CHRISTENSEN, Judge.
These two appeals involve a single civil action which originated as a private damage, suit in the United States District Court for the Northern District of California. McWhirter Distributing Company, Inc., and other independent petroleum distributors (the distributors) brought suit against Texaco Inc. (Texaco) pursuant to the Emergency Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. §§ 751 et seq. (incorporating inter alia § 210 of the Economic Stabilization Act of 1970 (ESA), 12 U.S.C. § 1904 note), alleging that a Texaco gasoline price increase violated regulations promulgated under the EPAA and codified in 10 C.F.R. Parts 210-212. The district court granted partial summary judgment in favor of Texaco on the regulatory claim,1 and this appeal by McWhirter and the other distributors, designated as No. 9-49, followed. We reverse.
The second appeal, No. 9-50, involves a claim filed in the same action by Texaco against the Department of Energy (DOE),2 in reliance upon the Federal Tort Claims Act, ch. 646, 62 Stat. 982 (1948) (codified in scattered sections of 28 U.S.C.), for alleged tortious violation by DOE of its own regulations in instigating an investigation against Texaco. The district court dismissed Texaco’s claim. After noting sua sponte and resolving a question of jurisdiction beyond that argued by the parties, we affirm this dismissal, but for a reason differing somewhat from those assigned by the district court.
no. 9 — 49, McWhirter.3
District Court Proceedings
On January 28, 1977, Texaco increased the price of gasoline it sold to some of its independent distributors without similarly increasing the price to its retail class of trade. Texaco admittedly thereby sought to reduce independent distributor demand in PADD V,4 its western region. Several of the independent distributors brought suit against Texaco, complaining that the “unequal price increase” violated the EPAA and regulations promulgated thereunder. After almost three years, during which considerable discovery and other proceedings were conducted, Texaco moved for summary judgment, contending that its action complied with express authorization in the regulations and thus was lawful. The district court agreed and accordingly granted summary judgment in favor of Texaco.
Concluding that plaintiffs had not alleged a direct violation of either the “maximum allowable price” rule or the rule prohibiting [515]*515“termination” of supplier/purehaser relationships, the district court did not discuss those issues. It turned to the claim that “a petroleum seller cannot lawfully increase prices unequally among classes of purchasers,” noting that the preamble to the “equal application rule,” 10 C.F.R. § 212.83(h), interprets that rule as meaning that “ ‘increased costs may be unequally applied to prices charged to classes of purchaser,’ ” as long as the refiner absorbs the appropriate “penalty.” 41 Fed.Reg. 30021 (July 21, 1976). “In other words, the rule deters unequal price increases. It does not forbid them.” Applying the rule of deference outlined in Standard Oil Co. v. DOE, 596 F.2d 1029, 1055 (TECA 1978), the court concluded:
Plaintiffs have not provided a persuasive reason for departing from this agency construction. Ruling 1975-2, 40 Fed.Reg. 10655 (1975), does not compel a departure. That ruling emphasized the importance of the maintenance of price differences among classes of purchaser.... The equal application rule furthers this aim, but it does not forbid unequal price increases.
The court next addressed plaintiffs’ “alternate claims” that Texaco’s price increase violated general regulatory provisions prohibiting “retaliatory action,” “discrimination,” and the modification of “normal business practices.” Apparently assuming that a violation of these general rules can be predicated only on an indirect violation of a specific rule, the court held that Texaco’s compliance with the equal application rule of section 212.83(h) shields Texaco from liability under the general rules. “Consequently, the seller’s motive has no regulatory significance.”5
Factual Background
In addition to distributing gasoline to ultimate end-users through its own marketing system, Texaco contracts with independent distributors who in turn supply commercial users and retail sales outlets. Each of these independent distributors competes with Texaco’s own outlets, as well as with all outlets of other brands. Plaintiffs-appellants on this appeal are such independent distributors. Prior to January 27, 1977, these distributors paid Texaco a price stated in terms of a discount from Texaco’s retail tankwagon price (the price Texaco charged its own retail dealers for gasoline).
