Orlando Helicopter Airways v. United States

United States Court of Appeals,

Eleventh Circuit.

No. 95-2156.

ORLANDO HELICOPTER AIRWAYS; Fred P. Clark, Plaintiffs-
Appellants,

v.

UNITED STATES of America, Does I Through X, Defendants-Appellees,

Richard Baylog, Defendant.

Feb. 16, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-541-CIV-ORL-19), Patricia C. Fawsett,
Judge.

Before KRAVITCH and HATCHETT, Circuit Judges, and HILL, Senior
Circuit Judge.

HATCHETT, Circuit Judge:

In this appeal, the appellants seek reversal of the district

court's ruling that appellants failed to comply with the

administrative claim requirement of the Federal Tort Claims Act

(FTCA), 28 U.S.C.A. §§ 2671-2680 (West 1994). The court affirms

the district court.

FACTS

In 1987, the United States Army (the government) awarded a

fixed-price contract to Orlando Helicopter Airways, Inc. (OHA) to

design and build fifteen military helicopters. In October 1989, a

former OHA employee alleged fraud and deception in OHA's

performance of the contract. The United States Army Missile

Command (Missile Command) suspended the government's contract with

OHA and launched an investigation into the allegations of fraud.

After Missile Command completed its investigation, it authorized
OHA to resume performance of the contract under the condition that

OHA add additional safety features to the design of the

helicopters. OHA subsequently manufactured and delivered the

helicopters as Missile Command specified. In addition to Missile

Command's investigation, the Defense Criminal Investigation Service

(DCIS) conducted a two and a half year criminal investigation into

the allegations of fraud. At the conclusion of DCIS's

investigation, the government determined that OHA's conduct did not

warrant prosecution.

In September 1992, OHA submitted a contract readjustment claim

to the contracting officer of Missile Command, pursuant to the

Contract Disputes Act of 1978, 41 U.S.C.A. §§ 601-613 (West 1987),

requesting the government to pay it an additional $945,310 for

costs and expenses incurred as a result of the investigation.1 On

December 3, 1992, Missile Command denied OHA's claim for

readjustment. On December 21, 1992, OHA sent Missile Command an

amended contract readjustment claim. Missile Command also denied

this claim.2 OHA timely appealed the denial of its claim to the

Armed Services Board of Contract Appeals (the Board). On March 7,

1994, the Board affirmed Missile Command's decision. OHA then

appealed the Board's decision to the Court of Appeals for the

Federal Circuit. The Federal Circuit affirmed the Board's denial

of OHA's contract readjustment claim, holding that OHA's claim

1
OHA made this request pursuant to Federal Acquisition
Regulation 31.205-47. 48 C.F.R. § 31.205-47 (1994).
2
OHA made this request pursuant to Federal Acquisition
Regulations 52.243-1 and 52.243-7. 48 C.F.R. §§ 52.243-1,
52.243-7 (1994).
sounded in tort, and therefore, it did not form a basis for a

contract claim.

PROCEDURAL HISTORY

On March 12, 1994, OHA filed this lawsuit in the Middle

District of Florida seeking damages under the Federal Tort Claims

Act (FTCA), 28 U.S.C.A. §§ 2671-2680 (West 1994), alleging that

DCIS officers and Missile Command conducted unjustified and

unprofessional investigations for the purpose of harming OHA;

thereby constituting malicious prosecution and abuse of process

within the meaning of 28 U.S.C. § 2680(h). The government moved

for summary judgment contending that OHA failed to meet the

jurisdictional prerequisite for maintaining an action under the

FTCA. On December 30, 1994, the district court granted summary

judgment in favor of the government. The district court found that

OHA failed to comply with the administrative claim requirement of

the FTCA and concluded that it lacked subject matter jurisdiction

over OHA's claim. OHA now appeals the district court's grant of

summary judgment.

CONTENTIONS

OHA contends that it satisfied the jurisdictional requirements

of 28 U.S.C. § 2675(a) when it sent its contract readjustment

claims to Missile Command. Specifically, OHA asserts that the

readjustment claims stated a sum certain and included information

sufficient to give the government notice of its intent to bring

this tort claim. In response, the government contends that OHA's

claims for contract readjustment did not provide sufficient

information to allow the government to investigate its tort claim
as required under 28 U.S.C. § 2675(a).

ISSUE

We address whether OHA's contract readjustment claim satisfies

28 U.S.C. § 2675(a)'s jurisdictional prerequisite for maintaining

an action under the FTCA.

DISCUSSION

We review the district court's grant of summary judgment de

novo. Woodruff v. United States Dep't of Labor, 954 F.2d 634, 636

(11th Cir.1992). In order to state a claim under FTCA, a plaintiff

must first present notice of the claim to the appropriate federal

agency. 28 U.S.C.A. § 2675(a) (West 1994). Section 2675(a)

provides, in pertinent 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
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.

28 U.S.C.A. § 2675(a). Section 2675(a) is satisfied if the

claimant (1) gave the appropriate agency written notice of the tort

claim to enable the agency to investigate; and (2) stated a sum

certain as to the value of the claim. Free v. United States, 885

F.2d 840, 842 (11th Cir.1989).

