Introduction
Hypothetical No. 1
Proper jurisdiction and venue for the suit
The Proper Parties
The Defendants
Proper jurisdiction and venue for the suit
Hypothetical No. 2
The Government's motion to dismiss
The Feres doctrine
The incident to service requirement
The aircraft manufacturer's motion for summary judgment
Hypothetical No. 3
Amendment of admin. claim more than two years after the accident
Amendment of admin. claim to include the destroyed aircraft engines
Amendment of admin. claim to include the personal injury claim of Mr. Kropps
Amendment of admin. claim to include the environmental clean-up costs
 
 
 

INTRODUCTION

This program, billed an "advanced course" on the Federal Tort Claims Act (or FTCA), is intended to build upon the more basic presentation on the FTCA given by my partner Mike Quinton at last year's [1995's] Aviation and Space Law  Symposium.  The program will assume that the listener has some general background in the FTCA, and will, through the use of hypotheticals, attempt to provoke a discussion of some of the practical problems and issues that arise in the course of aviation litigation that may involve the federal government.
 

 Those with very little or no background in the FTCA need not despair.  In the course of the program, I will attempt to use the chosen hypotheticals to review some of the basic provisions of the FTCA and the caselaw that has interpreted it.  If you listen closely, you may pick up on the basic principles involved.  While this federal scheme for tort compensation is unique in many of its provisions, its complexity does not approach that of the federal income tax code, and its idiosyncrasies can be understood by the practitioner willing to devote a modicum of study time to the basic provisions of the Act and the leading cases that have applied it over the years.  Once these are mastered, I think you will agree that the FTCA can provide an effective remedy for those injured by the tortious conduct of the federal government. For those attendees with a general grounding in the FTCA, it is the aim of this program that you may leave here with a little deeper understanding as to how the Act applies to the real-life situations that you may encounter in your aviation law practice. 
 
 

Hypothetical No. 1:

 The airliner in which Mr. Paine's sister and husband were flying did not go down immediately.  The initial contact with the C-130 was a glancing blow to the trailing edge of the airliner's left wing.  The Enormous Airlines pilot was able to keep the Boring 007 aloft for an additional 10 minutes, before the loss of hydraulic fluid finally caused him to lose control and the plane spun in from 3,500 feet.  Mr. Paine's sister did not die immediately when the plane hit the ground.  Her severe musculoskeletal and internal injuries, and 2nd- and 3rd-degree burns, plagued her for 10 days before she finally succumbed to pneumonia and gangrene.  She was conscious for most of this time, and kept sobbing uncontrollably about her dead husband, whose severed hand had to be pried from her grasp by the rescue team that discovered her in the wreckage of the tail section.

 Mr. Paine has surreptitiously obtained a copy of the entire National Transportation Safety Board investigation, including the sections that include the opinions of the NTSB investigators.  This report concludes that the primary cause of the accident can be attributed to a badly maintained altimeter aboard the C-130.  The flight recorder recovered from the wreckage of the military plane indicated that the Air Guard crew believed their C-130 aircraft was 1,000 feet higher in altitude than it actually was at the time of impact with the Boring 007.  The NTSB report has identified the National Guard Airman who was responsible for calibrating and maintaining the faulty altimeter as Chester Kowalkowski, an enlisted man, who went AWOL shortly after hearing about the accident.  His home of record is Plano, Texas.

 The flight recorder recovered from the Enormous Boring 007 disclosed that Air Traffic Control advised the airline pilot of the presence of the Air Guard C-130 at an unassigned altitude within one mile of his location approximately 30 seconds before the collision, but no response to that notification was ever recorded prior to the accident from the pilot of either aircraft. 

 Mr. Paine wants you to bring suit on his behalf against all possible defendants for all possible damages he is entitled to, as well as for all damages recoverable by his sister's estate.

Question A: Where can you bring the suit?
Question B: Who are the proper plaintiffs?  defendants? 
Question C: What law will apply?

Discussion of Hypothetical No. 1:
 

A. Proper jurisdiction and venue for the suit.

 As a California lawyer representing a California resident, your first preference for venue would naturally be your local state Superior Court.  However, if you have decided that the negligence of the Air National Guard makes it the primary target, you will be restricted in your choice somewhat.  We start with the basic principle that the federal government enjoys sovereign immunity from suits for personal injury and death, except to the extent that Congress waives that immunity through an express consent to be sued.  Dalehite v. United States, 346 U.S. 15, 30-31 (1953).  The Federal Tort Claims Act (FTCA) provides the sole waiver of sovereign immunity for such claims, and suit may only be brought in strict conformity with the comprehensive scheme set up by the Act.  In 28 U.S.C. § 1346(b) the FTCA contains a grant of subject matter jurisdiction for tort suits against the United States in the federal district courts; but further provides that these courts have exclusive jurisdiction over such suits.  Thus, you will not be able to file in Superior Court, if you want to include the United States as a party-defendant.