As DOE assigned new supply obligations to the distributors,6 they exercised their rights under C.F.R. § 211.13(c)(3)7 by ap[516]*516plying to DOE for an increase in their allotments of gasoline from Texaco. DOE granted these requests over objection by Texaco. From prior to 1972 through 1976, Texaco obtained part of its supply of gasoline for west coast distribution through an agreement with Exxon whereby Exxon refined gasoline for Texaco. In June of 1976 Exxon informed Texaco that it would terminate its processing agreement on December 31,1976. Texaco asserts it thus faced a potential supply shortage in PADD V.
On January 28, 1977, Texaco implemented a price increase in PADD V consisting of a $.005 per gallon increase in the retail tankwagon price of premium gasoline and a $.015 per gallon increase in its distributor price for the product. No increase was charged to Texaco’s retail and consumer classes of purchasers for regular and unleaded gasoline, while the independent distributors were charged an additional $.01 per gallon for those products. The net effect of the “unequal price increases” was to reduce the differential between Texaco’s retail and independent distributor prices by one cent per gallon.
Regulatory Background
In November, 1973, Congress passed the Emergency Petroleum Allocation Act, 15 U.S.C. §§ 751 et seq., in order inter alia to stabilize the nation’s general economy and the petroleum industry in particular. DOE and its predecessor agencies promulgated regulations mandated by the Congress and designed to implement the provisions of the EPAA.8 A basic objective of those regulations was to maintain the supplier/purchaser relationship that existed in 1972-73. The Mandatory Petroleum Allocation Regulations set out in 10 C.F.R. Part 211 delineated limitations governing the allocation of petroleum products by suppliers.
The Mandatory Petroleum Price Regulations contained in Part 212 set out the specific pricing rules. These rules provided, generally speaking, that a refiner could not charge in excess of a “maximum allowable price,” which was defined, and again we use broad terms, as the 1973 base price plus any increased costs of the refiner. These rules did not require refiners to pass increased costs on to the purchasers; they merely allowed them to do so. During a period of ample supply of crude oil, for example, competition among various refiners might be so intense that a particular refiner would choose to set its price below the “maximum allowable price” by not passing on some of its own increased costs. When a refiner elected not to pass costs on to purchasers, it could “bank” those unrecouped costs for later passthrough. Any time a company added previously unrecouped costs to its current price, it, of course, had to reduce its “bank” of those costs.
There were some limitations, however, on this right to pass on increased costs to purchasers, for DOE sought to distribute the burden of these increased costs as widely and uniformly as feasible. The major limi[517]*517tation relevant here was provided by section 212.83(h), the “equal application rule.” This provided an economic incentive for refiners to pass previously unrecouped costs equally to all classes of purchasers. If a refiner applied these increased costs unequally, it had to reduce its “bank” of previously unrecouped costs by an amount that was larger than the amount of previously unrecouped costs actually recouped. Such reduction in a refiner’s ability to recoup its banked costs constituted a “penalty” for effecting an “unequal price increase.” Thus 10 C.F.R. § 212.83(h) provided in pertinent part:
(h) Equal application among classes of purchaser. (1) General rule. Except as provided in paragraphs (h)(2) and (3) of this section, when a firm calculates the amount of increased costs not recouped that may be added to May 15, 1973, selling prices to compute maximum allowable prices in a subsequent month, it shall calculate its revenues as though the greatest amount of increased costs actually added to any May 15, 1973, selling price of the product concerned and included in the price charged to any class of purchaser, had been added, in the same amount, to the May 15, 1973, selling prices of that product and included in the price charged to each class of purchaser.
(2) Special rules, (i) Gasoline. When a firm calculates the amount of increased costs not recouped that may be added to May 15, 1973, selling prices of gasoline to compute maximum allowable prices in a subsequent month, it may, notwithstanding the general rule in paragraph (1) above, compute revenues as though (A) the greatest amount of increased costs actually added to any May 15, 1973, selling price of gasoline and included in the price charged to any class of purchaser in a particular region (as defined in § 212-82), had been added, in the same amount, to the May 15, 1973, selling period from the date of issuance of this Special rule prices of that product and included in the price charged to each class of purchaser in that region, and (B) the greatest amount of increased costs actually added to the May 15,1973, selling price of gasoline and included in the price charged to any class of purchaser in any region had been added, in the same amount (less any actual differential or three cents per gallon, whichever is less) to the May 15, 1973, selling prices of that product and included in the price charged to any class of purchaser in any other region.
