# Petition — Keene Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0936%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 864 ## Text g 2 sins l 8 36 Oftice-Supreme Court, U.S. FiLLEu me MAY 11 1983 ALCYANIDER L. STEVAS, CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 KEENE CORPORATION, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR WRIT OF CERTIORARI Eugene R. Anderson* Jerold Oshinsky Irene C. Warshauer Marcy Louise Kahn Frederic L. Neustadt ANDERSON RUSSELL KILL & oLICck., F.C. 666 Third Avenue New York, New York 10017 (212) 850-0700 Counsel for Petitioner * Counsel of Record QUESTIONS PRESENTED? 1. Whether this Court should resolve the irreconcilable conflicts among the First, Second, Fourth and Ninth Circuits as to whether admiralty jurisdiction applies to claims arising from injury allegedly caused by exposure to asbestos-containing products on vessels in navigable waters or in ship- yards. 2. Whether this Court should resolve the irreconcilable conflicts among the Circuits as to whether administrative regulations promulgated 2 This is Keene Corporation's orig- inal designation of corporate relation- ships pursuant to Supreme Court Rule 28.1. Bairnco Corporation is the parent of Keene Corporation. BZ Acquisition Corp. is a wholly-owned subsidiary of Bairnco Corporation. Lightolier, Incor- porated is a wholly-owned subsidiary of BZ Acquisition Corp. Lightolier, Incor- porated is an affiliate of Keene Corpo- ration. The caption of this action contains the names of all of the parties hereto. by the Department of Justice pursuant to the Federal Tort Claims Act ("ICA"), 320 Uae. § 2672, restrict the subject matter jurisdiction of the federal court in cases brought under the FTCA. 3. Whether the court below applied an overly restrictive interpretation of the administrative filing requirements of the Federal Tort Claims Act, 28 U.S.C. § 2675, rendering it impossible for a litigant who incurs continuing damages in thousands of pending lawsuits to comply with those Procedures in a single action and thereby compelling it to file separate claims against the United States of America (the "Government") in each of the thousands of lawsuits, particularly where the Government publicly refuses to settle any such claim. aiia TABLE OF CONTENTS Page Questions Presented ....-+-++eeeres i Taklea of COmtOnte® .ccccrcccevvcses 533 Table of Authorities ...ceceeesees Vv Opinions Below ....-eeereeeeeecees 2 Re eg ee a Existence of Jurisdiction a ae ne en 3 Constitutional and Statutory Provisions Involved ......+++e--. 4 Statement of the Case .....-eeeeees 5 Proceedings Below ....-+eeeeeeeees sa Reasons for Granting Ce ee 8 cee eee hee eee ens 17 I. THE CLEAR AND IRRECONCIL=- ABLE CONFLICT AMONG THE DECISIONS OF THE FEDERAL CIRCUITS ON THE APPLICA=- TION OF ADMIRALTY JURIS- DICTION TO THOUSANDS OF LAWSUITS WARRANTS REVIEW AND RESOLUTION BY THIS CO vce kk dene We eee nee cy -iii- II. THE CONFLICT AMONG THE CIRCUITS AS TO WHETHER COMPLIANCE WITH ADMINIS- TRATIVE REGULATIONS ADOPTED BY THE JUSTICE DEPARTMENT PURSUANT TO THE FICA IS A JURISDIC- TIONAL PREREQUISITE TO SUIT AGAINST THE GOVERN- MENT SHOULD BE RESOLVED — ee or... 25 III. THE DECISION BELOW PLACES AN OVERLY STRICT INTERPRE- TATION OF THE ADMINISTRA- TIVE FILING REQUIREMENTS OF THE FTCA AND WOULD RENDER IT IMPOSSIBLE FOR A CLAIMANT SUCH AS PETITION- ER TO EVER FILE A SINGLE CLAIM AGAINST THE OO ca 29 rrr. 36 occiput a ae A-1 TABLE OF AUTHORITIES CASES: Adams v. United States, 615 D.2G 266 (oem Car. S900) ~2us-s ao,ai Austin v. Unarco Industries, Tnc., No. 82-1166 (ist Cir. ON 20-21 Avery v. United States, 680 wae GOs teem Cif. L968) «.-s5-- 26,a/ Block v. Neal, 103 S.Ct. 1089 3 Butz v. Economou, 438 U.S. 478 be ee 34 Community Communications Co. v. City of Boulder, 102 Se, Bee CARD su cee ecw eewces 33 Douglas v. United States, 658 7.2m 665 (Goce Gat. 3964) «2.2. 26,29 Executive Jet Aviation, Inc. v. City of Cleveland, 409 eT es ee 18 Foremost Insurance Co. v. Richardson, 102 S.Ct. 2654 eo een a a 18 Franklin v. Johns-Manville Corp., No. C81-533M (W.D. Wasn. June 10, 1982), aff'd upon reconsideration (Sent. 20, L9GZ) .-seccevscvcces ao -V@= In re: General Dynamics Asbestos Cases, C.M.L. ae | (D. Conn. Mar. ae BOO .n ec. aa,a0 Glover v. Johns-Manville Corp., 662 F.2d 235 (4th Wee Se oid ck... BS ae House v. Mine Safety Appli- ances Co., 573 F.2d 609 (9th Cir.), cert. denied, 439 oot med ty, |) 2s at Indian Towing Co. y. United scates, 350 U.S. 61 ee 34 Jacobowitz v. Johns-Manville Sales Corp., No. 79 Cc 865 ? om oe Sept. 28, BO nck ec. 44,22 Keene Corp. v. United States, 700 F.2d 836 (2d Cir. 1983 ) afte 80 Civ. 401 (626) ioe oe eee) passim Lockheed Aircraft Cor. ¥, Unitew States, 103 =.Cc. soit imme. i ne ia Lunsford v. United States, 570 F.2d 221 (8th Cir. Gere e oc. 27 Owen v. City of Independence, 445 U.S. 622 (1980) 34 e © © @ ¢ © @:. 6 6 @ @ 6 Owens-Illinois, Inc. vy. United States District Court, 698 F.2d 967 (9th Cir. Bee ncaa... 19-20 Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d wen (oem Gace. 2980) ............ 22 Tucker v. United States Postal Service, 676 F.2d 954 (3d We RE Gh oe ec eee 26 United States v. Aetna Casualty & Surety Co., 338 om. Oe CRE 6h eb he ee ko wes 34 White v. Johns-Manville Corp., 662 F.20 23% (4th Cir. 1981), cert. denied, 454 oe Eee CARE bc cee eee aes 14,15, 19,22 White v. Johns-Manville Corp., SGe F.42G 263 (4th Cir. i961) ... LoS STATUTES: Extension of Admiralty Juris- G@iction Act, 46 U.S.C. § 740 ... 3,4 Federal Employees’ Compen- sation Act, 5 U.S.C. De UA cab Gh b ee shed dh wea was 13 Federal Tort Claims Act, 28 U.S.C. $6 1346(5), 2671-2680 ... 3,4 Se ee OR hwo ee eee ees 53.4 Be ee Oc bw hee eek ee be we 4 Bee es Oe bee he eee eke eee ii,4 12,26 Public Vessels Act, 46 U.S.C. De PEE bes hk dee eee ee ces 3,4 Suits in Admiralty Act, 46 Me Oe FOI Oe Cikeb becca ceews + -vii- oe oe, © 295K) 2... 3 wee eG, 6 tee... 5... 4 Oe Voeee. © 3ees 2.0... 3,4 RULES AND REGULATIONS: We ee A i OTHER AUTHORITIES: Oversight Hearings on the Effect of the Manville and UNR Bankruptcies on Com- pensation of Asbestos Vic- tims, before Sub-Comn. on Labor Standards of the House Comm. on Education & Labor, 97th Cong., 2d Sess (1982) (statement of J. Paul McGrath, Assistant U.S. Attorney General) (eee. we SO 4... 10-11 -vViii- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 KEENE CORPORATION, Petitioner, 7. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioner Keene Corporation ("Keene") respectfully prays that a writ of certiorari issue to review the opin- ion and judgment of the United States Court of Appeals for the Second Circuit (hereinafter "Second Circuit") entered On February 10, 1983. OPINIONS BELOW The opinion and judgment below of the Second Circuit appears in the ap- pendix commencing at A-l. The opinion is officially reported at 700 F.2d 836. The opinion and judgment of the United States District Court for the Southern District of New York, which was affirmed by the Second Circuit, appears in the Appendix commencing at A-40. This deci- Sion is not officially reported, but is unofficially reported at [1980-81 Trans- fer Binder] Prod. Liab. Rep. (CCH) 1 9083. The opinion of the District Court denying Keene's motion for reargu- ment, which is not officially reported, appears in the appendix commencing at Page A-8s0. JURISDICTION The opinion and judgment of the Second Circuit of which review by this Court is sought was entered on Febru- ary i9, i963. The jurisdiction of this Court to review the judgment below ex- ists pursuant to 28 U.S.C. § 1254(1). EXISTENCE OF JURISDIC=- TION BELOW The courts below dismissed this action for lack of subject-matter juris- diction. Keene contends that the Dis- trict Court's jurisdiction was properly invoked under the Federal Tort Claims Act ("FICA"), 26 6U.S.C. §§ 1346(b), 2671-2680, or, alternatively, under the general admiralty and maritime law of the United States of America, 28 U.S.C. § 1333, the Suits in Admiralty Act, 46 a.3.o, §§ 741-752, the Extension of Admiralty Jurisdiction Act, 6 U.S.C. § 740, and the Public Vessels Act, 46 u.2.¢. 66 781-790, or, alternatively, under 28 U.S.C. § 1331 and the common law. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Extension of Admiralty Jurisdiction AGT, 46 U.S.C. § 745 Federal Tort Claims Act, ae 68.8.6. §§ 1346(b), 2761-2680 40 U.8.C. § 2672 46 U.8.C. & 26764 46 U.S.C, & 2675(a) Public Vessels Act, 46 U.S.c. § 781 Suits in Admiralty Act, 46 ¥.5.C. § 742 26 U.S.C. § 1333 The pertinent text of the constitu- tional and Statutory provisions involved are set forth in the Appendix commencing at A-88. STATEMENT OF THE CASE The Second Circuit's decision has necessitated this petition for writ of certiorari (1) to resolve the conflict among the First, Second, Fourth and Ninth Circuits, as well as numerous district courts, on the application of admiralty jurisdiction to claims of injury allegedly caused by exposure to asbestos-containing thermal insulation products in shipyards and on vessels in navigable waters, and third-party claims arising out of those actions; (2) to resolve the conflict among the Circuits as to whether administrative regulations promulgated by the Department of Justice pursuant to the FTCA restrict the dis- trict court's subject matter jurisdic- tion over suits against the Government; and (3) because the Second Circuit's overly restrictive interpretation of the administrative filing requirements of the FICA would otherwise render it im- possible for a litigant incurring con- tinuing damages in thousands of pending lawsuits to comply with those require- ments. This action arises out of the thou- sands of lawsuits presently pending in State and federal courts throughout the United States (the "underlying cases") in which the plaintiffs (the "claim- ants") have alleged personal injury or wrongful death caused by exposure to asbestos-containing thermal insulation products. Petitioner Keene Corporation has been named as a defendant in more than 17,000 of the underlying cases.“ A a. Keene itself has never manufactured or sold any thermal insulation products containing asbestos. In 1968, Keene ac- quired the stock of Baldwin-Ehret-Hill, Inc. ("BEH"), which was later merged in- to a wholly-owned Keene subsidiary, Keene Building Products Corporation ("Reec”). BEH was a minor manufacturer of thermal insulation products contain- ing asbestos. BEH never mined asbestos, and purchased asbestos from the Govern- (footnote continued) majority of the claimants in the under- lying cases have alleged exposure to asbestos fibers while engaged in the installation of thermal insulation on ships during their initial construction, during the repair of ships already launched, and during rip-outs of old thermal insulation from ships. These claimants worked with asbestos-contain- ing thermal insulation on ships already afloat in navigable waters, on vessels in dry dock in the shipyards and in shops on land in the shipyard. In the present action, Keene seeks to recover in one action, rather than in thousands of individual gdirect or third-party actions, its damages from the Government for injury, indemnity, (footnote continued from previous page) ment, as well as from mining and manu- facturing companies. Between 1968 and 1972, all asbestos was removed from BEH's thermal insulation product lines. In 1974, Keene sold all of the stock of KBPC. Keene, KBPC and BEH will be col- lectively referred to herein as "Keene". contribution, apportionment and other damages which Keene has suffered as a result of the negligent or wrongful acts or omissions of the Government. Thou- Sands of the claimants in the underlying cases were employees of the Government who worked in U.S. naval shipyards or were workers in private shipyards under contract to the Government. Keene's Claims arise from the Government's use and specification of asbestos-containing thermal insulation Products in connec- tion with the Government's massive ship- building projects of the 1940's, 1950's and 1960's under conditions which the Government knew were dangerous to the health of shipyard workers exposed to these products. Despite its knowledge of the ad- verse health effects of asbestos as early as 1938, the Government extensive- ly specified the use of asbestos in thermal insulation products and permit- ted no deviation from these specifica- tions. Indeed, one of Keene's products, "Super Powerhouse Cement," did not in- clude asbestos fiber as an ingredient, but a special military formulation was created to include asbestos solely in order to meet the Government's specifi- cations. The Government had the knowl- edge and technical skill to prevent worker exposure to excessive dust con- centration, and developed and establish- ed workplace safety standards regarding the handling of asbestos-containing products which were designed to prevent the contraction of asbestos-related injuries by shipyard workers. The Gov- ernment failed, however, to observe or enforce its own safety standards and repeatedly violated those standards from the 1940's to the 1970's. The Govern- ment also failed to disclose both its Own knowledge of the adverse health effects of asbestos and its failure to observe its own safety standards to its workers, contractors and suppliers, including Keene. As a result of the Government's action, Keene has been named as a defendant in thousands of lawsuits brought by claimants who worked in United States naval or government contract shipyards. The Government is presently a de- fendant or third-party defendant in approximately 1,200 asbestos-related actions involving nearly 13,000 indivia- ual claims. According to a recent statement, "the government's position in the pending asbestos litigations is that it has no tort liability to the victims of asbestos-related diseases." Over- Sight Hearings on the Effect of the Manville and UNR Bankruptcies on Compen- Sation of Asbestos Victims, before Sub- a Ts Comm. on Labor Standards of the House Comm. on Education & Labor, 97th Cong., 2d Sess (1982) (statement of J. Paul McGrath, Assistant U.S. Attorney Gener- al) (Sept. 9, 1982) at 1 (A96-97).