Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1987)

MEMORANDUM^** 

Appellant Ernest C. Reynolds, ("Reynolds") appeals from the district court's dismissal of his complaint against the United States Trustee for debtors, Earl Lewis III ("Lewis") and C & W Liquor Store.

Appellant contends the district court erred in finding that it was without subject matter jurisdiction. We have jurisdiction pursuant to 42 U.S.C. § 1291 and we affirm.

Appellant was injured when he was allegedly shot by debtor Lewis, who was operating C & W Liquors as a debtor in possession. Reynolds contends the United States Trustee was negligent because he allowed Lewis to operate C & W Liquors without proper liability insurance.

Reynolds filed the present suit on January 6, 1987. The U.S. Trustee's motion to dismiss for lack of subject matter jurisdiction was granted by the district court on May 22, 1987.

The district court found the suit precluded by the Federal Tort Claims Act [FTCA], 28 U.S.C. § 2679, because the appellant did not present a tort claim to the U.S. Trustee within the two year filing deadline. Further, the district court held that the bankruptcy proceeding did not create subject matter jurisdiction of a claim of negligence allegedly caused by a United States official. In the absence of compliance with the FTCA, the district court found the United States had not waived sovereign immunity to this tort suit.

We review de novo the district court's finding that it was without subject matter jurisdiction as a question of law. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir. 1986).

Appellant contends that subject matter jurisdiction is conferred upon the district court under 11 U.S.C. § 106. Under this bankruptcy statute,

(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such government unit's claim arose

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(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity--

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(2) a determination by the court of an issue arising under such a provision binds governmental units.

Reliance reliance on this statute is misplaced; on it is contained no general waiver of sovereign immunity to tort actions. The statute deals only with a waiver of immunity with respect to compulsory counterclaims against the United States that arise out of the bankruptcy action. This suit is not a compulsory counterclaim as the government has no claim against appellant.

The district court correctly found that this suit was governed by sections 1346(b) and 2671 et seq., of FTCA. FTCA is the exclusive tort remedy for negligence actions against the United States or officers acting for the government.

Except as sovereign immunity is expressly waived by statute, no suit lies against the United States. In footnote 2 of the case of Lehner v. United States, 685 F.2d 1187, 1189 (9th Cir. 1982), cert. denied, 460 U.S. 1039 (1983), we stated

A plaintiff cannot avoid sovereign immunity by naming as the defendant an officer of the United States acting in an official capacity when in fact the claim is against the United States.

Appellant's failure to file a claim with the appropriate federal agency prior to instituting this tort action is fatal. " [T]he claim requirement of 28 U.S.C. § 2675 is jurisdictional in nature and may not be waived." Caidin v. United States, 564 F.2d 284, 286 (9th Cir. 1977). Consequently, appellant not having filed a claim, subject matter jurisdiction under the FTCA was therefore foreclosed.

Appellant argues that jurisdiction is conferred under 28 U.S.C. § 959(a), but that claim was first in his reply brief. Issues not properly raised in the opening brief are waived. Golden v. Pacific Maritime Association, 786 F.2d 1425, 1429 (9th Cir. 1986).

Judgment is AFFIRMED.