In addition to these specific allocation and pricing regulations in Parts 211 and 212, the General Allocation and Price Rules in Part 210 provided broad requirements and prohibitions. It is therein made clear that Part 210 applied to both Part 211 and Part 212.9
These General Allocation and Price Rules prohibited “retaliatory actions” as therein defined, the modification of any “normal business practices in effect during the base period specified in Part 211 for that allocated product,” so as “to result in the circumvention of any provision of this chapter,” [518]*518and “discrimination” among purchasers of any allocated product as therein defined.10
Contentions on Appeal
The distributors contend that the granting of summary judgment was improper because there were genuine issues of material fact requiring trial. More particularly it is claimed (1) that the distributors had alleged direct violations of both the maximum price regulations and the regulations prohibiting terminations of supplier/purchaser relationships, which the district court in granting summary judgment to Texaco erroneously failed to recognize, and (2) that the district court erred in concluding that if section 212.83(h) by its terms permitted an unequal price increase, the General Allocation and Price Rules of Part 210 regulations could not limit or prohibit such increase and that the district court erred in disregarding related factual issues.
Texaco maintains that the distributors are wrong on all points and summarizes its position as follows:
Texaco’s basic position can be reduced to a single proposition: the applicable price rule, § 212.83(h) not only permits price increases that are unequal in nature but also permits them for the purpose of affecting demand. But if this construction is correct, then it follows that it would be inconsistent to construe such conduct for such purpose (i.e., Texaco’s conduct and motive in this case) to be prohibited by other regulations. In other words, the correct construction of § 212.-[519]*51983(h) is the key to the correct construction of the other regulations advanced by plaintiffs.
Additionally, Texaco contends that its price increase did not violate the general regulations, not being covered by the regulatory definitions of “discrimination,” “retaliation,” or “normal business practice.”
Standard for Review
The well-established rule is that summary judgment may be granted only where there is (1) no genuine issue of any material fact and (2) the prevailing party is entitled to judgment as a matter of law. The party opposing a motion for summary judgment is entitled to have all facts viewed in the light most favorable to it and to all reasonable inferences which may be drawn from the facts. Standard Oil Co. v. Department of Energy, 596 F.2d 1029,1065 (TECA 1978). The moving party must show that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). If the nonmoving party has raised by pleadings a genuine issue of material fact, and the evidentiary matter in support of the motion for summary judgment does not establish the absence of such issue, summary judgment must be denied even though no opposing evidentiary matter is presented. See Adickes v. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970); Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 439 (9th Cir. 1979).
The very nature of a controversy may render summary judgment inadvisable. “[S]ummary procedures should be used sparingly ... where motive and intent play leading roles.... ” Poller v. Columbia Broadcasting, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Summary procedures are especially salutary where issues are clear-cut and simple, but should not be based upon indefinite factual foundations involving a welter of statutory or regulatory provisions the application of which may depend on undeveloped facts. Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57, 68 S.Ct. 1031, 1034, 92 L.Ed. 1347 (1948). Although it is proper to resolve even difficult legal issues by summary judgment if the requirements of the Rule have been clearly met, a court “ ‘should refuse to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.’ ” N.L.R.B. v. Smith Industries, Inc., 403 F.2d 889, 893 (5th Cir. 1968), quoting Palmer v. Chamberlin, 191 F.2d 532, 540 (5th Cir. 1951). “Complex cases where the questions are not, and often cannot be, conveniently isolated as pure questions of law are not appropriately disposed of by summary judgment.” Elliott v. Elliott, 49 F.R.D. 283, 284 (S.D.N.Y.1970).11
Discussion
The district court did not determine either as a matter of fact or law whether Texaco had shown that its increased price [520]*520was within the maximum allowable price, for the court held that the distributors had not placed this matter in issue. We disagree. In their Second Amended Complaint they alleged violations of section 212.81 (applicable to products refined by or purchased by a refiner), section 212.82 (defining significant terms, including “maximum allowable price”), and section 212.83 (the refiner’s “Price rule”).12 The distributors also alleged that Texaco “overcharged said plaintiffs ... in an amount in excess of that prescribed by law.” In a “joint pretrial statement” the distributors’ claims include violation of the price regulations, including sections 212.82 and 212.83. It is true that this pretrial statement was not formally signed, but it appears as part of the record before us, was referred to in the final argument and does at least reflect the claims of the distributors. In response to the court’s questioning at the final hearing prior to dismissal of the regulatory claims, counsel for the distributors indicated their contention to be that Texaco had “failed to comply with both price regulations and the allocation regulations.”
