"Where administrative action may result in the loss of both property
and life, or of all that makes life worth living, any doubt as to extent
of power delegated to administrative officials is to be resolved in
citizen's favor, and court must be especially sensitive to citizen's
rights where proceeding is non-judicial."
[United States v. Minker,
350 U.S. 179, 76 S.Ct. 281 (1956)]
The corporation contends that, since it denies that interstate
or foreign commerce is involved and claims that a hearing would
subject it to irreparable damage, rights guaranteed by the Federal
Constitution will be denied unless it be held that the District
Court has jurisdiction to enjoin the holding of a hearing by the
So to hold would, as the government insists, in effect substitute
the District Court for the Board as the tribunal to hear and determine
what Congress declared the Board exclusively should hear and determine
in the first instance.
The contention is at war with the long-settled rule of judicial
administration that no one is entitled to judicial relief for a
supposed or threatened injury until the pre-
[303 U.S. 41, 51]
remedy has been exhausted.
That rule has been repeatedly acted on in cases where, as here,
the contention is made that the administrative body lacked
power over the subject matter.
Obviously, the rules requiring exhaustion of the administrative
remedy cannot be circumvented by asserting that the charge on which
the complaint rests is groundless and that the mere holding of the
prescribed administrative hearing would result in irreparable damage.
Lawsuits also often prove to have been ground-
U.S. 41, 52] less;
but no way has been discovered of relieving a defendant from the
necessity of a trial to establish the fact.
[Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)]
 In support of that contention the following cases were cited:
Ohio Valley Water Co. v. Ben Avon Borough,
253 U.S. 287, 289 , 40 S.Ct. 527, 528; Bluefield Water Works
Co. v. Public Service Commission,
262 U.S. 679, 683 , 43 S.Ct. 675; Phillips v. Commissioner,
283 U.S. 589, 600 , 51 S.Ct. 608, 612; Crowell v. Benson,
285 U.S. 22, 60 , 64 S., 52 S.Ct. 285, 296, 297; State Corporation
Commission v. Wichita Gas Co.,
290 U.S. 561, 569 , 54 S.Ct. 321, 324; St. Joseph Stock Yards
Co. v. United States,
298 U.S. 38, 51 , 52 S., 56 S.Ct. 720, 725, 726.
 The rule has been most frequently applied in equity where
relief by injunction was sought. Pittsburgh &c. Ry. v. Board of
172 U.S. 32, 44 , 45 S., 19 S.Ct. 90; Prentis v. Atlantic Coast
211 U.S. 210, 230 , 29 S.Ct. 67; Dalton adding Machine Co. v.
State Corporation Commission,
236 U.S. 699, 701 , 35 S.Ct. 480; Gorham Mfg. Co. v. State Tax
266 U.S. 265, 269 , 270 S., 45 S.Ct. 80, 81; Federal Trade Commission
v. Claire Furnace Co.,
274 U.S. 160, 174 , 47 S.Ct. 553, 556; Lawrence v. St. Louis-San
Francisco Ry. Co.,
274 U.S. 588, 592 , 593 S., 47 S.Ct. 720, 722; Chicago, M.,
St. P. & P.R.R. Co. v. Risty,
276 U.S. 567, 575 , 48 S.Ct. 396, 399; St. Louis-San Francisco
Ry. Co. v. Alabama Public Service Commission,
279 U.S. 560, 563 , 49 S.Ct. 383, 384; Porter v. Investors'
286 U.S. 461, 468 , 471 S., 52 S. Ct. 617, 619, 620; United
States v. Illinois Central Ry. Co .,
291 U.S. 457, 463 , 464 S., 54 S.Ct. 471, 473, 474; Hegeman
Farms Corp. v. Baldwin,
293 U.S. 163, 172 , 55 S.Ct. 7, 10; compare Red 'C' Oil Mfg.
Co. v. North Carolina,
222 U.S. 380, 394 , 32 S.Ct. 152; Farncomb v. Denver,
252 U.S. 7, 12 , 40 S.Ct. 271, 273; Milheim v. Moffat Tunnel
262 U.S. 710, 723 , 43 S. Ct. 694, 698; McGregor v. Hogan,
263 U.S. 234, 238 , 44 S.Ct. 50, 51; White v. Johnson,
282 U.S. 367, 374 , 51 S.Ct. 115, 118; Petersen Baking Co. v.
290 U.S. 570, 575 , 54 S. Ct. 277, 278; Pacific Tel. & Tel.
Co. v. Seattle,
291 U.S. 300, 304 , 54 S.Ct. 383, 384. But because the rule
is one of judicial administration-not merely a rule governing the
exercise of discretion-it is applicable to proceedings at law as
well as suits in equity. Compare First National Bank of Fargo v.