 However, the news is not all bad.  Assuming that you are willing and able to proceed in federal district court, the venue provisions of the FTCA would permit Mr. Paine, as a resident of Borrego Springs (San Diego County), to bring suit in the U. S. District Court for the Southern District of California, located in San Diego.  28 U.S.C. § 1402(b).  The alternative venue site under § 1402(b) would be a suit "in the [federal] judicial district . . . wherein the act or omission complained of occurred."  Depending upon how one characterizes the negligent act or omission that caused the accident (i.e.,  negligent pre-flight maintenance or negligent in-flight operation of the Air Guard C-130), arguably the proper venue might be either the District of North Dakota, or the Northern District of Illinois.  See Beattie v. U.S., 756 F.2d 91, 100, 244 U.S.App.D.C. 70 (D.C. Cir. 1984).  Contra, Forest v. U. S., 539 F.Supp. 171, 175-176 (D.Mont. 1982). Cf. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585 (1962) (determining choice of law, where negligence occurred in Oklahoma, aircraft crashed in Missouri; Oklahoma law applied). 
 

B. The proper parties.

  1. The Plaintiffs.  Although Mr. Paine is the only one who contacted you concerning the case, you will need to inquire what other relatives survived his decedent sister, in order to determine whether he has legal standing to bring a wrongful death action. Rule 17(b)(1) of the Federal Rules of Civil Procedure provides that the capacity of an individual to sue or be sued is determined “by the law of the individual's domicile," here California.    In the instant factual scenario, California Code of Civil Procedure § 377.60 would restrict standing to bring a wrongful death action to "the persons who would be entitled to the property of the decedent by intestate succession," which in turn is determined by California Probate Code § 6402.  Under this statute Mr. Paine would not qualify as an intestate heir, if one or both of his parents are alive, since they are next in line, where, as here, the decedent's husband predeceased her and the couple left no children.  Prob.C. § 6402(a)-(c).

 Mr. Paine could bring an action on behalf of the estate (and on behalf of those survivors who do have standing to bring a wrongful death action), only if he is appointed as the personal representative of his deceased sister's estate.  CCP §§ 377.30, 377.60.  This should be established before an administrative tort claim is filed with the federal agency deemed responsible for the tort, because the claim should be accompanied by evidence of the representative authority of the person signing the claim form. 

 See Title 28, Code of Federal Regulations (CFR), Sections 14.2(a), 14.3, 14.4.Graves v. U. S. Coast Guard, 692 F.2d 71, 74-75 (9th Cir. 1982)  Since failure to file a timely administrative claim with the agency in question is a jurisdictional bar to suit under the FTCA, 28 U.S.C. §§  2675(a); McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980 (1993); Meridian Intern. Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991); Murrey v. U.S., 73 F.3d 1448, 1451-52 (7th Cir. 1996); Kanar v. U.S. 118 F.3d 527 (7th Cir. 1997); Simpkins v. Dist. of Columbia Govt., 108 F.3d 366, 371 (D.C.Cir. 1997), and since failure to present such a claim within two years of the accrual of the claim runs afoul of the FTCA's statute of limitations, 28 U.S.C. § 2401(b), it behooves the careful practitioner to determine these facts early in the evaluation of the case.
 

2. The Defendants.

 Insofar as you intend to pursue a claim against the federal defendants, the FTCA is helpful in simplifying your choices.  That is because under the FTCA the only proper defendant is the United States of America, regardless of how many different government employees may be involved in the circumstances leading up to the accident.  Wright v. United States, 719 F.2d 1032, 1034 (9th Cir. 1983); Davis v. United States, 667 F.2d 822 (9th Cir. 1982).  If you do attempt to join individual federal employees as defendants, the U. S. Attorney will move to substitute the United States as the defendant in their stead, and obtain their dismissal in their individual capacities.  28 U.S.C. § 2679(d).  In this case, this simply means that you do not have to concern yourself with having to locate the Air National Guard mechanic who worked on the altimeter (except as a percipient witness), nor with pursuing the estate of the C-130 pilot in command.  As long as it reasonably appears to the U. S. Attorney that they were acting within the course and scope of their employment at the time of their negligent acts or omissions, the United States will be liable under the FTCA, 28 U.S.C. § 1346(b), and you will not have to worry about an uncollectible judgment, if you prevail. 