OHA contends that its readjustment claim satisfies the

jurisdictional prerequisite of 28 U.S.C. § 2675(a). OHA, in its

contract readjustment claim, requested $945,310 for costs and

expenses incurred as a result of the investigations, thereby

satisfying the second prong of section 2675(a)'s jurisdictional
requirement. We, therefore, need only address whether OHA gave

Missile Command sufficient information to enable the government to

investigate OHA's tort claim.

In this case, OHA submitted its readjustment claim to Missile

Command, a division of the Department of the Army—the appropriate

governmental agency. Although OHA identified its readjustment

claim as a contract claim submitted pursuant to the Contract

Disputes Act, and not a tort claim, such labeling is not

dispositive. Section 2675(a) does not require that the claimant

use the word "tort" in the notice. In fact, Congress did not

include the word "tort" in section 2675(a)'s language. See 28

U.S.C. § 2675(a). Rather, section 2675(a) requires that the

claimant's notice provide sufficient information to enable the

government to investigate the tort claim. See Tidd v. United

States, 786 F.2d 1565, 1568 (11th Cir.1986) (tort claim form failed

to provide government with sufficient evidence to investigate);

Bush v. United States, 703 F.2d 491, 495 (11th Cir.1983) (notice

insufficient to support alternative theory of tort liability where

claimant fails to appraise government of alternative grounds to

enable it to investigate its potential liability).

In Tidd, for example, the claimant filed a Standard Form 95

Claim for Damage, Injury or Death with the Department of Health,

Education and Welfare alleging that she sustained personal injuries

in the amount of $850,000 as a result of swine flu vaccination.

The claimant, however, incorrectly identified the date and location

of the vaccine inoculation on the form. The Tidd court held that

plaintiff's tort claim failed to satisfy the jurisdictional
requirements of section 2675(a) stating that:

What we essentially are faced with here is a Form 95 that
provided only the name of the claimant and the general nature
of her alleged injury, nothing more. While we recognize the
requisite jurisdictional notice under § 2675 as "minimal," the
purpose of that notice is to "promptly inform the relevant
agency of the circumstances of the accident so that it may
investigate the claim and respond either by settlement or
defense."

Tidd, 786 F.2d at 1568 (quoting Adams v. United States, 615 F.2d

284, 289 (5th Cir.), clarified on reh'g, 622 F.2d 197 (1980)).

Similarly, OHA's readjustment claims must provide the government

with sufficient information to investigate its tort claim.

OHA in its complaint alleges that government officials'

investigation into OHA's performance of the government contract

constituted malicious prosecution and abuse of process. OHA

contends that its readjustment claims gave the government

sufficient notice of its tort claim. In response, the government

argues that neither OHA's September 15 nor December 21 readjustment

claim gave it notice of OHA's tort claim.3 OHA's September 15

contract readjustment claim states in pertinent part:

On 27 Oct 89, an alleged "Whistle Blower" presented false
information as to the quality of the helicopters, and
subsequently turned this information over to the Orlando
Office of the Department of Defense Criminal Investigation
Service. This information precipitated a long, bitter and
costly investigation. On 12 May 92, Orlando Helicopter
Airways Inc. received official notice that the investigation
had been closed, and that there would be no indictment or
prosecution of the Company. On 27 July 92, records seized
during the investigation were returned to Orlando Helicopter
Airways. Various other activities associated with the
investigation have continued through August of 1992. We,
therefore, are making formal claim for costs and expenses as

3
In the alternative, the government argues that 28 U.S.C.A.
§ 2680(a) (West 1994) bars claims based on malicious prosecution.
Because the district court did not rely on section 2680(a) in
granting summary judgment, we do not address this argument.
 related to this investigation dating from 27 Oct 89 through
Aug 92.

OHA in its amended readjustment claim dated December 21, 1992,

stated in pertinent part:

the Government effected a change in our Fixed Price contract
terms when they initiated and perpetuated an investigation by
the Defense Criminal Investigation Service which lasted some
21/2 years. Costs and expenses involved in said investigation
could not have been forecasted at the beginning of the Fixed
Price contract, nor could they have been finalized until the
investigation was officially closed and costs were no longer
being incurred.... Orlando Helicopter Airways has been
essentially put out of business as an operating company....
[T]his is the direct result of an unwarranted DCIS
investigation and its consequences.

We find that OHA's readjustment claims fail to give the government

sufficient information to investigate alleged misconduct on the

part of government officials. Although, OHA complains in its

readjustment claims that "an alleged "Whistle Blower' presented

false information as to the quality of the helicopters," that this

information "precipitated a long, bitter and costly investigation,"

and that the DCIS's investigation was "unwarranted," this language

only indicates misconduct on the part of the whistleblower.

Because the language included in OHA's readjustment claims cannot

reasonably be interpreted as providing the government with adequate

notice of OHA's malicious prosecution and abuse of process claims,

we hold that OHA failed to satisfy the jurisdictional prerequisite

of 28 U.S.C. § 2675(a).

CONCLUSION

We conclude that the district court lacks subject matter

jurisdiction over OHA's FTCA claim. Accordingly, the district

court's decision granting summary judgment in favor of the

government is
AFFIRMED.