§ 1346. — United States as defendant.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1346]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 85--DISTRICT COURTS; JURISDICTION
Sec. 1346. United States as defendant
(a) The district courts shall have original jurisdiction, concurrent
with the United States Court of Federal Claims, of:
(1) Any civil action against the United States for the recovery
of any internal-revenue tax alleged to have been erroneously or
illegally assessed or collected, or any penalty claimed to have been
collected without authority or any sum alleged to have been
excessive or in any manner wrongfully collected under the internal-
revenue laws;
(2) Any other civil action or claim against the United States,
not exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated damages in
cases not sounding in tort, except that the district courts shall
not have jurisdiction of any civil action or claim against the
United States founded upon any express or implied contract with the
United States or for liquidated or unliquidated damages in cases not
sounding in tort which are subject to sections 8(g)(1) and 10(a)(1)
of the Contract Disputes Act of 1978. For the purpose of this
paragraph, an express or implied contract 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 shall be considered an express
or implied contract with the United States.
(b)(1) Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District Court for the
District of the Canal Zone and the District Court of the Virgin Islands,
shall have exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after January 1, 1945,
for injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where
the act or omission occurred.
(2) No person convicted of a felony who is incarcerated while
awaiting sentencing or while serving a sentence may bring a civil action
against the United States or an agency, officer, or employee of the
Government, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.
(c) The jurisdiction conferred by this section includes jurisdiction
of any set-off, counterclaim, or other claim or demand whatever on the
part of the United States against any plaintiff commencing an action
under this section.
(d) The district courts shall not have jurisdiction under this
section of any civil action or claim for a pension.
(e) The district courts shall have original jurisdiction of any
civil action against the United States provided in section 6226,
6228(a), 7426, or 7428 (in the case of the United States district court
for the District of Columbia) or section 7429 of the Internal Revenue
Code of 1986.
(f) The district courts shall have exclusive original jurisdiction
of civil actions under section 2409a to quiet title to an estate or
interest in real property in which an interest is claimed by the United
States.
(g) Subject to the provisions of chapter 179, the district courts of
the United States shall have exclusive jurisdiction over any civil
action commenced under section 453(2) of title 3, by a covered employee
under chapter 5 of such title.
(June 25, 1948, ch. 646, 62 Stat. 933; Apr. 25, 1949, ch. 92, Sec. 2(a),
63 Stat. 62; May 24, 1949, ch. 139, Sec. 80(a), (b), 63 Stat. 101; Oct.
31, 1951, ch. 655, Sec. 50(b), 65 Stat. 727; July 30, 1954, ch. 648,
Sec. 1, 68 Stat. 589; Pub. L. 85-508, Sec. 12(e), July 7, 1958, 72 Stat.
348; Pub. L. 88-519, Aug. 30, 1964, 78 Stat. 699; Pub. L. 89-719, title
II, Sec. 202(a), Nov. 2, 1966, 80 Stat. 1148; Pub. L. 91-350, Sec. 1(a),
July 23, 1970, 84 Stat. 449; Pub. L. 92-562, Sec. 1, Oct. 25, 1972, 86
Stat. 1176; Pub. L. 94-455, title XII, Sec. 1204(c)(1), title XIII,
Sec. 1306(b)(7), Oct. 4, 1976, 90 Stat. 1697, 1719; Pub. L. 95-563,
Sec. 14(a), Nov. 1, 1978, 92 Stat. 2389; Pub. L. 97-164, title I,
Sec. 129, Apr. 2, 1982, 96 Stat. 39; Pub. L. 97-248, title IV,
Sec. 402(c)(17), Sept. 3, 1982, 96 Stat. 669; Pub. L. 99-514, Sec. 2,
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102-572, title IX,
Sec. 902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 104-134, title I,
Sec. 101[(a)] [title VIII, Sec. 806], Apr. 26, 1996, 110 Stat. 1321,
1321-75; renumbered title I, Pub. L. 104-140, Sec. 1(a), May 2, 1996,
110 Stat. 1327; Pub. L. 104-331, Sec. 3(b)(1), Oct. 26, 1996, 110 Stat.
4069.)
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., Secs. 41(20), 931(a), 932 (Mar.
3, 1911, ch. 231, Sec. 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch.