Similarly, the district court concluded that the distributors had not alleged a direct violation of the antitermination provisions of section 211.9. Again, we cannot agree. The Second Amended Complaint raised that issue. In addition to the above-mentioned reference to the allocation regulations during oral argument, the distributors in their trial memorandum specifically noted the issue of “whether an action which is intended to reduce volumes of purchases and does reduce volumes of purchases is a termination in and of itself.” Texaco cites no instance where the distributors dropped either of these claims and we find none. Since each involved genuine issues of material fact thus far unresolved in the record, summary judgment was inappropriate.
The district court declared that DOE’s interpretation of section 212.83(h), as outlined in the preamble to that rule, defeats the distributors’ claim that Texaco’s unequal price increase violates the price regulations: “[The agency] stated that the rule causes a seller which applies costs unequally to lose the right to recoup a part of those costs. Preamble, 41 Fed.Reg. 30021 (1976). It made clear, however, that ‘increased costs may be unequally applied to prices charged to classes of purchaser.’ ” The court concluded that “[a]bsent a showing that a seller’s price exceeds the lawful maximum, such an increase does not violate price rules. Plaintiffs do not make this showing. Their claim must therefore fail.”
Thus the trial court shifted the burden of proof on a motion for summary judgment from the movant to the distributors. We agree that, as the trial court held, section 212.83(h) “deters unequal price increases [but] does not forbid them,” since the regulations provided a penalty for the inequality. But the trial court without any affirmative showing by Texaco on the point erroneously assumed that there had been a compliance with the provisions of section 212.-83(h) in the computation and reporting of the required penalty.13
[521]*521There is a deeper problem which obstructed the summary judgment, and which Texaco seemed to apprehend at the trial as it mistakenly sought to have the trial court avoid it. In its trial memorandum, Texaco conceded that many of these pricing questions “would be material in a case alleging violation of § 212.83(a), the basic price rule which forbids sales in excess of the maximum allowable price.” As we have now seen, the distributors did allege and continue to rely upon a violation of section 212.-83(a). There remains a complex array of unexplained regulations and related factual issues unevaluated and unresolved, which preclude summary disposition.14
The district court held that “a pricing action expressly permitted by specific rules” cannot be prohibited by the general regulations as Part 210. Apparently underlying this conclusion was the assumption that violation of the general rules can be predicated only on an indirect violation of a specific rule of Parts 211 and 212. In its brief at page 10 Texaco puts it this way: .
As stated at the beginning, Texaco’s basic position reduces itself to a single logical proposition: if one regulation, § 212.83(h) permits a seller to make an unequal price increase with the purpose and expectation that it will affect demand, then such action for such purpose cannot be construed to violate some other section of the same regulatory scheme. The District Court expressed this concept of regulatory construction by stating that “[i]t would offend fundamental fairness to -penalize a regulated party for literal compliance with imperfect regulations.”
There are some basic misconceptions here. Among these are the assumptions that exercised authority to make unequal price increases carries with it immunity from other requirements of the regulations; that the so-called general rules of Part 210 can come into play only if there is otherwise a direct or indirect violation of specific provisions of Parts 211 or 212, and that there is something unfair about requiring compliance with the provisions of other sections of the regulations in connection with exercise by a refiner of the pricing flexibility permitted by section 212.83(h).
