Lunsford v. U.S.

• Decision Date: 31 December 1977
• Docket Number: No. 76-1984,76-1984
• Citation: 570 F.2d 221
• Parties: Agnes LUNSFORD, as Special Administratrix of the Estates of Theophil Gall and Alice H. Gall, Deceased, Agnes Lunsford and Carol O'Brien as the sole heirs at law and next of kin of Theophil Gall, Alice H. Gall and of Norvel Gall, Deceased, E. F. Lodmell, Jr., as Executor of the Estates of E. F. Lodmell and Anna R. Lodmell, Deceased, E. F. Lodmell, Jr., and Leeann Emme as the sole heirs at law and next of kin of E. F. Lodmell and Anna R. Lodmell, Deceased, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 221

570 F.2d 221

48 A.L.R.Fed. 845

Agnes LUNSFORD, as Special Administratrix of the Estates of

Theophil Gall and Alice H. Gall, Deceased, Agnes Lunsford

and Carol O'Brien as the sole heirs at law and next of kin

of Theophil Gall, Alice H. Gall and of Norvel Gall,

Deceased, E. F. Lodmell, Jr., as Executor of the Estates of

E. F. Lodmell and Anna R. Lodmell, Deceased, E. F. Lodmell,

Jr., and Leeann Emme as the sole heirs at law and next of

kin of E. F. Lodmell and Anna R. Lodmell, Deceased, Appellants, v. UNITED STATES of America, Appellee.

No. 76-1984.

United States Court of Appeals,

Eighth Circuit.

Submitted May 19, 1977.

Decided Dec. 31, 1977.

Horace R. Jackson, Rapid City, S.D., for appellants; Sam W. Masten and Jeff Masten, Canton, S.D., on brief.

Thomas J. Whalen, New York City, for appellee; Lawrence Mentz and Moffett Burgess Roller, Condon & Forsyth, New York City, Irving Jaffe, Acting Asst. Atty. Gen., Washington, D.C., William F. Clayton, U.S. Atty., Sioux Falls, S.D., Robert E. Kopp, Edwin E. Huddleson, III and J. Charles Kruse, Attys., Dept. of Justice, Washington, D.C., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and WEBSTER, Circuit Judges.

HEANEY, Circuit Judge.

This action was brought as a class action against the United States under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2671-2680. The named plaintiffs either themselves lost property or are heirs at law, next of kin or court-appointed representatives of persons who died and lost property in the flood which occurred in Rapid City, South Dakota, on June 9, 1972. They sought to bring this action on behalf of all persons who lost their lives and property as a result of the flood which caused substantial property damage and resulted in two hundred and eighty-three deaths.

The plaintiffs alleged that the flood was directly and proximately caused by excessive rain produced by cloud seeding at a time when threatening weather conditions were present. ¹ The experimental cloud On June 7, 1974, all but one of the named plaintiffs filed administrative claims with the Bureau of Reclamation as administrators, heirs at law and executors of the estates of persons who died and lost property in the flood. ² Each claim stated that the property damage and deaths were the result of a negligent cloud seeding operation of the Bureau of Reclamation. Each claim also stated that it was

seeding program was conducted by the South Dakota School of Mines and Technology under contract with the Bureau of Reclamation of the United States Department of the Interior. The plaintiffs further alleged that the experimental cloud seeding program was inherently dangerous, thus giving rise to a nondelegable duty on the part of the United States to supervise the conduct of the program. This duty was allegedly breached when the cloud seeding program was conducted during adverse weather conditions.

further filed as a class claim and action on behalf of (a) all persons sustaining damage by reason of the death of a relative caused proximately by the persons and events stated herein and (b) all persons sustaining damage to property caused proximately by the persons and events stated herein.

The claims were denied by the Department of Interior in a letter dated December 4, 1974.

This action was filed in the United States District Court for the District of South Dakota on June 2, 1975, by the individuals filing administrative claims and by Leeann Emme, who had not filed an administrative claim. The damages alleged by the named plaintiffs in the complaint differed from the amounts sought in the administrative claims. ³ The individual plaintiffs sued on their own behalf and on behalf of the members of the class of persons who lost their lives and property as a result of the flood. Neither the administrative claims nor the complaint stated the total amount of damages incurred by the entire class.

The United States moved to dismiss the class action for lack of subject matter jurisdiction under the FTCA. The plaintiffs moved to strike certain defenses raised by the United States including the defense that the United States is not liable for flood damages under § 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c.