136, Sec. 1310(c), 42 Stat. 311; June 2, 1924, ch. 234, Sec. 1025(c), 43
Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27,
Secs. 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753,
Secs. 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, Sec. 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.
Senate Revision Amendment
The provision of title 28, U.S.C., Sec. 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 Congress Senate Report No.
1559, amendment No. 61.
1949 Act
This section corrects typographical errors in section 1346(a)(1) of
title 28, U.S.C., and in section 1346(b) of such title.
References in Text
The internal-revenue laws, referred to in subsec. (a)(1), are
classified generally to Title 26, Internal Revenue Code.
Sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978,
referred to in subsec. (a)(2), are classified to sections 607(g)(1) and
609(a)(1) of Title 41, Public Contracts.
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.
Amendments
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).
1992--Subsec. (a). Pub. L. 102-572 substituted ``United States Court
of Federal Claims'' for ``United States Claims Court''.
1986--Subsec. (e). Pub. L. 99-514 substituted ``Internal Revenue
Code of 1986'' for ``Internal Revenue Code of 1954''.
1982--Subsec. (a). Pub. L. 97-164 substituted ``United States Claims
Court'' for ``Court of Claims''.
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.
1976--Subsec. (e). Pub. L. 94-455 inserted ``or section 7429'' and
``or section 7428 (in the case of the United States district court for
the District of Columbia)'', after ``section 7426''.
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, Sec. 80(a), inserted ``, (i)
if the claim does not exceed $10,000 or (ii)''.
Subsec. (b). Acts Apr. 25, 1949, and May 24, 1949, Sec. 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''.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-331 effective Oct. 1, 1997, see section
3(d) of Pub. L. 104-331, set out as an Effective Date note under section
1296 of this title.
Effective Date of 1992 Amendment
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Effective Date of 1982 Amendments
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 an Effective Date note under section 6221 of
Title 26, Internal Revenue Code.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Effective Date of 1978 Amendment
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, set out as an Effective Date note under section 601 of Title 41,
Public Contracts.
Effective Date of 1970 Amendment
Section 2 of Pub. L. 91-350 provided that:
``(a) In addition to granting jurisdiction over suits brought after
the date of enactment of this Act [July 23, 1970], the provisions of
this Act [amending this section and section 1491 of this title and
section 724a of former Title 31, Money and Finance] shall also apply to
claims and civil actions dismissed before or pending on the date of
enactment of this Act if the claim or civil action is based upon a
transaction, omission, or breach that occurred not more than six years
prior to the date of enactment of this Act [July 23, 1970].
``(b) The provisions of subsection (a) of this section shall apply
notwithstanding a determination or judgment made prior to the date of
enactment of this Act that the United States district courts or the
United States Court of Claims did not have jurisdiction to entertain a
suit on an express or implied contract with a nonappropriated fund
instrumentality of the United States described in section 1 of this
Act.''
Effective Date of 1966 Amendment
Section 203 of title II of Pub. L. 89-719 provided that: ``The
amendments made by this title [amending this section and sections 1402
and 2410 of this title] shall apply after the date of the enactment of
this Act [Nov. 2, 1966].''
Effective Date of 1958 Amendment
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.
Transfer of Functions
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, as modified,
set out as a note under section 542 of Title 6.
Termination of United States District Court for the District of the
Canal Zone
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.
Section Referred to in Other Sections
This section is referred to in sections 995, 1295, 1402, 1413, 2402,
2409a, 2671, 2676, 2677, 2678, 2679, 2680, 3901, 3902, 3903, 3905 of
this title; title 2 section 190g; title 3 sections 435, 451, 453; title
5 sections 3373, 3374, 3703, 3704, 8477; title 10 sections 1054, 1089;
title 14 sections 821, 823a; title 16 sections 450ss-3, 698v-5; title 18
section 2712; title 22 sections 2702, 3761, 4606; title 25 sections
640d-17, 1680c, 1779c; title 26 section 7422; title 29 section 938;
title 32 section 509; title 38 sections 515, 1151, 7316; title 41
sections 113, 602; title 42 sections 233, 238q, 405, 2212, 2221, 2223,
2458a, 4654, 5055, 7142c; title 43 section 1737; title 46 App. section
1242; title 47 section 606; title 48 section 1905; title 49 section
44309; title 50 App. sections 9, 2410.
