Shipek v. U.S., No. 83-6463

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHAMBERS, Senior Circuit Judge, PREGERSON; PREGERSON
Citation752 F.2d 1352
PartiesFlorence SHIPEK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Docket NumberNo. 83-6463
Decision Date28 January 1985

Page 1352

752 F.2d 1352
Florence SHIPEK, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 83-6463.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 3, 1984.
Decided Jan. 28, 1985.

Jerome J. Schiefelbein, Schiefelbein & Yount, San Diego, Cal., for plaintiff-appellant.

Joan M. Bernott, Dept. of Justice, Washington, D.C., for defendant-appellee.

On Appeal from the United States District Court for the Southern District of California.

Before CHAMBERS, Senior Circuit Judge, PREGERSON, Circuit Judge, and REED, * District Judge.

Page 1353

PREGERSON, Circuit Judge:

Appellant Florence Shipek appeals a district court order dismissing with prejudice her claim against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671-2680 (1982). The district court dismissed the action for failure to exhaust administrative remedies under section 2675(a) of the FTCA, 28 U.S.C. Sec. 2675(a) (1982). The court believed that appellant's administrative claim for wrongful death of her husband, a former serviceman, did not encompass a subsequently filed tort action based on the government's post-discharge failure to warn decedent of the dangers of radiation exposure. We review questions of law de novo, United States v. McConney, 728 F.2d 1195, 1201 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), and reverse and remand.

FACTS AND PROCEDURE

Incident to his military service, decedent Carl Shipek was exposed to radiation at nuclear detonations in 1946 in the Bikini Islands and in 1952 in Nevada. After the Nevada tests, decedent complained of itchy skin, some respiratory problems, and diarrhea. He died from cancer of the pancreas in 1969. Appellant Florence Shipek, the surviving spouse of decedent, seeks monetary damages from defendant United States for the wrongful death of her husband.

In 1978, pursuant to section 2675(a) of the FTCA, appellant filed with the United States Coast Guard an administrative claim alleging the wrongful, fatal exposure of her husband to atomic radiation. That claim was denied. She then filed a complaint seeking damages based upon both decedent's exposure to radiation and the government's failure to warn him of the significant health hazards of such exposure and the need for medical attention. In July 1983, the district court granted the motion of the United States to dismiss the complaint with leave to amend.

Also in July 1983, Appellant filed a Second Amended Complaint, alleging that the government's failure to warn Carl Shipek occurred between 1955 and 1957, after his discharge from the service. Because of this allegation, the district court ruled that appellant stated a claim that was not barred by the Feres Doctrine. 1

On October 6, 1983, the district court granted the motion of the United States for dismissal with prejudice of appellant's Second Amended Complaint on the grounds that appellant failed to exhaust her administrative remedies as required under 28 U.S.C. Sec. 2675(a). The court found that the administrative claim filed by appellant did not encompass her subsequent complaint alleging post-discharge failure to warn.

A. The Notice Requirement.

A federal court's jurisdiction to hear damage actions against the United States is limited by section 2675(a) of the FTCA. Section 2675(a) requires, as a prerequisite to suing the United States, that a plaintiff first present "the claim" to the appropriate federal agency. After the agency has denied the claim or after six months have passed, whichever occurs first, the plaintiff may bring suit in federal court on the claim. 2

Page 1354

After reviewing relevant legislative history and applicable Ninth Circuit precedent, we find that appellant's administrative claim, alleging the wrongful fatal exposure of her husband to atomic radiation and seeking damages for his wrongful death, satisfied the requirements of section 2675(a).

Congress had two purposes in enacting section 2675(a). First, Congress sought "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." S.Rep. No. 1327, 89th Cong., 2d Sess. (S.Rep.) 2, reprinted in 1966 U.S.Code Cong. & Ad.News (USCCAN) 2515, 2516. Second, Congress wanted to provide for "more fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government." S.Rep. at 2, reprinted in 1966 USCCAN at 2515-16.

This court has held that Congress's purposes are served when (1) a claim gives an agency sufficient notice to commence investigation, and (2) the claimant places a value on the claim. Warren v. United States Department of Interior Bureau of Land Management, 724 F.2d 776, 779 (9th Cir.1984); Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982). While this standard still does not define what constitutes sufficient notice, there is extensive support for appellant's contention that the notice requirement of section 2675(a) is minimal.

First, Congress apparently modeled the section 2675(a) notice requirement after statutes governing tort claims against municipalities. Those statutes "protect the municipality from the expense of needless litigation, give it an opportunity for investigation, and allow it to adjust differences and settle claims without suit." S.Rep. at 4, reprinted in 1966 USCCAN at 2517 (quoting 18 E. McQuillin,...

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29 practice notes
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...States, 700 F.2d 836, 842 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984); see Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981)......
  • Vacek v. U.S. Postal Service, No. 04-15961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 24, 2006
    ...to mean that Congress intended § 2675 to require only "minimal notice" of a claim against government agencies. Shipek v. United States, 752 F.2d 1352, 1354 (9th The mailbox rule, which creates a rebuttable presumption that a properly addressed and mailed letter will arrive at its destinatio......
  • Burns v. U.S., No. 84-3599
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 1985
    ...in an unnecessarily formalistic fashion that inequitably bars plaintiffs from pursuing their FTCA claims. See Shipek v. United States, 752 F.2d 1352, 1355 (9th Cir.1985); Raddatz v. United States, 750 F.2d 791, 796-98 (9th Cir.1984); Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir.19......
  • Leaty v. US, Civ. A. No. 90-1207.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 11, 1990
    ...States, 700 F.2d 836, 842 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984); see Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981)......
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29 cases
  • Johnson by Johnson v. U.S., No. 939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1986
    ...States, 700 F.2d 836, 842 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984); see Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981)......
  • Vacek v. U.S. Postal Service, No. 04-15961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 24, 2006
    ...to mean that Congress intended § 2675 to require only "minimal notice" of a claim against government agencies. Shipek v. United States, 752 F.2d 1352, 1354 (9th The mailbox rule, which creates a rebuttable presumption that a properly addressed and mailed letter will arrive at its destinatio......
  • Burns v. U.S., No. 84-3599
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 1985
    ...in an unnecessarily formalistic fashion that inequitably bars plaintiffs from pursuing their FTCA claims. See Shipek v. United States, 752 F.2d 1352, 1355 (9th Cir.1985); Raddatz v. United States, 750 F.2d 791, 796-98 (9th Cir.1984); Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir.19......
  • Leaty v. US, Civ. A. No. 90-1207.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 11, 1990
    ...States, 700 F.2d 836, 842 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984); see Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981)......
  • Request a trial to view additional results

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