ELR Citation: ELR 20615
No(s). s. 71-1111 et al (10th Cir. Nov 23, 1971)

In this further opinion on the recovery allowable for the damage caused by sonic booms from test aircraft, the Tenth Circuit overrules Kirk v. United States, 1 ELR 20251 (W.D. Okla. 1971), on the grounds that the Tucker Act does not afford relief either on the theory that the sonic boom damage was a taking of property without due process of law, or on the theory that the government had impliedly or expressly contracted with plaintiffs to pay damages. Because plaintiffs are remedyless under both the Tucker Act and the Federal Tort Claims Act (the two-year statute of limitation having run), the government is immune from suit.

Counsel for Appellants:
Jacques B. Gelin Attorney
Department of Justice
Room 2334
Washington, DC 20530
(202) 739-2762

Counsel for Appellees:
Richard A. Proctor
Federal Building
Oklahoma City, OK 73100
(404) 235-6648

Before BREITENSTEIN, McWILLIAMS, and DOYLE, Circuit Judges.