Western Pine Industries, Inc. v. United States

Plaintiffs’ petition seeks to invoke our jurisdiction under the Federal Tort Claims Act for what it states are "negligent and wilful acts and omissions of employees of the United States Forest Service, Department of Agriculture,” in connection with timber sale contracts. We have no jurisdiction under that Act or over any tort. 28 U.S.C. § 1491 (1976).

Defendant’s motion for summary judgment filed May 20, 1982, does not challenge the petition for lack of jurisdiction on account of the tort claim but raises defenses based on the Contract Disputes Act of 1978. Basically, it is defendant’s position that plaintiffs have not received a contracting officer’s decision and thus their appeal from it is premature and they have no direct access by way of suit in this court.

The papers before us suggest that by now the contracting officer’s decision should have been rendered. Upon this supposition and because the motion is misdirected to a claim not yet made to us, we deny the motion without prejudice and give plaintiffs 60 days to amend their petition to conform with the requirements of a contract claim, if they elect to so proceed, and to the extent that the petition is based on the Tort Claims Act any claims under that Act are dismissed.

It is so ordered.

On October 15, 1982 plaintiff filed an amended complaint.