The District Court dismissed the action as a class action and denied the plaintiffs' motion to strike the government's defense based upon § 3 of the Flood Control Act, 33 U.S.C. § 702c. Lunsford v. United States, 418 F.Supp. 1045 (D.S.D.1976). It certified its ruling dismissing the class action and denying the plaintiffs' motion to strike the government's defense under § 702c as involving controlling issues of law pursuant to 28 U.S.C. § 1292(b). Id. at 1056. On November 11, 1976, this Court granted the plaintiffs permission to file an interlocutory appeal as to both issues. However, we reserved final judgment as to whether the question of governmental immunity under § 702c is presently appropriate for interlocutory review.

MAINTENANCE AS A CLASS ACTION

The District Court held the administrative filing requirement of the FTCA to be jurisdictional in nature. 28 U.S.C § 2675(a). It found that the named plaintiffs had no authority to act as agents and present claims on behalf of the unnamed class members. It also found that no sum certain was stated with respect to the class claim. It held that the administrative exhaustion requirement of the FTCA had not been met with respect to the claims of the unnamed class members and dismissed the class action for lack of subject matter jurisdiction. We agree and affirm the District Court's dismissal of the class action. We emphasize, however, that the named plaintiffs who satisfied the administrative exhaustion requirement may still proceed with their cause of action. ⁴

The United States enjoys sovereign immunity except to the extent it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Iowa Public Service Co. v. Iowa State Commerce Com'n, 407 F.2d 916, 920 (8th Cir.), cert. denied, 396 U.S. 826, 90 S.Ct. 71, 24 L.Ed.2d 77 (1969). As this Court has stated

(a) corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it.

Peterson v. United States, 428 F.2d 368, 369 (8th Cir. 1970).

The condition at issue here is the FTCA requirement found at 28 U.S.C. § 2675(a) that a claim be properly presented to the appropriate federal agency and denied before an action can be brought in federal district court. ⁵ The Eighth Circuit has held that the administrative exhaustion requirement of 28 U.S.C. § 2675(a) is jurisdictional, Melo v. United States, 505 F.2d 1026, 1028 (8th Cir. 1974); Meeker v. United States, 435 F.2d 1219, 1220 (8th Cir. 1970), and thus, it cannot be waived. The other circuits considering the question have also held that administrative exhaustion is an absolute prerequisite to the maintenance of an action under the FTCA. Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977); Molinar v. United States, 515 F.2d 246, 249 (5th Cir. 1975); Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047, 1049 (3rd Cir. 1971).

The administrative exhaustion requirement, 28 U.S.C. § 2675(a), was among the amendments to the FTCA adopted in 1966. Prior to the adoption of these amendments, the FTCA only provided for administrative settlement where the claim was for $2,500 or less. Federal Tort Claims Act, ch. 753, § 403, 60 Stat. 843 (1946). Moreover, an administrative claim could be withdrawn within fifteen days of the date it was filed and suit could be brought. Federal Tort Claims Act, ch. 753, § 410(b), 60 Stat. 844 (1946). The Senate and the House reports indicate, Congressional intent in enacting the administrative exhaustion requirement was

to improve and expedite disposition of monetary claims against the Government by establishing a system for prelitigation settlement, to enable consideration of claims by the agency having the best information concerning the incident, and to ease court congestion and avoid unnecessary litigation.

Meeker v. United States, supra at 1222. S.Rep.No.1327, 89th Cong., 2d Sess. 3, reprinted in (1966) U.S.Code Cong. & Admin.News p. 2515; H.R.Rep.No.1532, 89th Cong., 2d Sess. 4 (1966).

To achieve this purpose, certain procedural administrative requirements were established. See 28 C.F.R. § 14.1 et seq. ⁶

The plaintiffs argue that the administrative claims filed here clearly indicated that they were also filed on behalf of all unnamed members of the class and, thus, were in substantial compliance with the jurisdictional requirement of administrative exhaustion. We cannot agree.

Neither the FTCA nor the regulations promulgated thereunder make provision for the filing of administrative claims against the United States on behalf of a class of similarly situated individuals. Caidin v. United States,564 F.2d 284 (9th Cir., 1977); Commonwealth of Pa. v. National Ass'n of Flood Ins., 520 F.2d 11, 23 (3rd Cir. 1975). However, the procedure for administrative exhaustion established under the FTCA clearly presupposes the existence of an identifiable claimant or claimants with whom the government can negotiate a settlement on the basis of the sum certain stated in the administrative claim. The administrative claims filed here did not adequately present the claims of unnamed class members. Not all of the claimants were identifiable; none of the named plaintiffs asserted authority to present claims on behalf of the unnamed class members; and no sum certain was stated with respect to the class claim so that the government could evaluate the claim for possible settlement.

The Third Circuit has held that the FTCA

makes no distinction between the individual claimant and the claimant who may, by reason of the facts giving rise to his claim, be a member of a class. In both instances, the...