° Proceedings Below In January 1979, Keene presented various agencies of the Government with notice of Keene's claims for damages against the Government pursuant to the requirements of the FTCA and the appli- cable regulations thereunder. Rather than filing thousands of individual notices for each of the underlying ac- tions, Keene presented its entire claim in one notice in order to avoid massive duplication and repetition. In its notice, Keene stated that its total damages with respect to the a. A copy of this statement is re- printed in the Appendix commencing at page A-95. ollie underlying cases pending or resolved as of the time of its claim was in the amount of $1,088,135, with the proviso that "[t]his sum certain does not in- clude other Damages of which Keene is ‘ Keene also pro- presently unaware." vided the Government with the general and specific allegations of the Govern- ment's misconduct, and provided or of- fered to make available to the Govern- ment virtually all of the information concerning the underlying cases avail- able to Keene, most of which was already in the Government's possession. Six months elapsed without any final disposition of Keene's claims by the various agencies. Keene then filed its complaint pursuant to 28 U.9.6. § 2675(a). 4. In the ad damnum clause of its notice of claim, Keene also stated that "the United States of America is indebt- ed to Keene for Damages in the sum of $1,088,135 and in an additional amount yet to be ascertained." “it« ~ e040 «CC O2SCKIct | | 6Court erroneously dismissed Keene's complaint for lack of subject matter jurisdiction. The court held, inter alia,” that Keene's claims did not lie within admiralty jurisdic- tion on the grounds that the installa- tion of high temperature thermal insula- tion around pipes and boilers on vessels in navigable waters did not bear a rela- tionship to traditional maritime activi- ty. The court concluded that "[t]here is simply no significant relationship between the hazards of asbestos and 2. The district court also held the exclusivity provisions of the Federal Employees' Compensation Act ("FECA"), Ss v.s.c. § 8116(c), barred Keene's claims with respect to underlying cases brought by past or present government employees. A-72-73. Although the Second Circuit did not directly address this issue, it also stated that FECA barred suits against the United States for contribution and indemnity by joint tortfeasors. A=sS 8.i3, 700 ¥.28 at 845 n.13. This Court's recent decision in Lockheed Aircraft Corp. v. United States, aus 8. Ct. 1033 (1983), has effectively overruled both of these holdings. a Se traditional maritime activity." (A70-71) The District Court also incorrectly held that Keene had not satisfied the admin- istrative filing requirements of the FICA and the regulations promulgated thereunder. The Second Circuit affirmed the decision of the District Court for es- sentially the same reasons expressed in the District Court's decision. With respect to admiralty jurisdiction, the court ruled that Keene's claims was not within admiralty jurisdiction because such claims are not sufficiently related to “traditional maritime activity." In so holding, the court specifically de- clined to follow the contrary decision of the Fourth Circuit in White v. Johns=-Manville Corp., 662 F.2d 234 (4th Cir. 1981) ("White II"), cert. denied. 454 U.S. 1163 (1982) (admiralty juris- diction applies to personal injury «tte claims of asbestos workers in ship- yards).° (A=35) The Second Circuit also affirmed the dismissal of Keene's claims under the FTCA on the grounds that Keene's notice of claim dic not satisty the FTCA's administrative requirements. The Court acknowledged that there is a split in the Circuits as to whether compliance 6. White II was decided five days af- ter the District Court's decision in Keene rejecting admiralty jurisdiction. In two companion cases decided the same day, the Fourth Circuit also held that "Tal noncontractual indemnity claim arising [from a maritime tort claim] is Similarly a maritime claim . . . %©® be assessed under principles of maritime law." White v. Johns-Manville Corp., 662 F.2d 243, 247 (4th Cir. 1981) (cita- tion omitted), and that admiralty juris- diction could be exercised over a manu- facturer'’s contractual indemnity claim against the Government. Glover v. Johns-Manville Corp., 662 F.2d 225 (4th Cir. 1981). Keene had moved for recon- Sideration before the District Court on the basis of the Fourth Circuit's deci- sions, but the court refused to apply the Glover and White II decisions to Keene's suit, and denied the motion for reconsideration. The Second Circuit also refused to follow the Glover deci- sion. ai Su with the administrative regulations promulgated under the FTCA, as opposed to the Statutory requirements, was a jurisdictional prerequisite to bringing suit under the FTCA. The court below applied the stricter Standards inherent in the regulations, rather than those of the statutory filing requirements, as jurisdictional prerequisites to Keene's suit. The court held that Keene's reser- vation as to future damages rendered indefinite Keene's specific statement of its claim's worth. The Court required Keene to provide an itemization of dam- ages, including defense costs and in- creased insurance costs, for each of the thousands of cases pending against Keene. The court also held that Keene had not provided sufficient information so that the Government could investigate Keene's claims. In concluding, the o16< Court in essence held that Keene could net bring one ection for all of its claims, but rather "[t]he very volume and diversity of claims which have placed Keene in its unfortunate position also preclude the wholesale adjudication of its essentially individual, retail claims against the government." A-38, 700 F.2d at 845. REASONS FOR GRANTING THE WRIT I. THE CLEAR AND IRRECONCILABLE CONFLICT AMONG THE DECISIONS OF THE FEDERAL CIRCUITS ON THE APPLICATION OF ADMIRALTY JUR- ISDICTION TO THOUSANDS OF LAW- SUITS WARRANTS REVIEW AND RESOLUTION BY THIS COURT The conflict among the federal circuits that have considered the appli- cation of admiraity jurisdiction to claims of injury caused by exposure to asbestos-containing products in ship- yards and on navigable waters, and oh oe third-party claims arising out of those actions, warrants review by this Court of the Second Circuit's decision below. In the absence of intervention by this Court, the application of admiralty law in factually identical circumstances Will depend solely upon the forum in which the suit is pending. Furthermore, to the extent that claims in the under- lying cases against Keene are held to be cognizable in admiralty, Keene Clearly should be permitted to seek contribution or indemnity on the same jurisdictional basis. In Executive Jet Aviation, ie. +. City of Cleveland, 409 U.s. 249 (1972), and Foremost Insurance Co. wy. Richard- son, 102 5. Ce. 2654 (1982), this Court emphasized the need for uniform rules where special maritime concerns relating to navigation or commerce are present. By the same token, uniform rules should ~186 govern where two claimants are injured by alleged asbestos exposure under vir- tually identical factual circumstances. No such uniformity presently exists as to the application of admiralty jur- isdiction to claims of ‘injury allegedly caused by. exposure to asbestos-contain- ing products on vessels in navigable waters or in shipyards. In White II the Fourth Circuit held that shipyard workers engaged in ship construction and ship repair were en- gaged in traditional maritime activity, such that claims for injury during that work fell within admiralty jurisdiction "because the installation of the asbes- tos products has a direct effect on marine navigation and commerce." 662 F.2d at 239. However, in Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir. 1983), the Mintk Circuit «10~ ruled that admiralty jurisdiction did not lie to hear a plaintiff's claim for personal injury arising from exposure to asbestos-containing products while em- ployed in a shipyard. Acknowledging the conflict among the Circuits, the Ninth Circuit stated: "In so holding, we decline to follow the holding of the Fourth Circuit [in White ati, which recently determined that admiralty jurisdiction existed 2m 68h action substantially Similar to the one underlying this mandamus proceeding”. ag. at 971. Similarly, tn Austin yv. Unarco Industries, Inc., No. 82-1168 (ise Circ. War. 30, 1963), the Siret Circuit cies declined to follow the White II decision and instead held that admiralty juris- diction did not apply to the claims of a Claimant alleging exposure to asbestos while working aboard ships in navigable # The unreported decision in Austin is reprinted in the Appendix commencing at A-105. =<" water. The Court specifically noted the split in the Circuits on this issue, stating: "In addressing this question, we note that there is already some disagreement among the circuits both as to the proper analysis and as to the ulti- mate resolution of the issue ‘ [citing Keene, Owens- Illinois and White II]. For reasons set out below, we disagree, in part, with the analysis of all three courts, but we are pursuaded that the result reached by the Second and Ninth Circuits is sound." A-134-135. In the present action, the Second Circuit declined to apply admiralty jurisdiction because it held that the roles of the parties did not bear a significant relationship to maritime activities such as navigation or com- merce, and that "[g]Jeneral allegations that the contacts with asbestos took place in shipyards or even aboard launched vessels are thus insufficient to establish admiralty jurisdiction." A-34, 700 F.2d at 844. The Second Cir- cuit also recognized conflict among the Circuits in declining to follow the Fourth Circuit in White II. A-35, 700 F.2d at 844. In addition, the court below implicitly recognized that the Circuits are in conflict on the applica- tion of admiralty jurisdiction over an indemnity action arising out of a claim alleging exposure in a maritime setting. In so holding, the Second Circuit ex- pressly declined to follow the reasoning of the Fifth Circuit in Sperry Rand Corp. Vv. Radio Corp. of America, 618 F.2d 319 (Sth Cir. 1980), which had held that a claim for contribution or indem- nity with respect to an injury cogniza- ble in admiralty and caused by a product not specifically or exclusively made for maritime use nonetheless fell within admiralty jurisdiction. The Court also declined to follow the Fourth Circuit's a 22u decision in Glover vy. Johns-Manville Car. , S62 F.26 225 45a Cir. 1981), which had held that admiralty jurisdic- tion could apply to a manufacturer's contractual claim for indemnity against the Government. A-35-36, 700 F.2d at 845. The Second Circuit's decision in this case has thus destroyed the chance for uniformity, and has made resolution of whether the distinct and unique body of admiralty law will apply to the cisias of ja particulier cisainant or third-party action arising out of those claims, dependent solely upon the forum in which the action is brought. © Fur- 8. The confusion generated by these conflicting decisions and results is further reflected in decisions being handed down in district courts through- out the country. Compare, e.g., In re General Dynamics Asbestos Cases, C.M.L. No. 1 (D. Conn. Mar. 25, 1983) (permit- ting plaintiffs to amend complaint to add allegations of admiralty juris- diction), and Jacobowitz v. Johns-Man- ville Sales Corp., No. 79 C 865 (footnote continued) thermore, in the Second Circuit, Keene is being forced to defend asbestos per- sonal injury claims in the underlying cases in many instances where the sole or primary jurisdictional basis is ad- miralty. See Jacobowitz, A-186, and In re General Dynamics Asbestos Cases, A- 214, supra. Ironically, the Second Circuit's decision Prohibits Keene from seeking indemnity or contribution for such claims on the basis of admiralty jurisdiction. To the extent Keene is being held liable under admiralty juris- (footnote continued from previous page) (E.D.N.Y. Sept. 28, 1982) (same), with Franklin vy. Johns-Manville Corp., No. C81-533M (W.D. Wash. June 10, 1982), aff'd upon reconsideration (Sept. 20, 1982) (despite claim of 95% exposure on ships and navigable waters, motion to amend complaint to add allegations of admiralty jurisdiction denied). Fac- tually identical cases are thus being governed by different bodies of law, depending upon the court in which the cases are pending. The unreported deci- sions in General Dynamics, Jacobowitz and Franklin are reported in the Ap- pendix commencing at A-178, A-186 and A-214, respectively. o26< diction, Keene clearly should be permit- ted to seek indemnity on the same juris- dictional basis. There are thousands of cases pend- ing in this country where the issue of admiralty jurisdiction has been and is being raised. In light of the con- flicting opinions being rendered, the need is clear and the time is ripe for review of this important issue by the Court. II. THE CONFLICT AMONG THE CIRCUITS AS TO WHETHER COMPLIANCE WITH ADMINIS- TRATIVE REGULATIONS ADOPTED BY THE JUSTICE DEPARTMENT PURSUANT TO THE FTCA IS A JURISDIC- TIONAL PREREQUISITE TO SUIT AGAINST THE GOVERN- MENT SHOULD BE RESOLVED BY THIS COURT As noted by the Second Circuit, there is a conflict among the Circuits as to whether a failure to comply with the administrative regulations promul- i |e gated by the Justice Department pursuant to the FTCA can serve to bar a claimant from subsequently commencing suit pur- Suant to 28 U.S.C. § 2675(a). At least four Circuits have held that where a Claimant such as Keene has exhausted its administrative remedies in accordance with the statutory provisions of 28 u.5.C. S§ 2675, any alleged failure to meet the requirements of the Justice Department's administrative regulations respecting the contents of the adminis- trative filing does not deprive the Court of jurisdiction. See Adams yv. United States, 615 F.2d 284 (Sth Cir. 1980); Douglas v. United States, 658 F.2d 445 (Sta Cir. 1981); Tucker vy. United States Postal Service, 676 F.2d 954 (3d Cir. 1982); Avery v. United States, 680 F.2d 608 (Sth Cir. 1982). These courts have reasoned that the regulations are designed to facilitate ~26< the settlement of claims by the Govern- ment. Adams v. United States, supra, 6iS F.2c at 290. Where the Government has refused to settle a claim, the regu- lations cease to be pertinent. Juris- aiction of the district court to hear the claim is created by Congressional enactment, not by administrative fiat. Other courts have engrafted the administrative filing regulations onto the statute in determining the existence of subject matter jurisdiction. House v. Mine Safety Appliances Co., 573 F.2d 609: (Sth Cir.), cart. denied, 439 U.S. 862 (1978);° Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977). The Second Circuit ostensibly did not address this conflict and left the issue unresolved. A-20-21 n.9, 700 F.2d at 842 xn.3. The Court's reasoning, 9. The House decision may be con- sidered to have been overruled sub Silentio by a subsequent Ninth Circuit panel in Avery v. United States, supra. oy however, effectively (and improperly) applied the stricter standards inherent in the administrative regulations, and not present in the FTCA itself, as a jurisdictional prerequisite to suit, defeating the exercise of jurisdiction in this action. Keene was required under the statute to provide only the "minimal notice" of its claims. Avery v. United States, supra, 680 F.2d at Gii. The requirements created by the Second Circuit's interpretation of the administrative regulations, that expli- cit detail be provided with respect to each of the 17,000 underlying cases, directly conflicts with the rulings of at least four other Circuits. This conflict is thus ripe for resolution by this Court. This Court should rescive the con- flict and hold that a failure to comply with administrative requirements cannot «260 Georive a plaiatift of the right to commence his action in federal court where the provisions of the statute have been satisfied. As the Sixth Circuit stated in Douglas v. United States 658 F.2d 445, 447-48 (6th Cir. 1981): "These regulations, however, govern administrative settle- ment proceedings; they do not set federal jurisdictional prerequisites. By failing to comply with regulations prom- ulgated under 28 U.S.C. § 2672, a-claimant loses only "the opportunity to settle his or her claim outside the courts.’ Adams, supra, 615 28 st 2590." (emphasis ad- ded). III. THE DECISION BELOW PLACES AN OVERLY STRICT INTERPRE- TATION OF THE ADMINISTRA-=- TIVE FILING REQUIREMENTS OF THE FTCA AND WOULD RENDER IT IMPOSSIBLE FOR A CLAIM- ANT SUCH AS PETITIONER TO EVER FILE A SINGLE CLAIM AGAINST THE GOVERNMENT Under the reasoning of the Second Circuit's decision, no party suffering continuing injury due to mass tort liti- gation could ever bring an omnibus ac- «26. tion against the Government for indem- nity. The Second Circuit's decision would require that a Party such as Keene commence individual actions for each of the 17,000 lawsuits, notwithstanding the massive duplication of effort involved. The relitigation of identical issues in thousands of identical actions is pre- cisely the result Keene sought to avoid,; such a cumbersome process can serve no purpose but to clog the courts unnecessarily. In its administrative notice of Claim, Keene gave its claim a specific dollar amount, and Provided (or offered to make available) to the Government virtually all of the information con- cerning its claim which is available to Keene. The Second Circuit nonetheless held that Keene had not submitted _ valid administrative Claim, reasoning that (1) a reservation of rights as to oT damages resulting from underlying cases to be brought in the future rendered the sum uncertain; (2) Keene was required to itemize its particular damages for each underlying case, rather than providing a total amount of its claim, and (3) Keene had not provided the Government with sufficient information to evaluate Keene's claims, despite the fact that Keene had provided virtually all the information available to it. The Second Circuit placed an unduly Marrow construction on the-~ statutes permitting suit against the Government. The purpose of the filing requirements of the FTCA are so that information will be provided the Government to facilitate settlement. As a practical matter, Keene could not have provided any more information regarding its claims, absent the provid- ing of all of the papers generated in in each of the 17,000 underlying actions. nm Lact, Keene offered to permit the Government to review all of its files respecting underlying cases which had been resolved through settlement or judgment. — The Government declined Keene's invitations. In addition, the Government, Which is a defendant in thousands of underlying cases, is fully aware of the facts and allegations un- derlying Keene's claim. Furthermore, any effort to duplicate these millions of documents would be an utterly futile act as the Government has made clear that it will not settle any of the as- bestos-related cases brought against it (A-96-97). This completely undercuts the Second Circuit's rationale of re- quiring that a claimant Provide the Government with massive amounts of in- formation to investigate the claim. ey Keene also could not have stated a sum with any greater particularity as to its damages suffered as of the date of the filing ef its notice of ciaia, as that was indeed the specific damages suffered as of that date. The Second Circuit's requirement that there be an itemization of each item of damage, including attorneys’ fees and insurance costs, as to each underlying case, is an overly restrictive interpretation of the jurisdictional requirements of the FTCA and is contrary to the emerging trend of recent decisions of this Court acceler- ating the movement against purely tech- nical impediments to a sovereign's lia- Biisty. See, e.g., Block v. Neal, 103 S.Ct. 1089 (1983) ("misrepresentation" exception to liability under the FTCA not applicable where government employee negligently performs inspection); Commu- nity Communications Co. v. City of atte Boulder, 102 S.Ct. 635 (1982) (munici- palities do not enjoy antitrust exemp- tions of states under the Sherman Act); Owen v. City of Independence, 445 U.S. 622 (1980) (restricting scope of immuni- ty of municipal officials); Butts VV. Economou, 438 U.S. 478 (1978) (immunity restricted for federal officials). As this Court has observed: "'The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refine- ment of construction, where consent has been announced.'" United States v. Aetna Casual- Sy & Surety Co., 338 U.S. 366, 383 (1949) (quoting Anderson v. Hayes Construction Co., 243 m.X. i640, 47, I53 we. 28, 29-30 (1926)). See also Indian Towing Co. Vv. United states, 350 U.S. 61, 68 (i955). The Second Circuit's unduly rigid interpre- tation of the Government's waiver of sovereign immunity requires review by this Court in order to avoid "refinement a of construction" of the Government's waiver of sovereign immunity which would render it impossible to bring a single action against the Government and re- quire petitioner to implead the Govern- ment in 17,000 pending cases. w2Ge CONCLUSION The decision below is appropriate for review by this Court for the reasons stated herein, and Petitioner prays that a writ of certiorari be issued to review the judgment and opinion of the United States Court of Appeals for the Second Circuit. May 11, 1983 Respectfully submitted, Zs/ Eugene R. Anderson Eugene R. Anderson* Jerold Oshinsky Irene C. Warshauer Marcy Louise Kahn Frederic L. Neustadt ANDERSON RUSSELL KILL & OLICK. F.c. 666 Third Avenue New York, New York 10017 (212) 850-0700 Counsel for Petitioner * Counsel of Record APPENDIX TABLE OF CONTENTS Keene Corp. v. United States, 7100 F.2@ G36 (24a Cir. i963) Keene Corp. v. United States, 60 Civ. 401 (GLG) (S.D.N.fY. Sept. 30, 1981) os Keene Corp. v. United States, SO Civ. 401 (GLG) (S.0.N.Y. Dec. 21, 19861) Soaks Constitutional and Statutory Provisions Involved Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740 Federal Tort Claims Act, 26 U.S.C. §§ 1346(5) 428 U.S.C. § 2672 26 U.S.C. § 2674 26 U.S.C. § 2675 Public Vessels Act, 46 U.S.C. § 7ei : Suits in Admiralty Act, 46 U.S.C. § 742 ; 426 U.S.C. § 1333 A-92 A-93 Oversight Hearings on the Effect of the Manville and UNR Bankruptcies on Compensation of Asbestos Victims, before Sub-comm. on Labor Standards of the House Comm. on Educa-= tion & Labor., 97th Cong., 2d Sess (1982) (statement of J. Paul McGrath, Assistant U.S. Attorney General) (Sept. 9, 1982) ie Austin v. Unarco Industries, ne... Me. 82-1168, (lst Cir. esc ig Oe In re: General Dynamics Asbestos Caees, C.N.L. No. 1 (D. Conn. Mar. 25, 1983) Jacobowitz v. Johns=-Manville sales Corp., No. 79 C 865 (E.D.N.VY. Sept. 28, 1982) Franklin v. Johns-Manville Corp., No. C81-533M (W.D. Wash. June 10, 1982), aff'd upon reconsideration (Sept. 20, 1982) A-ii A-105 A-178 A-186 A-214 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 32 -=- August Term, 1982 (Argued Decided October 1, 1982 February 10, 1983) Docket No. 82-6023 KEENE CORPORATION, Plaintiff-Appellant, at V.° UNITED STATES OF AMERICA, Defendant-Appellee. Before: LUMBARD, OAKES and WINTER, Circuit Judges. Plaintiff Keene Corporation appeals from a final judgment of the United States District Court for the Southern District of New York (Gerard L. Goettel, Judge), dismissing Keene's amended com- plaint for lack of subject matter juris- diction, and from an order denying Keene's motion for reargument. Affirmed. EUGENE R. ANDERSON, New York, New York (Anderson, Russell, Kill & Olick, P.C., New York, New York, Irene C. Warshauer, Marcy Louise Kahn, Frederic L. Neustadt, Daniel N. Sang, New York, New York, of counsel), for Appellant. DAVID M. JONES, Assistant United States Attorney, Southern District of New York (John s. Martin, Jr., United States Attorney, Southern District of New York, Peter C. Salerno, Assistant United States Attorney, Southern District of New zork, of counsel), for Appellee. WINTER, Circuit Judge: Keene Corporation appeals from a judgment dismissing its complaint for A-2 lack of subject matter jurisdiction entered by Judge Gerard L. Goettel, United States District Court for the Southern District of New York. The gravamen of Keene's complaint is that the United States is liable under vari- ous legal theories for the costs of more than 14,0001 personal injury and wrong- ful death actions against Keene, arising from occupational exposure to asbestos fibers contained in thermal insulation products manufactured or sold by a Keene as In January, 1979, when Keene filed its Amended Notice of Claim with a nunm- ber of government agencies in an attempt to comply with the Federal Tort Claims Act, approximately 1,000 suits had been brought against the company. The origi- nal complaint in this action was filed on January 2, 1980. By November of that year, approximately 5,959 cases and claims had been filed against Keene, and as of April 1, 1982, 12,775 lawsuits had been filed. At oral argument on Octo- ber 1, 1982, counsel for Keene informed us that the number of suits now exceeded 14,000, roughly 45 more cases being filed each week. As of April 1, 1982, only 2,888 of these claims had been ter- minated, either by settlement, verdict, non-suit or dismissal. affiliate.? On appeal, Keene urges that jurisdiction over this action exists under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-2680 (1976) or, alternatively, under the general maritime and admiralty jurisdiction of the United States, 28 U.S.C. § 1333 (1976), the Suits in Ad- Miralty Act, 46 U.s.c. §§ 741-752 (1976), the Extension of Admiralty Jurisdiction Act, 46 U.S.c. § 740 a. Keene Corporation was organized in 1967 and one year later acquired most of the stock of Baldwin-Ehret-Hill, inc. ("BEH"). BEH, together with its prede- cessors, manufactured and sold thermal insulation products containing asbestos. In 1970 BEH was merged into a newly cre- ated wholly-owned Keene subsidiary, Keene Building Products Corporations ("KEPC"). In 1974, KBPC transferred all assets and liabilities relating to the thermal insulation precucts to a divi- Sion of Keene known as Keene Insulation and Contracting Division. Keene then sold its stock in KBPC to an unidenti- fied person. KBPC and its predecessors have been named as defendants in an un- specified number of the lawsuits. (1976), and the Public Vessels Act, 46 U.S.C. §§ 781-790 (1976).° Keene's amended complaint alleges that the United States is liable to it for all costs arising out of the more than 14,000 actions. However, it has made no attempt to categorize the ac- a. In the district court, Keene also raised, as grounds for jurisdiction, the general federal question jurisdiction of the court, 26 U.S.C. § 1331 and the com- mon law. Although Keene all but aban- dons these claims on appeal, see infra note 13, it is clear that Section 1331 does not establish a waiver of sovereign immunity and therefore cannot act as a basis for federal jurisdiction in this case. Keene has also brought an action for breach of contract against the gov- ernment which is currently pending be- fore the Court of Claims. See Keene Corp. v. United States, No. 579=79C (Ct. Cl., filed Bee. 21, 1979). Keene's petition in the Court of Claims seeks damages for indemnity and contribution arising from express and implied con- tracts between the government and KBPC. In that action, the Court of Claims de- nied a government motion for summary judgment on the ground that material is- sues of fact remain in dispute. Keene Corp. v. United States, No. 579=79C (Ct. Ci. May i, i961) (per curiam). tions against it on the basis of indi- vidual characteristics, such as the role Played by the United States, the employ- ment relationship of the Claimants, the circumstances under which they came into contact with asbestos, or the theory or theories of liability. Some of Keene's allegations, moreover, use terms such as "most" or "typically" in describing the actions against it. For example, the complaint alleges that the government Played the following roles relating to the actions against it: a seller of asbestos fiber, a pur- chaser of asbestos insulation, a design- er or specifier of insulation products, an employer of the claimants or their employers, an inspector of the claim- ants' workplace, and a promulgator and enforcer of health regulations. In the case of any particular claim against Keene, however, the government may have A-6 played only one of these roles. Simi- larly, Keene alleges only that "most" of the claimants were “either employees of the defendant working in U.S. naval shipyards or employees working in pri- vate shipyards under contract to the U.S. Navy, an agency of the United States." According to Keene, the claim- ants "typically" assert that they worked with or around thermal insulation prod- ucts bearing asbestos and that in the course of their work, they were exposed to and inhaled air-borne asbestos fi- bers, causing asbestosis or other inju- ries. "Typically," the complaint al- leges, the workers were involved in shipyards, some working on shipboard, some on land, while still others were exposed to asbestos in the course of installing insulation in "power plants and other industrial and commercial plants, including refineries." The Government sold Keene some of, but ap- parently not