Avery v. U.S., Nos. 81-3119

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore KENNEDY, FARRIS, and NORRIS; KENNEDY
Citation680 F.2d 608
PartiesClayton AVERY, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Abel ROCHA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Decision Date29 June 1982
Docket Number81-4073,Nos. 81-3119

Page 608

680 F.2d 608
73 A.L.R.Fed. 332
Clayton AVERY, Jr., Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
Abel ROCHA, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
Nos. 81-3119, 81-4073.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 4, 1982.
Decided June 29, 1982.

Page 609

Paul O'Neil, Schroeter, Goldmark & Bender, P. S., Seattle, Wash., for avery.

Dennis R. Lods, Boxer & Elkind, Oakland, Cal., for Rocha.

William H. Rubidge, Asst. U.S. Atty., Tacoma, Wash., for U.S.

Appeal from the United States District Court for the Western District of Washington.

Appeal from the United States District Court for the Eastern District of California.

Before KENNEDY, FARRIS, and NORRIS, Circuit Judges.

KENNEDY, Circuit Judge:

Suit against the Government under the Federal Tort Claims Act, June 25, 1948, ch. 646, as amended by Pub.L. 89-506, 80 Stat. 306 (1966), codified at 28 U.S.C. §§ 1346(b), 2671-80 (1976), is not permitted unless a claim has first been filed with the agency; suit may begin when the agency denies the claim or has failed to act upon it for six months. 28 U.S.C. § 2675(a). These two cases present the problem of how to implement this statute where the agency takes the position it cannot process a claim because of incomplete information. The Government urges adoption of the rule followed by the district court in both of the two separate cases below. Those courts held that the claimant's failure to present full or adequate information to the agency in support of his claim was ground for dismissing his subsequent suit for lack of subject-matter jurisdiction. The Government argues that dismissal for lack of jurisdiction is the only available means to implement the congressional intent that administrative consideration of a claim occur before the courts are open to it.

The claimants argue that the rule adopted below, at worst, allows the agency to avoid trial on the merits by a procedural feint, or, at best, causes unnecessary delay in the district court by factual hearings on the threshold question of jurisdiction.

The circuits have no clear consensus on the question. In this court, each party was more effective in stressing the defects of its opponent's proposed rule than the merits of its own.

We determine that jurisdictional dismissal of FTCA suits brought by plaintiffs who presented only skeletal claims to the agency is not warranted by the statutory language and history.

The facts of the two cases before us can be stated briefly. Avery alleged that he was injured from falling into a pit while working at a naval base. In discussions with counsel for the Navy, Avery's attorney took the position, puzzling to the Navy, to the district court, and to us, that "uncertainty of plaintiff's medical condition made it impossible to submit requested medical reports." The district court, quoting from Rothman v. United States, 434 F.Supp. 13, 17 (C.D.Cal.1977), concluded that Avery's "neglect or deliberate failure to meet the Navy's requests (for medical information) prevented administrative adjudication of his claim and was 'tantamount to the failure to file a proper claim.' " The court

Page 610

ruled that the claimant's failure to answer all the Government's questions barred suit, and dismissed for lack of jurisdiction.

Rocha was allegedly injured in a fall at an air force base. He executed a standard claim form. The Government requested certain medical bills and reports which apparently were in the custody of Rocha's insurance carrier, who did not respond to Rocha's repeated requests to return copies to him. By the time the insurer provided Rocha with the information, the Government had denied the claim for failure to furnish "required supporting evidence." The district court held that the failure to provide a fully documented administrative claim was a jurisdictional bar to the suit, citing Rothman, supra; Kornbluth v. Savannah, 398 F.Supp. 1266 (E.D.N.Y.1975); and Cummings v. United States, 449 F.Supp. 40 (D.Mont.1978).

We hold it was error in both cases to dismiss the federal tort claim suits for lack of jurisdiction, and we reverse.

A claim is presented properly to an...

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  • Pagel v. U.S., No. C-97-20091 EAI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 1997
    ...for a civil action, has been clearly and emphatically answered by the Ninth Circuit Court of Appeals in Avery v. United States, 680 F.2d 608 (9th Cir.1982) and Warren v. United States, 724 F.2d 776 (9th Cir.1984) (en banc). Although the Avery and Warren cases dealt with regulations promulga......
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...a sum certain representing damages" so that the agency may investigate it. Broudy, supra, 722 F.2d at 568 (citing Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982) ). Although these requirements are jurisdictional and must be adhered to strictly, Keene, supra, 700 F.2d at 841, the di......
  • Warren v. U.S. Dept. of Interior Bureau of Land Management, I-X
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 24, 1984
    ...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 Federal agencies are authorized by Congress to settle claims. See 28 U.S.C. Sec. 2672 ......
  • Gollehon Farming v. U.S., No. CV-96-033-GF-PGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • June 12, 1998
    ...after six months has elapsed, whichever occurs first, the plaintiff may institute an action in federal court. See, Avery v. United States, 680 F.2d 608, 610 (9th Cir. The jurisdictional requirement that the claimant first present his claim to the appropriate federal agency, is essentially o......
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60 cases
  • Pagel v. U.S., No. C-97-20091 EAI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 1997
    ...for a civil action, has been clearly and emphatically answered by the Ninth Circuit Court of Appeals in Avery v. United States, 680 F.2d 608 (9th Cir.1982) and Warren v. United States, 724 F.2d 776 (9th Cir.1984) (en banc). Although the Avery and Warren cases dealt with regulations promulga......
  • Gollehon Farming v. U.S., No. CV-96-033-GF-PGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • June 12, 1998
    ...after six months has elapsed, whichever occurs first, the plaintiff may institute an action in federal court. See, Avery v. United States, 680 F.2d 608, 610 (9th Cir. The jurisdictional requirement that the claimant first present his claim to the appropriate federal agency, is essentially o......
  • Dettling v. United States, Civil No. 11–00374 ACK–KSC.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • November 15, 2013
    ...describing the injury to enable the agency to begin its own investigation, and ... a sum certain damages claim.”); Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982) (same). [983 F.Supp.2d 1198] Indeed, NOAA's response to Plaintiffs' Form 95 claims supports this conclusion. On Februar......
  • Mader v. U.S., No. 09–1025.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 7, 2011
    ...agency to insist on proof of a claim to its satisfaction before the claimant becomes entitled to a day in court.” Avery v. United States, 680 F.2d 608, 611 (9th Cir.1982). Nor should section 2675 require a claimant to reveal potential defenses to a prospective defendant. Even before the 196......
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