Warren v. United States Department of the Interior Bureau of Land Management

SKOPIL, Circuit Judge: The issue presented is whether jurisdictional limitations on tort claims against the federal government encompass regulations promulgated pursuant to the agencies’ claims settlement authority. See 28 U.S.C. §§ 2675(a) and 2672 (1982). We decide the case en banc to resolve a conflict in our prior decisions. Compare Graves v. United States Coast Guard, 692 F.2d 71 (9th Cir. 1982) with House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 182, 58 L.Ed.2d 171 [777] (1978).1 The district court applied House, holding that 28 C.F.R. § 14.3(e) (1982) is a jurisdictional requirement not subject to waiver. We reverse and remand. FACTS AND PROCEEDINGS BELOW Plaintiffs appeal the district court’s dismissal of their wrongful death action against the government. The appellants are the parents and brothers of the decedent, Judith Weese. They allege that her death was the proximate result of the government’s failure to properly supervise land under its control. On April 21, 1983 Robert J. Peyton, an attorney, sent a letter to the Bureau of Land Management (“BLM”) in which he stated that he had been retained by appellants to pursue a wrongful death action against the BLM. He contended that the BLM was liable for decedent’s wrongful death under the Federal Tort Claims Act. He informed the BLM that he was authorized to make a demand in the amount of $100,000. On May 5, 1980 the BLM, through Burton J. Stanley, acknowledged Peyton’s letter, enclosed three copies of Standard Form 95, and advised that claims for damages under the Federal Tort Claims Act should be made on that form. In its letter the BLM also advised Peyton that “when submitting the claim, you should comply fully with the provisions of 28 C.F.R. § 14.3(e) requiring evidence of the authority of a legal representative to present a claim on behalf of a claimant.”2 Peyton subsequently submitted the claims on the appropriate claim form and signed each form in a manner which indicated his representative status. He did not, however, submit any additional documentation regarding his authority. Despite the government’s present contention that the claimants failed to comply with section 14.3(e), the BLM decided their claims on the merits. The decedent’s brothers’ claims were denied because the BLM concluded that they failed to demonstrate a compensable interest upon which to base a claim. The BLM denied the parents’ claims on the ground that the evidence did not indicate that the government was negligent. Appellants subsequently filed this action in the district court. The district court granted the government’s motion to dismiss for lack of jurisdiction. The court concluded that failure of claimants’ attorney to present extrinsic evidence of his authority violated 28 C.F.R. § 14.3(e).3 Relying on House, the district court held that failure to satisfy the settlement regulations was a jurisdictional bar. Although it felt such application of the regulations was “supertechnical,” the court dismissed the action for lack of jurisdiction. DISCUSSION The jurisdiction of federal courts to entertain actions for damages against the United States is limited by the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. [778] § 2675(a) (1982). A plaintiff must first present notice of a claim to the appropriate federal agency.4 The plaintiff is permitted to sue the United States only after the claim is denied or six months have elapsed without final disposition by the agency. E.g., Avery v. United States, 680 F.2d 608, 611 (9th Cir.1982) (claims presentation requirement is jurisdictional). Federal agencies are authorized by Congress to settle claims. See 28 U.S.C. § 2672 (1982). To promote this settlement process, Congress empowered the Attorney General to promulgate regulations pursuant to section 2672. See 28 C.F.R. §§ 14.1-14.11 (1982). The government contends appellants’ attorney failed to comply with section 14.3(e) of these regulations. We find the relevant statutes and their legislative histories reveal that Congress did not intend to treat regulations promulgated pursuant to section 2672 as jurisdictional prerequisites under section 2675(a).5 Accord, Avery, 680 F.2d at 611; Adams v. United States, 615 F.2d 284, 289-90, amended, 622 F.2d 197 (5th Cir.1980). Section 2672 states, inter alia: The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States.... (Emphasis supplied.) The regulations in question were promulgated by the Attorney General pursuant to this authority. Nothing in this language suggests that these regulations are to be applied jurisdictionally under section 2675(a). If Congress intended to authorize the promulgation of jurisdictional regulations, it would have created that authority directly. Congress has never delegated such authority under section 2675(a). Difficulties presented by the former claims process prompted Congress to amend it. See Adams, 615 F.2d at 288-89. Claimants formerly were required to first bring an action in district court against the government if their claims exceeded $2,500. Pub.L. No. 86-238, § 1(1), 73 Stat. 471-72 (1959) (amended 1966). Only after filing could settlement be negotiated. 