Zellner Plastering Company, Plaintiff-appellant, v. United States of America, by Its Agent; United States Navy,defendants-appellees, 9 F.3d 1556 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 9 F.3d 1556 (9th Cir. 1993) Argued and Submitted Oct. 7, 1993. Decided Nov. 5, 1993

Before REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN,*  District Judge.


A contracting officer's alleged negligent approval of a surety bond is not actionable under the Federal Tort Claims Act. Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992); see also Hardaway Co. v. United States Army Corps of Eng'rs, 980 F.2d 1415, 1417-18 (11th Cir. 1993), cert. denied, 62 U.S.L.W. 3245 (U.S. Oct. 4, 1993). Zellner's distinction between "no bond," "inadequate bond," and "bad bond" cases is one without a difference. See Westbay, 970 F.2d at 650.

The district court lacked jurisdiction to entertain this action. Id. at 651. Westbay controls the outcome of this case. The district court's order granting the motion to dismiss with prejudice is AFFIRMED.


Honorable Frank A. Kaufman, Senior United States District Judge for the District of Maryland, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3