Appeal by the United States from a judgment rendered against it and a co-defendant after a non-jury trial in a tort action to recover damages for personal injuries in the United States District Court for the Northern District of New York, Edmund Port, Judge. the appeal is directed to an order of Lloyd F. MacMahon, Judge, denying the Government's motion to dismiss the action because of appellees' failure to file an administrative claim against the United States within two years after the claim accrued, 28 U.S.C. §§ 2401(b) and 2675.
Mansfield and Timbers, Circuit Judges and Dooling, District Judge.*fn*
The United States is, under 28 U.S.C. § 2674, liable for tort claims in the same manner and extent as a private individual under like circumstances. No action may be instituted upon such a tort claim until it has been presented to the interested federal agency and has been finally denied (28 U.S.C. § 2675), and the claim must be presented in writing to the appropriate federal agency within two years after the claim accrues (28 U.S.C. § 2401(b)). Failure to act on the claim for six months may at the claimant's option be treated as a final denial. 28 U.S.C. § 2675.
Where the tortious injury complained of has resulted from a Government employee's operation of a motor vehicle " while acting within the scope of his . . . employment," but suit is commenced not against the Government but against the Government employee and is commenced in a state court, then 28 U.S.C. § 2679(d) provides that upon the Attorney General's certifying that the employee was acting within the scope of his employment at the time of the incident, the case must be removed to the federal district court
". . . and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto."
Section 2679(d) provides, as to cases removed upon the Attorney General's certificate, that
"Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section is not available against the United States, the case shall be remanded to the State court." * *
This appeal presents the question whether in such a removed tort action the plaintiffs, who originally sued a federal employee in the state court, must, nevertheless, after the removal, prove that before suing the employee they presented the claim to the Government as a claim against it in compliance with Section 2675(a) within the two years prescribed by Section 2401(b).
On November 8, 1972, plaintiff Helen Kelley was struck by a motor vehicle owned and operated by Francis A. Hunt, an employee of the Department of Agriculture. In May 1973 Mrs. Kelley and her husband sued Hunt and Ruth Semko in Broome County Supreme Court, alleging that the Semko vehicle was so negligently driven that it nearly collided with Hunt's car, and that Hunt's vehicle was driven so negligently that it went out of control and struck plaintiff. The pleading did not mention Hunt's employment. The Travelers Insurance Company, Hunt's insurer, undertook his defense and designated counsel for him. Hunt answered in July 1973; he denied the main allegations of the complaint and cross-claimed against Semko for an apportionment of any damages awarded the plaintiffs, but he did not refer to his federal employment, or plead the defense afforded by Section 2679(b) to federal drivers whose accidents occur when they are acting within the scope of their employment.
Hunt had earlier reported the accident, orally at least, to his circuit supervisor, and on January 19, 1973, a Special Agent of the Office of the Inspector General of the Department of Agriculture, David Ricks, interviewed plaintiff Helen Kelley, obtaining from her a statement of the details of the accident, a copy of a report on the surgery performed on Mrs. Kelley, and a copy of the hospital bill, which amounted to $3,773. There is no reason to suppose that Ricks did not identify himself.
Hunt did not, however, when he was sued in May 1973, deliver the process served upon him or an attested true copy to his immediate superior or to whomever his head of department had designated to receive such papers, as 29 U.S.C. § 2679(c) and 28 C.F.R. § 15.1 require, and, in consequence, none of the papers in the lawsuit was sent to the United States Attorney, the Attorney General, or the head of Hunt's employing agency, as Section 2679(c) and Section 15.1 contemplate.
On March 5, 1974, during the taking of Hunt's deposition, his employment was put on the record explicitly, and Hunt testified that he had been working on the day of the accident in Friendsville, Pennsylvania, and was on his way home from that work when the accident happened. Still nothing was done to bring the Government into the case.
In the first days of December 1974, a little over two years after the accident, counsel for Hunt communicated with General Counsel's Office of the Department of Agriculture, and, evidently, sent copies of the pleadings to them and to the United States Attorney. Hunt's counsel took the position, in writing to the United States Attorney, that at the time of the accident Hunt was operating his own car with the permission of the federal government while acting within the scope of his employment; counsel expressed the opinion that Section 2679(b) applied to the Kelley case; he noted that Section 2679(c) requires the Attorney General to defend any civil action brought ...