 Of course,  a suit against the federal government under the FTCA has its drawbacks, too.  For one thing, your client is not entitled to a jury trial on his claims against the government.  28 U.S.C. § 2402.  Rather, a federal district judge, sitting without a jury, will decide both liability and damages on the FTCA causes of action.  As a practical matter, a plaintiff who is able to join non-government defendants may end up getting the benefit of a jury trial, if he makes a timely jury demand, pursuant to Rule 38, Fed.R.Civ.P.  That is because most district judges will either entertain the use of the jury as an "advisory jury" as to the FTCA action, or in any event will await the jury's verdict before making their own findings, in order to get a sense of the community's judgment in the matter.Steering Committee v. United States, 6 F.3d 572, 574 (9th Cir. 1993)  Since the enactment of Public Law 101-650, Section 310(c) (effective December 1, 1990), it has been possible to invoke "supplemental jurisdiction" to join  non-government parties-defendants in actions brought against the United States under the FTCA.  28 U.S.C. §  1367.Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003 (1989)

 However, in the hypo under consideration counsel must keep in mind California's two-year statute of limitations as to the potential non-government defendants (the airline and the aircraft manufacturer), if the action is brought against them in California. (See CCP § 335.1) The filing of an administrative tort claim with a federal agency, under the FTCA, will NOT toll (suspend) the running of the California state statute of limitations, and joinder might not be possible, if the FTCA claim is not ripe for filing suit (due to a delay in agency action on the claim) prior to the running of the state limitations period.  In that event, if it appears that substantial additional damages may in fact be recoverable from the non-government defendants, serious consideration should be given to bringing an independent action or actions against those other defendants in whatever other jurisdiction provides the remedies unattainable through your FTCA suit.  If such suit is to be brought in California, it must be filed before the state two-year statute of limitations expires.

 Additional limitations the plaintiff(s) will face in the FTCA suit against the United States include: (1) punitive damages are not available against the federal government under the FTCA [28 U.S.C. § 2674]; (2) prejudgment interest is not recoverable from the United States under the Act [Id.]; and (3) the government can take advantage of the applicable State law's various limitations on damages (e.g., California's Proposition 51, imposing several liability for non-economic damages based on comparative fault).  The rationale for this last limitation is that the United States' liability under the FTCA is analogous to that of a private party under the law of the place where the negligent act or omission occurred.  28 U.S.C. § 1346(b); Proud v. United States, 723 F.2d 705 (9th Cir.), cert. denied, 467 U.S. 1252 (1984); Castro v. U. S., 34 F.3d 106, 111 (2d Cir. 1994). 
 

3. The applicable substantive law.

 Wherever the FTCA action is brought, the substantive law to be applied in determining both liability and damages as to the United States is "the law of the place where the act or omission [giving rise to liability] occurred."  28 U.S.C. § 1346(b).  The Supreme Court supplied the language in brackets in, of all things, an airplane accident case, in which it was essentially undisputed that negligence in maintenance of the aircraft in Oklahoma caused the aircraft in question to crash in the State of Missouri.  Richards v. United States, 369 U.S. 1 (1962). See, generally, Beattie v. U.S., 756 F.2d 91, 96-97 (D.C.Cir. 1984) (discussing the law to be applied where negligence at one location has an operative effect in another jurisdiction).Smith v. U.S., 507 U.S. 197, 200 & n.2, 113 S.Ct. 1178, 1181 & n.2 (1993)  The Court in Richards held that the district court must apply the whole law of the State where the negligent act occurred, including its choice-of-law rules.  369 U.S. at 11-14.  Accord, Couzado v. United States, 105 F.3d 1389, 1395 (11th Cir. 1997); Beech Aircraft Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995). Thus, in our Hypo No. 1, it may be argued that the negligent cause of the accident was the faulty maintenance of the altimeter, which occurred in North Dakota.  If so, that could be fatal to Mr. Paine's wrongful death action, since North Dakota's wrongful death statute does not appear to provide a recovery of damages for a decedent's siblings.    (But it could be worth checking North Dakota's choice-of-law rules, to see if a North Dakota court might apply some other State's law on this issue.)  If negligence can also be assigned to the Air National Guard crew of the C-130 for failing to check the accuracy of the altimeter by other available means either before takeoff or en route to Chicago, for failure to listen to the warning about them given to the Enormous Airlines 007 pilot shortly before the collision, or for their failure to see and avoid the other aircraft, perhaps a case can be made that Illinois law should apply instead.Rivera v. Southern Pacific Transportation Co. (1990) 217 Cal.App.3d 294, 298-299, 266 Cal.Rptr. 11

 Another major damages issue that could turn on the choice of law is whether the decedent's estate can recover for the decedent's pre-death pain and suffering (including her acute emotional distress experienced between the initial mid-air collision and the actual crash 10 minutes later).  It appears clear that California law would not provide such damages.  CCP § 377.34.  Obviously, a study of North Dakota and Illinois law on this issue would be an appropriate inquiry for Mr. Paine's attorney to undertake.