Board of County Commissioners,
264 U.S. 450, 455 , 44 S.Ct. 385, 387; Anniston Mfg. Co. v.
301 U.S. 337, 343 , 57 S.Ct. 816, 819.
 Dalton Adding Machine Co. v. State Corporation Commission,
236 U.S. 699 , 35 S.Ct. 480; Federal Trade Commission v. Claire
274 U.S. 160 , 47 S.Ct. 553; Lawrence v. St. Louis-San Francisco
274 U.S. 588 , 47 S.Ct. 720; St. Louis-San Francisco Ry. Co.
v. Alabama Public Service Commission,
279 U.S. 560 , 49 S.Ct. 383. Compare Western & Atlantic R.R.
v. Georgia Public Service Commission,
267 U.S. 493, 496 , 45 S.Ct. 409, 410, and casesited in note
 Such contentions were specifically rejected in Bradley Lumber
Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97; Clark
v. Lindemann & Hoverson Co., 7 Cir., 88 F.2d 59; Chamber of Commerce
v. Federal Trade Commission, 8 Cir., 280 F. 45; Heller Bros. Co.
v. Lind, 66 App.D.C. 306, 86 F.2d 862; and Pittsburgh & W. Va. Ry.
Co. v. Interstate Commerce Commission, 52 App.D.C. 40, 280 F. 1014.
Compare United States v. Los Angeles & S.L.R.R. Co.,
273 U.S. 299, 314 , 47 S.Ct. 413, 416; Lawrence v. St. Louis-San
Francisco Ry. Co.,
274 U.S. 588 , 47 S.Ct. 720; Dalton Adding Machine Co. v. State
236 U.S. 699 , 35 S.Ct. 480; McChord v. Louisville & Nashville
183 U.S. 483 , 22 S.Ct. 165; Richmond Hosiery Mills v. Camp,
5 Cir., 74 F.2d 200, 201.
TITLE 28 >
PART VI >
CHAPTER 171 > § 2675
§ 2675. Disposition by federal agency as prerequisite; evidence
(a) An action
shall not be instituted upon a claim against the United States for
money damages for injury or loss of property or personal injury
or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of
his office or employment, unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing and sent by certified
or registered mail. The failure of an agency to make final disposition
of a claim within six months after it is filed shall, at the option
of the claimant any time thereafter, be deemed a final denial of
the claim for purposes of this section. 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,
Melo v. United States,
505 F.2d 1026 (8th Cir. 11/07/1974)
Defendant's motion as amended to dismiss urged that the court
lacked jurisdiction by reason of plaintiff's failure to exhaust
administrative remedies as required by 28 U.S.C. § 2675(a), and
additionally that the claim is barred by the two-year statute of
limitations provided by 28 U.S.C. § 2401(b).
The trial court in its dismissal order states "plaintiff's failure
to exhaust her administrative remedies is fatal to her case and
it must be dismissed."
The basic issue raised by this appeal is whether plaintiff's
counsel's letter of November 23 constitutes a claim against the
United States as contemplated by 28 U.S.C. § 2675(a). We agree with
the trial court's determination that the claim as made did not meet
the statutory requirements and that hence the case must be dismissed
by reason of plaintiff's failure to exhaust her administrative remedies.
We adhere to our holding in Peterson v. United States, 428 F.2d
368, 369 (8th Cir. 1970), where we stated:
It is settled that the United States, as sovereign, is immune
from suit unless it has consented to be sued. United States v. Sherwood,
312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Iowa Public
Service Company v. Iowa State Commerce Comm., 407 F.2d 916, 920
(8th Cir.), cert. denied, 396 U.S. 826, 90 S. Ct. 71, 24 L. Ed.
2d 77 (1969); Simons v. Vinson, 394 F.2d 732 (5th Cir.), cert. denied,
393 U.S. 968, 89 S. Ct. 398, 21 L. Ed. 2d 379 (1968). A corollary
to the immunity doctrine is the rule that the United States may
define the conditions under which actions are permitted against
it. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 18 L. Ed.
2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d
Cir. 1962); Kuhnert v. United States, 127 F.2d 824 (8th Cir. 1942).
Twenty-eight U.S.C. Ch. 171 delineates the procedure for tort
claims against the United States and is controlling. Section 2675(a)
of this chapter provides in part:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of property
or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government * * * 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 * * *.
Section 2675 clearly makes the filing of an administrative claim
a mandatory condition precedent to the filing of civil action against
the United States for damages arising from the negligent act or
omission of any Government employee acting within the scope of his
employment. Best Bearings Co. v. United States, 463 F.2d 1177 (7th
Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971);
Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970).
