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Avril v. United States

United States Court of Appeals, Ninth Circuit
Jun 6, 1972
461 F.2d 1090 (9th Cir. 1972)

Summary

upholding dismissal of suit under Federal Tort Claims Act where the space on the SF-95 claim form labeled "Amount of Claim" was left blank

Summary of this case from Nigh v. United States ex rel. U.S. Agriculture Department

Opinion

No. 26593.

May 5, 1972. Rehearing Denied June 6, 1972.

Thomas J. Jeffers, Jr. (argued), Montrose, Cal., for plaintiffs-appellants.

David H. Anderson, Asst. U.S. Atty. (argued), Frederick M. Brosio, Jr., Asst. U.S. Atty., William D. Keller, U.S. Atty., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before BARNES and GOODWIN, Circuit Judges, and SCHNACKE, District Judge.

The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation.


Appellant brought suit under the Federal Tort Claims Act for damages allegedly sustained when a Post Office vehicle negligently collided with a motorcycle owned and driven by Avril on which McMullen was a passenger. Their amended complaint, which is the one before us, alleges the filing by each of claims under 28 U.S.C. § 2675(a) with officials of the then Post Office Department and the expiration of six months without action thereon.

Copies of the claims as filed on Standard Form 95 were brought before the court below on defendant's request for admissions. In each case a space on the form entitled "Amount of Claim" was left blank. This omission was called to appellants' attention by the Department, but the forms were left unchanged in this respect.

Defendant moved to dismiss the action on the ground that since the claims did not state the money damages claimed in a sum certain they were fatally defective and therefore the action was precluded by § 2675(a). The court below agreed, granted the motion and dismissed the action.

28 C.F.R. § 14.2, a general provision on filing claims, provides:

"For purposes of the provisions of Section 2672 of Title 28, United States Code, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 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 supplied.)

39 C.F.R. § 912.5, specifically applying to claims involving the Post Office Department, provides:

"Manner of Filing Claims. Claim must be filed on Standard Form 95 which may be obtained from postmaster, postal inspectors, and local postal establishments."

Standard Form 95, referred to in each of these regulations, contains a conspicuous space in the upper right-hand corner for filling in the amount of the claim, broken down as between property damages and personal injury, which, as mentioned above, was left blank by appellees.

Appellees argue that the first of these regulations is inapplicable because it refers only to 28 U.S.C. § 2672, which deals only with administrative adjustment of claims, and not specifically to 28 U.S.C. § 2675(a), the claim requirement itself; moreover, it is argued, that 28 C.F.R. § 14.2 is in any case superseded by 39 C.F.R. § 912.5, which is specifically applicable to claims against the Post Office Department and contains no requirement that the claim be "in a sum certain."

Neither of these arguments is persuasive, since the requirement that a sum certain be claimed is clearly implied from the statute itself, 28 U.S.C. § 2675, which, in pertinent part, provides that no action on a tort claim against the United States may be instituted "unless the claimant shall have first presented the claim to the appropriate Federal agency", and that no such claim shall be "for any sum in excess of the amount of the claim [so] presented". 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.

The judgment is affirmed.


Summaries of

Avril v. United States

United States Court of Appeals, Ninth Circuit
Jun 6, 1972
461 F.2d 1090 (9th Cir. 1972)

upholding dismissal of suit under Federal Tort Claims Act where the space on the SF-95 claim form labeled "Amount of Claim" was left blank

Summary of this case from Nigh v. United States ex rel. U.S. Agriculture Department

affirming dismissal of complaint where the claims filed by the plaintiffs failed to state a demand in a sum certain

Summary of this case from Donahue v. U.S. Transp. Sec. Admin

In Avril v. United States, supra, 461 F.2d 1090 (9th Cir. 1972), the claimant again timely submitted a Form 95, but he likewise left the "Amount of Claim" space blank, despite repeated advice from the agency of this specific defect in his claim.

Summary of this case from Molinar v. United States

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.

Summary of this case from Melo v. United States

In Avril v. United States, 461 F.2d 1090 (9th Cir. 1972) the court of appeals held that even though 28 C.F.R. § 14.2(a) refers only to 28 U.S.C. § 2672 (administrative adjustment of claims) the requirement that claims be for a sum certain applied also to 28 U.S.C. § 2675(a).

Summary of this case from Luria v. C.A.B.

In Avril v. United States, 461 F.2d 1090 (9th Cir. 1972), the sum certain portion of the standard form was left blank even after the defect was called to the attention of the claimant.

Summary of this case from Apollo v. United States
Case details for

Avril v. United States

Case Details

Full title:MICHAEL ALAN AVRIL AND GLORIA MELANIE McMULLEN, PLAINTIFFS-APPELLANTS, v…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 6, 1972

Citations

461 F.2d 1090 (9th Cir. 1972)

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