CITES BY TOPIC:  administrative procedure
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.[1]  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.[2] 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.[3] 

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.[4]  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)]
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[1] In support of that contention the following cases were cited: Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 289 , 40 S.Ct. 527, 528; Bluefield Water Works Co. v. Public Service Commission, 262 U.S. 679, 683 , 43 S.Ct. 675; Phillips v. Commissioner, 283 U.S. 589, 600 , 51 S.Ct. 608, 612; Crowell v. Benson, 285 U.S. 22, 60 , 64 S., 52 S.Ct. 285, 296, 297; State Corporation Commission v. Wichita Gas Co., 290 U.S. 561, 569 , 54 S.Ct. 321, 324; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51 , 52 S., 56 S.Ct. 720, 725, 726.

[2] The rule has been most frequently applied in equity where relief by injunction was sought. Pittsburgh &c. Ry. v. Board of Public Works, 172 U.S. 32, 44 , 45 S., 19 S.Ct. 90; Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 230 , 29 S.Ct. 67; Dalton adding Machine Co. v. State Corporation Commission, 236 U.S. 699, 701 , 35 S.Ct. 480; Gorham Mfg. Co. v. State Tax Commission, 266 U.S. 265, 269 , 270 S., 45 S.Ct. 80, 81; Federal Trade Commission v. Claire Furnace Co., 274 U.S. 160, 174 , 47 S.Ct. 553, 556; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U.S. 588, 592 , 593 S., 47 S.Ct. 720, 722; Chicago, M., St. P. & P.R.R. Co. v. Risty, 276 U.S. 567, 575 , 48 S.Ct. 396, 399; St. Louis-San Francisco Ry. Co. v. Alabama Public Service Commission, 279 U.S. 560, 563 , 49 S.Ct. 383, 384; Porter v. Investors' Syndicate, 286 U.S. 461, 468 , 471 S., 52 S. Ct. 617, 619, 620; United States v. Illinois Central Ry. Co ., 291 U.S. 457, 463 , 464 S., 54 S.Ct. 471, 473, 474; Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 172 , 55 S.Ct. 7, 10; compare Red 'C' Oil Mfg. Co. v. North Carolina, 222 U.S. 380, 394 , 32 S.Ct. 152; Farncomb v. Denver, 252 U.S. 7, 12 , 40 S.Ct. 271, 273; Milheim v. Moffat Tunnel District, 262 U.S. 710, 723 , 43 S. Ct. 694, 698; McGregor v. Hogan, 263 U.S. 234, 238 , 44 S.Ct. 50, 51; White v. Johnson, 282 U.S. 367, 374 , 51 S.Ct. 115, 118; Petersen Baking Co. v. Bryan, 290 U.S. 570, 575 , 54 S. Ct. 277, 278; Pacific Tel. & Tel. Co. v. Seattle, 291 U.S. 300, 304 , 54 S.Ct. 383, 384. But because the rule is one of judicial administration-not merely a rule governing the exercise of discretion-it is applicable to proceedings at law as well as suits in equity. Compare First National Bank of Fargo v. Board of County Commissioners, 264 U.S. 450, 455 , 44 S.Ct. 385, 387; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 343 , 57 S.Ct. 816, 819.

[3] Dalton Adding Machine Co. v. State Corporation Commission, 236 U.S. 699 , 35 S.Ct. 480; Federal Trade Commission v. Claire Furnace Co., 274 U.S. 160 , 47 S.Ct. 553; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U.S. 588 , 47 S.Ct. 720; St. Louis-San Francisco Ry. Co. v. Alabama Public Service Commission, 279 U.S. 560 , 49 S.Ct. 383. Compare Western & Atlantic R.R. v. Georgia Public Service Commission, 267 U.S. 493, 496 , 45 S.Ct. 409, 410, and casesited in note 1, supra.

[4] Such contentions were specifically rejected in Bradley Lumber Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97; Clark v. Lindemann & Hoverson Co., 7 Cir., 88 F.2d 59; Chamber of Commerce v. Federal Trade Commission, 8 Cir., 280 F. 45; Heller Bros. Co. v. Lind, 66 App.D.C. 306, 86 F.2d 862; and Pittsburgh & W. Va. Ry. Co. v. Interstate Commerce Commission, 52 App.D.C. 40, 280 F. 1014. Compare United States v. Los Angeles & S.L.R.R. Co., 273 U.S. 299, 314 , 47 S.Ct. 413, 416; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U.S. 588 , 47 S.Ct. 720; Dalton Adding Machine Co. v. State Corporation Commission, 236 U.S. 699 , 35 S.Ct. 480; McChord v. Louisville & Nashville Ry. Co., 183 U.S. 483 , 22 S.Ct. 165; Richmond Hosiery Mills v. Camp, 5 Cir., 74 F.2d 200, 201.


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.

[Heckler v. Chaney, 470 U.S. 821 (1985)]