It is apparent from the text already quoted that the provisions of Part 210 applied to allocations, and price controls. Furthermore, its preamble declared that “[a] new Part 210 has been created establishing the general rules which apply to both the price control and allocation programs .... The creation of Part 210 recognizes the compelling necessity of viewing both allocation and price problems within the context of a single regulatory framework.” 39 Fed.Reg. 1924 (January 15, 1974). These general rules prohibited, for example, acts that are “contrary to the purpose or intent” of the [522]*522EPAA or regulations promulgated thereunder, and acts that “result in the circumvention of any [relevant] provision” in the regulations. Since each of the general regulations sets out a different standard of conduct, we will examine each relevant regulation individually.
Distributors argue that Texaco’s price action was an unlawful retaliation. Section 210.61 provided that
No firm . .. may take retaliatory action against any other firm . . . that . . . exercises any right conferred by the [EPAA], any provision of this chapter, or any order issued under this chapter. For the purposes of this paragraph, “retaliatory action” means any action contrary to the purpose or intent of the Economic Stabilization Program or the Department of Energy....
The essence of a retaliatory action is its nature as an improper response to the exercise by another of rights granted by the Act or regulations thereunder. In this respect, “motive” or “intent,” as well as effect, is an essential element of a violation of this general regulation. It, indeed, under some circumstances could be clearly contrary to the purpose and intent of both the Act and its regulations for a refiner to raise its prices within otherwise permissible limits merely to harass or injure a purchaser or a class to which it belonged because it exercised rights guaranteed to it by the Act or its regulations. Any system which authorized such conduct so at variance with its own objects and purposes would seem both unfair and incomplete. It cannot be ruled as a matter of law that the objects and purposes of the Act and its regulations can be so thwarted despite the provisions of section 210.61. There may be various gradations of such intent or conduct extending to legitimate reaction to conditions in the marketplace.15 This is a problem inappropriate for resolution by summary judgment.
Distributors also contend that Texaco’s “unequal price increase” constituted an illegal discrimination in violation of section 210.62(b) in that it was treatment which had the effect of “frustrating or impairing the objectives, purposes and intent” of the Act or its regulations. Again, there is no requirement there that a regulation of Parts 211 and 212 be violated. Support for this view is provided by the preamble to section 212.83(h), indicating that section 210.62(b) placed some limitations on a supplier’s right to effect unequal price increases.16 Furthermore, this interpretation is not inconsistent with the decision reached by OHA:
Although circumstances might exist in which price discrimination permitted by DOE class of purchaser regulations could result in a violation of section 210.62(b), we would be reluctant to reach such a conclusion unless it were shown that the pricing behavior was illegal under other applicable law, such as the antitrust statutes, or were accompanied by specific results that contravened the purposes of EPAA.
It is somewhat paradoxical in view of this subsequent reference to antitrust law that the district court retained for trial the distributors’ antitrust claims based importantly upon the unequal price increase involved in their regulatory claim as to which summary judgment was granted. We do not necessarily agree with the limited view of the agency as to the reach of section 210-[523]*52362(b). But in any event, just as the OH A had difficulty in perceiving a violation as a matter of law in the absence of a factual basis in the findings of the OSC, we cannot as a matter of law rule out a violation in the absence of the further exploration of, and findings concerning, material issues of fact which were precluded by summary judgment.
The distributors alleged a violation of the “normal business practices” rule of section 210.62(a). It is less clear that a violation of this section was not essentially dependent upon a direct or indirect violation'of a provision of the allocation or price rules and particularly section 211.9(a) or section 211.-12. At least a modification of a “normal business practice” would have violated section 210.62(a) if the result had constituted a circumvention or frustration of its purposes or other regulations. Support for this view once again may be found in the preamble to section 212.83(h), recognizing that section 210.62(a) places limitations on a supplier’s rights under section 212.83(h) by prohibiting modifications of normal business practices that would “circumvent the purposes of today’s amendments.” 17 We reject Texaco’s argument, adopted in a sense by the district court’s opinion, that revisions of section 212.83(h) embodied such a balancing of all of the goals of the EPAA as to preclude related consideration of the General Rules.
