Gordon H. Ball, Inc. v. United States, Civ. No. R-78-0116 BRT.

• Decision Date: 06 December 1978
• Docket Number: Civ. No. R-78-0116 BRT.
• Citation: 461 F. Supp. 311
• Parties: GORDON H. BALL, INC., a Nevada Corporation, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nevada

461 F. Supp. 311

GORDON H. BALL, INC., a Nevada Corporation, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. R-78-0116 BRT.

United States District Court, D. Nevada.

December 6, 1978.

Woodburn, Wedge, Blakey, Folsom & Jeppson, Casey W. Vlautin, Reno, Nev., for plaintiff; Oles, Morrison, Rinker, Stanislaw & Ashbaugh, Stuart G. Oles, Seattle, Wash., of counsel.

Bruce E. Titus, Atty., Civil Div., Dept. of Justice, Washington, D. C., B. Mahlon Brown, Jr., U. S. Atty., Shirley Smith, Reno, Nev., for defendant.

MEMORANDUM OPINION

BRUCE R. THOMPSON, Senior District Judge.

Plaintiff has instituted this action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80. Venue lies in this Court by virtue of plaintiff's incorporation in the State of Nevada. 28 U.S.C. §§ 1346(b) & 1402(b). Plaintiff alleges that it has pursued its administrative remedies, as required by 28 U.S.C. § 2675, as amended in 1966, P.L. 89-506, 80 Stat. 306, by filing an unsuccessful claim with the Department of Interior under the Teton Dam Disaster Assistance Act, P.L. 94-400, 90 Stat. 1211 (1976). The government has filed a motion to dismiss contending that plaintiff should have filed a separate claim under the Federal Tort Claims Act. Because more than two years has passed since the occurrence giving rise to the alleged liability, the government urges that the dismissal be with prejudice, as the defect, if any, is incurable. 28 U.S.C. § 2401 (imposing a two-year limitations period within which to present claim to agency involved); e. g., Blain v. United States, 552 F.2d 289 (9th Cir. 1977) (dismissal with prejudice when did not present proper administrative claim within two years).

This is the question posed:

Does the filing of an unsuccessful claim with the Department of Interior under the Teton Dam Disaster Assistance Act suffice as the exhaustion of administrative remedies made jurisdictionally prerequisite to suit under the Federal Tort Claims Act, 28 U.S.C. § 2675?

The facts are undisputed. In 1976, the plaintiff, Gordon H. Ball, Inc., was under contract with the United States to construct a new American Falls Dam on the Snake River in Idaho. Work was to commence in the first week of June. On June 5, 1976, the Teton Dam failed. The waters in the Snake River rose to flood level and did not subside until June 22, 1976. No work could be performed on the American Falls project during that period, and plaintiff incurred standby labor and equipment costs of $37,899.52. In its complaint, plaintiff attributes these costs to the failure of the Teton Dam, and the failure of the Teton Dam to negligent design and construction by the Bureau of Reclamation, United States Department of Interior.

On February 14, 1978, plaintiff filed a claim under the Teton Dam Disaster Assistance Act with the officer specially designated by the Department of Interior as the Teton Claims Officer, 43 C.F.R. § 419.0-5(g) (1977). Relief under the Teton Dam Disaster Assistance Act has been geographically limited to claims arising in the area declared by the regulations as a "major disaster area," 43 C.F.R. §§ 419.0-5(o) & 419.1-1(a)(3). Plaintiff's area of operations fell outside the major disaster area and its claim was denied by the Teton Claims Officer.

Had plaintiff wished to pursue an objection to the ruling that its claim was not covered by the Teton Dam Disaster Assistance Act, it could have appealed that ruling to the United States District Court, for the District of Idaho. Section 9(b), P.L. 94-400. Instead, plaintiff filed this action under the Federal Tort Claims Act. The complaint does not allege the filing and denial of an administrative claim under the Tort Claims Act. The affidavit of Morgan W. Pace, Regional Officer in Charge of tort claims against the Bureau of Reclamation, U.S. Department of Interior, states that his office never received an administrative torts claim from the plaintiff. It should be noted that the limitations period imposed by 28 U.S.C. § 2401 did not run until June 5 or possibly 22, 1978. Inasmuch as plaintiff's Teton Dam claim was finally denied on May 1, 1978, it still could have filed a torts claim with the Department of Interior at that time.

This case presents an issue of first impression. Other cases which have addressed the administrative filing requirements of the Federal Tort Claims Act have regarded them as jurisdictional prerequisites, deserving of strict construction and not susceptible to waiver. Irregularities in filing have, in certain instances, been forgiven when the route taken by the claimant afforded the government opportunities for administrative settlement equal to those it would have had if a proper claim had been filed.

