Broudy v. U.S., No. 82-5995

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SKOPIL, NELSON and NORRIS; NELSON
Citation722 F.2d 566
Decision Date28 December 1983
Docket NumberNo. 82-5995
PartiesAlice P. BROUDY, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.

Page 566

722 F.2d 566
Alice P. BROUDY, Plaintiff-Appellant,
v.
The UNITED STATES of America, Defendant-Appellee.
No. 82-5995.
United States Court of Appeals,
Ninth Circuit.
Submitted June 9, 1983.
Decided Dec. 28, 1983.

Page 567

Ronald B. Bakal, Beverly Hills, Cal., for plaintiff-appellant.

J. Paul McGrath, Washington, D.C., for defendant-appellee.

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

Before SKOPIL, NELSON and NORRIS, Circuit Judges.

NELSON, Circuit Judge:

The appellant, Alice P. Broudy, appeals from an order of the district court dismissing with prejudice her claim brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671 et seq. (1976 & Supp.1979). The district court held that appellant did not properly file an administrative claim and that the court thus lacked subject matter jurisdiction (Fed.R.Civ.P. 12(b)(1)). In addition, the district court concluded that the United States owed no legal duty to appellant's deceased and dismissed the complaint for failing to state a claim upon which relief can be granted. (Fed.R.Civ.P. 12(b)(6)). We review these issues of law de novo, Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978), and reverse in part, and vacate and remand in part.

FACTS AND PROCEDURE

Appellant's husband, Major Charles A. Broudy, served as an officer in the United States Marine Corps from 1944 to 1960. During the summer of 1957, Major Broudy was ordered by his commanding officers to participate in military exercises in the immediate vicinity of at least two atmospheric nuclear tests conducted in Nevada.

Major Broudy was honorably discharged in 1960 and over the years received medical care for various health problems at Marine Corps medical facilities. He was never informed or warned about the dangers associated with his exposure to radiation. In 1976, Major Broudy was diagnosed as having lymphosarcoma, a form of cancer that has been related to radiation exposure. He died from that disease in October 1977.

The appellant and her children filed an administrative claim with the Department of Energy in November 1977. The claim, submitted on Standard Form 95, states that "Charles A. Broudy was exposed to radiation ... by being in the vicinity of nuclear detonation on the above dates ["sometime

Page 568

in 1948 & June 24, July 5, July 15 1957"]. The completed form also states that "as a result of the exposure ... Charles A. Broudy developed a disease diagnosed ... as Lymphosarcoma." As required, appellant specified the amount of damages sought.

The administrative claim was denied on April 7, 1978. Appellant's request for reconsideration was rejected on March 10, 1979. Appellant then brought suit in district court under the FTCA. Those proceedings culminated in Broudy v. United States (Broudy I), 661 F.2d 125, 128-29 (9th Cir.1981). In Broudy I this court held that if the government learned of the danger to Broudy after he left the service, the government's failure to warn him or monitor any harm arising from his exposure to radiation might constitute an independent post-service tort cognizable under the FTCA. Because appellant may have suffered from an inability to gain relevant information, we remanded to the district court to afford appellant an opportunity to establish whether the government learned of the danger after Major Broudy left the service.

Appellant amended her complaint, alleging that the Government did not learn of the danger until after the deceased left the service in 1960. Before it could be determined when the government learned of the danger, the Government moved to dismiss the case for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Government based its motion on two arguments: 1) the appellant failed to satisfy 28 U.S.C. Sec. 2675(a) because her administrative claim did not specify an independent post-service tort, and (2) the Government owed no actionable duty to Major Broudy to warn him or monitor his condition after he left the service. The district court granted the motion on both grounds.

DISCUSSION

A. The Sufficiency of Appellant's Administrative Claim

As a prerequisite to maintaining a suit under the FTCA, a plaintiff must first present the claim to the appropriate federal agency. After six months have passed or the agency has denied the claim, the plaintiff may bring suit in federal court on the claim. 28 U.S.C. Sec. 2675(a) (1976). By enacting the notice requirement, Congress sought to ensure that plaintiffs would "promptly inform the relevant agency of the circumstances of the accident so that it may investigate the claim and...

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39 practice notes
  • U.S. v. Robertson, Nos. 93-1292
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 23, 1995
    ...Moore, 916 F.2d at 1135-36 (requiring district courts to articulate a sound reason for rejecting a guilty plea on the record); Miller, 722 F.2d at 566 (same); United States v. Delegal, 678 F.2d 47, 50 (7th Cir.1982) (same); Ammidown, 497 F.2d at 623 (same). Requiring district courts to arti......
  • 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
    ...Given this familiarity, and the well settled principle that legal theories need not be submitted to the agency, Broudy v. United States, 722 F.2d 566, 568-69 (9th Cir.1983); Rise, supra, 630 F.2d at 1071, the agency could reasonably be required to have anticipated that appellants' claims en......
  • Consolidated U.S. Atmospheric Testing Litigation, In re, Nos. 85-2842
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 22, 1987
    ...agency of the accident so that it may investigate the claim and respond either by settlement or by defense." Broudy v. United States, 722 F.2d 566, 568 (9th Cir.1983) (quoting Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980)). The purpose of this notice requirement is to give the re......
  • In re Ellis, No. 01-70724.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2004
    ...Miller, we noted that "[m]any of the policies underlying Rule 48 are equally applicable to judicial consideration of charge bargains." 722 F.2d at 566. "[C]ourts should be wary of second-guessing prosecutorial choices" because "[c]ourts do not know which charges are best initiated at which ......
  • Request a trial to view additional results
39 cases
  • U.S. v. Robertson, Nos. 93-1292
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 23, 1995
    ...Moore, 916 F.2d at 1135-36 (requiring district courts to articulate a sound reason for rejecting a guilty plea on the record); Miller, 722 F.2d at 566 (same); United States v. Delegal, 678 F.2d 47, 50 (7th Cir.1982) (same); Ammidown, 497 F.2d at 623 (same). Requiring district courts to arti......
  • 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
    ...Given this familiarity, and the well settled principle that legal theories need not be submitted to the agency, Broudy v. United States, 722 F.2d 566, 568-69 (9th Cir.1983); Rise, supra, 630 F.2d at 1071, the agency could reasonably be required to have anticipated that appellants' claims en......
  • Consolidated U.S. Atmospheric Testing Litigation, In re, Nos. 85-2842
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 22, 1987
    ...agency of the accident so that it may investigate the claim and respond either by settlement or by defense." Broudy v. United States, 722 F.2d 566, 568 (9th Cir.1983) (quoting Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980)). The purpose of this notice requirement is to give the re......
  • In re Ellis, No. 01-70724.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2004
    ...Miller, we noted that "[m]any of the policies underlying Rule 48 are equally applicable to judicial consideration of charge bargains." 722 F.2d at 566. "[C]ourts should be wary of second-guessing prosecutorial choices" because "[c]ourts do not know which charges are best initiated at which ......
  • Request a trial to view additional results

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