Anderegg v. United States

Nov 30, 1948

5811

Versions:171 F.2d 127

1948 U.S. App. LEXIS 2790

PER CURIAM.

This is an appeal from a judgment for defendant in an action for damages under the Federal Tort Claims Act of August 2, 1946, 60 Stat. 842, 28 U.S.C.A. §§ 2671-2680. The action was instituted to recover for damage to property which occurred on January 2, 1945. It was not commenced until April 14, 1948, which was thus more than one year after either the accrual of the claim or the passage of the statute, which was too late. 28 U.S.C.A. § 2401(b). Contention is made that the limitation of the statute was waived because claim was filed with and considered by the War Department and not declined by it until November 1947; but it is elementary that the government may not be sued except in strict accord with the conditions which it has imposed and that neither action nor neglect on the part of governmental officers may extend the time for suit which Congress has limited. United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598. Not even a U. S. District Attorney may waive conditions or limitations imposed by statute in respect of suits against the United States. Munro v. United States 303 U.S. 36, 41, 58 S.Ct. 421, 82 L.Ed. 633; Finn v. United States, 123 U.S. 227, 233, 8 S.Ct. 82, 31 L.Ed. 128. Whether the limitation prescribed for suit by the Tort Claims Act be regarded as a condition of the right to sue or as a limitation upon the remedy would seem • to be immaterial; but it should be noted that the limitation is. imposed in the statute creating the right and the limitation in such case is ordinarily treated as a condition, as we pointed out in the note to State of Maryland v. Burkhardt, 4 Cir. 165 F.2d 869, 873.

Affirmed.