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KANTOR v. KAHN

January 16, 1979

Michael KANTOR, Mildred Dupack and Samuel Reiken on behalf of themselves and all others similarly situated, Plaintiffs,
v.
Alfred KAHN, the Civil Aeronautics Board and the United States of America, Defendants



The opinion of the court was delivered by: SAND

This class action, brought by three named plaintiffs to recover damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 Et seq., alleges that the Civil Aeronautics Board ("CAB") failed to regulate Nationwide Leisure Corporation ("Nationwide"), a charter tour group. Named in the complaint as defendants are Alfred Kahn, CAB, and the United States. *fn1"

Defendants move to dismiss on two grounds. First, defendants contend that plaintiffs failed to comply with the administrative requirements of the FTCA. Second, defendants argue that plaintiff failed to state a claim upon which relief can be granted because the actions complained of are exempted from FTCA by 28 U.S.C. § 2680(a). *fn2" Because we find that this Court lacks subject matter jurisdiction, we do not reach the question whether the complaint fails to state a claim upon which relief could be granted.

Administrative Claim Requirements

 Since the 1966 amendments to 28 U.S.C. § 2675, any person having a damage claim against the United States must first present his claim to the appropriate federal agency and await a final denial before instituting a court proceeding. *fn3" Proper presentation of the claim to the appropriate agency is a prerequisite to any later court action. Although the Second Circuit has not ruled on the issue, *fn4" other circuits have held that compliance with § 2675(a) is a jurisdictional requirement which may not be waived. See House v. Mine Safety Appliances Co., 573 F.2d 609, 614 (9th Cir. 1978); Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977); Molinar v. United States, 515 F.2d 246, 249 (5th Cir. 1975); Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974); Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971).

 Application to the Class

 Plaintiffs argue that the administrative claim filed on behalf of their class is sufficient to fulfill the requirements of § 2675. The Government, on the other hand, argues that plaintiffs' Notice of Claim filed with the CAB is fatally defective for several reasons: it fails to name all the claimants; it does not state that the named claimants have the authority to present and settle claims of those who are unnamed; it fails to provide a specific statement of damages for each claimant.

 Plaintiffs' Notice of Claim was filed "(o)n behalf of those consumers identified in Schedule A, the classes of consumers which they represent as identified in Schedule B, and all others similarly situated." Schedule A identifies fourteen individuals, three of whom are the named plaintiffs in this action. Schedule B describes four state court class actions brought on behalf of all consumers who purchased various charter tours. According to the description of these actions, there are approximately 55,000 consumers in the four classes. The notice also states that the "claim of aggrieved consumers may be as large as 500,000 consumers and this notice of claim is on their behalf as well." Finally, the notice demands $ 50,000,000. in damages.

 The FTCA regulations clearly require that:

 
"A claim for personal injury may be presented by the injured person, his duly authorized agent, or legal representative."
 
"A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative." 28 C.F.R. § 14.3(b) and (c).

 Plaintiffs contend that they have fulfilled these requirements because the named claimants or their attorney had authority to claim or settle on behalf of the forty thousand consumers represented by the named plaintiffs in this action.

 Although neither the FTCA nor the regulations promulgated thereunder make provision for the filing of administrative claims against the United States on behalf of a class of similarly situated individuals, plaintiffs contend that a class action is maintainable under the FTCA. See Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977); Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11 (3rd Cir. 1975) (a class action is maintainable if "each claimant . . . (submits) an independent and separate claim to the appropriate administrative agency for review and possible settlement."); Founding Church of Scientology v. F.B.I., 459 F. Supp. 748 (D.D.C.1978). At argument of this motion, plaintiffs' counsel admitted, however, that there has never been a Successful class action filing under the FTCA.

 Even assuming that a class action is permissible, such an action must still fulfill the specific requirements of the administrative regulations. In Lunsford v. United States, supra, the Eighth Circuit outlined the criteria for filing a class action suit against the United States:

 
"(A) class action can be maintained under the FTCA if each of the claimants have individually satisfied all of the jurisdictional requirements. A class action can also be maintained if a class claim has been filed which names the individual claimants, asserts and establishes the authority of the named claimant (or claimants) to present claims on behalf of the unnamed class members, states the total amount of ...

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