all, the asbestos used in its products, and Keene's asbestos- containing products were sold under contract both to the government and to others. On the basis of these allega- tions, Keene asserts against the United States twenty-three causes of action, sounding in negligence, breach of war- ranty, strict liability, and unjust enrichment. Keene has denied the allegations of all 14,000 complaints and has not yet been subjected to a final judgment of liability. It has, however, settled some of the claims and incurred expenses in the defense of others. Relying upon the doctrines of indemnification, con- tribution and apportionment, Keene ar- gues that the government is liable for any and all damages it may sustain as a result of the lawsuits against it. The unusual nature of the complaint ‘and the legal problems it raises stem from the sheer volume and diversity of claims brought against Keene. Keene's counsel asserts, and we have no reason to doubt it, that Keene simply cannot afford to hire local counsel and defend each case in the many state and federal judicial districts in which actions have been brought against it. Presumably, it also cannot afford the discovery neces- Sary to analyze and categorize each action so that some semblance of order can be brought to its complaint or even to implead the government as a third party defendant in actions pending in federal district courts. As the complaint before us stands, potentially dozens of materially differ- ent factual combinations are within its allegations. Looking at the more spe- cific allegations, the government may have played at least six different roles involving at least three different cate- gories of claimant/employees, who came into contact with Keene asbestos prod- ucts in at least three different work settings. Some of Keene's products were sold to the government, some to others. Some were manufactured with asbestos purchased from the government, some with asbestos purchased elsewhere. The com- plaint is not limited even to these variables, however, since the words "most" and "typically" strongly imply the existence of actions with other factual patterns. Twenty-three separate causes of action against the government are alleged. The complaint thus literally al- leges dozens of factual combinations, e.g., (1) The government purchased insu- lation from Keene containing asbestos procured from a private producer; the insulation was used in a private ship- yard under contract to the government where employees of the shipyard were in contact with it on land; (2) A refinery purchased insulation from Keene contain- ing asbestos procured from a private producer; employees of the refinery came into contact with it in circumstances covered by government health regula- tions; (3) A refinery purchased insula- tion from Keene containing asbestos purchased from the government; employees of the refinery came into contact with it; (4) A factory purchased insulation from Keene containing asbestos procured from a private producer; the product used asbestos pursuant to government specifications and employees of the factory came into contact with it; and so on. Each combination of facts, more- over, may raise a different legal issue so far as to the government's liability to Keene or our jurisdiction is concern- ed. Were this an action against a pri- vate party, the sufficiency of the no- tice given by the complaint would obvi- ously be a serious issue. Since the United States is the defendant, however, and actions against it are permissible only where sovereign immunity has been waived, we must first address the gov- ernment's Challenge to our jurisdiction. We agree with Judge Goettel, whose ef- forts in reducing this suit to order we much appreciate, that "Keene has at- tempted to do too much at one time, with too little jurisdiction," Keene Corp. vw. United States, No. 80 Civ. 401, mem. op. at 22 (S.D.N.Y. Sept. 20, 1961). We affirm his dismissal of the complaint for substantially the reasons stated in his opinion. FEDERAL TORT CLAIMS ACT The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, requires that a claimant against the federal government file an administra- tive claim with the appropriate agency prior to institution of suit. Thus, 2& U.S.C. § 2675(a) provides in pertinent part: An action shall not be insti- tuted upon a claim against the United States for money dama- ges 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 certi- fied or registered mail. : The provisions of this subsec- tion shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. A-13 Keene contends that it has met the ad- ministrative filing requirements or, alternatively, that no administrative filing was necessary because its suit is "in the nature of a third party action." In September 1978, Keene filed a Notice of Claim with eight federal agen- cies:* four months later, in January 1979, it filed an Amended Notice of Claim.> The Amended Notice contained a list of lead plaintiffs and docket num- bers for roughly a thousand lawsuits. © 4. These agencies included the General Services Administration, the Department of Justice, the Judge Advocate General of the Army, the Department of Health, Education and Welfare, the Surgeon Gene- ral, the Department of Defense, the De- partment of Labor, and the United States Public Health Service. 2. Since Keene's Amended Notice of Claim was filed prior to final admin- istrative disposition of the September Notice, it totally supercedes that ini- tial Notice. See C.F.R. § 14.2(b). 6. Keene asserts that it has filed a subsequent Notice of Claim for another 3,822 claims, more or less, and contends (footnote continued) It described the claims against Keene as contending generally that the company had sold products containing asbestos fiber without adequate warning of the dangers posed by asbestos and stated that "[mJany if not all of the Asbestos Claims against Keene arise out of the primary fault of United States of America." The Amended Notice stated five separate claims based on (1) the government's role as supplier of asbes- tos; (2) its role as employer of ship- yard workers who were exposed to asbes- tos fibers on the job; (3) the govern- ment's failure to take precautions or (footnote continued from previous page) that the filing of the notice during this litigation should not bar consoli- dation of those claims with the earlier 1,000 claims comprised in the Amended Notice, citing Kubrick v. United States, so. F.42G. i092, i036 (3d Cir. i978), rev'd on other grounds, 444 U.S. 111 (1979); McCormick v. Cooley, 458 F. Supp. 776 (W.D. Pa. 1978). Because of the result we reach regarding the sufficiency of the Amended Notice, we need not reach this issue. A-15 warn workers regarding the dangers of asbestos after it required the use of asbestos in insulating products it pur- chased; (4) the failure of the govern- ment to make safety inspections of fa- cilities using asbestos; and (5) "any other theory that will support a claim against the United States of America for Damages." Keene did not link any of the one thousand appended claims with one or another of these grounds of liability. It simply asserted that [t]o the extent that Keene settles or has settled any such claim and to the extent that Keene has been or is held liable in any court or admini- strative tribunal or has in- curred costs and expenses, including attorneys' fees, costs of insurance and the cost of executive time with respect respect to or in con- nection with such Asbestos Claims, then the United States of America is liable to Keene for indemnity, contribution or both. "Damages" as used here- in includes all such settle- ments, judgments, indemnity, contribution, costs, expenses, insurance premiums, attorneys' fees, the cost of executive time, and such other and fur- ther relief as is just and proper. The Amended Notice then stated, The present amount of such Damages applicable to each of the claims set forth below is the sum of $1,088,135. This sum certain does not include other Damages of which Keene is not presently aware. Later, the Amended Notice again asserted that the United States of America is indebted to Keene for Damages in the sum of $1,088,135 and in an addition- al amount yet to be ascertain- ed. The requirement that a notice of claim be filed is jurisdictional and cannot be waived. House v. Mine Safety Appliance Co., S73 F.2d 609, Gi? (9th Cir.), cert. denied, 439 U.S. 862 (1978). Moreover, because the FTCA constitutes a waiver of sovereign immu- nity, the procedures set forth in Sec- tion 2675 must be adhered to strictly. Three-M Enterprises, Inc. v. United States, 548 F.2d 293, 295 (10th Cir. 1977); Brown v. General Services Admini- stration, 507 F.2d 1300, 1307 (2d Cir. S974), aff 2. 425 U.S. 826 (1976). Since Keene has filed no Notice of Claim regarding the vast majority of the suits against it,’ it is clear that no jurisdiction exists under the FTCA as to these claims. As to the remaining claims, the government also contends that the Amended Notice is defective because it failed to state a sum cer- tain, 28 C.F.R. § 14.2 (1980), and be- cause it does not provide sufficient information to permit an investigation, see 28 C.F.R. § 14.4 (1980), as required by regulations promulgated pursuant to 28 U.S.C. § 2672.8 ye See supra note 6. 8. 28 U.S.C. § 2672 provides in perti- nent part that (footnote continued) While there is a conflict among the courts concerning whether the admini- strative filing requirements of Section 2675 -- which are jurisdictional in nature -- should be read in the light of regulations issued under 28 U.S.C. (footnote continued from previous page) {t}]he head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascer- tain, adjust, determine, com- promise, and settle any claim for money damages against the United States 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 agency while acting within the scope of his office or em- ployment, under circumstances where the United States, if a private person, would be lia- ble to the claimant in accord- ance with the law of the place where the act or omission oc- curred: Provided, That any award, compromise, or settle- ment in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee. § 2672,” courts seem agreed that the statement of damages in any Notice of Claim must contain a Sum certain. See, e.g., Adams v. United States, supra note 9. For example, the Fifth Circuit has ruled that the regulations do not apply to Section 2675 because they bear solely on the procedures to be followed for the settlement of claims and not on the man- ner in which a claimant must Present his or her claim. Adams v. United States, 615 F.2d 284, 288 (Sth Cir. 1980). Sim- gLarivy. in Douglas v. United States, 658 F.2d 445, 447-48 (6th Cir. aoe.), the Sixth Circuit held that [t]hese regulations, however, govern administrative settle- ment proceedings; they do not set federal jurisdictional prerequisites. By failing to comply with regulations prom- ulgated under 28 U.S.c. § 2672, a claimant loses only "the opportunity to settle his or her claim outside the courts." (citation omitted) In contrast, other circuits have applied the Section 2672 regulations in deter- mining the sufficiency of a Notice of Claim. See, €.g., House v. Mine Appli- ances, 573 F.2d at 615-16; Lunsford v. United States, 570 F.2d 421, 4225 (8th Cir. 1977); Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 19-20 (3d Cir. 1975). Although the Second Circuit has not directly address- (footnote cartéinued } 9, 615 F.2d at 291 n.15 (Section 2672 regulations do not apply to Section 2675 but the claimant still must state a sum certain). Section 2675 is designed, in conjunction with Section 2672, to pro- vide a procedure under which the govern- ment may investigate, evaluate and con- sider settlement of a claim. This pur- pose requires that the Notice of Claim provide sufficient information both to permit an investigation and to estimate the claim's worth. It seems clear to us that a claim which includes "an addi- tional amount yet to be determined," which may dwarf the sum stated, is a request for damages so indefinite as to fail to satisfy the statutory purpose. (footnote continued from previous page) ed the issue, district judges in this circuit have applied the Section 2672 regulations to Section 2675. See e.g., Luria v. Civil Aeronautics Board, 473 F. Supp. 242, 244 (S.D.N.Y. 1979); Kantor v. Kahn, 463 F. Supp. 1160 (S.0.mics. L979). We £ind it unnecessary A-21 Faced with a reservation as to future damages which may entail huge sums, government officials cannot possibly evaluate the claim with a view to set- tlement. Keene suggests that the Court may Strike as surplusage the reservation as to future claims, Erxleben v. United States, 668 F.2d 268 (7th Cir. 1981); Fallon v. United States, 405 F. Supp. 1320, 1322 (D. Mont. 1976). However, Keene failed to Satisfy statutory pur- pose even as to its $1,088,135 claim because it did not specify the amount of indemnity or contribution it demanded for each underlying lawsuit. Where separate claims are aggregated under the FTCA, the claimant must present the government with a definite damage amount for each claim. Kantor v. Kahn, supra note 9, 463 F. Supp. at 1164. Only with a breakdown on a claim by claim basis can the government evaluate the underly- ing merits of the claims against it in order to decide whether to settle or to litigate. Keene's Amended Notice is insuffi- cient on yet a second ground. The gene- rality of the statement claiming liabil- ity on the part of the government failed to provide sufficient information re- garding the nature and merits of Keene's claim so far as liability is concerned. The burden is on the claimant to provide this information, Kantor, supra, and that burden is not met simply either because the government is generally familiar with asbestos litigation or because the case names and docket num- bers are appended to the Notice. Keene's Notice does no more than create an opportunity for the government to sift through the record of each of the lawsuits named. That is not sufficient notice to enable the government to eval- uate its exposure so far as liability is concerned. The problem of the sufficiency of notice in this case is more than a ques- tion of technical niceties. Keene's laundry list of potential variables makes it impossible for the government == or a court -=- to evaluate Keene's action against the government. Dozens of different combinations of material facts are possible under the complaint, and the exposure of the government on liability may vary enormously between them, yet, short of a detailed examina- tion of each action against Keene, the government cannot evaluate that expo=- sure. Keene's failure even to organize the individual suits by general category ethets makes it impossible for the gov- ernment to respond to Keene's suit. We are aware that the cost of Ordering the thousands of actions brought against Keene may be staggering. The FTCA, however, does not authorize us to bal- ance relative means or relative hard- ships but places the burden on the claimant to provide sufficient details of the claim made against the govern- ment. Keene contends that it is excused from the filing requirement because its suit is in the nature of a third party complaint. 