Price v. United States

ON PETITION FOR REHEARING

Before WOOD, Jr.^*, JOLLY, and DeMOSS, Circuit Judges.

E.GRADY JOLLY, Circuit Judge:

Our earlier opinion, reported at 69 F.3d 46, reversed the judgment of the district court pertaining to the Washington archive for lack of subject matter jurisdiction on the basis of Vesting Order 17952, 16 Fed.Reg. 6162, issued by the Attorney General of the United States pursuant to the Trading with the Enemy Act, 50 U.S.C.App. §§ 1-33. 69 F.3d 46, 52-53. On petition for rehearing, the petitioners, Billy F. Price, et al., have brought to our attention that the vesting order covered only a portion of the photographs in the Washington archive for which the district court awarded damages.

Our review of the record shows that the district court awarded damages in the amount of $4,682,186.69 for that portion of the Washington archive not covered by the vesting order. Our earlier opinion effectively vacated this award of damages and remanded for entry of an order of dismissal. On this rehearing, however, we add to our earlier opinion by concluding that the district court was without subject matter jurisdiction over this portion of the Washington archive because the petitioners failed to comply with the administrative exhaustion requirements of the Federal Tort Claims Act, 28 U.S.C. § 2675(a). See Pnce v. United States, 69 F.3d 46, 54 (1995). We therefore do not disturb our earlier order vacating this award of damages and remanding for entry of an order of dismissal. Unlike the portion of the Washington archive covered by the vesting order, however, the dismissal as to this portion of the Washington archive is WITHOUT PREJUDICE to a separate lawsuit pending in the district court. We express no opinion on any aspect of that suit, including any arguments raised on appeal but not addressed by this court.

In all other respects, the petition is DENIED.¹

1 . No member of this panel or judge in regular active service on the court having requested that the court be polled on rehearing era banc, the petition for rehearing era banc filed by Price is DENIED.