Hypothetical No. 2:

 You have filed an FTCA action on behalf of Mrs. Amelia Von Rechtoffen, and her three children.  The clients' husband-father Eric Von Rechtoffen was a U. S. Coast Guard officer who perished in the crash of his Weurhle Bird helicopter while on a rescue flight from the Coast Guard Station at San Diego to San Clemente Island, to pick up a yachtsman who had been badly injured when his sloop ran aground on the rocky west coast of the island. In the course of your investigation, you were able to establish that at the time of the accident the decedent pilot, Lieutenant Von Rechtoffen, was operating his aircraft under positive control by San Diego TRACON, because of bad weather and poor visibility in the vicinity of the island, plus the fact that the aircraft's collision avoidance radar system was temporarily "out of service."  Transcripts of the pilot's conversations with the FAA controller indicate that he was given incorrect vectors, which took the helicopter across the mountainous center of the island, instead of around its southern tip.  The aircraft struck a 700-ft. ridge, at the 500-ft. level, burst into flames, and all aboard were killed instantly.

 Your investigation further disclosed that the maintenance records of the helicopter, manufactured by Weurhle & Sons, A.G., Ltd., of Salzburg, Austria, indicate that the aircraft's radar system suffered from very poor performance, from the very first day that the helicopter was placed into service.  The Coast Guard had registered numerous complaints with Weurhle & Sons, which identified excess moisture in the radar instruments compartment as the probable cause of the radar malfunctions; but in correspondence found in the records the company repeatedly refused to acknowledge responsibility for the radar problems, insisting instead that the instrument housing compartment had been designed and built solely to the Coast Guard's specifications.  You have named the helicopter manufacturer as a defendant in the suit, along with the United States, invoking 28 U.S.C. § 1367 as the basis of supplemental subject matter jurisdiction as to your claims against Weurhle & Sons. 

 Instead of filing an answer to your complaint, the United States Attorney files a motion to dismiss, asserting that the pilot's survivors may not sue the United States, but are relegated to their federal survivors' benefits as the Coast Guard officer's dependents, as their exclusive remedy.
 

 The helicopter manufacturer files a motion for summary judgment, under Rule 56, Fed.R.Civ.P.  Weurhle & Sons contends that it is immune from tort liability, because it strictly followed the specifications demanded by the Coast Guard in designing and building the aircraft's radar system housing compartment.

 Question A:  How do you respond to the government's motion to dismiss?
 Question B:  How do your respond to Weurhle & Sons' Rule 56 motion? 

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Discussion of Hypothetical No. 2:

A. The Government's motion to dismiss.

1. The Feres doctrine.

 The government's motion to dismiss raises the immunity defense created by the U. S. Supreme Court in the case of Feres v. United States, 340 U.S. 135 (1950).  While roundly criticized by legal commentators (and by four of the Supreme Court's current membership, in  United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063 (1987)), the doctrine nevertheless survives to bar any tort recovery to a military serviceman (or servicewoman) injured while engaged in any activity deemed "incident to service."  The doctrine also bars recovery to the serviceman's spouse and dependents, insofar as it may be based on any claim derived from the military member's injury or death.  United States v. Shearer, 473 U.S. 52, 58 n.3, 105 S.Ct. 3039, 3043 n. 3 (1985).

 The rationale supporting the Feres doctrine has been explained differently in different cases.  Three basic arguments for its application have emerged:

   "First, the relationship between the Government and members of its Armed Forces is ' "distinctively federal in character," ';  it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury.  Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory 'no fault' compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government.  A third factor ... [is] '[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty....' "   Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-672, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977) (citations omitted).
United States v. Johnson, supra, 107 S.Ct. at 2066, n. 2. 

 Actually, Justice Scalia, in his dissent in the Johnson case, points out that the three rationales used by the majority today are really different from those used by the Court in the original Feres case, and concludes that "the Feres rule is now sustained only by three disembodied estimations of what Congress must (despite what it enacted) have intended.  They are bad estimations at that."  107 S.Ct. at 2071.  Justice Scalia also notes that the first of the three original rationales relied upon in Feres has been abandoned, id., and that the second and third rationales set out in Feres have been determined to be "no longer controlling." 107 S.Ct. at 2071, 2072 (citing, United States v. Shearer, 473 U.S. 52, 58, n. 4, 105 S.Ct. 3039, 3043, n. 4, 87 L.Ed.2d 38 (1985)).  Finally, Justice Scalia observes that the new third rationale now utilized to justify the Feres doctrine (i.e., the undesirability of second-guessing military decisions, or the "military discipline" rationale) cannot really withstand scrutiny, when you consider that the same military decision can still be second-guessed by a suit brought by a civilian who may have been injured as a result of the same aircraft accident, United States v. Johnson, supra, 107 S.Ct. at 2074, or by the suit of the pilot's widow against the manufacturer of the helicopter, who raises the defense of contributory negligence by a military officer. Id.

 Regardless of this criticism by the minority of the CourtTaber v. Maine, 67 F.3d 1029, 1032 (2d Cir. 1995), the Feres doctrine is still a formidable obstacle to recovery by a serviceman or his dependents under the FTCA.  To our knowledge, no one has ever recovered for injuries to an individual on board a military aircraft by virtue of his/her military status. 

