Duvall v. U.S. Dept. of Agriculture, FMHA

• Decision Date: 29 November 1993
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

74 F.3d 1249

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Malcolm F. DUVALL and Eleanor J. Duvall, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FMHA, Defendant-Appellee.

No. 95-4147.

(D.C.No. 95-CV-21)

United States Court of Appeals, Tenth Circuit.

Jan. 11, 1996.

ORDER AND JUDGMENT ^*

Before BRORBY, EBEL and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Appellants, Malcolm F. Duvall and Eleanor J. Duvall, are pro se litigants. They sued the United States Department of Agriculture, FMHA, and now appeal the trial court's dismissal of their complaint.

Appellants' complaint alleges Defendant intentionally disregarded the law and legal proceedings and was therefore negligent and thereby injured Appellants. The complaint apparently stems from a loan made by Defendant to Appellants. Appellants allege their liability on the mortgage was satisfied in 1983 by a bankruptcy discharge or perhaps by a voluntary conveyance offer. Defendant, on the other hand, believed the debt was not satisfied and reported to the Internal Revenue Service that Appellants received a taxable benefit when Defendant charged off the uncollectible debt. Apparently the fact of the charged-off loan also found its way into the credit bureau files. Appellants sought $20 million damages for Defendant's wrongful and negligent conduct.

Defendant filed a motion raising several defenses including Defendant is an improper party; no waiver of sovereign immunity; and the tort claim is time-barred as no administrative tort claim was filed within two years of accrual.

The trial court filed its written order concluding that under the Federal Tort Claims Act the United States, and not the named defendant agency, is the only proper party and cited 28 U.S.C. Sec. 1346(b), 2671 et seq., and Galvin v. OSHA, 860 F.2d 181, 182-83 (5th Cir.1988), holding a Federal Tort Claims Act claim against a federal agency or employee, as opposed to the United States itself, must be dismissed for want of jurisdiction. The trial court further concluded that Appellants did not allege an administrative tort claim was filed and denied. The trial court thereupon opined the failure to file the claim was also a jurisdictional complaint requiring dismissal. The trial court dismissed the complaint for lack of jurisdiction.

Appellants appeal this dismissal. Appellants raise twenty issues, none of which bear directly upon the reasons for ...