28 U.S.C. § 2677 (1982); see also S.Rep. No. 1327, 89th Cong., 2d Sess. 3 (“S.Rep.”), reprinted in 1966 U.S.Code Cong. & Ad.News, 2515, 2516 (“USCCAN”). The result was clogging of the courts with many claims that [779] claimants and the government wanted to settle. Government agencies were forced to respond to court filings before engaging in settlement negotiations. Claimants, the courts and the agencies were forced to waste time and money because federal agencies lacked authority to consider settlement prior to court action. S.Rep. at 5-6, USCCAN at 2518. Under the amended versions of sections 2672 and 2675, all claims must be filed with the appropriate agencies before claimants can bring action in federal court. Congress articulated two purposes for amending the statutes. The first was “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. at 2, USCCAN at 2516. Second, the amendments were thought 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.” 5.Rep. at 2, USCCAN at 2515-16. Congress apparently modeled the claims presentation requirement of section 2675(a) after statutes governing tort claims against municipalities. S.Rep. at 3-4, USCCAN at 2516-17. 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, USCCAN at 2517 (quoting 18 E. McQuillan, The Law of Municipal Corporations § 53.-153 (3d rev. ed. 1977)). Congress understood these claims presentation statutes as requiring only minimal notice. We find that Congress intended no more for purposes of section 2675(a). Congress intended the requirements of section 2675 to function independently of section 2672. Adams, 615 F.2d at 290. Section 2675 was amended to give agencies sufficient notice to enable them to begin their own investigations. S.Rep. at 4; Adams, 615 F.2d at 290. Minimal notice requires claimants to (1) give an agency sufficient written notice to commence investigation and (2) place a value on the claim. Avery, 680 F.2d at 610. By denying appellants’ claims on the merits, the BLM demonstrated that they had sufficient notice to initiate investigation. The agency’s actions are persuasive evidence that the jurisdictional requirement of minimal notice was satisfied. To interpret section 14.3(e) as jurisdictional would be to impose upon claimants an added burden which would inevitably result in barring otherwise meritorious claims. Such a result would frustrate the purposes of both 28 U.S.C. § 2672 and § 2675(a).6 [780] Thus, we hold that section 2675(a) requires the claimant or his legal representative to file (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim. Adams, 615 F.2d at 292;7 accord, Avery, 680 F.2d at 611.8 This is not to say, however, that regulations promulgated pursuant to section 2672 are rendered meaningless by our holding that they are not jurisdictional requirements under section 2675(a): Section 2672 governs agency conduct, including administrative settlement and adjustment of properly presented claims, once notice has been given pursuant to section 2675 ... Noncompliance with section 2672 deprives a claimant only of the opportunity to settle his or her claim outside the courts.9 Adams, 615 F.2d at 290. CONCLUSION We overrule our holding in House. Because the court below applied the incorrect legal standard, we reverse and remand for further proceedings consistent herewith. REVERSED and REMANDED. Footnotes [1] The Graves’ court attempted to distinguish the holding in House. 692 F.2d at 74-75. Although the distinctions have some merit, we are not persuaded that the cases are reconcilable. [2] 28 C.F.R. 14.3(e) (1982) provides: A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative. [3] Because we hold that the regulations are not jurisdictional, we need not resolve the question of whether 28 C.F.R. § 14.3(e) applies to claims signed by attorneys on behalf of claimants. Particularly in view in Fed.R.Civ.P. 11, which authorizes attorneys to sign pleadings on behalf of clients and provides that such signature constitutes a certificate that there is good ground to support the pleading, the regulation requiring evidence of authority may be subject to a construction that it does not apply to attorneys. The portion of the regulation requiring evidence of authority refers to claims filed by “agent, executor, administrator, parent, guardian, or other representative” without referring specifically to attorneys. The “legal representatives” are referred to in the prior portion of the sentence authorizing attorneys to sign claims. [4] Section 2675(a) does not clearly define “claim” for purposes of its presentation requirement: (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 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 and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. (c)Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages. 28 U.S.C. § 2675(a) (1982). [5] Further evidence against construing section 14.3(e) as a jurisdictional requirement exists in the regulations themselves. The regulations do not purport to define a “claim” for purposes of section 2675: For purposes ... of 28 U.S.C. 2401(b) and 2672, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, [a written notification of the incident], accompanied by a claim for money changes in a sum certain.... 