Covington v. UNITED STATES, BY THROUGH DEPARTMENT OF AIR FORCE

• Decision Date: 12 September 1969
• Docket Number: No. Ec 6932.,Ec 6932.
• Citation: 303 F. Supp. 1145
• Parties: Roland COVINGTON and Woodrow Taylor, Co-Partners, doing business as National Construction Company, Plaintiffs, v. The UNITED STATES of America, Acting By and Through the DEPARTMENT OF the AIR FORCE, Base Procurement Office, Headquarters 454th Combat Support Group (SAC), Columbus Air Force Base, Mississippi, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

303 F. Supp. 1145

Roland COVINGTON and Woodrow Taylor, Co-Partners, doing business as National Construction Company, Plaintiffs, v. The UNITED STATES of America, Acting By and Through the DEPARTMENT OF the AIR FORCE, Base Procurement Office, Headquarters 454th Combat Support Group (SAC), Columbus Air Force Base, Mississippi, Defendant.

No. Ec 6932.

United States District Court N. D. Mississippi, E. D.

September 12, 1969.

COPYRIGHT MATERIAL OMITTED

Hunter M. Gholson, Columbus, Miss., for plaintiffs.

William M. Dye, Jr., Asst. U. S. Atty., Oxford, Miss., for defendant.

KEADY, Chief Judge.

MEMORANDUM OPINION

On December 17, 1965, the United States Air Force began soliciting bids for the construction of a Child Care Center at Columbus Air Force Base in Lowndes County, Mississippi. Plaintiffs' preliminary bid was accepted on the condition that certain changes in the technical proposals therein contained would be made. Plaintiffs, engaged in construction business at Aberdeen, Mississippi, then hired engineers-architects to make the necessary revisions and refiled the bid for final acceptance. On October 7, 1966, the Air Force rejected this bid, which was for $96,120, on the ground that only $75,100 was authorized for the project. On June 3, 1968, plaintiffs filed a petition under 28 U.S.C. § 1491 in the United States Court of Claims, No. 170-68, which asserted a quasi-contractual claim arising out of this matter against the United States in the amount of $15,612, consisting of $6,000 paid for engineers' fee and $9,612 loss of profits. In that proceeding, plaintiffs alleged that they had relied on the representations of government agents who had promised them as late as June 1, 1966, that once the technical proposals were accepted, the government would award the contract to the low bidder, plaintiffs here.

On January 17, 1969, the Court of Claims sustained, without comment, the government's motion for summary judgment, citing as authority Kyer v. United States, 369 F.2d 714, 177 Ct.Cl. 747 (1966), cert. denied 387 U.S. 929, 87 S.Ct. 2050, 18 L.Ed.2d 990 (1967), and Heyer Products Co. v. United States, 177 F. Supp., 251, 147 Ct.Cl. 256 (1951).¹ The record does not reveal whether plaintiffs appealed the adverse decision of the Court of Claims.

On June 2, 1969, plaintiffs filed suit in federal district court pursuant to 28 U.S.C. § 1346(b), the Federal Tort Claims Act, alleging that defendant made certain oral and written representations of fact which tortiously and fraudulently induced plaintiffs to spend time and money designing proposals for the Child Care Center and in reliance thereon plaintiffs incurred $6,500 actual expenses sued for. Defendant has moved for summary judgment asserting that the suit is barred by (1) the applicable two-year statute of limitations, 28 U.S.C. § 2401(b), and (2) 28 U.S.C. § 2680(h), which forbids recovery under the Federal Tort Claims Act in all cases arising out of deceit and misrepresentation. This case is now before the court upon that motion.

The statute of limitations which was applicable to actions under the Federal Tort Claims Act at the time plaintiffs's tort claim allegedly accrued was 28 U.S.C. § 2401(b).² Under that statute plaintiffs had two years from the date their tort claim accrued within which to commence action in federal district court. Plaintiffs' tort claim accrued certainly no later than October 7, 1966, the date plaintiffs first had clear knowledge that they had relied to their detriment on the government's alleged misrepresentations contained in letters written by Air Force officials from December 17, 1965, to June 1, 1966. The government urges that plaintiffs' claim is barred by the two-year statute since plaintiffs did not file suit in federal district court until June 2, 1969, more than 31 months after accrual of claim.

Plaintiffs argue that the mere filing of suit in the Court of Claims was sufficient to toll the running of the limitation period even though the Court of Claims lacked jurisdiction to hear the case. In Ellis v. Lynch, 106 F.Supp. 100 (D.C., 1952), the United States District Court of New Jersey held that a suit filed in a court which has no jurisdiction is a nullity and cannot toll the running of the statute. An exception to the Ellis rule exists in cases where a court, although lacking jurisdiction of the subject matter, does have the power to transfer the case to the appropriate court. Herb v. Pitcairn, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483 (1945). The case at bar was not such a case. The Court of Claims had neither jurisdiction of plaintiffs' quasi-contract action nor power to transfer it to the proper court. Thus, the bare filing of suit in the Court of Claims did not operate to suspend the two-year limitation period. Plaintiffs further contend that the pendency of their suit in the Court of Claims prevented them from filing suit in any other court, that this situation was a "disability", akin to that of minority or mental incompetency, which would prevent the running of the statute until that proceeding was terminated. To support this contention plaintiffs cite Glenn v. United States, D.C., 129 F.Supp. 914, reversed 9 Cir., 231 F.2d 884, cert. denied 352 U.S. 926, 77 S.Ct. 223, 1 L.Ed. 2d 161 (1956), but they apparently have overlooked the fact that in Glenn the Ninth Circuit Court of Appeals reversed the district court's decision and squarely held that disability of minority does not toll the running of the two-year statute of limitations of the Federal Tort Claims Act.³

The Fifth Circuit adopted the same strict view in Simon v. United States, 244 F.2d 703 (5 Cir., 1957), where a federal tort claim of a minor plaintiff was dismissed for failure to bring the action within two years after the claim had accrued. The Court stated:

"In full agreement with the position of the United States, we think it clear that appellant's insistence is in direct conflict with the fundamental principle of law controlling here, that when, as in the Federal Tort Claims Act, the sovereign, by statute creating a cause of action and consenting to be sued upon it, makes it clear that the consent of the United States to be sued in tort is conditioned upon the suit's being filed within the time fixed in the Act and not otherwise, exact compliance with the terms of consent is a condition precedent to suit."

Thus, plaintiffs' "disability" argument must fail.

Plaintiffs also assert that they tolled the running of the statute by filing a claim with a "federal agency", i. e., the Air Force, thereby complying with the second clause of § 2401(b).⁴ Assuming arguendo that plaintiffs did file such a claim, it, too, is unavailing, since the second clause of § 2401(b) applies only to claims not exceeding $2,500, and plaintiffs' claims at all times exceeded that amount.

There is no merit in the suggestion that the 1966 amendment to § 2401(b), which omits the $2,500 limitation and makes other radical changes in the law, applies to plaintiffs' claim.⁵ Clearly, such is not the case. The 1966 amendment to § 2401(b) applies only to claims accruing 6 months or more after July 18, 1966 (Pub.L. 89-506). Plaintiffs' claim having accrued not later than October 7, 1966, this amendment is clearly inapplicable, and the tort claim of plaintiffs is time-barred.

Additionally, the government's second contention, which sets up 28 U.S.C. § 2680(h)⁶ as a bar to this suit, is also valid. § 2680(h) excludes all tort claims against the United States arising out of deceit or misrepresentation. The present claim is...