Thirty-nine C.F.R. § 912.5 provides:
For purposes of this part, a claim shall be deemed to have
been presented when the U.S. Postal Service receives from a
claimant, his duly authorized agent or legal representative,
an executed Standard Form 95, Claim for Damage or Injury, or
other written notification of an incident, accompanied by a
claim for money damages in a sum certain for injury to or loss
of property, personal injury, or death alleged to have occurred
by reason of the incident. (Emphasis added.)
[. . .]
In Avril v. United States, 461 F.2d 1090, 1091 (9th Cir. 1972),
the court was confronted with a situation where no amount of damages
was claimed. The court dismissed the action for failure to exhaust
administrative remedies, holding that the purported claim did not
meet the requirements of the statute. The court held:
The requirement that a sum certain be claimed is clearly implied
from the statute itself, 28 U.S.C. § 2675, * * *. It is plain that
the required "claim" is something more than mere notice of an accident
and an injury. The term "claim" contemplates, in general usage,
a demand for payment or relief, and, unless it is a claim for something,
is no claim at all.
In Bialowas v. United States, supra, no specific sum claimed
was set forth in the purported claim. The court in affirming the
judgment dismissing the claim for failure to exhaust administrative
The initial purpose of the regulations requiring a statement
of the specific sum claimed is to enable a determination by the
head of the federal agency as to whether the claim falls within
the jurisdictional limits of his exclusive authority to process,
settle or to properly adjudicate the claim. Above those limits the
settlement must have the prior written approval of the Attorney
General or his designee. Furthermore, the requirements of the regulations
are intended to set up uniform procedures in the exercise of settlement
authority. [443 F.2d, at 1050.]
Section 2675(b) provides that subject to certain exceptions not
here relevant the amount of the recovery shall not exceed the amount
of the claim presented to the federal agency.
Thus it is apparent that § 2675 requires the claim to the agency
set out the amount of damage claimed. It is clear that plaintiff's
purported claim set out in footnote 1, supra, does not constitute
a claim contemplated by § 2675 in that it fails to state the nature
of plaintiff's injuries and the dollar amount claimed therefor.
[Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)]
This case law recognizes that attempting to [470 U.S.
821, 851] draw a line for purposes of judicial review between
affirmative exercises of coercive agency power and negative agency refusals
to act, see ante, at 832, is simply untenable; one of the very purposes
fueling the birth of administrative agencies was the reality that governmental
refusal to act could have just as devastating an effect upon life, liberty,
and the pursuit of happiness as coercive governmental action. As Justice
Frankfurter, a careful and experienced student of administrative law,
wrote for this Court, "any distinction, as such, between `negative'
and `affirmative' orders, as a touchstone of jurisdiction to review
[agency action] serves no useful purpose." Rochester Telephone Corp.
v. United States,
307 U.S. 125, 143 (1939). 8 The lower
courts, facing [470 U.S. 821, 852] the problem
of agency inaction and its concrete effects more regularly than do we,
have responded with a variety of solutions to assure administrative
fidelity to congressional objectives: a demand that an agency explain
its refusal to act, a demand that explanations given be further elaborated,
and injunctions that action "unlawfully withheld or unreasonably delayed,"
5 U.S.C. 706, be taken. See generally Stewart & Sunstein, 95 Harv. L.
Rev., at 1279. Whatever the merits of any particular solution, one would
have hoped the Court would have acted with greater respect for these
efforts by responding with a scalpel rather than a blunderbuss.
To be sure, the Court
no doubt takes solace in the view that it has created only a "presumption"
of unreviewability, and that this "presumption may be rebutted where
the substantive statute has provided guidelines for the agency to follow
in exercising its enforcement powers." Ante, at 832-833. But this statement
implies far too narrow a reliance on positive law, either statutory
or constitutional, see ibid., as the sole source of limitations on agency
discretion not to enforce. In my view, enforcement discretion is also
channelled by traditional background understandings against which the
APA was enacted and which Congress hardly could be thought to have intended
to displace in the APA. 9 For example,
a refusal to enforce that stems from a conflict of interest, that
is the result of a bribe, vindictiveness or retaliation, or that traces
to personal or other corrupt motives ought to be judicially remediable.
10 Even in the absence [470
U.S. 821, 853] of statutory "guidelines" precluding such
factors as bases of decision, Congress should not be presumed to have
departed from principles of rationality and fair process in enacting
the APA. 11 Moreover, the agency may well
narrow its own enforcement discretion through historical practice, from
which it should arguably not depart in the absence of explanation, or
through regulations and informal action. Traditional principles of rationality
and fair process do offer "meaningful standards" and "law to apply"
to an agency's decision not to act, and no presumption of unreviewability
should be allowed to trump these principles.
v. Chaney, 470 U.S. 821 (1985)]