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COLLINS v. UNITED STATES DEPT. OF THE ARMY

August 29, 1985

H. CREE COLLINS and DARLENE COLLINS, his wife, Plaintiffs,
v.
UNITED STATES OF AMERICA DEPARTMENT OF THE ARMY and UNITED STATES OF AMERICA CORP OF ENGINEERS OF THE DEPARTMENT OF THE ARMY, Defendants


Dumbauld, J.


The opinion of the court was delivered by: DUMBAULD

The instant complaint was filed January 10, 1985. The serious injury to husband-plaintiff H. Cree Collins occurred January 13, 1983. The complaint invokes the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.1 The statute of limitations is two years. 28 U.S.C. § 2401(b). The action is therefore timely filed if a letter of May 3, 1983 from plaintiffs' counsel to Army Corps of Engineers suffices to satisfy the requirement of prior presentation to the appropriate Federal agency, as required by 28 U.S.C. § 2675(a). *fn2"

 The complaint names as defendants "United States of America, Department of the Army" and "United States of America, Corps of Engineers of the Department of the Army." It does not otherwise name the United States as a defendant. Nor does it allege that the Army and its Corps of Engineers are entities entitled to sue or be sued in their own name. Defendants move to dismiss under 28 U.S.C. 2679(a) which provides that the authority of an agency to be sued under its own name shall not extend to suit on claims cognizable under 28 U.S.C. § 1346(b).

 We deny this motion, since the complaint clearly invokes the Tort Claims Act, and does not allege that the named defendants may be sued under their own names. Each named defendant seems to be described as a subheading of the "United States." Department of the Army is alleged to have "as one of its Departments" the Corps of Engineers. We conclude that this is an unartful way of suing the United States, and for clarity of the record permit plaintiff to amend for this purpose.

 More serious is the notion that plaintiffs' "claim" was not "presented" to and denied by the appropriate Federal agency, so as to satisfy § 2675(a), and hence that by virtue of that section the Court lacks jurisdiction. This section is jurisdictional. Bialowas v. U.S., 443 F.2d 1047, 1049 (C.A. 3, 1971); Tucker v. U.S. Postal Service, 676 F.2d 954, 959 (C.A. 3, 1982). The purpose of presentation is to permit the agency to know whether it has authority to settle under 28 U.S.C. § 2672 or must have the approval of the Attorney General. Ibid., at 1050.

 Presentation under § 2675 and § 2672 are therefore separate and independent procedures. Hence, as held in Tucker, failure to present proof and evidentiary detail, which the government seeks to elicit in its form 95 which it seems to regard as the only adequate mode of "presentation," is not fatal to the claimant's court action.

 Nevertheless it seems that this reasoning also undercuts the statement in Tucker (676 F.2d at 959) that a presentation under § 2675 must place a value on the claim. It would seem that value is a negotiable item, often not immediately determinable by either side until after discovery is completed, and that the object of the settlement procedure itself is to reach a satisfactory determination of the value of the claim. Hence this requirement could at most be nothing but a plaintiff's "demand" and not a material substantive component of the notice. Its only function is to apprise the agency whether it has authority to settle by itself or must consult the Attorney General. We are constrained to believe that the provisions of form 95 which call for evidentiary detail and a dollar figure are wanting in statutory authority, and that the May 3, 1983, letter may not be rejected as a proper "presentation" of a "claim" for that reason.

 But what, if anything, else is there in that letter which does justify considering it as the presentation of a claim? On scrutiny the following appear:

 (1) It identifies, and describes the circumstances of an "accident" or "incident" (both words are used) as the result of which Collins "sustained serious injuries."

 (2) It notifies the agency that a law firm has been "retained" to make "an appropriate inquiry" into the incident.

 (3) It requests a copy of the Engineers' investigation report concerning the incident.

 (4) It requests "appropriate forms" if anything in writing is needed [in the context of the letter, the defendants are probably right in arguing that this refers to ...


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