690 F2d 721 Johns-Manville Sales Corporation v. United States

690 F.2d 721

JOHNS-MANVILLE SALES CORPORATION, (Debtor in Possession,
Bankruptcy Chapter XI), Plaintiff-Appellant,
v.
UNITED STATES of America, Captain A. J. Gildea, U. S. Navy,
Commander, Long Beach Naval Shipyard, Defendants-Appellees.

No. 80-5622.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Sept. 9, 1982.
Decided Oct. 20, 1982.
Rehearing and Rehearing En Banc Denied Dec. 6, 1982.

Roy G. Weatherup, Haight, Dickson, Brown & Bonesteel, Santa Monica, Cal., for plaintiff-appellant.

Richard A. Olderman, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and CHOY, Circuit Judges, and EAST,* District Judge.

CHAMBERS, Circuit Judge:

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1

Johns-Manville Sales Corporation1 (hereafter "Johns-Manville") attempted to sue the United States in District Court for the Central District of California, to obtain a determination, at this time, that it is entitled to indemnification under the Federal Tort Claims Act (28 U.S.C. §§ 2671 et seq.) for any judgments that may eventually become final against it, in certain state court actions brought by plaintiffs, not parties to this action, who assert that they have suffered damages from exposure to asbestos. One claim of the complaint also seeks mandamus to require compliance with certain safety standards at the Naval Shipyard at Long Beach, California, for which there must be some underlying independent jurisdiction.

2

We affirm the district court's dismissal of all claims of the complaint for lack of subject matter jurisdiction. The Federal Tort Claims Act is an historic departure from the rule of sovereign immunity and the administrative claims procedures, specified in that Act, have not been exhausted in this case. Appellant has sued the United States directly; these are not claims asserted by third party complaint, cross-claim, or counterclaim. The claims procedure is thus prerequisite to a proper exercise of district court jurisdiction.

3

We do not hold that Johns-Manville can never recover anything; we express no views as to that. Whatever right Johns-Manville may have against the United States, we hold: not yet.

4

Affirmed.

*

The Honorable William G. East, United States District Judge for the District of Oregon, sitting by designation

1

Based on representations of counsel that federal judicial records would show that Johns-Manville Sales Corporation is one of several subsidiaries of the Manville Corporation, that both Johns-Manville Sales Corporation and the Manville Corporation are in Chapter II bankruptcy proceedings, that they are debtors in possession, and that certain stay orders do not preclude the debtors in possession from proceeding to collect their assets, it is the implied holding of this opinion that Johns-Manville Corporation is entitled to be heard, no trustee yet having been appointed