28 U.S.C. § 2675. However, under Fed. R. Civ. P. 14, a third party action is one in which a defendant asserts a claim against a non=-party to the original action for all or part of the plaintiff's claim against him. Since Keene is the original com- plainant in this suit, its action is not within Rule 14. See generally, 6C Wright & A. Miller, Federal Practice and Procedure §§ 1441, 1453-55 (1971). We perceive no reason to read the FTCA's reference to third party actions as included more than is encompassed by Rule 14,10 10. Keene relies heavily upon a case decided by Judge Blumenfeld, Raybestos- Manhattan, Inc. v. United States, No. H-78-416 (D. Conn. Feb. im, 2979). ie that case, approximately 100 suits had been filed against Raybestos, a manufacturer of asbestos insulation products, by employees of the Elecric Boat Division of the General Dynamics Corporation for damages as a result of their exposure to asbestos. Other insulation manufacturers were also named as defendants in the suit. Raybestos, however, was the only defendant which was a citizen of Connecticut and, as a result of the absence of diversity jurisdiction, the Electric Boat employees, who were also Connecticut citizens, had to sue Raybestos in a State court, while those who were citizens of Rhode Island brought their actions in the District of Connecticut. While Raybestos impleaded the United States in the federal suits, it was unable to implead the United States in the state court actions, 28 U.S.C. § 1346(b), and, therefore, filed an in- dependent action in the district court for indemnity and contribution for the state court actions. Judge Blumenfeld denied the government's motion to dis- miss for lack of subject matter juris- {footnote continued) ADMIRALTY JURISDICTION The Suits in Admiralty Act ("SIAA"), 46 U.S.C. §§ 741-752, and the Public Vessels Act ("PVA"), 46 U.S.C. §§ 781-790, waives sovereign immunity in the area of maritime torts. Under the SIAA the United States waives sovereign (footnote continued from previous page) diction, holding that the action should be brought within the third party excep- tion of 268 U.S.C. § 2675(a) in order to further the joinder policies behind Fed. R. Civ. P. 14 and to avoid needless du- plication of litigation. Judge Goettel distinguished Raybestos on the grounds that Judge Blumenfeld's ruling created the opportunity for joint trial and joint discovery for a small number of claims that were in almost every way Similar to and a part of the larger federal action. While Raybestos in- volved indemnification for suits in only one federal district and the courts of one state, the present case involves suits in numerous federal and state courts. Finally, unlike the defendant in Raybestos, Keene has failed to im- plead the United States into those suits which were brought against it in the federal courts. Since we hold that Keene's action is clearly not covered by Rule 14, we express no opinion as to the merits of the distinctions relied upon by Judge Goettel as far as Raybestos is concerned. immunity with respect to cases in which "if such vessel were privately owned or operated, or if such cargo were private- ly owned or possessed, or if a private person or property were involved, a Proceeding in admiralty could be main- tained.” 46 U.S.C. $8 742. ‘The PYA waives sovereign immunity with respect to "damages caused by a public vessel of the United States." 46 U.S.C. § 781. Keene argues that even if we lack juris- diction over its claim under the Frca, }} federal jurisdiction exists in admiral- cy. Admiralty jurisdiction in tort exists when the wrong (1) took place on navigable waters ("situs") and (2) "bear[s] a significant relationship to traditional maritime activity" ("sta- 11. These jursidictional bases are mutually exclusive. The FTCA speci- fically provides that it does not apply to suits in admiralty against the United States. 28 U.S.C. § 2680(d). tus"). Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 254-61 (1972); Foremost Insurance Co. v. Richardson, 50 U.S.L.W. 4778, 4780 (U.S. June 22, 1982) (approving application of Executive Jet test outside the context of aviation torts); see also Kayfetz v. Walker, 404 F. Supp. 75, 76 (D. Conn. 1975) (Lumbard, Circuit Judge). 74 12. Keene argues that the situs test must be read in the light of the Exten- sion of Admiralty Jurisdiction Act ("EAJA"), 46 U.S.C. § 740, which extends admiralty jurisdiction to injuries on land caused by a vessel or its appurten- ances, and, relying upon White v. Johns-Manville Corp., 662 F.2d 234, 239 fata Cit. 1981). cert. denied. i102 S.Ct. 1037 (1982) ("White II"), asserts that once installed, asbestos-containing in- sulation becomes an appurtenance of the vessel. However, Keene has failed to meet the requirements of the EAJA. Like the FTCA, the EAJA requires submission of a notice of claim to the appropriate federal agencies prior to filing suit in the district court. Keene's Amended Notice does not constitute an adequate "claim" under the EAJA for the same rea- son that it fails to satisfy the FTCA notice requirements. Keene's argument regarding the EAJA is also somewhat be- side the point in view of our holding (footnote continued) A-29 The Amended Complaint states that "[mjost of the claimants [against Keene] were involved in installing high temper- ature thermal insulation around pipes and boilers on naval ships, on vessels in navigable waters, and in power plants and other industrial and commercial Plants, including refineries." Admiral- ty jurisdiction clearly does not extend to those workers who were exposed to asbestos in power plants, refineries, and other land-based commercial facili- ties, and even if the other workers were exposed to asbestos in a maritime situs, see White II, supra note a2, 662 F.2d at 242 (Widener, J., concurring), it is impossible to determine which of the (footnote continued from previous page) that its claim satisfies neither the situs nor the status tests of Executive Jet. Although failure to Satsify either would be fatal to admiralty jurisdic- tion, our reasoning in rejecting the claim of admiralty situs applies equally to the extended situs test of the EAJA. A-30 underlying actions would be properly heard in admiralty, and which not, without a case by case evaluation. Where a group is composed of workers with and without maritime status, admiralty jurisdiction does not exist as to the group. Brown v. United States, No. H-76-434, slip op. at 21-22 (D. Conn. July 23, 1979). Keene now offers to make such an individualized showing in an evidentiary hearing before the district court. Since Keene refused several previous opportunities to individualize the claims against it, we believe this offer comes too late. Moreover, Keene has not met the second prong of the Executive Jet test, the status requirement, and a hearing on individualized situs would be futile. Keene argues that the fact that its products were ultimately installed and used on shipboard is, by itself, suffi- A-31 cient to meet the status test of Execu- tive Jet. However, Keene's argument makes the geographic location of a tort decisive as a matter of law and thus effectively collapses the situs and status test, a result Executive Jet expressly seeks to avoid. In Kelly v. United States, 531 F.2d 1144, 1146 (2d Cir. 1976), we stated that the status test is satisfied when the "acts and omissions ... suffi- ciently relate to traditional maritime activity," whether land-based or not. Under the Kelly decision, two elements are critical in this case. First, Keene does not allege that its insulation was designed specifically for maritime use. Indeed, it appears from the complaint that it was used in a variety of land- based plants and refineries. Second, many of the roles attributed to the government and allegedly giving rise to Keene's causes of action -- the govern- ment's sale of asbestos to Keene, its specification of asbestos as a component of insulation it purchased from Keene, its alleged breach of its duty to in- spect the work place, its obligations as a promulgator of health regulations -- do not bear a significant relationship to traditional maritime activities such as "navigation and commerce." See Kay- fetz v. Walker, 404 F. Supp. at 76. These roles seem even less intimately connected with such activities than contracts for shipbuilding, contracts to supply materials for ship construction and warranties arising under such con- tracts, which are non-maritime, see, e.g., North Pacific Steamship Co. v. Hall Brothers Marine Railway and Ship- building Co., 249 U.S. 119, 126-27 (1919); White v. Johns-Manville CorD., 662 F.2d 243, 247 (4th Cir. 1981) ("White I"); G. Gilmore and Cc. Black, The Law of Admiralty 26 (2d ed. 1975), and contract for services to a vessel laid up and out of navigation, also non-maritime status. G. Gilmore and C. Black, The Law of Admiralty at 26. In- deed, a tort arising out of work on an uncompleted vessel has been held to fall outside admiralty jurisdiction. Hollis- ter v. Luke Construction COo., Si7 F.24 720, 921 (Sth Cir. 1975) (per curiam). General allegations that the contacts with asbestos took place in shipyards or even aboard launched vessels are thus insufficient to establish admiralty jurisdiction. These defects in the com-= plaint are fatal as well to Keene's argument that its contractual breach of warranty and indemnity claims sound in admiralty. The government's sale of asbestos to Keene is a contract lacking in maritime flavor, as is, absent fur- ther specification, Keene's provision of insulation to the government. Viewed as a whole, therefore, Keene's claims fail to implicate tradi- tional concepts of maritime law such as seaworthiness, cargo damage, salvage, or the like. We expressly decline to fol- low the reasoning of the Fourth Circuit in White II, 662 F.2d at 239-40 (holding that the personal injury claims of ship- yard workers engaged in installation of asbestos insulation are cognizable in admiralty), White I, 662 F.2d at 249 (holding the manufacturers' third party complaint against the workers' employer also fell within admiralty jurisdic- tion), and Glover v. Johns-Manville Cora., 662 F.2d 225, 232 (4th Cir. 1981) (insofar as it held that admiralty ju- risdiction might exist over manufac- turers' indemnity claims against the government under the SIAA or PVA) and, as well, the reasoning of the Fifth Circuit in Sperry Rand Corp. v. Radio Corporation of America, 618 F.2d 319 (Sth Cir. 1980) (holding that an action for indemnity or contribution could be brought in admiralty against a manufac- turer whose products were implicated in a grounding of a vessel anda collision upon navigable waters even though the articles in question were not designed specifically for marine use). 23 13. Insofar as we find that Keene has not met the jurisdictional requirements of the FTCA, SIAA or PVA, we need not consider its claims under the Federal Employees Compensation Act ("Feca"), & U.S.C. §§ 8101-8193 (1976). The FECA is the exclusive remedy of federal employ- ees, such as federal shipyard workers, against the United States, although they may, of course, institute suit against third parties such as Keene. The FECA does not constitute a waiver of sover- eign immunity as to third parties; indeed it bars suits against the United States for contribution and indemni- fication by joint tortfeasors. See 5 U.S.C. § 8116(c); Galimi v. vetco, Inc., 914 F.2d 949, 953 (2d Cir. 1975). Sven were suits for indemnification possible, (footnote continued) CONCLUSION Our rejection of Keene's claims in no sense reflects either a lack of sym- pathy for its predicament or a belief (footnote continued from previous page) because there is no waiver of sovereign immunity under the FECA, Keene would be required to assert an independent juris- dictional base under FTCA, SIAA, or PVA. For the reasons stated in the body of this opinion, such jurisdictional grounds are foreclosed. General federal question juriediction, 28 U.S.C. % 1331, is also lacking because it contains no waiver of sovereign immunity. See supra note 3. To the extent that Keene's claims for indemnity are contractual, its remedy is in the Court of Claims under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491. See Galimi, 514 S.20 at 395i a.2. Keene also seeks recovery of the FECA benefits that the government has recouped from government employee as- bestos claimants through its statutory lien on their awards or settlements from Teare parties. S&S G.S.C. § 8132. Once again Keene claims jurisdiction for its claim under the FTCA and SIAA, which we have already held to be barred. Keene also raises general federal question jurisdiction for this claim, alleging, inter alia, that there has been an unconstitutional taking of property without due process. We agree with Judge Goettel that insofar as Keene (footnote continued) that Keene's counsel might have somehow remedied the fatal defects in its com- plaint. The very volume and diversity of claims which have placed Keene in its unfortunate position also preclude the wholesale adjudication of its essential- ly individual, retail claims against the government. Upholding Keene's complaint might well "put the government's feet to the fire" in order to provoke a legisla- (footnote continued from previous page) relies on Section 1331 to establish federal jurisdiction for a suit involv- ing a constitutional tort following the rational of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcot- ics, 403 U.S. 388 (1971), it is mistaken precisely because there is no waiver of sovereign immunity. Bivens authorizes suits against the responsible federal official, Butz v. Economou, 438 U.S. 478, 504 (1978), not against the govern- ment itself, Norton v. United States, S81 F.2d 390, 393 (4th Lr. ), Care. denied, 439 U.S. .1003 (1978), and Bivens-type actions against the United States are, as the district court noted, routinely dismissed for lack of subject matter jurisdiction, See, e.g., Contem- porary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 104 (2d Cir. 1981). tive solution to the burgeoning asbestos litigation, but it would also do vio- lence to established processes of the judicial system and well established principles relating to the FTCA and admiralty jurisdiction. Affirmed. A-39 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KEENE CORPORATION, Plaintiff, : S80 Civ. 401 (GLG) -against- THE UNITED STATES : @FRIiNi oS N OF AMERICA, Defendant. oe om x APPEARANCES La ANDERSON RUSSELL KILL & VLICK, F.C. Attorneys for Plaintiff 630 Fifth Avenue New York, New York 10111 By: Eugene R. Anderson, Esq. Nicholas L. Coch, Esq. Irene C. Warshauer, Esq. Marcy Louise Kahn, Esq. Frederick L. Neustadt, Esq. Of Counsel JOHN S. MARTIN, %) ae United States Attorney for the Southern District of New York Attorney for Defendant One St. Andrew's Plaza New York, New York 10007 By: David M. Jones, Esq. Assistant United States Attorney Of Counsel A-40 PVT TE hi, OD. J. This action arises out of the pro- liferation of litigation relating to exposure to asbestos that has saturated federal and state courts throughout the country.? Plaintiff Keene Corporation ("Keene") is a defendant in over 6000 lawsuits brought by persons alleging personal injury or death from inhalation of asbestos fibers contained in thermal 1. Asbestos is a mineral fiber that ap- pears throughout the world and which is best known for its use as an insulator against heat. It has been recognized for over fifty years that the inhalation of asbestos dust can produce a disease known generally as asbestosis. Asbes- tosis is technically defined as a form of pneumoceniosis. Although lawsuits arising out of exposure to asbestos are commonly referred to as asbestosis law- suits, they actually include a variety of diseases such as lung cancer, cancer of the esophagus, cancer of the stomach, and cancer of the colon. For a general description of asbestosis and asbestosis litigation, see Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (Sth Cir. 1973), cert. denied, 419 U.S. 869 (1974), and the authorities cited there- in; In Re Asbestos & Asbestos Insulation Material Products Liability Litigation, 431 F. Supp. 906 (J.P.M.L. 1977). insulation products alleged to have been manufactured or sold by Keene and its subsidiaries. In this action, Keene seeks indemnity and contribution from the United States for all damages that Keene may sustain as a result of these lawsuits. > The Government moves to dis- 2. Keene alleges that it has never manufactured or sold thermal insulation Products that contain asbestos. Keene was organized and formed in 1967. In 1968, Keene acquired most of the stock of Baldwin-Ehret-Hill, Inc. ("B-E-H") which, together with its predecessors, had manufactured and sold thermal insulation products containing asbestos fiber.. In 1970, B-E-H was merged into a newly created Keene subsidiary, Keene Building Products Corporation | “FePC"). Keene sold the stock of KBPC in 1974. 3. The gist of Keene's claims against the Government is that the Government utilized asbestos-containing thermal insulation up until 1979 despite the Government's knowledge, allegedly as early as 1938, of the hazards of asbestos. Keene also alleges that the Government had the knowledge and technical skill to prevent worker exposure to excessive dust concentration, but failed to take appropriate action. (The Government has reserved its right, pending decision of this motion, to move to dismiss for failure to state a claim against these novel theories of liability. ) A-42 miss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the Court lacks subject matter jurisdiction over the claims as- serted by Keene. In its amended complaint, Keene alleges twenty-three separate causes of action sounding in negligence, breach of Warranty, strict liability, and unjust enrichment, as well as a violation of the Due Process Clause of the United States Constitution. Keene has also brought an action for breach of contract against the Government that is currently pending in the United States Court of Claims.” See Keene Corp. v. United ocaces, No. 579-79C (Ct. Cl., filed *. In its petition in the Court of Claims, Keene seeks damages for indemnity and contribution allegedly arising from express and implied contracts between the Government and KBPC. The Court of Claims recently denied a Government motion for summary judgment on the ground that issues of material fact remain in dispute. See Keene Corp. v. United States, No. 579- 73— (CG. Cli. May 1, 1981) (per curian). Dec. 21, 1979). Jurisdiction for this action is asserted under the Federal sort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seg., alternatively under the general admiralty and maritime law of the United States of America, 28 U.S.C. § 1333, the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740, and the Public Vessels Act, 46 U.S.C. §§ 781-790, and alternatively, under 28 U.S.C. § 1331 and the common law. Having reviewed the thousands of pages of memoranda and affidavits sub- mitted by the parties in connection with this motion, the Court has determined that this action is barred by the doc- trine of sovereign immunity. The Federal Tort Claims Act The jurisdictional issue under the Federal Tort Claims Act ("“FCTA"), 28 A-44 U.S.C. § 2671 et seq., stems from the requirement that the claimant file an administrative claim with the appro- priate federal agency prior to insti- tutine suit. 26 U.S.C. § 2675. Secticn 2675 provides in pertinent part that {a]Jn action shall not be instituted upon a claim against the United States for money .. . unless the claimant shall have first presented the claim to the appropriate Fed- eral agency and his claim shall have been finally denied. ‘ The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counter claim. (Emphasis added. ) Keene contends that this action is in "the nature" of a third party complaint and consequently comes under the excep- tion for third party claims. in the alternative, it argues that this admin- istrative filing requirement has been satisfied. The purpose of the administrative filing requirement is to expedite the settlement of tort claims asserted A-45 against the government and to avoid un- necessary litigation. Adams v. United States, 615 F.2d 284 (Sth Cir.), rehear- ing denied, 622 F.2d 197 (5th Cir. 1980). The exception for third party complaints is consistent with this pur- pose in that it fosters the policy of the Federal Rules of Civil Procedure favoring resolution of as many claims as possible in one lawsuit. Raybestos- Manhattan, Inc. v. United States, No. H-/78-416, slip op. at 7 (D. Conn. Feb. 15, 1979); Jacoby, The 89th Con- gress and Government Litigation, 67 Colum. &. Rev. 1212. 3279 (2967). The administrative filing requirement is jurisdictional and cannot be waived. House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.), cert. denied, 439 U.S. 862 (1978); Goulding v. United States, 488 F. Supp. 755 (D. Ariz. 1980), rev'd on other grounds sub non. Poindexter v. United States, 647 F.2d 35 (9th Cir. 1981). Moreover, because it constitutes a waiver of sovereign immunity, the procedures delineated in | section 2675 must be strictly construed. Three-M Enterprises, Inc. v. United states, 5468 F.2d 293, 295 (i0th Cir. 1977); Brown v. General Services Administration, S07 F.2d i300, i307 (2d Cis. 1976), aff'd, 425 U.S. 820 (1976). Consequently, the exceptions for third party complaints, cross-claims, and counterclaims have likewise been strictly construed. See, e.g., West v. United States, 592 F.2d 487 (8th Cir. 1979); Rosario v. American Export- isbranctsen Lines, iInc., 531 F.2d 1227 (3a Cir.), cert. denied, 429 U.S. 857 (1976); Bernard v. U.S. Gines, inc., 475 yaa 2236, 141396 (40h Cir. i973). It would appear, therefore, that Keene's contention that the Court should treat this action as being "in the nature of a third party action" should be summarily A-47 rejected. Our only hesitancy in so pro- ceeding comes from the unpublished deci- sion in Raybestos-Manhattan, Inc. v. United States, supra, in which Judge Blumenfeld of the United States District Court of Connecticut did something like what Keene proposes the Court do here. Raybestos arose from highly unusual circumstances. Approximately one hun- dred suits had been filed against Ray- bestos-Manhattan, Inc. ("Raybestos"), a manufacturer of asbestos insulation pro- ducts, by employees of the Electric Boat Division of the General Dynamics Corpo- ration ("Electric Boat") for damages resulting from their exposure to asbestos. Suits against other manufac- turers of asbestos products had been filed in the District of Connecticut as well. Raybestos, however, was the only manufacturer defendant that was a citi- zen of Connecticut. As a result, the Electric Boat employees who were citi- A-48 zens of Connecticut were required to sue Raybestos in Connecticut state court because there was no diversity juris- diction. Raybestos impleaded the United States in all of the cases filed against Raybestos in federal court. Because it could not implead the United States in the state court actions, see 28 U.S.C. § 1346(b), Raybestos filed an indepen- dent action in the district court for indemnity and contribution for the state court actions. The Government moved to dismiss for lack of subject matter jur- isdiction. Judge Blumenfeld denied the motion, holding that the complaint should be treated as a third party com- plaint to the extent that it would bring the action within the "third party" ex- ception of 28 U.S.C. § 2675(a). The principal reason underlying Judge Blumenfeld's decision was to gain judicial economy in an unusual set of circumstances. The same considerations do not apply to the case at bar. All the cases filed in the District of Con- necticut by employees of Electric Boat had been consolidated for purposes of discovery because of the complexity of the litigation. This action, in con- trast, involves twenty-eight separate federal districts and includes cases that are not related to shipbuilding activities. See generally In Re Asbes- tos & Asbestos Insulation Material Products Liability Litigation, 431 F. Supp. 906 (J.P.M.L. 1977). (Ironically, none of the cases brought against Keene have been filed in this Gistrict. } Moreover, unlike Raybestos, which had impleaded the United States in those cases that had been filed in federal court, Keene has generally not impleaded the United States in the federal actions brought against Keene. To the extent that cases brought against Keene have A-50 been terminated, this action would not effectuate any of the joinder policies of Rule 14 discussed by Judge Blumenfeld in Raybestos. In short, whereas Judge Blumenfeld avoided the duplication of litigation that would have resulted merely because some of the plaintiffs lacked diversity, this action does not avoid such duplication. Accordingly, the Court shall not treat this action as a third party action for the purposes of the section 2675(a) exception. Keene argues in the alternative that it has satisfied the administrative filing requirements of section 2675. Prior to the commencement of this ac- tion, Keene presented an Amended Notice of Claim” ("Amended Notice") listing the docket numbers of approximately 1000 5. An undated "Notice of Claims" was submitted to the agencies on or about September 25, 1978. This initial notice was superceded by an "Amended Notice of Claim" ("Amended Notice"), which was filed prior to final administrative disposition of the initial notice. lawsuits instituted against Keene for damages allegedly resulting from the exposure to asbestos fibers. This no- tice was »nresented to various agencies including the General Services Adminis- tration, the Department of Justice, the Judge Advocate General of the Army, the Department of Health, Education & Wel- fare, the Surgeon General, the Depart- ment of Defense, the Department of Labor, and the United States Public Health Service. By the time Keene filed this action, 1500 more lawsuits had been filed against it. A total of 6000 law- suits had been filed by the time this Court heard oral argument on this mo- tion. ® Most of the lawsuits for which Keene seeks indemnification or contri- bution, therefore, are not encompassed 6. As of November 1, 1980, 5,959 cases had been filed against Keene of which approximately 700 had been terminated by settlement, verdict, non-suit, or dismissal. Approximately forty-five new cases are filed against Keene each week. Affidavit of Howard Mileaf q 5. by the Amended Notice. Consequently, Keene's claims resulting from those law- suits clearly cannot be considered under the FTCA. See Szyka v. United States Secretary of Defense, 525 F.2d 62, 65 (2d Cir. 1975); Altman v. Connally, 456 R.g0 i134, 1316 (20 Cir. 1972). With respect to the 1000 lawsuits for which purported administrative Claims have been filed, the Government contends that the Amended Notice is de- fective because it fails to state a sum certain, see 28 C.F.R. § 14.2 (1980), and because it does not provide suffi- cient information to allow an investi- gation, see 28 C.F.R. § 14.4 (1980), 7 as ae The Government also contends that the Amended Notice is defective because it was not accompanied by evidence of the purported representative's authority to present a claim on behalf of Keene as required by 28 C.F.R. § 14.3(e). This request, however, appears to have been satisfied by a letter from Keene's chief executive, Glenn W. Bailey, to the De- partment of Justice that specifically authorizes Keene's lawyers to present claims on Keene's behalf. required by the regulations promulgated pursuant to 28 U.S.C. § 2672." There is a conflict among the circuit courts, however, over whether the administrative filing requirements of 28 U.S.c. s 2675 should be read in light of these regu- 8. ae U.8.C. §& 2672 provides, in per- tinent part, that [t]he head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, as- certain, adjust, determine, compromise, and settle any claim for money damages against the United States 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 agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the Claimant in accordance with the law of the place where the act or omission occurred: Provided, That any award, com- promise, or settlement in ex- cess of $25,000 shall be ef- fected only with the prior written approval of the At- torney General or his desig- nee. lations. The Fifth Circuit has ruled that these regulations do not apply to section 2675 because they bear solely on the procedures to be followed for the settlement of claims and not on the manner in which a claimant must present his or her claim. See Adams v. United States, supra, 615 F.2d at 288-293. In contrast, other circuits have applied the Justice Department regulations to determine whether a claimant has satisfied section 2675. See, e.g., House v. Mine Safety Appliances Co., supra, 573 F.2d 615-16; Lunsford v. United States, 570 F.2d 221, 225 (8th Cir. 1977); Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 19-20 (3d Cir. 1975). Although there does not appear to be any Second Circuit decision directly on point, district judges in this circuit have applied these regulations to section 2675. oe. &.