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GRIEVES v. LEVY

March 5, 1965

JOHN ROBERT GRIEVES, A MINOR, BY MARILYN GRIEVES, HIS MOTHER AND NEXT FRIEND, PLAINTIFF,
v.
ELMER LEVY, DEFENDANT. DEPARTMENT OF PUBLIC AID, INTERVENING PETITIONER.



The opinion of the court was delivered by: Robson, District Judge.

By Private Law 88-359, approved October 13, 1964, Congress authorized the payment to plaintiff of the sum of $2,000 in full settlement of the instant federal tort claims cause against the United States and Elmer Levy for the damages for personal injuries growing out of an accident on May 2, 1961, in Ottawa, Illinois, which occurred while Elmer Levy was engaged in his duties as a postal employee. The Act further provided that the attorney's fee be not in excess of ten per centum of the recovery.

On January 24, 1964, an order was entered granting leave to the Illinois Department of Public Aid to file an intervening petition. Plaintiff has now moved to strike the intervening petition, which claims a lien against the proceeds by virtue of public aid expended on behalf of plaintiff. The amount of the lien claimed is $867.45.

Plaintiff contends that since the suit is brought here by removal under 28 U.S.C. § 1442(a) there is no authority for the Illinois Public Aid Commission to have intervened herein.

Plaintiff relies heavily on the pertinent decision from this district in Monroe v. Pape, 221 F. Supp. 635 at 649-650 (N.D.Ill. (1963)), where the court said:

    "The Illinois Public Aid Commission may not
  intervene as a matter of right for three reasons. (1)
  There is no statute of the United States which
  confers such right upon the petitioner, and the State
  of Illinois is powerless to create a right to be
  heard in a Federal Court where that right does not
  exist under the laws of the United States, especially
  where the State's claim arises under its own law,
  where the State is neither an indispensable nor a
  necessary party, and where there is no diversity of
  citizenship to support the jurisdictional
  requirements of the Court. (2) The petitioner will in
  no way be bound by the judgment in this action. (3)
  The petitioner will not be adversely affected by the
  disposition of this case, and even if it were, this
  Court does not have the required `custody' of
  property, nor any property as a result of the
  judgment in this case which is subject to its control
  or disposition. * * *
    "Nor may petitioner intervene by permission under
  sub-part (b) of Rule 24. There is no statute of the
  United States which confers such right on petitioner,
  nor does petitioner's claim have a question of law or
  fact in common with the main action. Furthermore, the
  intervention, if allowed, would most certainly
  prejudice the adjudication of the rights of the
  plaintiffs. The motion to intervene would be denied
  on the basis of this rule alone.
    "Even were we to assume that the petitioner might
  intervene under the rule, the petition nevertheless
  would have to be dismissed on its merits. The
  Illinois statute not only denies due process and
  equal protection of the laws, as applied to the facts
  of this case, but more, it stands in derogation of
  the full enforceability of the Federal law and thus
  would conflict with the supremacy clause of the
  United States Constitution. Art. VI, Cl. 2.
    "Accordingly, petitioner's motion to intervene is
  denied."

The Attorney General for the Illinois Department of Public Aid states in his brief that there is presently in the custody of the court the fund of $2,000, which statement the court accepts for the purpose of this motion inasmuch as the Act to appropriate the same has been passed, although the court's record does not reflect the actual receipt thereof. He seeks to differentiate the instant cause from that of Monroe v. Pape, supra, on the ground that that was a Federal Civil Rights Statute and not a Federal Tort Claims Act case as this is. The Attorney General maintains the Illinois statute, similar to the Federal Rules, allows intervention of the Department so that it has a charge upon any judgment given plaintiff, pursuant to Illinois Revised Statutes 1963, Chapter 23, Section 819.

Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937), the federal court is to apply the law of the state, so that to deny the Department the right to intervene would deny it a right which the state court grants in protecting a substantive right created by the state legislature.

The Department further points out that the distribution of the instant fund would adversely affect a substantial right in the public interest by depriving the state of its right of recovery of the $867.45. Intervenor also cites 42 U.S.C. § 603(b)(2)(B), as recognizing the State's duty to reimburse itself for funds expended, where possible, from personal injury judgments.

This court, with some reluctance in view of the sum which will accrue to the injured person, determines that the Illinois Department of Public Aid has a standing as an intervenor and is legally entitled to be reimbursed for its lien claim from the amount receivable under the special appropriations act.

Early in the suit, in answer to the government's interrogatories, plaintiff stated that she did "not know what the amounts of the bills were. To the best of my knowledge, bills were given to State Aid."

The Illinois Revised Statutes 1963, Chapter 23, Section 819, while not capable of binding the federal government, does bind a citizen of Illinois who ...


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