dismissal was by consent of the parties, and the grounds therefor do not appear in the record, but it is apparent that the suit was filed more than two years after the cause of action accrued.
June 2, 1958 to July 3, 1958: An exchange of correspondence took place between plaintiff's attorney and a representative of the Internal Revenue Service, inquiring and replying as to the status of the alleged claim of June 11, 1956, to wit: The Form 95 had been returned with advice that it could not be processed until an amount of damages claimed was specified.
February 24, 1959: A second Form 95, specifying damages in the amount of $ 5,000, was filed.
March 13, 1959: The second Form 95 was returned with the advice that a Form 95 claiming damages in excess of $ 1,000 could not be processed.
April 14, 1959: The $ 5,000 claim represented by the second Form 95 was formally withdrawn from agency consideration.
May 1, 1959: Withdrawal acknowledged by the Internal Revenue Service.
May 26, 1959: The instant suit was filed.
Since plaintiff can rely only on his filing of a Form 95 on February 24, 1959, and its subsequent withdrawal, to sustain this suit against the defense of the statute of limitations, the status of that document must be considered. As indicated above, damages were claimed in the amount of $ 5,000, whereas, at the time, the agency involved simply could not act on a claim in excess of $ 1,000. 28 U.S.C. § 2672.
I am constrained to follow the decision of former Chief Judge Forman of this District (now Judge of the Court of Appeals for the Third Circuit) in Siciliano v. United States, D.C.D.N.J.1949, 85 F.Supp. 726. That case decided that a claim in excess of $ 1,000, not being susceptible of administrative adjustment, must be regarded as a nullity. Since the $ 5,000 claim was of no legal effect, it necessarily follows that its withdrawal cannot give life to this otherwise untimely suit.
The cases relied on by plaintiff do not deal with facts at all similar to those at bar. No authority has been found which calls for a liberal construction of the Federal Tort Claims Act in so far as the procedure for filing an administrative claim or the time limitations applicable thereto are concerned.
The motion of the United States for summary judgment is granted. In view of this, it is unnecessary to consider the alternative motion of the United States.
Let an order be submitted.