¢., Lauria ¥. C.A.8.. 673 Fe. Supp. 242, 244 (S.D.N.Y. 1979) (Lasker, J.); Kantor v. Kahn, 463 F. Supp. 1160 (S.D.N.Y. 1979) (Sand, J.). Despite this conflict over the re- lationship between sections 2672 and 2675, it is well established that a claimant must place a specific dollar amount on his damages. Adams v. United States, supra, 615 F.2d at 291 n.15.7 It is clear that Keene has failed to satisfy this requirement. The Amended Notice does not seek a definite sum of money. Rather, Keene seeks $1,088,135 plus "an additional amount yet to be ascertained, "1° Claims for indetermin- 9. In Adams, the Fifth Circuit con- strued section 2675 as requiring the notice of claim to include a specific amount of claimed damages. Other cir- cuits have reached the same result through the "sum certain" requirement of 28 C.F.R. § 14.2 (1980). See, °.¢., Caton v. United States, 495 F.2d 635, 637 (9th Cir. 1974). 10. Amended Notice of Claim at 13. Similarly, in its Amended Complaint, (footnote continued) ate damages simply do not satisfy the sum certain requirement. See, e.g., Caton v. United States, 495 F.2d 635 (9th Cir. 1974); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971): Raymond v. United States, 445 F. Supp. 740 (E.D. Mich. 1978); Wright v. United guecee, G27 ©. Supp. 726, 727 ua.2 (o. Oeil. 1977). Keene responds that the Court may disregard the reservation as to future claims. See Fallon v. United States, 405 ©. Supp. 1320, 1322 (D. Mont. 1976). But see Mudlo v. United States, 423 E. Supp. 1373 (W.D. Pa. 1976). Even if the Court were to do so, however, the Amended Notice would still be deficient because it fails to particularize the damages requested for each individual lawsuit insofar as Keene seeks "costs, (footnote continued from previous page) Keene seeks "an amount presently unknown but which is believed to be in excess of $20 million." Amended Complaint at 36. expenses, insurance premiums, attorneys’ fees [and] the cost of executive time. "11 There is another reason why the Amended Notice is insufficient. After Keene submitted the Amended Notice, the Justice Department, on its behalf and on behalf of the other agencies to which the Amended Notice had been sent, requested a more detailed statement from Keene pursuant to 28 C.F.R. § 14.4 11. In this regard, the Court agrees with the Government's analogy to ad- ministrative tort claims made on behalf of a class of claimants. Although Keene has technically put forth only one Claim, that claim si the aggregate of the one thousand separate claims that Keene could have filed for each indivi- dual lawsuit filed against Keene. In this respect, it is like a class action. When an aggregate claim is made on behalf of a class of Claimnants, the no- tice must state a specific amount for each claim. See, e.g., House v. Mine Safety Appliances Co., supra, 573 F.2d at Gid; Turia vv. C.A.B., supra, 473 F. Supp. at 245; Kantor v. Kahn, supra, 463 F. Supp. at 1164. Similarly, Keene must state the specific amount it seeks for each individual asbestosis lawsuit. Keene has failed to do this. (1980). Specifically, the Justice Department requested a list of the amount of damages sought on each claim together with an itemization of various additional items of recovery sought by Keene in relation to each particular lawsuit. It also requested information regarding any insurance benefits that Keene might have recovered on these claims. Keene has not provided this information to the Government. Once again, although there is a dispute over whether the regulations enacted pursuant to section 2672 apply to section 2675, compare Adams v. United States, supra, with Swift v. United States, 614 F.2d 812 (lst Cir. 1980), the Government, at a minimum, is entitled to sufficient information to enable it to evaluate the claim and choose between settlement and litiga- tion. Adams v. United States, supra, 615 F.2d at 289. Claimants who fail to respond to an agency's request for this information are treated as having not exhausted their administrative remedies and, consequently, cannot present their Claims to a district court. See Swift v. United States, supra, 614 F.2d at 814; Emch v. United States, 474 F., Supp. 99, 103 (B.D. Wis. S979), aff'd, 636 F.240 523 (7th Cir. 1980), cert. denied, 401 S. Ct. 3463 (1981); Founding Church of Scientology v. F.B.1., 459 F. Supp. #46 (D.D.C. 1978). Keene' a response that the Government is generally familiar with asbestosis litigation is insufficient. Although the Government may be on notice of the Various theories On which Keene seeks contribution and indemnification, the Government is nevertheless entitled to specific information regarding each claim. See ee Founding Church of scientology, supra, 459 ©. Supp. at 758. The Government Clearly cannot be expected to settle the A-60 claims on an all or nothing basis. Moreover, the Government is not required to sift through the records of the indi- vidual lawsuits filed against Keene; the burden is on the claimant to supply the necessary information. See Kantor v. Kahn, supra, 463 F. Supp. at 1163. Because Keene has failed to comply with the administrative filing require- ments of section 2675, the Court cannot exercise subject matter jurisdiction over the claims asserted under the FTCA. We next consider Keene's claim of admiralty jurisdiction. +? Admiralty Jurisdiction The Suits in Admiralty Act ("SIAA"), 46 U.S.C. § 741 et seq., and the Public Vessels Act ("PVA"), 46 12. These two theories of jurisdiction are mutually inconsistent. The FTCA specifically provides that it does not apply to suits in admiralty against the United States. 28 U.S.C. § 2680(d); see Kelly v. United States, 531 F.2d 1144 (2a Cir. i976). V.o.cC. § 781 et seg., constitute a Waiver by the United States of its sovereign immunity against suits arising out of maritime incidents. Blanco v. United States, 464 F. Supp. 927, 930 (S.D.N.Y. 1979). Under the SIAA, the United States has waived sovereign immu- nity with respect to "cases where if such vessel were privately owned or operated, or if such cargo were pri- vately owned or possessed, or if a pri- vate person or property were involved, a proceeding in admiralty could be main- Teined.” 46 U.S.C. & 742. By the PVA, sovereign immunity was further lifted with respect to "damages caused by a public vessel of the United States." 46 U.S.C. § 781. This aspect of the motion to dismiss, therefore, turns on whether Keene's claims against the United States come within this admiralty jurisdiction. a. Tort Jurisdiction We note at the outset that although the persons making claims against Keene were often exposed to asbestos in mari- time settings, Keene's claims over against the United States result from actions and inactions taken in Washington, D.C. See note 3 supra. It is a very long stretch to convert these governmental decisions into admiralty torts. We shall proceed, however, on the assumption that the ultimate damage to Keene bears a remote relationship to admiralty. The standard test for federal admiralty tort jurisdiction is (1) did the wrong occur on navigable waters, and (2) does the wrong complained of bear a Significant relationship to traditional maritime activity. Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 254-61 (1972). The first part of the Executive Jet test, the situs requirement, however, must be read in light of the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740 ("EAJA"), which extends jurisdiction to injuries that occur on land, so long as the injury was caused by a vessel or one of its appurtenances. See generally Victory Carriers, Inc. v. Law, 404 U.S. 202, 209-12 (1971). The EAJA does not affect the requirement that the wrong bear a significant relationship to traditional maritime activity. See Heim v. City of New York, 442 F. supe. 35, 37 (2.D0.N.¥. 1977). A difficult aspect of this case is determining where the alleged wrong occurred. Keene alleges in Paragraph 13 of the Amended Complaint that "[mjost of the claimants were involved in installing high temperature thermal insulation around pipes and boilers on naval ships, on vessels in navigable waters, and in power plants and other industrial and commercial plants, including refineries." (Emphasis added). This allegation of various situs of injuries typifies the difficulty of d4sypurses Lypilrses the aGlrriculity orf bringing a consolidated action of this sort. The Court may not determine whether maritime jurisdiction exists as to the entire group of 6000 lawsuits, but must make its determination on a more individualized basis. Brown v. United States, No. 76-434, slip op. at 2i (D2. Conn. July 23, 1979). Because the burden of establishing jurisdiction is on the party who asserts it, Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (lst Cir. 1980); Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87 (2d 1975), the Court could require Keene to make a more specific showing of jurisdiction. Rather than protract 13 these proceedings any further, how- 13. The Government initially noticed this motion in May of 1980. The Court did not receive the final papers on this motion until June, 1981. ever, the Court has reviewed Keene's Claim of admiralty jurisdiction wee ee we admiralty tort jurisdiction does not lie. At the outset, the Court can elimi- nate all claims for lawsuits involving workers who were exposed to asbestos while working "in power plants and other industrial and commercial plants, including refineries." Amended Complaint f 13. Although the EAJA extends admiralty jurisdiction to shoreside workers, the injury must still be "caused by a vessel on navigable water." 46 U.S.C. § 740; see Boudloche v. Conoco Oil Corp., 615 F.2d 687, 688 (Sth Cir. 1980). The EAJA does not convert "'a classic nonmaritime, land-based injury into something else.'" Pryor yv. American President Lines, 520 F.2d 974, 979 (4th Cir. 1975) (quoting Kent v. shell Oil Co., 286 F.2d 746, 750 (5th Cir. 1961), cert. denied. 423 U.S. 1055 (1976). Rather, there must be a proxi- mate cause relation: in hetween the mate cause relationship between the injury and the vessel. Bailey v. Johns-Manville Corp., No. 77-1, slip op. at 3 (8.0. Va. Mareh 30, 13978). That the asbestos was ultimately installed on a vessel does not establish the requi- site proximate cause. Id. With respect to those claims for lawsuits of plaintiffs who were exposed to asbestos while working on vessels in navigable waters, the Court must deter- mine whether the installation of high thermal insulation around pipes and boilers bears a significant relationship to traditional maritime activity. The Court concludes that it does not. The factors that are frequently considered in determining whether the tort alleged bears a significant rela- tionship to traditional maritime acti- vity include the functions and roles of the parties, the types of vehicles and instrumentalities involved, the causa- tion and type of injurv. and the tradi- tion a type Of injury, and the tradi- tional concepts of the role of admiralty law. See Edynak v. Atlantic Shipping Inc., 562 F.2d 215, 220-21 (3d Cir. 1977), cert. denied, 434 U.S. 1034 (1978); Kelly v. Smith, 485 F.2d 520, o420 (Sth Cir. 1973), cert. denied, 416 U.S. 969 (1974); Otto v. Alper, 489 F. Supp. 953, 955 (D. Del. 1980); Montgomery v. Harrold, 473 F. Supp. 61 (E.D. Mich. 1979); Kayfetz v. Walker, 406 F. Supp. 75, 76-77 (D. Conn. 19758) (laambard, Cir. J.). The function and role of the Government viz Keene was that of supplier of asbestos and purchaser of asbestos products. As the purchaser, the Government designed the specifi- cations for the asbestos products. There is nothing in this relationship that is indigenous to maritime law. See generally Baily v. Johns-Manville, supra, Slip op. at 5S. The "vehicles involved" include naval ships and vessels. That these workers were exposed to asbestos on ships rather than in power plants or refineries was purely fortuitous. More- over, it does not appear that these ships ever left the dock while they were being built or repaired. See Montgomery ¥. Harroid, supra, 473 F. Supp. at 64. The cause and type of injury, expo- sure to asbestos, is certainly not unique to admiralty. Indeed, lawsuits stemming from the exposure to asbestos have arisen from a variety of industries. In Re Asbestos & Asbestos Insulation Material Products Liability Litigation, supra, 431 F. Supp. at 907. Moreover, Keene has not referred to any- thing in the traditional concepts of admiralty that would militate toward admiralty jurisdiction in this case. There is simply no significant relation- ship between the hazards of asbestos and traditional maritime activity. b. Contract Jurisdiction Keene also contends that admiralty jurisdiction exists with respect to Keene's claims for breach of warranty sounding in contract. The Court rejects this claim of admiralty jurisdiction as well. The general rule is that admiralty jurisdiction is limited to contracts that are related to a maritime service Or a maritime transaction. See ee generally 1 Benedict on Admiralty §§ 182, 183 (1974 & Supp. 1980). "The mere fact that the services to be per- formed under a contract relate to a ship or its business, or that a ship is the object of such services, does not, in and of itself, mean they are maritime. The test to be applied in deciding whether or not a contract is maritime is its nature and subject matter." P.D. Marchessini & Co. v. Pacific Marine Corporation, 227 F. Supp. i7, i868 (1974) (Weinfeld, J.). The contracts between the Government and Keene involved the purchase and sale of asbestos fiber and thermal insulation products. Although some of these products might have ulti- mately been used in the construction or repair of vessels, that fact alone will not convert a nonmaritime contract into a maritime contract. FECA Claims Many asbestosis claimants were employees of the United States working in naval shipyards when they were exposed to asbestos. 