Gross v. U.S., 81-1519

• Decision Date: 23 April 1982
• Docket Number: No. 81-1519,81-1519
• Citation: 676 F.2d 295
• Parties: John C. GROSS, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 295

676 F.2d 295

John C. GROSS, Appellee, v. UNITED STATES of America, Appellant.

No. 81-1519.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 15, 1981.

Decided April 23, 1982.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., Terry L. Pechota, U.S. Atty., Sioux Falls, S.D., Leonard Schaitman, Marc Johnston, Attys., Civ. Div., U.S. Dept. of Justice, Washington, D. C., for appellant.

Dennis C. McFarland, John N. Gridley, Sioux Falls, S.D., for appellee.

Before GIBSON, Senior Circuit Judge, BRIGHT, Circuit Judge, and LARSON, Senior District Judge. ^*

BRIGHT, Circuit Judge.

The United States appeals from an adverse judgment awarding John C. Gross $35,000. In his action under the Federal Tort Claims Act (the Act), 28 U.S.C. §§ 2671-2680 (1976), Gross sought damages for the intentional infliction of emotional distress by members of the Lake County Agricultural Stabilization and Conservation Service Committee (ASCS) growing out of actions taken to thwart Gross' participation in the United States Department of Agriculture's (USDA) feed grain program.

On appeal, the United States argues that Gross cannot pursue his present claim because (1) he is collaterally estopped by a prior judgment against him in the Court of Claims; (2) he failed to exhaust his administrative remedies for government action occurring before 1969; and (3) the statute of limitations bars his claim to the extent it is based upon actions that occurred before 1971. In addition, the United States maintains that Gross' cause of action is not cognizable under the Federal Tort Claims Act because his claim (a) arose out of the Government's alleged violation of its own regulations; (b) grows out of the alleged misperformance of a discretionary function; and (c) falls within the "intentional torts" exception of the Federal Tort Claims Act. Because it is unclear whether any tortious activity took place within the statute of limitations, we vacate the judgment and remand this action to the district court.

I. Background.

The actions of the ASCS officials that underlie this lawsuit are set out in detail in the district court's opinion. Gross v. United States, 508 F.Supp. 1085 (D.C.S.D.1981). In short, the ASCS denied Gross participation in the feed grain program (FGP) ¹ in 1965 and 1969 and withdrew its prior determination of his eligibility for the program for the years 1968, 1970, and 1971, demanding repayment for the funds it had paid Gross for those years. Gross alleged that the ASCS falsified statements and otherwise fraudulently attempted to deny him participation in the feed grain program when they knew or should have known that their actions would cause him emotional distress. We further develop the facts as they pertain to Gross' arguments on this appeal.

In 1968, Gross filed suit in federal court against two members of the ASCS Committee in their individual capacity for maliciously soliciting statements that resulted in the denial of his application to participate in the 1966 feed grain program. See Gross v. United States, supra, 508 F.Supp. at 1086 n.1. The district court granted the defendants' motion for summary judgment on the ground that the doctrine of official immunity shielded the ASCS officials from suit. This court affirmed. Gross v. Sederstrom, 429 F.2d 96 (8th Cir. 1970). ²

In 1974, Gross filed suit in the Court of Claims seeking recovery for the wrongful withholding of feed grain program payments for the years 1968 through 1971. Gross v. United States, 505 F.2d 1271 (Ct.Cl.1974). Gross alleged that the ASCS violated several of its own regulations in withholding the payments. ³ The Court of Claims granted the Government's motion for summary judgment after considering the applicable regulations.

Following the Court of Claims decision, Gross instituted the present action in 1975, alleging that ASCS members wrongfully denied him participation in the feed grain program for the years 1965 and 1969, and wrongfully rejected their prior acceptance of his participation for the years 1968, 1970, and 1971. He further alleged that these officials acted in violation of the regulations and with an intent to inflict emotional distress. ⁴ The district court granted partial summary judgment for the Government on the ground that the Court of Claims had already determined that the ASCS officials had not violated certain of the regulations and that, therefore, Gross was collaterally estopped from asserting violations of those regulations in the present suit. ⁵ After a bench trial, the district court held that the ASCS actions could constitute intentional infliction of emotional distress apart from whether those actions violated any regulations. The court further determined that the tort of intentional infliction of emotional distress did not fall within the "intentional torts" exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1976), ⁶ and that the acts of the ASCS officials were not protected by the discretionary function exception to the Act. See 28 U.S.C. § 2680(a) (1976). ⁷ The court concluded that Gross had made out a claim for intentional infliction of emotional distress, and awarded him $35,000 in damages. See Gross v. United States, supra, 508 F.Supp. at 1091-92.

