724 F.2d 776 (9th Cir. 1984), 82-4642, Warren v. United States Dept. of Interior Bureau of Land Management

Docket Nº:82-4642.
Citation:724 F.2d 776
Party Name:James WARREN, Jack Warren, Jerry Warren, Robert Warren and Frieda Warren, Plaintiffs-Appellants, v. The UNITED STATES DEPARTMENT OF the INTERIOR BUREAU OF LAND MANAGEMENT; Nevada Bureau of Land Management; and Does I-X, inclusive, Defendants-Appellees.
Case Date:January 24, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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724 F.2d 776 (9th Cir. 1984)

James WARREN, Jack Warren, Jerry Warren, Robert Warren and

Frieda Warren, Plaintiffs-Appellants,



MANAGEMENT; Nevada Bureau of Land Management;

and Does I-X, inclusive, Defendants-Appellees.

No. 82-4642.

United States Court of Appeals, Ninth Circuit

January 24, 1984

Argued and Submitted Oct. 13, 1983.

Robert J. Peyton, Houston & Peyton, Reno, Nev., for plaintiffs-appellants.

Al J. Daniel, Jr., U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.


SKOPIL, Circuit Judge:

The issue presented is whether jurisdictional limitations on tort claims against the federal government encompass regulations promulgated pursuant to the agencies' claims settlement authority. See 28 U.S.C. Secs. 2675(a) and 2672 (1982). We decide the case en banc to resolve a conflict in our prior decisions. Compare Graves v. United States Coast Guard, 692 F.2d 71 (9th Cir.1982) with House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 182, 58 L.Ed.2d 171

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(1978). 1 The district court applied House, holding that 28 C.F.R. Sec. 14.3(e) (1982) is a jurisdictional requirement not subject to waiver. We reverse and remand.


Plaintiffs appeal the district court's dismissal of their wrongful death action against the government. The appellants are the parents and brothers of the decedent, Judith Weese. They allege that her death was the proximate result of the government's failure to properly supervise land under its control.

On April 21, 1983 Robert J. Peyton, an attorney, sent a letter to the Bureau of Land Management ("BLM") in which he stated that he had been retained by appellants to pursue a wrongful death action against the BLM. He contended that the BLM was liable for decedent's wrongful death under the Federal Tort Claims Act. He informed the BLM that he was authorized to make a demand in the amount of $100,000. On May 5, 1980 the BLM, through Burton J. Stanley, acknowledged Peyton's letter, enclosed three copies of Standard Form 95, and advised that claims for damages under the Federal Tort Claims Act should be made on that form. In its letter the BLM also advised Peyton that "when submitting the claim, you should comply fully with the provisions of 28 C.F.R. Sec. 14.3(e) requiring evidence of the authority of a legal representative to present a claim on behalf of a claimant." 2

Peyton subsequently submitted the claims on the appropriate claim form and signed each form in a manner which indicated his representative status. He did not, however, submit any additional documentation regarding his authority.

Despite the government's present contention that the claimants failed to comply with section 14.3(e), the BLM decided their claims on the merits. The decedent's brothers' claims were denied because the BLM concluded that they failed to demonstrate a compensable interest upon which to base a claim. The BLM denied the parents' claims on the ground that the evidence did not indicate that the government was negligent. Appellants subsequently filed this action in the district court.

The district court granted the government's motion to dismiss for lack of jurisdiction. The court concluded that failure of claimants' attorney to present extrinsic evidence of his authority violated 28 C.F.R. Sec. 14.3(e). 3 Relying on House, the district court held that failure to satisfy the settlement regulations was a jurisdictional bar. Although it felt such application of the regulations was "supertechnical," the court dismissed the action for lack of jurisdiction.


The jurisdiction of federal courts to entertain actions for damages against the United States is limited by the Federal Tort Claims Act ("FTCA"). See 28 U.S.C.

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Sec. 2675(a) (1982). A plaintiff must first present notice of a claim to the appropriate federal agency. 4 The plaintiff is permitted to sue the United States only after the claim is denied or six months have elapsed without final disposition by the agency. E.g., Avery v. United States, 680 F.2d 608, 611 (9th Cir.1982) (claims presentation requirement is jurisdictional).