24 As such, their exclusive remedy against the United 14. The Amended Notice does not indicate how many claimants are or were employees of the United States Government. The Government needs this information to settle these claims. States is pursuant to the Federal Employees Act ("FECA"), 5 U.S.C. § 8101 ~~ et seq. They are not precluded, how- ever, from instituting suit against negligent third parties. Keene seeks contribution or indem- nity for the damages it has paid or will pay in those actions brought against it by Government employees. It is not clear what Keene's jurisdictional basis is for this claim. FECA does not con- stitute a waiver of sovereign immunity. Keene must therefore rely on FICA, SIAA, or PVA jurisdiction, which for reasons already discussed, are not available to Keene. /> Moreover, FECA bars suits by joint tortfeasors against the United 15. Keene also alleges federal question surisdiction. 26 U.S.C. 4 1331. We summarily reject this claim of jurisdiction because it is well established that federal question jurisdiction is not a waiver of sovereign immunity. See, e.g., Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978); Doe v. United States Civil Service Commission, 483 F. Supp. 939 (S.D.N.¥. 1980). States for contribution or indemnity rélating t6 a federal éitployee's injuries. See Zapico v. Bucyrus-Erie Co., 579 F.2d 714 (2d Cir. 1978);26 Galimi v. Jetco, 514 F.2d 949 (2d Cir. 1975). See also Austin v. Johns- Manville Sales Corporation, 508 F. Supp. 343, 317 (D. Me. 1981): Oman v. Johns- Manville Corp., 482 F. Supp. 1060, 1069-71 (E.D. Va. 1980). To the extent that Keene seeks contract based immunity, its remedy is in the Court of Claims under the Tucker Act. See 28 U.S.C. §§ 1346(a)(2), 1491. Galimi v. Jetco, supra, 514 F.2d at 951. In Counts 19 through 23 of the Amended Complaint, Keene seeks recovery of the amount of FECA benefits that the Government has recouped from asbestosis 16. Although Zapico involved the "exclusive remedy" provision of the Longshoremen's and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(a), that provision is nearly identical to that of FECA and has been construed in a Similar fashion. Claimants. FECA provides that whenever a federal employee obtains a judgment on, or settles a claim arising out of his death or injury, the federal employee must reimburse the Government for its FECA payments. 5 U.S.C. § 8132. The Government's lien on its employees' recoveries from third parties is typical of workers' compensation programs. Keene contends that it is entitled to the monies recouped by the Government because the Government played a signifi- cant role in causing the injuries to the asbestosis claimants. Keene sets forth five separate theories of recovery: Count 19 is a claim for damages based on unjust enrichment. Count 20 is a claim for restitution of money had and received. Count 21 is a claim for consequential damages arising from the Government's intentional conduct. Count 22 alleges an unconstitutional taking of property without due process of law. Count 23 seeks to enjoin the Government from future violations of Keene's constitutional rights. Jurisdiction for Counts 19, 20 and 21 is alleged to exist under the FTCA and the SIAA. Keene alleges jurisdiction for Counts 22 and 23 under 28 U.s.c. § 1331, federal question jurisdiction. Keene's assertion of FTCA and SIAA jurisdiction for Counts 19-21 must be rejected for the reasons discussed earlier. With respect to the Claim under the FTCA, Keene has failed to Satisfy the administrative filing requirements of 28 U.S.C. ; 2074. Accordingly, the Court Cannot exercise subject matter jurisdiction over Keene's Claims under the FTCA. SIAA jurisdic- tion cannot be relied upon since there is no nexus between the Government's recoupment of its FECA liens and tradi- tional maritime activities. Accordingly, the Court does not have subject matter jurisdiction over Counts 19-21. Keene's assertion of federal ques- tion jurisdiction for its constitutional claims must likewise be rejected. Keene relies primarily on the landmark case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 368 (1971), in which the Supreme Court first implied a private cause of action for damages arising out of a violation of constitutional rights by government officials. Bivens, however, does not stand for the proposition that the United States may be sued for constitu- tional violations. Norton v. United States, 581 F.2d 390, 393 (4th Cir.), jerk. dented. 499 U.S. 1003 (1978). ft authorizes actions only against the responsible federal official. Butz. Vv. Economou, 438 U.S. 478, 504 (1978). Bivens type actions brought against the United States, therefore, are routinely dismissed for lack of subject matter jurisdiction. See, e.g., Contemporary Mission, Inc. v. United States Postal service, 648 F.2d 97, 104 (2d Cir. 1981); Leonhard v. United States, 633 F.2d 599, 618 n.27 (2d Cir. 1980), cert. denied, 49 U.S.L.W. 3864 (U.S. May 18, 1981) (No. 80-1651). To the extent that the Court would have jurisdiction to hear Keene's constitutional claims, jurisdiction would lie under the Tucker Act, 28 U.S.C. 1346(a). Since Keene's claims exceed $10,000, jurisdiction lies exclusively in the Court of Claims. See Estate of Watson v. Blumenthal, 586 F.2d 925, 928 (2d Cir. 1978); 1 Moore's Federal Practice § 0.65 [2.-3] (2d ed. 1980). Conclusion It is clear that something must be done to decongest the courts from the glut of asbestos related lawsuits. 2? Although the Court understands Keene's efforts to make the unmanageable more manageable, this action must be dis- missed because Keene has attempted to do too much at one time, with too little jurisdiction. The doctrine of sovereign immunity, although commonly considered to be "dying," remains powerful and per- mits the United States to dictate the manner in which it may or may not be sued. United States v. Mitchell, 100 $s. Ct. 1349, 1352 (1980). Because Keene has failed to satisfy the requirements for bringing suit against the United States, this action must be dismissed for want of subject matter jurisdic- tion. 18 Accordingly, the Government's 17. It may be that the only practicable solution is a legislative one. Cf. Black Lung Benefits Act, 30 U.S.C. § 901 et seq. 18. In addition, to the extent that Keene seeks indemnity for actions that have not been terminated, the Court (footnote continued) motion to dismiss is granted. SO ORDERED. Dated: New York, N.Y. September 30, 1981 GERARD L. GOETTEL fe a (footnote continued from previous page) lacks subject matter jurisdiction because there is no case or controversy. see generally Forty-Eight Insulations, Inc. v. Johns-Manville Products Corp., S/2 ©. Supp. 385 (N.D. f11. 3979). UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK a ee i i Oa ae KEENE CORPORATION, : 80 Civ. 401 (GLG) Plaintiff, -against- : MEMORANDUM DECISION THE UNITED STATES OF AMERICA, Defendant. On September 30, 1981, the Court dismissed this action for lack of sub- ject matter jurisdiction. The plain- tiff, relying on the Fourth Circuit's recent opinion in Glover v. Johns-Man- ville Corp., No. 80-1085 (4th Cir. Oct. 5, 1981), seeks leave to reargue this Court's ruling that the plaintiff's claims against the United States do not lie in admiralty. In addition, the Plaintiff seeks to alter or amend the Court's order pursuant to Fed. R. Civ. P. 59(e) and seeks leave to file a supplemental complaint pursuant to Fed. KR. Civ. &. iS(d@). Ali of these motions are denied. 1. Motion to Reargue We note initially that the ground upon which the plaintiff seeks leave to reargue, that a subsequent Fourth Cir- cuit decision is contrary to the view taken by this Court, is insufficient. The standard for granting a motion for reargument is whether "the court has overlooked 'matters or controlling de- cisions' which, had they been consider- ed, might reasonably have altered the result reached by the court." New York Guardian Mortgagee Corp. v. Cleland, 473 EF. Supp. 409, 420 (S$.D.N.Y¥. 1979) (quoting United States v. International Business Machines Corp., 79 F.R.D. 412, 414 (S.D.N.Y. 1978)); United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 75 F.R.D. 473 (S.D.N.Y. 1977). Because the decision cited by the plaintiff was rendered subsequent to the one in the case at bar, it clearly could not have been | "overlooked." Moreover, a case from the ] Fourth Circuit is not a "controlling" decision in this district and, accord- ingly, is not a proper basis for rear- gument. United States v. N.V. Neder- landsche Combinatie Voor Chemische In- Guatrie, 75 F.R.D. 673. 474 [o...01. 7. i977). This Court has recently had the experience of following the opinion of another circuit's Court of Appeals (with which it did not agree) only to be enm- phatically reversed by the Second Cir- cuit and told that reliance on the other circuit's decision was "misplaced." Doe v. New York University, No. 81-7680, slip op. at 27 n.7 (2d Cir. Mov. 24, 1981). Finally, the Fourth Circuit's de- cision in Glover, even if applicable, does not control the case at bar. Glover involved district court juris- diction under the Tucker Act, 28 U.S.C. § 1346(a) (1976), an issue that the plaintiff concedes is not relevant for present purposes. Interestingly, a case decided on the same day as Glover and not relied upon by the Plaintiff in its motion to reargue, White v. Johns-Man- ville Corp., Nos. 79-1854, 80- 1028/1140/1154/1227/1228 (4th Cir. Oct. 5, 1981), has greater relevance. In White, the Fourth Circuit ruled that admiralty jurisdiction attached to the Claim of five Shipyard workers who had developed asbestosis as a result of their exposure to asbestos dust and fiber. The instant case, however, is "eadily distinguishable. Whereas White involved five shipyard workers, this case involves over 9,000 Claims, some of which involve workers who were exposed to asbestos "while working in power plants and other industrial and commer- cial plants, including refineries." Amended Complaint 7 13. Another dis- tinction is in the relationship between the parties. White involved claims by shipyard workers, who have an obvious connection with maritime activity, against the asbestos manufacturers. This case is more distant from tradi- tional maritime activity. As we noted in the opinion, "Keene's claim over against the United States results from action and inaction taken in Washington D.C. . . . It is a very long stretch to convert these governmental decisions into admiralty torts." Keene Corp. vy. United States, No. 80-401, Siid op. at 13 {S.D.N.Y. Sept. 30, 1982). 2. Rule 59(e) Motion Keene moves to amend the order to find jurisdiction over Keene's claims under the Federal Tort Claims Act ("EIRA"), 28 U.S.C. 68 1346. 2672 et seq. Keene bases this motion on its submission of supplemental information concerning its claim against the gov- ernment which, according to Keene, rec- tifies "virtually all" of the defects found by this Court. We have not reviewed these recent submissions because we consider them premature. A claimant must first pre- sent his claim to the appropriate gov- ernment agency and have his claim fi- nally denied prior to instituting suit. 28 U.6.C. &§ 2675. If there is no agency action within six months, the claimant may treat the inaction as a final ad- ministrative determination. Failure to Satisfy these requirements mandates the dismissal of the action. Contemporary Mission, Inc. v. United States Postal service, 648 F.2d 97, 104-05 n.9 (2d Cir. 1981). Keene, relying on two recent FTCA cases, Kubrick v. United States, 435 ©. Supp. 166, 189 (6.0. Pa. 1977}, aff'd, S81 F.2e 1092, 1098 (3d Cis. 1978), rev'd on other grounds . 444 U.S. 111 (1979) and McCormick v. Cooley, “55 &. Supp. 776 (W.D. Pa. 1978), re- quests the Court to accept its proposed Supplemental complaint at this time and hold the supplemental complaint in abeyance pending final agency action. Neither of these cases Supports this unusual procedural request. They stand for the proposition that, when an action has been filed prematurely and the ad- ministrative claim is denied before there has been any "substantial pro- gress" in the case, the court may deem the jurisdictional defect to be cured without requiring the claimant to refile the suit. They do not stand for the proposition that the Court can warehouse * a claim pending administrative review. The motions are denied. SO ORDERED Dated: New York, N.Y. December 21, 1981 LS/ GERARD L. GOETTEL U.S.D.J. Keene also seeks leave to supplement its amended complaint to add the supplemental information that it recently submitted to the Government. In light of ou conclusion that this action must be dismissed, there does not seem to be any purpose in granting leave to Supplement the amended complaint. Accordingly, that application is denied. CONSTITUTIONAL & STATU- TORY PROVISIONS INVOLVED Extension cf Admiralty Jurisdiction Act, 46 U.S.C. & 740: The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to per- son or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done Or consummated on land. In any such case suit may be brought in rem or in personam ac- cording to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water: Provided, That as to any suit against the United States for damage or injury done or consummated on land by vessel on navigable waters, the Public Ves- sels Act or Suits in Admiralty Act, aS appropriate, shall constitute the exclusive remedy for all causes of action arising after June 19, 1948, and for all causes of action where suit has not been hitherto filed under the Federal Tort Claims Act: Provided further, That no suit shall be filed against the United States until there shall have expired a period of six months after the claim has been presented in writing to the Federal agency Owning or operating the vessel causing the injury or damage. Federal Tort Claims Act, 26 0.5.c. §§ 1346(b), 2671-2680 a0 U.S.0. § 1346(b): 28 Subject to the Provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jur- isdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of Property, or personal injury or death caused by the neg- ligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a Private person, would be liable to the Claimant in ac- cordance with the law of the place where the act or Om [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0936%3A1. Public record. Not legal advice.