  [ However, more recently, the Ninth Circuit Court of Appeals has issued a couple of opinions that have narrowed the scope of the Feres doctrine, at least in those situations where service personnel were on temporary leave of duty and engaged in non-military activities when they were injured, even though the accident occurred on a military base.  See Schoenfeld v. Quamme, 492 F.3d 1016 (9th Cir. 2007); Dreier v. United States, 106 F.3d 844 (9th Cir.1996).]
 

2. The "incident to service" requirement.

 Even assuming that the Feres doctrine remains a viable defense for the government, the United States will still have to establish that the plaintiff's decedent's death occurred while he was  engaged in activities "incident to [military] service."  A myriad of cases have explored the parameters of that concept, including a few recent Supreme Court cases, United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039 (1985); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054 (1984); and, of course, United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063 (1987).Bon v. United States, 802 F.2d 1092 (9th Cir. 1986)Hata v. United States, 23 F.3d 230 (9th Cir. 1994)Miller v. U. S., 42 F.3d 297 (5th Cir. 1995)Lewis v. United States, 663 F.2d 889 (9th Cir. 1981)Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 732 (1980).

 
 The resourceful lawyer might be heard to argue that Lt. Von Richthofen's activities in the instant hypothetical could not be "incident to [military] service," since the Coast Guard is not an agency within the Department of Defense, and the nature of her husband's rescue mission was ostensibly non-military.  Furthermore, since the actionable negligence seems to be that of a civilian FAA air traffic controller, how would the suit involve military discipline? 

 Unfortunately for the Coast Guard widow in our Hypothetical No. 2, her claim would probably be barred by the Feres doctrine, under the Johnson case, which incidentally also involved a Coast Guard pilot flying a rescue mission, who was under positive radar control by an FAA controller.  The Johnson majority found no reason to depart from Feres, even though the active negligence probably was that of the civilian air traffic controller.  The Court reasoned that: "Even if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission."  107 S.Ct. at 2069, & n. 11.  And if you thought that the Coast Guard was not a "military" organization, due to its location in the organizational charts of the Department of Transportation, the Court also eliminated that possible loophole in a footnote, finding that: "The Coast Guard, of course, is a military service, and an important branch of the Armed Services.  14 U.S.C. Sec. 1."  107 S.Ct. at 2069, n. 12.Borden v. Veterans Admin., 41 F.3d 763 (1st Cir. 1994)
 

B. The aircraft manufacturer's motion for summary judgment.

 The motion of Weurhle & Sons, A.G., Ltd., is also grounded on a viable defense theory, after the case of Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510 (1988 ), which essentially provided a defense for any government contractor sued for products liability, where the company could establish that the cause of the accident arose from a design defect in a product designed and manufactured to the mandatory specifications of the government.  To succeed the military contractor must show that:

 (1) the United States approved reasonably precise specifications;  (2) the equipment conformed to those specifications;  and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.
108 S.Ct. at 2518.

 This "military contractor defense" is a curious example of the application of the FTCA to a dispute between private parties.  Since it has often come up in aviation accident cases,Bailey v. McDonnell Douglas Corp.,  989 F.2d 794 (5th Cir. 1993);Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558 (6th Cir. 1993)Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir. 1995)Lewis v. Babcock Industries, Inc., 985 F.2d 83 (2d Cir. 1993) it seemed appropriate to comment on the defense in this program. Like our hypo, the Boyle case also involved the crash of a military helicopter (a Marine Corps CH-53D), which in that case was designed and built by the Sikorsky Division of United Technologies.  The design defect identified in Boyle was an escape hatch, which could only open outward, and therefore was ineffective, due to water pressure, when the CH-53D crashed into the ocean.  Although the decedent's father brought the case in federal district court under the court's diversity of citizenship jurisdiction, 28 U.S.C. § 1332, he sought application of the tort law of the State in which the court sat, namely, Virginia. 

 Ordinarily, there is no dispute in applying the law of the forum in a diversity case.  Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).  However, the Court in Boyle discerned that a "uniquely federal interest" existed, as well as a "significant conflict" with federal policy, which required the application of federal law, where a government contractor is sued for producing a product that is specifically ordered by the U. S. Marine Corps.  108 S.Ct. at 2515-18.  Thus the Court displaced State law in favor of applying the "discretionary function" defense (found in the FTCA at 28 U.S.C. § 2680(a) and usually applied only to immunize the United States itself)Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954 (1988)Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir. 1989)In re Glacier Bay, 71 F.3d 1447 (9th Cir. 1995) to bar suit against Sikorsky.  The Supreme Court reasoned that such a suit would allow second-guessing of the procurement decisions of the military, which are usually based on engineering analysis and social and policy reasons, "including specifically the trade-off between greater safety and greater combat effectiveness," which would be prohibited by the "discretionary function" defense, if the action were brought directly against the government under the FTCA. 108 S.Ct. at 2518.Carley v. Wheeled Coach, 991 F.2d 1117, 1119 & n.1 (3d Cir.) (and cases cited), cert. denied, 114 S.Ct. 191 (1993)In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 810-811 (9th Cir. 1992) 

