Douglas v. U.S., No. 80-1196

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore EDWARDS, Chief Judge, and PHILLIPS and PECK; JOHN W. PECK
Citation658 F.2d 445
Decision Date01 September 1981
Docket NumberNo. 80-1196
PartiesWillard D. DOUGLAS and Violet A. Douglas, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Page 445

658 F.2d 445
Willard D. DOUGLAS and Violet A. Douglas, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
No. 80-1196.
United States Court of Appeals,
Sixth Circuit.
Argued June 3, 1981.
Decided Sept. 1, 1981.

Page 446

Frank K. Penirian, Jr., William Stackpoole, Detroit, Mich., for plaintiffs-appellants.

Richard A. Rossman, U.S. Atty., Kenneth R. Fitzpatrick, Hayward L. Draper Asst. U.S. Attys., Detroit, Mich., for defendant-appellee.

Before EDWARDS, Chief Judge, and PHILLIPS and PECK, Senior Circuit Judges.

JOHN W. PECK, Senior Circuit Judge.

The issue on appeal is whether the district court was deprived of jurisdiction of appellant Douglas's personal injury action by Douglas's failure to exhaust administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80.

The history of Douglas's administrative claim is long and distressing. Douglas contends that on Memorial Day, 1971, he injured his ankle when a rotten plank in a U.S. Navy dock gave way beneath him. The dock was at a naval armory in Detroit

Page 447

where Douglas, a civilian, was attending a Memorial Day Service. 1

Ten years ago, in June of 1971, Douglas's attorney first wrote to the Navy concerning his client's injury. What followed is a story of attorneys' lassitude and bureaucrats' shuffles. Fourteen letters passed between Douglas's attorneys and the Navy in the next six years. The handling of Douglas's claim was shifted from office to office, and from officer to officer, no fewer than six times. Douglas's claim was finally denied by the Navy on November 17, 1977. The asserted basis for the denial was Douglas's failure "to provide (the Navy) with the information we repeatedly sought from yourself or your attorney." Douglas timely filed this tort action in the district court. That court dismissed Douglas's action, noting orally that the plaintiff's "failure to exhaust administrative remedies" deprived the district court of jurisdiction.

I.

The FTCA does not by its own terms require "exhaustion of administrative remedies"; rather, the Act, as amended, provides that "(a)n action shall not be instituted upon a (tort) claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied ...." 28 USC § 2675. The controlling question in this case is whether Douglas met the requirement of "presenting" his claim to the Navy. The government argues that Douglas's failure to provide the Navy with certain medical reports and insurance records the Navy requested is "tantamount to a 'failure to file a proper claim.' " (Quoting Rothman v. United States, 434 F.Supp. 13, 15 (C.D.Cal.1977).)

The compulsory administrative claim procedure in the amended FTCA was established to reduce congestion of federal courts' dockets and to speed fair treatment of those asserting claims against the federal government. Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6th Cir. 1974). Prior to 1966, tort claimants could first file suit against the United States; the United States Attorney would then refer the complaint to the relevant agency for possible settlement. Adams v. United States, 615 F.2d 284, 288 (5th Cir. 1980), as clarified, 622 F.2d 197. The 1966 amendments to the Act reversed this order, eliminating an often superfluous procedural step. These amendments, however, do not make agencies the ultimate or preferred arbiters of federal tort claims, rather only the initial ones.

We therefore agree with the Fifth Circuit that the requirements of § 2675 are met "if the claimant (1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim." Adams, supra, 615 F.2d at 289; see 28 C.F.R. § 14.2 (1980); 2 see also Crow v. United States, 631 F.2d 28, 30 (5th Cir. 1980) (per curiam). Douglas did both.

Douglas and his attorneys failed to present to the Navy all information required by federal regulations. 3 These regulations,

Page 448

however, govern administrative settlement proceedings; they do not set federal jurisdictional prerequisites. By failing to comply with regulations promulgated under 28 U.S.C. § 2672, a claimant loses only "the opportunity to settle his or her claim outside the courts." Adams, supra, 615 F.2d at 290.

The views expressed in the Fifth Circuit's opinion in Adams, views which are adopted in essence above, are not in conflict with the First Circuit's decision in Swift v. United States, 614 F.2d 812 (1st Cir. 1980). In Adams, as in the present case, there is no dispute over the finality of an agency's disposition of a claim. In Swift, however, the federal agency held a tort claim in abeyance for failure to provide documentation of personal injury. The claimant in Swift relied on the statutory provision that "the failure of an agency to make final disposition of a claim within the six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section." 28 U.S.C. § 2675(a). The First Circuit held that this provision could not be invoked by one whose failure to provide documentation of damages had prevented the agency from settling her claim. 4 In the present case, as noted, Douglas's claim has been finally and officially denied; he need not depend on the six-month provision of § 2675(a), and Swift thus has no relevance to his case.

The government relies particularly on Rothman v. United States, 434 F.Supp. 13 (C.D.Cal.1977), and Kornbluth v. Savannah, 398 F.Supp. 1266 (E.D.N.Y.1975), as precedent for the rule that the FTCA's claim requirement is not met...

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86 practice notes
  • 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
    ...United States, 743 F.2d 557 (7th Cir.1984); Tucker v. United States Postal Service, 676 F.2d 954 (3rd Cir.1982); Douglas v. United States, 658 F.2d 445 (6th Cir.1981); and Johnson v. United States, 788 F.2d 845 (2d Cir.1986). Only the First and Eighth Circuits still hold the minority view. ......
  • 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
    ...United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981); Adams v. United States, 615 F.2d 284, 289 (5th Cir.), clarified, 622 F.2d 197 Thus, an administrative claim need not me......
  • Pers. Representative Of The Estate Of Robert Mader v. USA, No. 09-1025.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 31, 2010
    ...615 F.2d 284, 289 (5th Cir.) clarified, reh'g denied, 622 F.2d 197 (5th Cir.1980), the Sixth Circuit, see Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981), and the Eleventh Circuit, see Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983). The leading case for the minority pos......
  • Fagot v. Federal Deposit Ins. Corp., Civ. No. 81-2098CC.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • April 16, 1984
    ...the initial opportunity to examine the feasibility of the claim and the possibility of settlement. See: id. and Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981). The F.T.C.A. also mandates that all actions in tort against federal agencies be channeled through it and these are deem......
  • Request a trial to view additional results
86 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
    ...United States, 743 F.2d 557 (7th Cir.1984); Tucker v. United States Postal Service, 676 F.2d 954 (3rd Cir.1982); Douglas v. United States, 658 F.2d 445 (6th Cir.1981); and Johnson v. United States, 788 F.2d 845 (2d Cir.1986). Only the First and Eighth Circuits still hold the minority view. ......
  • 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
    ...United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981); Adams v. United States, 615 F.2d 284, 289 (5th Cir.), clarified, 622 F.2d 197 Thus, an administrative claim need not me......
  • Pers. Representative Of The Estate Of Robert Mader v. USA, No. 09-1025.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 31, 2010
    ...615 F.2d 284, 289 (5th Cir.) clarified, reh'g denied, 622 F.2d 197 (5th Cir.1980), the Sixth Circuit, see Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981), and the Eleventh Circuit, see Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983). The leading case for the minority pos......
  • Fagot v. Federal Deposit Ins. Corp., Civ. No. 81-2098CC.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • April 16, 1984
    ...the initial opportunity to examine the feasibility of the claim and the possibility of settlement. See: id. and Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981). The F.T.C.A. also mandates that all actions in tort against federal agencies be channeled through it and these are deem......
  • Request a trial to view additional results

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