Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
This action, commenced December 27, 1948, against The United States of America for damages resulting from personal injuries sustained by plaintiffs because of the negligent and wrongful activities of the employees of the government, has heretofore been before this court. Stewart v. United States, 7 Cir., 186 F.2d 627. The facts upon which plaintiffs asserted their right to recover and the theories of the respective parties as to the law of the case are fully set forth and discussed in our previous opinion and need not be reiterated. It may be pertinent to observe that the case previously came to this court from a summary judgment in favor of the government and allowed upon its motion. This court reversed such judgment and held that plaintiffs were entitled to recover. The mandate of this court was filed in the District Court June 11, 1951, under the provisions of which, together with the decision of this court, there remained for the District Court only the assessment of the amount of plaintiff's damages. In the meantime, the government had petitioned the Supreme Court for certiorari, which was denied. United States v. Stewart, 341 U.S. 940, 71 S. Ct. 1000, 95 L. Ed. 1367.
Subsequently, on September 11, 1951, the government was permitted to file an amendment to its original answer, as follows:
"1. That the complaint filed herein purports to invoke the jurisdiction of this court under the terms of 28 U.S.C. 1346(b).
"2. That this honorable court has no jurisdiction to adjudicate the alleged claims set forth in the complaint for the reason that the said claims fall within the Exceptions to 28 U.S.C. 1346(b) set forth in 28 U.S.C. 2680(a)."
The District Court decided adversely to the government the issue raised by its amended answer, directed that the evidence offered in support thereof be stricken, heard testimony as to the extent of the injuries suffered by the plaintiffs, with the resultant damages, and in conformity with the mandate of this court entered a judgment in favor of the plaintiffs and against the government. It is from this judgment the instant appeal comes.
It is plain, so we think, that any merit in the government's position must stem from the premise that the court was without jurisdiction to adjudicate the cause of action stated in the complaint. If such be the case, we assume that the issue of jurisdiction may be raised at any time and that in the absence thereof the judgment is void. This jurisdictional issue, as noted, was raised for the first time after the mandate of this court, which left nothing to be done but the assessment of plaintiff's damages. In the original proceeding the government answered and denied the material allegations of the complaint. It procured a summary judgment in its favor, thereby representing that the court had jurisdiction. It sought an affirmance of such judgment in this court and thereby again represented that the District Court had jurisdiction. After it had been defeated on the merits, this jurisdictional question was raised for the first time. It is stated in the government's brief, "It was first raised in the Solicitor General's Petition for Certiorari to the Supreme Court upon the erroneous assumption that it had been raised in the courts below." If it is a jurisdictional question such as the government urges, it is not discernible how it made any difference in the calculations of the Solicitor General whether the question had been raised in the courts below. It is hardly conceivable that able counsel for the government would have so long overlooked a meritorious jurisdictional defense and raises an inference that they do not have too much confidence in their present position.
The government, as might be expected, with some plausibility relies upon certain language of the two sections designated in its amended answer. Sec. 1346(b) provides:
"Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * *."
"The provisions of this chapter and section 1346(b) of this title shall not apply to -
"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."
We find not a single case in those cited by the government or in the many others which we have read wherein it has been held that a court was without jurisdiction in the sense that it was powerless to adjudicate. It is true a number of cases discuss jurisdiction but not in the sense which we have stated, nor do we think it was used by Congress in that vein. In our view, Sec. 1346(b) conferred general jurisdiction of the subject matter of claim coming within its purview, and the exceptions referred to are available to the government as a defense only when aptly pleaded and proven. If this view be correct, we discern no reason why the government the same as any other party-defendant should not be held to have waived the defense. Rule 12(h), Federal Rules of Civil Procedure, 28 U.S.C. It also must be admitted that the view which we take as to the time and manner ...