MEMORANDUM-DECISION AND ORDER
McCURN, District Judge.
The Canadian St. Regis Band of Mohawk Indians brings this action to recover possession of certain islands in the St. Lawrence River. Plaintiffs also seek compensation from the federal defendants St. Lawrence Seaway Development Corporation and its administrator for flooding portions of their land without just compensation in violation of the Fifth Amendment to the United States Constitution. Presently before the court is the federal defendants' motion to dismiss plaintiffs' Fifth Amendment claim on the ground that it is time barred. For the reasons discussed below, the court grants the federal defendants' motion.
Plaintiffs are a Canadian Indian tribe. In this action they seek a declaratory judgment that they own and are entitled to possess the Croil
The St. Lawrence Seaway Development Corporation is a federal corporation chartered under the laws of the United States. 33 U.S.C. § 981 et seq. It has the power to sue and be sued in its own name. 33
Plaintiffs filed the present action on October 15, 1982. The St. Lawrence Seaway Development Corporation and its administrator have moved to dismiss the claim against them as time barred. The federal defendants contend that plaintiffs' Fifth Amendment claim is in reality a suit against the United States under the Tucker Act, 28 U.S.C. § 1346(a)(2), and that the six-year statute of limitations of 28 U.S.C. § 2401(a) applies. According to the federal defendants, plaintiffs' claim against the Corporation is barred because it was filed more than six years after plaintiffs' land was flooded. Plaintiffs, however, argue that the "sue and be sued" clause in the Corporation's charter allows plaintiffs to sue the St. Lawrence Seaway Development Corporation on the same terms as a private litigant. They contend that no statute of limitations applies.
A motion to dismiss will be granted only if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957); Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir.1985). The court's review is confined to the face of the complaint and any documents incorporated in the complaint by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). The court must assume that the facts in the complaint are true and draw all reasonable inferences in the plaintiffs' favor. Dwyer, 777 F.2d at 829; Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985).
The issue before the court is whether plaintiffs' claim against the federal defendants is in fact against the United States and thus time barred. A suit, however captioned, is one against the government if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947); Blackburn v. Goodwin, 608 F.2d 919, 923 (2d Cir.1979). Courts will also examine whether the corporation or agency was functioning as an instrumentality of the federal government. See Breitbeck v. United States, 500 F.2d 556, 557-58 (Ct.Cl.1974).
Congress created the St. Lawrence Seaway Development Corporation in 1954, as a wholly owned federal corporation. 33 U.S.C. § 981 et seq. "The management of the Corporation [is] vested in an Administrator who [is] appointed by the President, by and with the advice and consent of the Senate...." 33 U.S.C. § 982(a). The President also appoints the Advisory Board. 33 U.S.C. § 982(b). The Corporation's activities are under the Secretary of Transportation's supervision, and its tolls and other charges are subject to the President's approval. 33 U.S.C. §§ 981, 988.
The relevant legislative history reveals that Congress created the Corporation "as an instrumentality of the United States" to construct, operate, and maintain the United States' portion of the St. Lawrence Seaway.
The Court of Claims in Breitbeck considered whether the United States could be sued for a claim against the St. Lawrence Seaway Development Corporation. Employees of the St. Lawrence Seaway Development Corporation brought suit against the United States to recover wages owed to them by the Corporation. The United States moved to dismiss claiming that the Court of Claims had no jurisdiction because the suit was not one against the United States. The court held that because the Corporation was an agency of the United States accomplishing purely governmental purposes, a suit could be maintained in the Court of Claims against the United States. The court also noted that even though "Congress did attempt to make the agency self-supporting, in general, ... there are likewise substantial indications that this was not to separate it wholly from the Treasury." Breitbeck, 500 F.2d at 559. After analyzing the Corporation's continued dependence on federal funds, the Court of Claims concluded, "There is in short, no such clear cleavage between the Corporation's own funds and those of the United States that one could say Congress wished to cut the agency entirely loose from the Treasury or from appropriated funds." Id.