28 C.F.R. § 14.2(a) (1982) (emphasis supplied). [6] The dissent accuses us of ignoring the goal of reducing the burden on the courts and of reducing the costs to everyone to achieve the goal of fair treatment for claimants. The dissent misconstrues the goals of the FTCA amendments. Congress intended to eliminate the burden on the courts of having all FTCA claims lodged there first. That procedure not only burdened the courts but was expensive to claimants and the agencies as well. The amendments, as we understand them, were designed to divert all claims to the agencies first to provide claimants who desired settlement the opportunity for it at minimum expense. There is no evidence that Congress wished to restrict access to the courts in cases where settlement was not possible by creating jurisdictional obstacles during the settlement process. Our holding furthers all the goals of the FTCA amendments by promoting settlement in that class of cases where potential for settlement is high without putting at risk claimants who wish to present their claims in court. It is the course advocated by the dissent which ignores the goals of the FTCA amendments. The dissent apparently concedes that some meritorious claims would inevitably be barred if settlement regulations are jurisdictional. It fails to recognize that costs to claimants would rise and the burden on the courts would increase. All claimants, even those who have no desire to settle or who have claims which, because of their complexity, could not settle in the required six months would have to go through the entire settlement process. Costs to claimants would be further increased by the premium placed upon the careful observance of the settlement regulations. All claimants would be forced to seek attorneys to represent them during the settlement process to increase their chances that, should settlement fail or not be desired, the courtroom doors would not later be found closed. The burden on the courts would increase for, as we observed in Avery: [780] [I]t would ... be an inefficient use of judicial resources to require more than minimal notice to satisfy section 2675(a). Since the claims presentation requirement is jurisdictional, if it were interpreted to require more than minimal notice, there would be, inevitably, hearings on ancillary matters of fact whenever the agency rejected a claim as incomplete. Avery, 680 F.2d at 611. [7] We are mystified by the dissent’s assertion that Adams does not support our position. First, the opinion and holding found at 615 F.2d 284 was not “revised,” but “clarified” by the subsequent opinion. Adams v. United States, 622 F.2d 197, 197 (5th Cir.1980) (per curiam). Moreover, the quotation from the clarifying opinion which the dissent relies on clearly supports our position. The court reiterated that an adequate claim for purposes of section 2675 is one that contains “enough details [about the underlying incident from which the complaint arose] to enable the agency to begin its own investigation.” In the case before us, no one argues that the claims lacked sufficient detail to enable the agency to begin its own investigation. The claims only failed to comply with the details of settlement regulations. That is precisely the defect of the claim the Adams court considered, Adams, 615 F.2d at 285, and held nonjurisdictional. [8] The dissent’s limited reading of the holding in Avery is unwarranted. The court there defined the extent of the requirements for claims presentation under section 2675: “[W]e hold that where a claimant gives notice of the manner and general circumstances of injury and the harm suffered, and a sum certain representing damages, he has complied with section 2675(a).” Avery, 680 F.2d at 611. We hold the same today, and refuse to read into the requirements of section 2675 the extensive requirements in the regulations promulgated pursuant to section 2672. Avery dealt with the interpretation of 28 C.F.R. § 14.4 (1982). Although we are faced here with section 14.3(e), Avery is equally relevant since both sections 14.4 and 14.3(e) were promulgated pursuant to 28 U.S.C. § 2672 (1982). Avery cites Adams, 615 F.2d at 289, for the proposition that the statement of a “sum certain” is a jurisdictional requirement. 680 F.2d at 610. Adams so held on the basis of 28 U.S.C. § 2675(b) (1982). 615 F.2d at 289. [9] Appellants also allegedly failed to comply with 28 C.F.R. § 14.4(a). Section 14.4(a) empowers an agency to require a claimant to submit certain evidence for claims based on death. Avery held that failure to comply with 28 C.F.R. § 14.4 (1982) was not a jurisdictional bar. 680 F.2d at 611. For the reasons discussed in text, we agree.