 The plaintiff here might still be able to get past the motion for summary judgment and obtain some discovery, since some factual issues can probably be raised concerning what the precise specifications were for the radar instrument housing, and whether, in view of the complaints by the Coast Guard, the government can be said to have accepted the design.  The case of Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558 (6th Cir. 1993), is instructional as to how these issues might be resolved.  In that case the court of appeals found that a more general Military Specification concerning the minimum clearances between the main rotor and the tail boom assembly was superseded by a more precise Detail Specification which established the"ultimate design specifications" for the helicopter in the procurement contract.  993 F.2d at 563-564.  The court also found that the numerous contacts between the contractor and the Army in the development and testing of the aircraft, without any further changes in design demanded by the Army, served to constitute a final acceptance of the helicopter as designed and built by the contractor.  993 F.2d at 563-565. 

 In the instant case, the  plaintiff may be able to argue that the continued dissatisfaction expressed by the Coast Guard casts doubt on the manufacturer's compliance with the service's specifications, and of the government's acceptance of the helicopter as designed and manufactured.  There may also be a manufacturing defect in the aircraft, which would require the contractor to provide an adequate warning of the defect, which warning has been approved by the government.  See Tate v. Boeing Helicopters,  55 F.3d 1150, 1156-58 (6th Cir. 1995).

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Hypothetical No. 3:

 You are counsel for the Phoenix Air Service Co., Inc., an FBO at the John Wayne Airport.  On January 3, 1994, a United States Marine Corps FA-18 Hornet crashed into one of your client's three hangars at the airport, after the pilot ejected from the disabled jet fighter. In your administrative claim filed with the Marine Corps on behalf of Phoenix, you demanded a total of $2.3 million for the partial destruction of the hangar, which contained two Cessna 172D's, one Piper Aztec, and one Bee Gee racing plane (last flown in 1937).  In addition to the building and the planes, also destroyed or damaged were two storerooms full of general aviation aircraft replacement parts and related repair tools, and operations of the FBO were suspended for five months, while repairs were made to the hangar and the lost aircraft and parts were replaced through leases or purchases.

 You filed the administrative tort claim on behalf of your client in December of 1994, and no final decision on the claim has been made by the Marine Corps, despite your threats that you intended to treat the failure to respond as a denial and file suit, because more than six months have passed since you filed the claim. [See 28 U.S.C. § 2675(a).]  The Marine Corps has told you only that it was required to pass your claim on to the regional Navy Legal Services Office, for processing, and the Navy has said nothing.

 Today you get a call from Dusty Kropps, the majority owner of Phoenix Air Service, who informs you that, despite diligent efforts to provide you with an accurate assessment of the company's losses due to the aircraft accident, he forgot to include two new Continental reciprocating engines that had just been installed in the Piper Aztec the day of the FA-18 crash.  In the confusion of the accident and its aftermath, his mechanic had failed to notify his bookkeeper that the $15,000.00 engines had been installed, and the latter assumed they were still located in  one of the hangars that had not been damaged in the accident.  A recent inventory for tax purposes disclosed the engines had been removed from storage and installed in the destroyed plane. 

 Mr. Kropps also announces that he has been seeing a psychiatrist for the last two months, for insomnia.  The doctor, upon being told that Dusty was present at the airport on the day of the FA-18 crash, and that he saw the jet crash into his hangar, has diagnosed him as having post traumatic stress disorder, even though he suffered no physical trauma.  Mr. Kropps wants to amend his company's claim to include a claim for his emotional distress damages.

 Finally, Mr. Kropps indicates that the building contractor hired to perform the repairs to the partially destroyed hangar has informed him that the original estimate for the work will have to be revised upward substantially, since demolition of the damaged portion of the hangar has uncovered multiple hazardous fluid sumps that have been reported to EPA and the State, and will have to be remedied, before final permits will be issued by those agencies for the reconstruction .  A: Can the administrative claim be amended more than two years  after the accident?

 B: Can the administrative claim be amended to include the destroyed aircraft engines?

 C: Can the administrative claim be amended to include the personal injury claim of Mr. Kropps?

 D: Can the administrative claim be amended to include the extra costs of environmental clean-up?