In the present action the St. Lawrence Seaway Corporation was acting under express authorization to build the dams in question. S.Rep. 441, 83rd Cong., 2d Sess., reprinted in, 1954 U.S. Code Cong. & Ad. News 2197, 2234. They were constructed for public navigation and power and for the national security, all governmental functions. Moreover, plaintiffs are asserting a Fifth Amendment claim.
Plaintiffs' reliance on Federal Housing Administration v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940), is misplaced. Burr involved a garnishment action against the Federal Housing Administration (FHA) where any recovery was restricted
Id. 309 U.S. at 245, 60 S.Ct. at 490. See also Reconstruction Finance Corp. v. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941). (Reconstruction Finance Corporation was liable for same costs as private litigant in unsuccessful litigation which was brought by the Corporation under its sue and be sued clause).
In contrast to Burr and Menihan, the St. Lawrence Seaway Development Corporation in the present action was not acting as a commercial entity but as the government appropriating land for public use. As noted above, recovery of "just compensation" would also impact public funds. Although sue and be sued clauses are generally interpreted liberally, the Corporation's sue and be sued clause only makes it amenable to the same judicial process as a private enterprise under like circumstances. Burr, 309 U.S. at 245, 60 S.Ct. at 490. A private enterprise could not be sued for violating the Fifth Amendment's takings clause.
The Supreme Court recently noted that land suits seeking damages equal to just compensation for an already completed taking of land are properly brought under the Tucker Act. United States v. Mottaz, ___ U.S. ___, ___, 106 S.Ct. 2224, 2333, 90 L.Ed.2d 841 (1986); See also Malone v. Tennessee Valley Authority, 86 F.Supp. 961 (W.D.Ky.1949). In Malone, the TVA flooded the plaintiff's land by constructing a dam. The plaintiff sued the TVA to recover damages for destroying his property. The Tennessee Valley Authority Act, 16 U.S.C. § 831c(h), authorizes the TVA to take land by eminent domain in the name of the United States. Finding that "(t)he authority conferred upon the Tennessee Valley Authority to sue and be sued does not mean that the Authority can be sued where the United States only is the proper party," the Malone court held that if the plaintiff had a cause of action, it was against the United States under the Tucker Act and not against the Tennessee Valley Authority. Malone, 86 F.Supp. at 964.
In the present action the United States has not authorized Fifth Amendment takings suits against it under the Corporation's sue and be sued clause. The government's waiver of sovereign immunity for Fifth Amendment takings claims is found in the Tucker Act. See United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Clark v. Library of Congress, 750 F.2d 89, 103 n. 31 (D.C.Cir. 1984); Duarte v. United States, 532 F.2d 850, 852 n. 3 (2d Cir.1976). Because plaintiffs are in fact suing the United States, the St. Lawrence Seaway Development Corporation is entitled to the same defenses as the government.
28 U.S.C. § 2401(a) provides in part:
Without consent, the United States is immune from suit, and the terms of its consent define the court's jurisdiction. Id. ___ U.S. at ___, 106 S.Ct. at 2229; United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). The Supreme Court has emphasized, "When waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity." Mottaz, ___ U.S. at ___, 106 S.Ct. at 2229 quoting Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1820, 75 L.Ed.2d 840 (1983). Therefore, expiration of the time period denies the court jurisdiction, and the statute cannot be waived. Walters v. Secretary of Defense, 725 F.2d 107, 112 n. 12 (D.C.Cir.1983) citing Finn v. United States, 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128 (1887). Like the statute of limitations applied in Mottaz, the six-year limitations period of 28 U.S.C. § 2401(a) "reflects a clear Congressional judgment" that the national public interest requires barring stale claims against the United States.
Because the present action against the St. Lawrence Seaway Development Corporation and its administrator is really a suit against the United States, the six-year statute of limitations applies.
Accordingly, the present suit against the federal defendants is time barred, and the federal defendants' motion to dismiss is granted.
IT IS SO ORDERED.