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United
States v. Minker, 350 U.S. 179, 76 S.Ct. 281 (1956): "Where
administrative action may result in the loss of both property and life, or
of all that makes life worth living, any doubt as to extent of power
delegated to administrative officials is to be resolved in citizen's favor,
and court must be especially sensitive to citizen's rights where proceeding
is non-judicial." [United States v. Minker, 350
U.S. 179; 76 S.Ct. 281 (1956)]
Administrative
Procedures Act, 5 U.S.C. §551-559
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)
The corporation contends that, since it denies that
interstate or foreign commerce is involved and claims that a hearing
would subject it to irreparable damage, rights guaranteed by the
Federal Constitution will be denied unless it be held that the
District Court has jurisdiction to enjoin the holding of a hearing
by the Board.
So to hold would, as the government insists, in effect substitute
the District Court for the Board as the tribunal to hear and
determine what Congress declared the Board exclusively should hear
and determine in the first instance. The contention is at war
with the long-settled rule of judicial administration that no one is
entitled to judicial relief for a supposed or threatened injury
until the pre-
[303 U.S. 41, 51]
scribed administrative remedy has been exhausted.
That rule has been repeatedly acted on in cases where, as here, the
contention is made that the administrative body lacked
power over the subject matter.
Obviously, the rules requiring exhaustion of the
administrative remedy cannot be circumvented by asserting that the
charge on which the complaint rests is groundless and that the mere
holding of the prescribed administrative hearing would result in
irreparable damage.
Lawsuits also often prove to have been ground-
[303
U.S. 41, 52]
less; but no way has been discovered of relieving a defendant
from the necessity of a trial to establish the fact.
[Myers
v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)]
_________________________________
28 U.S.C. §2675: Disposition by federal
agency as prerequisite
TITLE 28 >
PART VI >
CHAPTER 171 > § 2675
§ 2675. Disposition by federal agency as prerequisite; evidence
(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.
Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)
Defendant's motion as amended to dismiss urged that the court
lacked jurisdiction by reason of plaintiff's failure to exhaust
administrative remedies as required by 28 U.S.C. § 2675(a), and
additionally that the claim is barred by the two-year statute of
limitations provided by 28 U.S.C. § 2401(b).
The trial court in its dismissal order states "plaintiff's
failure to exhaust her administrative remedies is fatal to her case
and it must be dismissed."
The basic issue raised by this appeal is whether plaintiff's
counsel's letter of November 23 constitutes a claim against the
United States as contemplated by 28 U.S.C. § 2675(a). We agree with
the trial court's determination that the claim as made did not meet
the statutory requirements and that hence the case must be dismissed
by reason of plaintiff's failure to exhaust her administrative
remedies.
We adhere to our holding in Peterson v. United States, 428 F.2d
368, 369 (8th Cir. 1970), where we stated:
It is settled that the United States, as sovereign, is immune
from suit unless 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 Company v. Iowa State Commerce Comm., 407 F.2d
916, 920 (8th Cir.), cert. denied, 396 U.S. 826, 90 S. Ct. 71, 24 L.
Ed. 2d 77 (1969); Simons v. Vinson, 394 F.2d 732 (5th Cir.), cert.
denied, 393 U.S. 968, 89 S. Ct. 398, 21 L. Ed. 2d 379 (1968). A
corollary to the immunity doctrine is the rule that the United
States may define the conditions under which actions are permitted
against it. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 18 L.
Ed. 2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d
Cir. 1962); Kuhnert v. United States, 127 F.2d 824 (8th Cir. 1942).
Twenty-eight U.S.C. Ch. 171 delineates the procedure for tort
claims against the United States and is controlling. Section 2675(a)
of this chapter provides in part:
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 * * * 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 * * *.
Section 2675 clearly makes the filing of an administrative claim
a mandatory condition precedent to the filing of civil action
against the United States for damages arising from the negligent act
or omission of any Government employee acting within the scope of
his employment. Best Bearings Co. v. United States, 463 F.2d 1177
(7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir.
1971); Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970).
Thirty-nine C.F.R. § 912.5 provides:
For purposes of this part, a claim shall be deemed to have
been presented when the U.S. Postal Service receives from a
claimant, his duly authorized agent or legal representative, an
executed Standard Form 95, Claim for Damage or Injury, or other
written notification of an incident, accompanied by a claim for
money damages in a sum certain for injury to or loss of
property, personal injury, or death alleged to have occurred by
reason of the incident. (Emphasis added.)