Discussion of Hypothetical No. 3:

 This hypothetical explores various issues that can arise in the administrative claims phase of FTCA litigation.  As pointed out above, in the discussion of Hypo No. 1, one of the jurisdictional prerequisites to bringing an action against the United States under the FTCA is the mandatory filing of an administrative claim for a "sum certain"Manko v. United States, 830 F.2d 831, 840 (8th Cir. 1987)Rucker v. United States Dept. of Labor, 798 F.2d 891, 893 (6th Cir. 1986) with the agency believed to be responsible for the injury.  26 U.S.C. § 2675(a); Meridian Intern. Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991); Murrey v. U. S., 73 F.3d 1448, 1451-52 (7th Cir. 1996).  The Congressional intent behind this requirement was to encourage the settlement of tort claims by the federal agencies themselves at the administrative level, and thus "ease court congestion and avoid unnecessary litigation." Anderson By and Through Anderson v. United States, 803 F.2d 1520, 1522 (9th Cir. 1986) (citing legislative history).

 The admin claim must be "presented" to the agency within two years of the accrual of the claim, or it will be barred.  28 U.S.C. § 2401(b).  There is a government form that can be used to state the claim, a so-called Standard Form 95 (SF 95), which can be obtained from the agency or from the U. S. Attorney's Office in your district, but use of the form is not mandatory, as long as it is in writing and contains the same information required by the SF 95.  28 CFR § 14.2(a).  Presentment of the claim is not effected by simply mailing the claim to the agency.  It will be deemed "presented" (or filed) only upon receipt by the agency. 28 CFR § 14.2(a); Steele v. United States, 390 F.Supp. 1109, 1112 (S.D.Cal. 1975); Bailey v. United States, 642 F.2d 344, 346-347 (9th Cir. 1981).  If possible, do not wait until the last day of the limitations period to file the claim, and use a secure form of delivery that provides a way to establish proof of delivery and/or acknowledgement of receipt by the agency.  See Moya v. United States, 35 F.3d 501, 503-504 (10th Cir. 1994) (attorney criticized for failure to get return receipt for mail).
 Once the admin claim has been properly presented to the agency, the agency has six (6) months to investigate and settle the claim, which will probably involve requesting additional information from the claimant.  Any suit filed before the claim is formally denied in writing, or before the six-month waiting period has expired, is premature, and the district court lacks jurisdiction to hear it, even if the six months expires before a motion to dismiss is heard.  Jerves v. United States, 966 F.2d 517 (9th Cir. 1992); McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980 (1993).  If the agency fails to take definitive action on the claim within six months, the claimant has the option to wait until it does, Douglas v. United States, 658 F.2d 445, 449-450 (6th Cir. 1981), or to deem the inaction a formal denial and file suit in U. S. district court.  28 U.S.C. § 2675(a).

 However, once you or your client receive a registered or certified letter formally denying the claim, a special six-month statute of limitations begins to run, within which you must file suit, or the claim will be barred.  28 U.S.C. § 2401(b).  The same goes for a letter making a "take-it-or-leave-it" offer; that is, an offer of settlement in a given amount that advises that failure to accept by a certain date will constitute a denial of the claim by the agency, and the six-month limitations period of § 2401(b) will commence to run on that date.  The safe thing to do in that case is to file your lawsuit within six months of the date of mailing of the letter.  See Heimila v. United States, 548 F.Supp. 350 (E.D.N.Y. 1982); Dilg v. U. S. Postal Service, 635 F.Supp. 406 (D.N.J. 1986). 

 Note that this six-month statute of limitations will apply, even if the claims process was started and exhausted before the expiration of the two-year limitations period applicable to filing an administrative claim with the agency.  Heimila v. United States, 548 F.Supp. at 351; Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir. 1970).
 

A. Amendment of administrative claim more than two years after the accident.

 While it is absolutely necessary to file an administrative claim with the agency,Spawr v. United States, 796 F.2d 279 (9th Cir. 1986) it is also important to make sure that the "sum certain" claimed is adequate to compensate the claimant for all injuries incurred; because if there is no administrative settlement and suit is filed later, the amount that can be recovered in court will be limited to the amount claimed in the administrative claim, unless the plaintiff can establish that "the increased amount is based on 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."  28 U.S.C. § 2675(b).
 

 Under the facts of our Hypo No. 3, the matter is easily remedied, since the administrative claim has not yet been denied by the agency, and the regulations provide that amendment can be made any time prior to such formal denial.  28 CFR § 14.2(c).  The fact that the two-year statute of limitations for filing an admin claim has run is therefore irrelevant.  In essence, the amendment relates back to the filing of the original claim with the agency.  Nor does it matter that you have threatened to sue based on the expiration of the six-month waiting period without agency action.  As long as you have not actually sued, you may amend the claim to the agency.  As noted above, the only drawback to amending the admin claim is that the agency then has an additional six months to investigate and settle or deny the amended claim.  28 CFR § 14.2(c).
 
