of beneficial ownership interests in borrower notes held in trust by R.E.A. The loans which are made finance construction and operation by others of generating plants and transmission and distribution lines to provide electric and phone service to rural area customers.

The significant thing here would be whether, in these activities, R.E.A. is the agent of the United States and responsibile for the torts or takings of borrowers or, as here, of customers of the borrowers. This is such a remote possibility as to make the answer self-evident. These are not questions posed by the proposed order, however.

This case is most closely analogous to those where the Government makes grants in aid to states for highway construction, sewage treatment plants, etc. No liability on the part of the United States to those affected by the acts and omissions of the grantees has been found in those cases. Dart Indus., Inc. v. United States, 220 Ct.Cl. 607 (1979); D. R. Smalley & Sons v. United States, 178 Ct. Cl. 593, 597-98, 372 F.2d 505, 507, cert. denied, 389 U.S. 835 (1967).

Considering plaintiffs claim in the most favorable light, and assuming all his allegations to be true, there is still no way to read his petition to state a claim on which we can grant relief or of which we have jurisdiction. The posture of his claim will in no way be enhanced by answering the court’s questions. If plaintiff is prudent, he will not waste money in attorney fees to proceed further here but will sue his offending neighbor in a local state court. He wastes our resources and his own by any other course. In this era where the expense of asserting one’s legal remedies has put the legal process beyond the reach of many citizens, the court does itself no credit in encouraging fruitless litigation, and it does a great disservice to plaintiff here.

I dissent.

On September 9, 1980 the court granted defendant’s motion to dismiss, and plaintiffs’ petition was dismissed for failure to file an amended petition within the time allowed.  