II. Discussion.

A. Collateral Estoppel.

The Government argues that the adverse judgment of the Court of Claims, Gross v. United States, 505 F.2d 1271 (Ct.Cl.1974), bars Gross from relitigating the propriety of the ASCS actions. In the Court of Claims action, Gross sought to prove that the Government violated its own regulations ⁸ and, therefore, improperly denied him participation in the 1969 feed grain program and improperly required him to refund 1968, 1970, and 1971 feed grain program payments. The court, however, determined that the ASCS did not violate the regulations.

The Government now maintains that the Court of Claims determination bars all attempts to attack the propriety of the ASCS actions for the years involved. The Government, however, misperceives the thrust of Gross' complaint, and, in the process, seeks to expand the effect of the Court of Claims judgment, giving it res judicata rather than collateral estoppel effect. Under the doctrine of collateral estoppel, a judgment in a previous action bars relitigation of only those issues actually litigated and necessary to the prior decision. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979); 1B J. Moore, Federal Practice P 0.441(2), at 3777 (1980). In the previous action, the Court of Claims addressed only Gross' eligibility for the feed grain program. It concluded that Gross had not established how the Government had violated the regulations, but did not independently determine what had happened between the ASCS and Gross. In fact, the Court of Claims inquiry was circumscribed because it considered itself bound by the factual determinations made by the USDA in determining Gross' ineligibility. See 7 U.S.C. § 1385 (1970). ⁹

The district court in this case applied the doctrine of collateral estoppel to eliminate as a basis for Gross' present action the alleged violations of the regulations raised in the Court of Claims. The present suit, however, alleges the violation of regulations not previously asserted. Moreover, Gross predicates his theory of recovery on the intentional infliction of emotional distress by the ASCS and not simply on the violation of the regulations. Thus, Gross raises issues in the present case not addressed in the Court of Claims. Indeed, Gross could not have raised his present claim in the Court of Claims because that court's jurisdiction does not include suits based on torts. See 28 U.S.C. § 1491 (1976); Clark v. United States, 461 F.2d 781, 783 (Ct.Cl.), cert. denied, 409 U.S. 1028, 93 S.Ct. 465, 34 L.Ed.2d 322 (1972). Gross, therefore, is not collaterally estopped from raising his tort claim in this action.

B. Administrative Claim.

The Government next maintains that Gross did not comply with the exhaustion requirement of the Act with respect to actions of the ASCS occurring before 1969, and that the district court therefore lacked jurisdiction to consider the impact of those actions. The Government correctly observes that the prior presentation of an administrative claim is a jurisdictional prerequisite to a suit under the Act. ¹⁰

We cannot agree, however, with the Government's narrow reading of Gross' administrative claim. While Gross based his administrative claim primarily on actions that began in 1969, he specifically noted that "the wrongful actions of the United States of America date back to at least 1965." Even though Gross did not detail the wrongful actions that occurred before 1969, his claim gave sufficient information to notify the Government of his claim and to give them a chance to settle. See Adams v. United States, 615 F.2d 284, 288-89 (5th Cir. 1980). Under these circumstances, Gross' claim is not barred by section 2675.

C. Statute of Limitations.

The Government next asserts that the FTCA's statute of limitations bars Gross' action. Because Gross filed his administrative claim on August 7, 1973, it contends that the two-year statute of limitations, unless tolled, would bar recovery for ASCS actions occurring before August 7, 1971. ¹¹ The Government argues that the statute of limitations began to run when Gross discovered, or should have discovered his injury, see United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and contends that Gross' own statements indicate that he knew of his injury before August 7, 1971. On July 23, 1971, the Government notes, Gross told an investigator from the Office of the Inspector General (OIG) that he held the county and state ASCS Committees responsible for his continuing "family, financial, (and) social problems."

The Government's contention presents a question that cannot be resolved on the basis of the record...