Lann v. Hill

• Decision Date: 26 April 1977
• Docket Number: No. CIV-76-0684-D.,CIV-76-0684-D.
• Citation: 436 F. Supp. 463
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Jerry B. LANN and Connie J. Lann, Plaintiffs, v. Carla HILL, Secretary of Housing and Urban Development, and Robert H. Breeden, Area Director Oklahoma City HUD Area Office, Defendants.

436 F. Supp. 463

Jerry B. LANN and Connie J. Lann, Plaintiffs, v. Carla HILL, Secretary of Housing and Urban Development, and Robert H. Breeden, Area Director Oklahoma City HUD Area Office, Defendants.

No. CIV-76-0684-D.

United States District Court, W. D. Oklahoma.

March 15, 1977.

Order April 26, 1977.

Michael T. Braswell, Oklahoma City, Okl., for plaintiffs.

David L. Russell, U. S. Atty., by Richard F. Campbell, III, Asst. U. S. Atty., Oklahoma City, Okl., for defendants.

ORDER OF DISMISSAL

DAUGHERTY, District Judge.

This is an action in which Plaintiffs seek recovery based on the alleged negligence of a Housing and Urban Development (HUD) inspector, an employee of the United States of America, in his appraisal of a home Plaintiffs purchased.¹ Plaintiffs assert that this Court has jurisdiction of the matter pursuant to 28 U.S.C. § 1346. Pursuant to Rule 12(b), Federal Rules of Civil Procedure, Defendants have filed a Motion to Dismiss. Said Motion is supported by a Brief and Plaintiffs have filed a Brief in opposition thereto.

In support of their Motion to Dismiss, the Defendants contend that this Court lacks jurisdiction over the subject matter of this action and that the Complaint herein fails to state a claim upon which relief can be granted. To the extent necessary, the Court will consider Defendants' contentions seriatim.

Defendants' contention that this Court lacks subject matter jurisdiction of this action is made pursuant to Rule 12(b)(1), supra. Defendants contend that Plaintiffs' Complaint, as amended, has not established that this Court has jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2), as Plaintiffs' allegations have not established the existence of an express or implied contract between the Plaintiffs and Defendants so as to bring the instant action within the Tucker Act. In Plaintiffs' Brief in opposition to the Motion to Dismiss they appear to contend that there was a contractual relationship between the parties so as to come within the Tucker Act and alternatively that there was a tortious act by a federal employee such as to enable Plaintiffs to make a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

At this stage in the proceedings, the Court is unable to determine with certainty which of the two aforementioned theories Plaintiffs desire to utilize. It would appear that Plaintiffs are seeking to proceed under either the Tucker Act, 28 U.S.C. § 1346(a)(2)² or the Federal Tort Claims Act, 28 U.S.C. § 1346(b).³ It is not necessary for Plaintiffs to allege the particular law or theory under which recovery is sought. Hail v. Heyman-Christiansen, Inc., 536 F.2d 908 (Tenth Cir. 1976); Misco Leasing, Inc. v. Keller, 490 F.2d 545 (Tenth Cir. 1974). Plaintiffs are entitled to state as many claims as they have regardless of inconsistencies. Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781 (Fifth Cir. 1973). And Plaintiffs may plead in the alternative. Rule 8(e)(2), Federal Rules of Civil Procedure. Accordingly, the Court will determine if it has subject matter jurisdiction over either of the possible actions under which Plaintiff might proceed.

An initial examination of Plaintiffs' Complaint, as amended, indicates that Plaintiffs have failed to join the United States as a Defendant in the instant action. Both the Tucker Act⁴ and the Federal Tort Claims Act⁵ require that the United States be made a party Defendant. However, in view of the fact that Plaintiffs seek relief herein which would compel the United States, or an agency thereof to act, the Court will for the purposes of this Order look through the nominal parties Defendant named in this action and will treat the suit as one that is in fact "against the United States".⁶

The Court finds and concludes that it lacks jurisdiction to entertain this action should it be deemed to be made pursuant to 28 U.S.C. § 1346(b) of the Federal Tort Claims Act. The prerequisites to this Court having jurisdiction of an action under said Act are set out in 28 U.S.C. § 2675(a), which provides in part:

"Disposition by federal agency as prerequisite; evidence

"An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing . . .." (emphasis added)