Liability under the Teton Dam Disaster Assistance Act is without regard to fault or proximate cause. See Preamble to P.L. 94-400; 43 C.F.R. § 419.0-2(c); H.R.Rep. No. 94-1423, 94 Cong., 2d Sess.; Sen.Rep. No. 94-963 (94th Cong., 2d Sess. Plaintiff's claim under the Teton Dam Disaster Assistance Act thus did not include any allegation regarding negligence or fault. Plaintiff has not directed our attention to any principle of Idaho tort law which imposes liability without fault under the circumstances. Moreover, the Teton Dam Disaster Assistance Act stresses the independence of relief thereunder from that affordable under any other provision of law. See P.L. No. 94-400, § 9(b); 43 C.F.R. § 419.9-2(c); cf. also P.L. No. 90-400, §§ 3(c) & (f).

Section 2675(a), Title 28, of the Federal Tort Claims Act requires any person having a tort claim against the United States to present the claim to the "appropriate Federal agency" and await a final denial before initiating court proceedings. The failure of an agency to act on a claim within six months of its submission is deemed a "final denial." The administrative claim must be submitted within two years "after such claim accrues," and court proceedings instituted within six months of final agency action, or be "forever barred," 28 U.S.C. § 2401(b). The regulations elaborate on these provisions, detailing the information needed properly to submit a claim:

"For purposes of the provisions of section 2672 of Title 28, United States Code, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. If a claim is presented to the wrong Federal agency, that agency shall transfer it forthwith to the appropriate agency."

28 C.F.R. § 14.2(a) (1977).

Numerous cases have held that compliance with section 2675(a) is a "jurisdictional prerequisite" which cannot be waived. See House v. Mine Safety Appliances Co., 573 F.2d 609, 614 (9th Cir. 1978), cert. den. ___ U.S. ___, 99 S.Ct. 182, 58 L.Ed.2d 171 (1978); Blain v. United States, 552 F.2d 289 (9th Cir. 1977); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); cases collected in Annot., 13 A.L.R. Fed. 762, 768 (1972). This rules flows from the ancient precept that, as sovereign, the government "is immune from suit save as it consents to be sued," United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941), and from the corollary proposition that, as a waiver of sovereign immunity, the Federal Tort Claims Act must not be judicially expanded to invite liability on terms and conditions more lenient than those Congress saw fit to impose. See Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Collazo v. United States, 372 F.Supp. 61, 62 (D.Puerto Rico, 1973). The courts should not lose sight, however, of the broadly remedial purposes the Act was intended to serve, and at least one court has taken the position, "that the Act ends the immunity defense does not furnish a ground for niggardly interpretation ..." Kelley v. United States, 568 F.2d 259, 262 (2d Cir. 1978), cert. denied, ___ U.S. ___, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978); see also Kielwien v. United States, 540 F.2d 676, 681 (4th Cir. 1976), cert. denied 429 U.S. 979, 97 S.Ct. 491, 50 L.E.2d 588 (1976) (dictum).

No case has directly addressed the issue before this Court. Indeed, the government has cited only one case in which a party sought to proceed under the Federal Tort Claims Act on the basis of having filed an administrative claim for benefits pursuant to another federal statute, Waggoner v. United States, Civ. No. 74-5-C (N.D.W.Va., filed October 18, 1974) (unpublished). In that case, plaintiff had submitted a claim to the Veterans Administration for survivor's benefits under 38 U.S.C. § 351. Thereafter, she commenced suit under the Federal Tort Claims Act, alleging malpractice on the part of the Veteran's Hospital in its misdiagnosis of her late husband's condition. Stressing the independence of plaintiff's remedies under the Federal Tort Claims Act from her right to benefits under 38 U.S.C. § 351, the Court granted the government's motion to dismiss. The plaintiff correctly argues in its memorandum of points and authorities the case is not dispositive and is clearly distinguishable.

The reported decisions which have addressed the question of when an irregular filing constitutes compliance with section 2675(a) are not entirely consistent with one another. One consideration which helps explain some, but not all the results reached, is the extent to which the irregularity involved implicates the declared purpose of section 2675(a), that of easing court congestion by ensuring full agency review of claims with an eye towards their early administrative settlement. See 1966 U.S.Code Cong. & Admin.News, pp. 2515-17. Thus, in Van Fossen v. United States, 430 F.Supp. 1017 (N.D.Cal.1977), the court held that survivors need not await the...