Federal agencies are authorized by Congress to settle claims. See 28 U.S.C. Sec. 2672 (1982). To promote this settlement process, Congress empowered the Attorney General to promulgate regulations pursuant to section 2672. See 28 C.F.R. Secs. 14.1-14.11 (1982). The government contends appellants' attorney failed to comply with section 14.3(e) of these regulations.

We find the relevant statutes and their legislative histories reveal that Congress did not intend to treat regulations promulgated pursuant to section 2672 as jurisdictional prerequisites under section 2675(a). 5 Accord, Avery, 680 F.2d at 611; Adams v. United States, 615 F.2d 284, 289-90, amended, 622 F.2d 197 (5th Cir.1980). Section 2672 states, inter alia:

The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States....

(Emphasis supplied.) The regulations in question were promulgated by the Attorney General pursuant to this authority. Nothing in this language suggests that these regulations are to be applied jurisdictionally under section 2675(a). If Congress intended to authorize the promulgation of jurisdictional regulations, it would have created that authority directly. Congress has never delegated such authority under section 2675(a).

Difficulties presented by the former claims process prompted Congress to amend it. See Adams, 615 F.2d at 288-89. Claimants formerly were required to first bring an action in district court against the government if their claims exceeded $2,500. Pub.L. No. 86-238, Sec. 1(1), 73 Stat. 471-72 (1959) (amended 1966). Only after filing could settlement be negotiated. 28 U.S.C. Sec. 2677 (1982); see also S.Rep. No. 1327, 89th Cong., 2d Sess. 3 ("S.Rep."), reprinted in 1966 U.S.Code Cong. & Ad.News, 2515, 2516 ("USCCAN"). The result was clogging of the courts with many claims that

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claimants and the government wanted to settle. Government agencies were forced to respond to court filings before engaging in settlement negotiations. Claimants, the courts and the agencies were forced to waste time and money because federal agencies lacked authority to consider settlement prior to court action. S.Rep. at 5-6, USCCAN at 2518.

Under the amended versions of sections 2672 and 2675, all claims must be filed with the appropriate agencies before claimants can bring action in federal court. Congress articulated two purposes for amending the statutes. The first was "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." S.Rep. at 2, USCCAN at 2516. Second, the amendments were thought to provide "for more fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government." S.Rep. at 2, USCCAN at 2515-16.

Congress apparently modeled the claims presentation requirement of section 2675(a) after statutes governing tort claims against municipalities. S.Rep. at 3-4, USCCAN at 2516-17. Those statutes "protect the municipality from the expense of needless litigation, give it an opportunity for investigation, and allow it to adjust differences and settle claims without suit." S.Rep. at 4, USCCAN at 2517 (quoting 18 E. McQuillan, The Law of Municipal Corporations Sec. 53.153 (3d rev. ed. 1977)). Congress understood these claims presentation statutes as requiring only minimal notice. We find that Congress intended no more for purposes of section 2675(a).

Congress intended the requirements of section 2675 to function independently of section 2672. Adams, 615 F.2d at 290. Section 2675 was amended to give agencies sufficient notice to enable them to begin their own investigations. S.Rep. at 4; Adams, 615 F.2d at 290. Minimal notice requires claimants to (1) give an agency sufficient written notice to commence investigation and (2) place a value on the claim. Avery, 680 F.2d at 610. By denying appellants' claims on the merits, the BLM demonstrated that they had sufficient notice to initiate investigation. The agency's actions are persuasive evidence that the jurisdictional requirement of minimal notice was satisfied.

To interpret section 14.3(e) as jurisdictional would be to impose upon claimants an added burden which would inevitably result in barring otherwise meritorious claims. Such a result would frustrate the purposes of both 28 U.S.C. Sec. 2672 and Sec. 2675(a). 6

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Thus, we hold that section 2675(a) requires the claimant or his legal representative to file (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim. Adams, 615 F.2d at 292; 7 accord, Avery, 680 F.2d at 611. 8 This is not to say, however, that regulations promulgated pursuant to section 2672 are rendered meaningless by our holding that they are not jurisdictional requirements under section 2675(a):

Section 2672 governs agency conduct, including administrative settlement and adjustment of properly presented claims, once notice has been given pursuant to section 2675 ... Noncompliance...

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