[. . .]
In Avril v. United States, 461 F.2d 1090, 1091 (9th Cir. 1972),
the court was confronted with a situation where no amount of damages
was claimed. The court dismissed the action for failure to exhaust
administrative remedies, holding that the purported claim did not
meet the requirements of the statute. The court held:
The requirement that a sum certain be claimed is clearly implied
from the statute itself, 28 U.S.C. § 2675, * * *. It is plain that
the required "claim" is something more than mere notice of an
accident and an injury. The term "claim" contemplates, in general
usage, a demand for payment or relief, and, unless it is a claim for
something, is no claim at all.
In Bialowas v. United States, supra, no specific sum claimed was
set forth in the purported claim. The court in affirming the
judgment dismissing the claim for failure to exhaust administrative
remedies states:
The initial purpose of the regulations requiring a statement of
the specific sum claimed is to enable a determination by the head of
the federal agency as to whether the claim falls within the
jurisdictional limits of his exclusive authority to process, settle
or to properly adjudicate the claim. Above those limits the
settlement must have the prior written approval of the Attorney
General or his designee. Furthermore, the requirements of the
regulations are intended to set up uniform procedures in the
exercise of settlement authority. [443 F.2d, at 1050.]
Section 2675(b) provides that subject to certain exceptions not
here relevant the amount of the recovery shall not exceed the amount
of the claim presented to the federal agency.
Thus it is apparent that § 2675 requires the claim to the agency
set out the amount of damage claimed. It is clear that plaintiff's
purported claim set out in footnote 1, supra, does not constitute a
claim contemplated by § 2675 in that it fails to state the nature of
plaintiff's injuries and the dollar amount claimed therefor.
[Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)]
Heckler
v. Chaney, 470 U.S. 821 (1985):
This case law recognizes
that attempting to [470 U.S.
821, 851] draw a line for purposes of judicial
review between affirmative exercises of coercive agency power and negative
agency refusals to act, see ante, at 832, is simply untenable; one of
the very purposes fueling the birth of administrative agencies was the
reality that governmental refusal to act could have just as devastating an
effect upon life, liberty, and the pursuit of happiness as coercive
governmental action. As Justice Frankfurter, a careful and experienced
student of administrative law, wrote for this Court, "any distinction,
as such, between `negative' and `affirmative' orders, as a touchstone of
jurisdiction to review [agency action] serves no useful purpose."
Rochester Telephone Corp. v. United States, 307
U.S. 125, 143 (1939). 8 The lower courts,
facing [470 U.S. 821,
852] the problem of agency inaction and its concrete
effects more regularly than do we, have responded with a variety of
solutions to assure administrative fidelity to congressional objectives: a
demand that an agency explain its refusal to act, a demand that
explanations given be further elaborated, and injunctions that action
"unlawfully withheld or unreasonably delayed," 5 U.S.C. 706, be
taken. See generally Stewart & Sunstein, 95 Harv. L. Rev., at 1279.
Whatever the merits of any particular solution, one would have hoped the
Court would have acted with greater respect for these efforts by responding
with a scalpel rather than a blunderbuss.
To be sure, the Court no doubt
takes solace in the view that it has created only a "presumption"
of unreviewability, and that this "presumption may be rebutted where
the substantive statute has provided guidelines for the agency to follow in
exercising its enforcement powers." Ante, at 832-833. But this
statement implies far too narrow a reliance on positive law, either
statutory or constitutional, see ibid., as the sole source of limitations
on agency discretion not to enforce. In my view, enforcement discretion is
also channelled by traditional background understandings against which the
APA was enacted and which Congress hardly could be thought to have intended
to displace in the APA. 9 For example, a
refusal to enforce that stems from a conflict of interest, that is the
result of a bribe, vindictiveness or retaliation, or that traces to
personal or other corrupt motives ought to be judicially remediable. 10
Even in the absence [470
U.S. 821, 853] of statutory "guidelines"
precluding such factors as bases of decision, Congress should not be
presumed to have departed from principles of rationality and fair process
in enacting the APA. 11 Moreover, the agency
may well narrow its own enforcement discretion through historical practice,
from which it should arguably not depart in the absence of explanation, or
through regulations and informal action. Traditional principles of
rationality and fair process do offer "meaningful standards" and
"law to apply" to an agency's decision not to act, and no
presumption of unreviewability should be allowed to trump these principles.
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