Armor Elevator Co., Inc. v. Phoenix Urban Corporation , 655 F.2d 19 ( 1981 )

WYZANSKI, Senior District Judge,

concurring in part, and dissenting in part:

I concur in my brethren’s view that in these seven cases the plaintiffs have not alleged a breach of any express or implied contract, and that, as this court’s opinion states, “plaintiffs’ claims sound in tort.” If by the Act of August 23, 1935, c. 614, 49 Stat. 684, 722, Congress originally waived sovereign immunity so as to subject the Administrator of the National Housing Act to suit upon claims of this nature, I agree with my brethren that, by the Federal Tort Claims Act, Act of June 25, 1948, c. 646, 62 Stat. 984, 28 U.S.C. § 2679 (now 28 U.S.C. § 2679(a)), Congress withdrew that waiver and as a consequence the Secretary of HUD was not subjected to suit upon these claims by the provisions of the Act of May 25, 1967, 81 Stat. 17, 18, 12 U.S.C. § 1702.

Furthermore, I agree that the United States is not subject to a tort action upon these claims because the plaintiffs have not alleged that they presented the claims administratively to the Secretary, as required by 28 U.S.C. § 2675.

My dissent is confined to the narrow point that, no claim of express or implied contract having been made, there is no occasion to transfer this case to the Court of Claims. Therefore, in my opinion, the district court’s judgment directing the transfer should be reversed, and the district court should proceed in accordance with the other parts of this court’s opinion.