818 F.2d 901 (D.C. Cir. 1987), 84-5638, GAF Corp. v. United States

Docket Nº:84-5638, 84-5693 and 85-5655.
Citation:818 F.2d 901
Party Name:GAF CORPORATION, Appellant, v. UNITED STATES of America. KEENE CORPORATION, Appellant, v. UNITED STATES of America. EAGLE-PICHER INDUSTRIES, INC., Appellant, v. UNITED STATES of America.
Case Date:May 05, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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818 F.2d 901 (D.C. Cir. 1987)










Nos. 84-5638, 84-5693 and 85-5655.

United States Court of Appeals, District of Columbia Circuit

May 5, 1987

Argued Nov. 5, 1985.

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Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 83-1322, 82-2120 and 84-1360).

Marcy L. Kahn, New York City, of the Bar of the Supreme Court of Arizona, pro hac vice, by special leave of Court, with whom Jerald Oshinsky, Harold D. Murry, Jr., Washington, D.C., Eugene R. Anderson, New York City, and Lorelie S. Masters, Washington, D.C., were on the brief, for appellant in No. 84-5693.

Paul A. Zevnik, with whom Susan P. Adams, Washington, D.C., was on the brief, for appellant in No. 84-5638.

Edward M. Fogarty, with whom Joe G. Hollingsworth, Washington, D.C., was on the brief, for appellant in No. 85-5655.

M. Faith Burton, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Jeffrey Axelrad, Atty., and Janice Griffin O'Reilly, Special Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee in Nos. 84-5638, 84-5693 and 85-5655. David S. Fishback, Atty.,

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Dept. of Justice, Washington, D.C., also entered an appearance for appellee in No. 84-5638.

Before ROBINSON, Circuit Judge, and WRIGHT and McGOWAN, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.


These consolidated cases concern the standard for presentments of tort claims under the Federal Tort Claims Act. 1 Section 2675(a) of the Act requires that tort claimants against the United States present their claims to an appropriate federal agency as a jurisdictional prerequisite to filing suit. The purpose of this requirement is to promote the settlement of claims out of court. Appellants in the cases here consolidated each presented such a claim and subsequently brought suit in the District Court. The court dismissed each case on jurisdictional grounds, for failure to make a proper presentment in accordance with Section 2675(a). 2

We find that the District Court interpreted the presentment requirement of Section 2675(a) too stringently with respect to GAF Corporation (No. 84-5638) and Eagle-Picher Industries (No. 85-5655). Accordingly, we reverse and remand Nos. 84-5638 and 85-5655 to the District Court. With respect to Keene Corporation (No. 84-5693), however, we find that the District Court correctly determined that Keene was precluded from relitigating the presentment requirement applied to it in earlier litigation before the Second Circuit, 3 and that, judged by this standard, its presentment was deficient. Accordingly, we affirm the District Court's order in No. 84-5693 dismissing the case on jurisdictional grounds.


The Federal Tort Claims Act is a limited waiver of the United States' sovereign immunity and renders the Federal Government liable to the same extent as a private party for certain torts of its employees committed within the scope of their employment. 4 But the United States may define the terms upon which it may be sued 5 and absent full compliance with the conditions the Government has placed upon its waiver, courts lack jurisdiction to entertain tort claims against it. 6

Section 2675(a) imposes one such condition, an administrative-filing requirement, satisfaction of which is a jurisdictional prerequisite to the maintenance of a tort suit against the United States. This Section requires that a claim be "presented" to the appropriate federal agency prior to commencement of a lawsuit. 7 Congress added

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this requirement to the Act in 1966 8 as part of a package of amendments designed to facilitate out-of-court settlement of claims. Prior to 1966, claimants seeking damages in excess of $2,500 were statutorily required to file suit; the 1966 amendments were intended to remove statutory impediments to claims settlement and provide a framework in which settlement negotiations with the agencies would proceed. 9 The presentment requirement of Section 2675(a) was a key element in the new procedure for claims resolution. Only after a proper presentment has been made may a claimant commence a lawsuit in federal court. Claimants are entitled to file suit at the point at which the claim presented is finally denied, or six months after it is presented if the agency fails to make final disposition of the claim within that period. 10

