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Westbay Steel Inc. v. United States

*fn* submitted san francisco california: July 15, 1992.

WESTBAY STEEL, INC., PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-90-02799-TEH. Thelton E. Henderson, Chief District Judge, Presiding.

Before: J. Clifford Wallace, Chief Judge, Herbert Y. C. Choy and Cecil F. Poole, Circuit Judges Opinion by Judge Wallace.

Author: Wallace

WALLACE, Chief Judge:

Westbay Steel, Inc. (Westbay) appeals from the district court's dismissal of its suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). The district court dismissed the suit on jurisdictional grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I

The Federal Aviation Administration (FAA) entered into a contract with Kardan Construction, Inc. (Kardan), a general contractor, pursuant to which Kardan agreed to construct the Automated Flight Service Station at the Oakland Airport (Oakland Airport project). At the time this contract was signed, Kardan and the proposed sureties, Robert E. Alvarez and Robert H. Alvarez (sureties), executed a payment bond for the purpose of complying with the Miller Act, 40 U.S.C. § 270a(a). The payment bond was then filed with the FAA for approval. The contracting officer in charge of the project allegedly approved the sureties.

Westbay, as a subcontractor of Kardan, agreed to provide certain materials and services necessary to construct the Oakland Airport project. Westbay fully performed under this subcontract.

The FAA later terminated Kardan's contract because Kardan failed to provide sufficient performance and payment bonds throughout the contract period. Westbay alleges that the FAA did not pay Kardan, and that Kardan did not pay Westbay. Westbay subsequently made an unsuccessful demand for payment from Kardan and the sureties and obtained a default judgment against them. Westbay alleges that the judgment is likely uncollectible.

Westbay filed this action under the FTCA against the United States for monetary damages, alleging that the federal contracting officer negligently approved the sureties. Westbay also seeks an equitable lien on funds allegedly retained by the FAA, arguing that the FAA has been unjustly enriched.

II

The United States argues that this court lacks jurisdiction to consider this appeal because Westbay's notice of appeal was untimely. Under Federal Rule of Appellate Procedure 4(a)(1), the notice of appeal must be filed within 60 days after the entry of the district court's judgment or order when the United States is a party. The district court entered the judgment and order dismissing this action on April 18, 1991. The notice of appeal was filed on June 13, 1991. Obviously, the United States is wrong and the appeal was timely.

III

We review the district court's dismissal of an action de novo. Hartford Accident & Indem. Co. v. Continental Nat'l Am. Ins. Co., 861 F.2d 1184, 1185 (9th Cir. 1988). The sole basis for jurisdiction alleged in Westbay's complaint is the FTCA. Westbay argues that it has stated a negligence claim that is actionable under the FTCA. Westbay points out that the Miller Act requires general contractors to furnish a payment bond with a surety or sureties satisfactory to the government officer awarding the contract. 40 U.S.C. § 270a(a). Westbay argues that the contracting officer was under a duty to approve the sureties in a non-negligent manner.

Merely alleging negligence is insufficient to state a claim. We have identified specific limitations to successful FTCA actions. FTCA liability does not extend to all "violations" of statutes and regulations. See Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987) (Woodbridge Plaza) (FTCA inapplicable when Federal Deposit Insurance Corporation, acting as a receiver under state law, violates California statutes concerning treatment of bank's creditors). The FTCA grants the district courts exclusive jurisdiction over civil suits "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." 28 ...


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