Taumby v. United States

GIBSON, Circuit Judge James R. Taumby, appellant, has moved for a rehearing of this panel's May 14, 1990 decision affirming the district court's dismissal of his Federal Tort Claims Act claim. Taumby v. United States, 902 F.2d 1362 (8th Cir. 1990). The Department of Justice has filed a response agreeing that this panel's earlier opinion should be vacated. However, the government argues that the district court judgment dismissing Taumby's claim must be reinstated in any case, because Taumby never filed a proper notice of appeal. We conclude that this court does indeed have jurisdiction of Taumby's appeal; therefore, we vacate the earlier panel opinion in accordance with both parties' wishes and remand to the district court for trial on the merits. In its response to Taumby's rehearing motion, the government changed its original position on the statute of limitations question we dealt with in our panel opinion. Contrary to its earlier arguments to this panel, the government now concedes that there is no time limit for the filing of an FTCA action when an administrative claim is deemed to be denied under 28 U.S.C. § 2675(a) (1988) by virtue of an agency's failure to finally dispose of the claim within six months. The Department of Justice expresses regret that it misstated the United States' position before this panel and blames an internal communications breakdown within the government. Justice further states that if the lack of a statutory time limitation for bringing suits in such cases poses a serious problem, it will seek legislative modification of the statute. Under these circumstances, we do not hesitate to vacate the panel opinion in what we considered to be a close case.