Congress made presentment of claims a jurisdictional prerequisite to suits under the Federal Tort Claims Act, but it provided no statutory definition of presentment, nor standards by which its jurisdictional sufficiency might be judged. Courts evaluating the sufficiency of presentments have divided on the question whether the jurisdictional requirements of Section 2675(a) incorporate regulations promulgated by the Justice Department pursuant to its authority to establish procedures for claims settlement under Section 2672. 11 We join the majority of circuits to have considered the question in holding that these regulations do not govern the jurisdictional requirements of Section 2675(a); rather, the standard for evaluating presentments must be determined with reference to the statutory scheme adopted by Congress in 1966. As we develop below, a jurisdictionally adequate presentment is one which provides to the appropriate agency (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim. 12 Discharge of this obligation of notice is sufficient to establish jurisdiction for purposes of suit under the Federal Tort Claims Act.


The three cases consolidated in this appeal all involve claims for indemnity or contribution against the United States. In each instance, the companies suing the United States have themselves been sued by persons alleging injury due to exposure to asbestos. Because the facts of the cases are in some respects dissimilar, each will be discussed separately.

  1. The Facts

    1. GAF Corporation

    GAF seeks to recover from the United States damages it has sustained in defending

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    and settling 766 cases which were brought against GAF by persons injured through contact with asbestos. 13 GAF claims that it is entitled to indemnity, contribution, or apportionment against the United States on the ground that the United States required the company to use thermal insulation products containing asbestos in the construction and repair of ships and in work at government and contract shipyards--even though, GAF alleges, the Government was aware of the health hazards posed by asbestos when it issued the requirements. In consequence of the suits against it, GAF has sustained damages amounting to $3,554,494.99--$2,050,369.71 of which constitutes amounts paid in settlement of the underlying claims and $1,504,125.28 of which represents costs incurred in defending those claims. 14

    Prior to the commencement of its lawsuit in the District Court, GAF presented its claim pursuant to Section 2675(a). 15 GAF filed its presentment on several "Standard Form 95's" a form prescribed by the Justice Department for the presentation of claims. 16 Although they differ in some minor respects, GAF's submissions on these forms typically included the following information. Each form names GAF as the claimant and states a total damage claim, aggregating damages for the underlying claims covered by that particular Standard Form 95. The remainder of the form is completed by means of references to attached exhibits. Generally, four exhibits accompanied each form. Exhibit A listed the federal agencies to which the claim was presented. 17 Exhibit B stated a total damage claim for that Standard Form 95 and summarized GAF's legal theories regarding the Government's liability for the class of underlying claims. In addition, the exhibit included a one-page description of each of the underlying claims, including the name of the underlying claimant, his or her social security number or date of birth, an employment history (employer, job site, and dates), the caption and docket number of the underlying case, and the disposition of the underlying claim, including a damage total for that particular claim (settlement or verdict, amount paid, and costs of defense). 18 Exhibit C provided a list of witnesses that would be likely to testify on behalf of GAF at any trial against the United States on this claim. 19 Finally, Exhibit D provided a list of GAF's insurance carriers, their addresses, and GAF's policy numbers. 20

    When after six months the United States had not made a final disposition of GAF's claim, GAF elected to treat the claim as denied and brought this suit in the District Court. 21

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    2. Eagle-Picher Industries

    The history of the Eagle-Picher litigation substantially parallels that of GAF. Eagle-Picher presented its claim to seven federal agencies on July 27, 1983. 22 Its claim covered a total of 559 underlying claims for which Eagle-Picher sought indemnity or contribution from the United States. 23 Eagle-Picher had settled or satisfied judgments in these underlying cases, incurring expenses totalling $4,925,261.89. 24

    Eagle-Picher's presentment included a cover letter and one Standard Form 95, which generally referred the reader to attachments. 25 The first attachment described Eagle-Picher's accident insurance, as required under item 17 of Standard Form 95. 26 Another attachment provided a 42-page description of Eagle-Picher's claim against the United States, including its theories regarding the United...

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