Meeker v. United States, No. 20278.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: MATTHES, , and LAY and BRIGHT, Circuit
• Citation: 435 F.2d 1219
• Parties: Mary Eileen MEEKER, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 20278.
• Decision Date: 30 December 1970

435 F.2d 1219 (1970)

Mary Eileen MEEKER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 20278.

United States Court of Appeals, Eighth Circuit.

December 30, 1970.

Warren C. Johnson, Clinton, Iowa, for appellant.

Claude H. Freeman, Asst. U. S. Atty., Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.

Before MATTHES, Chief Judge, and LAY and BRIGHT, Circuit Judges.

435 F.2d 1220

MATTHES, Chief Judge.

This suit was initially commenced by appellant on December 17, 1969 in the Clinton County, Iowa District Court against Bruce A. Abbott, Robert Martin, Postal Leasing, Inc. and Macheal Oil Company, seeking recovery for damages alleged to have resulted from an automobile accident which occurred on December 18, 1967 in Clinton, Iowa. Two vehicles were involved in the collision — a postal truck driven by Abbott, and a taxicab driven by Martin. Appellant was a passenger in the cab at the time of the accident.¹

On December 31, 1969, upon motion of the United States Attorney, invoking 28 U.S.C. § 2679(d) and certifying that the accident occurred while Abbott was acting within the scope of his employment as a postal employee of the Government, the action was removed from the state court to the United States District Court for the Southern District of Iowa. Shortly thereafter, the United States was substituted as party defendant for Abbott.

On February 24, 1970 the district court, pursuant to Rule 12, Fed.R.Civ.P., dismissed the action against the United States on the ground that under 28 U.S. C. § 2675(a), as amended in 1966 by Pub.L. 89-506, § 2, 80 Stat. 306, the filing of an administrative claim is a prerequisite to maintaining a civil action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. This appeal is taken from that order of dismissal.²

Appellant, although conceding her claim had not been processed through administrative channels, contends that the district court erred in dismissing the action, because it was not brought against the United States, but was commenced in a state court against Abbott in his individual capacity. It is urged that the 1966 amendment to the Tort Claims Act, requiring the exhaustion of the statutory administrative remedies prior to initiation of court action on a claim, only obtains where recovery is originally sought against the Government and does not apply where the suit is initially commenced against an individual in a state court.

The clear and unambiguous language of the Federal Tort Claims Act, and the legislative history accompanying the Act and the 1966 amendment thereto, compel us to reject appellant's contentions.

First, there can be no question but that 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. Peterson v. United States, 428 F.2d 368 (8th Cir. 1970); Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir. 1969, as amended January, 1970). The language of section 2675(a), Title 28 U.S.C., as amended, is clear, unambiguous, and phrased in mandatory terms:

"(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting

435 F.2d 1221

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 * * *."³

The federal regulation implementing the procedure for an administrative claim under the Tort Claims Act, 28 C.F.R. § 14.2, provides that a claim shall be deemed to have been presented when the federal agency receives from the injured party written notification of the incident accompanied by a claim for money damages. The mere filing of a suit does not meet the requirement of § 2675(a) of first presenting a claim to the appropriate federal agency. Gunstream v. United States, 307 F.Supp. 366 (C.D.Cal.1969). As we recently held in Peterson v. United States, supra, as a corollary to the sovereign immunity doctrine, the United States has the right to define the conditions under which it will consent to be sued. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967).

The only question then is whether a claimant will be allowed to circumvent the prerequisite of pursuing his administrative remedies merely by commencing an action in a state...