The filing of an administrative claim is an absolute prerequisite to maintaining a civil action against the government for damages arising from a tortious occurrence due to the negligence of a federal employee. Best Bearings Co. v. United States, 463 F.2d 1177 (Seventh Cir. 1972). This Court lacks jurisdiction of an action brought pursuant to the Federal Tort Claims Act unless prior to the institution of the suit Plaintiffs have filed a claim with the appropriate Federal agency and said claim has been finally denied by that agency. Three-M Enterprises, Inc. v. United States, 548 F.2d 293 (Tenth Cir. 1977) (filed January 13, 1977); Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (Sixth Cir. 1974); Mayo v. United States, 407 F.Supp. 1352 (E.D.Va.1976); Fallon v. United States, 405 F.Supp. 1320 (D.Mont.1976); Kornbluth v. Savannah, 398 F.Supp. 1266 (E.D.N.Y.1975). The filing of a claim with the appropriate Federal agency and the disposition of the claim by that agency is a jurisdictional requirement to bringing a Federal tort claims action in this Court and such prerequisite cannot be waived. Three-M Enterprises, Inc. v. United States, supra; Executive Jet Aviation, Inc. v. United States, supra; Best Bearings Co. v. United States, supra; Bialowas v. United States, 443 F.2d 1047 (Third Cir. 1971). An action instituted in a Federal district court under the Federal Tort Claims Act must be dismissed where the Plaintiffs have not first filed an administrative claim as required by 28 U.S.C. § 2675(a). Three-M Enterprises, Inc. v. United States, supra; Allen v. United States, 517 F.2d 1328 (Sixth Cir. 1975); Melo v. United States, 505 F.2d 1026 (Eighth Cir. 1974); Caton v. United States, 495 F.2d 635 (Ninth Cir. 1974); Best Bearings Co. v. United States, supra; Bialowas v. United States, supra; Annot., 13 A.L.R.Fed. 762 (1972).

In view of the foregoing, in order for Plaintiffs to seek recovery in this case from the United States in tort, it was essential for them to allege⁷ the presentation of their claim to the appropriate federal agency and a final disposition of the claim by that agency. Altman v. Connally, 456 F.2d 1114 (Second Cir. 1972). In the instant case, Plaintiffs have failed to make such an allegation.

Accordingly, as the allegations contained in Plaintiffs' pleadings are insufficient to invoke the jurisdiction of this Court in an action brought pursuant to 28 U.S.C. § 1346(b), the Plaintiffs' Complaint, as amended, should be dismissed to the extent it seeks recovery under said section.

Plaintiffs' alternative theory of recovery would appear to be pursuant to the Tucker Act, 28 U.S.C. § 1346(a)(2). Said Act provides in part:

"The district courts shall have original jurisdiction, . . . of . . . any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . . ."

In their Complaint, as amended, Plaintiffs state that the instant action is a "suit in contract and equity". In their prayer for relief, they seek to have this Court "direct HUD to furnish a totally new roof for Plaintiffs' premises". As it appears that Plaintiffs seek only equitable relief herein, their jurisdictional reliance upon 28 U.S.C. § 1346(a)(2) is misplaced. The Tucker Act authorizes actions for money damages and not suits for equitable relief. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). Thus, to the extent Plaintiffs' action seeks only equitable relief, this Court has no jurisdiction by reason of 28 U.S.C. § 1346(a)(2).

Moreover, the allegations in Plaintiffs' Complaint, as amended, fail to establish that this Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1346(a)(2). Even a liberal interpretation of Plaintiffs' pleadings do not indicate that Plaintiffs are presenting a civil action or claim founded upon the Constitution, or any Act of Congress, or any regulation of an executive department, or any express or implied contract with the United States, or for liquidated or unliquidated damages. Although federal courts are liberal in their pleading practices, a general allegation of jurisdiction must be borne out by a well-pleaded claim. Jewell v. City of Covington, 425 F.2d 459 (Fifth Cir. 1970), cert. denied, 400 U.S. 929, 91 S.Ct. 195, 27 L.Ed.2d 189 (1970); Advance Labor Labor Service, Inc. v. Hartford Accident & Indemnity Co., 353 F.Supp. 666 (N.D.Ill.1973).

Accordingly, as the Court apparently lacks jurisdiction of this matter as it relates to an action brought pursuant to 28 U.S.C. § 1346(a)(2), Plaintiffs' Complaint, as amended, relating to recovery under such Act should be dismissed.

In view of the foregoing, Defendants' Motion to Dismiss based on this Court's lack of jurisdiction over the subject matter should be sustained and Plaintiffs' Complaint, as amended, should be dismissed.

It is so ordered this 15 day of March, 1977.

ORDER ON MOTION TO RECONSIDER

Plaintiffs have filed a Motion to Reconsider, To Amend, and Stay Appeal Time. In said Motion, Plaintiffs request that the Court reconsider its Order of Dismissal of Plaintiffs' Complaint; that Plaintiffs' pleadings be amended to include an exhibit¹...