 

B. Amendment of administrative claim to include the destroyed aircraft engines.

 Again, since the hypo postulates that the agency has not yet denied the admin claim, amendment of the claim is allowed, pretty much without limitation.  Amending to add the aircraft engines merely increases the amount of damages and does not raise a new and different cause of action. 
 However, as a practical matter, since the additional $30,000 loss for the engines is a relatively small portion of your client's total claim of over $2.3 million, the client may not be able to afford to give the Navy an additional six months to consider his amended admin claim, especially since prejudgment interest is not allowed under the FTCA.  28 U.S.C. § 2674.  In view of the fact that more than six months has already expired without action on what should be an admitted liability case, it is likely that the local Navy claims office is overwhelmed and/or may not have authority to settle such a large claim anyway.  It may be advisable to attempt telephone contact with the officer actually handling the claim file, to learn whether he/she evidences any experience handling such claims and, if so, whether he/she can give you any assurances that settlement negotiations are likely to commence within a time frame acceptable to you. 

 If not, it may be worth the risk to file suit, allege all the damages (including the $30,000 for the two aircraft engines), and include in your complaint allegations of the newly discovered evidence to support the increase in damages.  However, the plaintiff will have to show that the new evidence was "not reasonably discoverable" at the time the administrative claim was filed. Michels v. U. S., 31 F.3d 686, 687-689 (8th Cir. 1994).  See Allgeier v. United States, 909 F.2d 869, 877-879 (6th Cir. 1990); O'Rourke v. Eastern Airlines, 730 F.2d 842, 855-856 (2d Cir. 1984).  Under the facts of the instant hypothetical, the result could be a coin toss.
 

C. Amendment of administrative claim to include the personal injury claim of Mr. Kropps.

 An attempt to amend the administrative claim to add the personal injury damages of Mr. Kropps is not likely to succeed.  The problem is, under the facts of the hypo, the claim was filed on behalf of the corporate client Phoenix Air Service, for property damages only, and not on behalf of Dusty Kropps.  He would have had to file his own separate claim for damages for his own personal injuries with the agency within two years after the accident.  See Montoya v. United States, 841 F.2d 102 (5th Cir. 1988); Rucker v. United States Dept. of Labor, 798 F.2d 891, 893 (6th Cir. 1986); Manko v. United States, 830 F.2d 831, 838-842 (1987); Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983).  Since Dusty failed to do this, his claim for personal injuries is barred.  28 U.S.C. § 2401(b). 
 Admittedly, the facts of Hypo No. 3 also indicate that Mr. Kropps's discovery of his post traumatic stress disorder was delayed, since the symptoms (insomnia) did not manifest themselves until recently. 

Unfortunately for him, the two-year statute of limitations applicable to the FTCA does not contain a "delayed discovery" provision and the courts have not generally supplied one, except in the medical malpractice area.  See United States v. Kubrick, 444 U.S. 111 (1979); Outman v. U. S., 890 F.2d 1050, 1052 (9th Cir. 1989); Davis v. United States, 642 F.2d 328, 330 (9th Cir. 1981), cert. denied, 455 U.S. 919 (1982).  Likewise, various rationales for tolling the FTCA's statute of limitations have also been rejected by the courts.  See, e.g.: Mann v. United States, 399 F.2d 672 (9th Cir. 1968) (no tolling for minor child); Smith v. United States, 588 F.2d 1209 (8th Cir. 1978) (same); Casias v. United States, 532 F.2d 1339, 1342 (10th Cir. 1976) (no tolling for insanity). But see, Washington v. United States, 769 F.2d 1436, 1438-39 (9th Cir. 1985) (claim did not accrue until guardian appointed for adult incompetent, since until then no one had a duty to assert the claim on the incompetent's behalf).  However, in 1990 the Supreme Court held that equitable tolling could be invoked to extend a statute of limitations applicable to an employment discrimination suit against the federal government, but restricted such tolling, effectively, to cases where the plaintiff could show some kind of government misconduct that led to the limitations period being missed.  Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453 (1990); Alvarez-Machain v. U.S., 107 F.3d 696 (9th Cir. 1996).  The facts of this hypothetical would not appear to support such a tolling theory.
 

D. Amendment of administrative claim to include the environmental clean-up costs.

 The potential problem with this proposed amendment is the practical one of whether the client can demonstrate that the aircraft accident caused the environmental hazard that has been identified.  If Phoenix can convince the agency that, but for the destruction of the hangar, no environmental clean-up would have to be contemplated, amendment of the claim to add these additional damages might work.  As a practical matter, however, the addition of what may be a complex issue or series of issues for the Navy claims officer to deal with will only delay a decision on your very substantial claim for a considerable length of time (potentially as much as six more months, 28 CFR § 14.2(c)).  Unless the clean-up costs are quite substantial all by themselves, it may again be worth the risk to proceed with suit, in order to preclude further administrative delay of the main part of your claim, and then add the costs of clean-up to the damages, together with allegations of newly discovered evidence to support the damages figure in excess of the original administrative claim.

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