We are concerned with a complex regulatory scheme in a context of considerations which the Congress considered especially sensitive.18 The facts upon which the application of the rules depended were, if not wholly undeveloped, unmarshaled and largely ignored. Hence, Texaco’s final argument here that, assuming the application of the General Rules, its price increase did not fall within their definitions of “retaliation,” “discrimination,” or modification of a “normal business practice,” is premature. These and the other questions in this case can be properly resolved only on the basis of an adequately developed record and upon consideration of the application of the regulations in light of it.19
Conclusions
In the instant case, the distributors have raised genuine issues concerning violations by Texaco of allocation, price and general [524]*524regulations as above noted. Texaco has not clearly demonstrated the absence of any “genuine issue as to any material fact” with respect to these alleged violations. While it may well be that the distributors in a trial situation would not have been able to sus- ’ vin their burden of proof with respect to some or all of these issues in view of their lack of discovery concerning them,20 or that further pretrial explanation could have eliminated some of these issues as insubstantial or not genuine, the present posture of the case does not permit any such assumptions. Nor does the complexity of the controlling regulations and the trouble it may have caused Texaco to demonstrate, if it could, that the increase in question was within the permissible maximum price, justify foreclosing this and the other preserved issues. The burden on its motion for summary judgment was Texaco’s, not the distributors. If the price for sustaining the summary judgment rule is additional judicial bother, it is worth it, as it is counted worth it by the Rule itself, and the long line of authority so interpreting it.
Language in Kennedy v. Silas Mason, supra, confirms the present answer and, in conclusion, we paraphrase it in application here:
The short of the matter is that we have . .. extremely important [questions].... No conclusion in such a case should prudently be rested on an indefinite factual foundation. The case . . . comes to us almost in the status in which it should come to a trial court. In addition to the welter of new contentions and [regulatory] provisions we must pick our way among ... [a maze of factual contentions], without full background knowledge of the dealings of the parties. The hearing of contentions as to disputed facts, the sorting of [regulations] to select relevant provisions ... and reduction of the mass of conflicting contentions as to fact and inference from facts, is a task primarily for a court of one judge, not for a court of [three].
Without intimating any conclusion on the merits, we vacate the [judgment] below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions. 334 U.S. at 256-257, 68 S.Ct. at 1034.
It will be so ordered.
NO. 9-50 M.A.P.
M.A.P. Oil Co. and other independent distributors of gasoline, as heretofore reviewed, brought this private damage action against Texaco because of the latter’s price increase of $.01 per gallon to its distributor class without a corresponding increase to its other classes of purchasers.
In November, 1977, DOE issued an NOPV to Texaco, advising it that DOE had reason to believe that this price increase violated allocation and price regulations. Texaco in the present action sought to join DOE as an additional party plaintiff under Fed.R.Civ.P. 19(a)(2) in reliance upon our decision in Longview Refining Co. v. Shore, 554 F.2d 1006 (TECA), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977), and in view of a concern that DOE’s ongoing administrative enforcement proceedings might subject Texaco to inconsistent results. Texaco’s motion was granted over DOE’s opposition, the court adding that “Plaintiffs and Defendant shall each have 20 days leave to file a claim for relief against DOE which shall appear in the action as a third party Defendant.” Texaco thereupon filed a two-count complaint against DOE, the second claim of which sought relief in reliance upon the Federal [525]*525Tort Claims Act (FTCA) for DOE’s alleged “violation of its own regulations.”21 DOE filed a motion for judgment on the pleadings asserting lack of subject matter jurisdiction over the FTCA claim and urging dismissal on the merits. !
The district court held that Texaco had stated a claim for abuse of process or malicious prosecution but that neither was cognizable as a ground for relief under the FTCA; that the elements of malicious prosecution or abuse of process had not been made out because both required the original prosecution to be unsuccessfully completed prior to initiation of the suit, and that in any event “prosecutorial immunity protects such decisions from the Federal Tort Claims Act as ‘discretionary’ acts.” The court finally dismissed DOE as a party, concluding that it had been improperly joined in view of our intervening decision in Dyke v. Gulf Oil Corp., 601 F.2d 557 (TECA 1979), because no order of DOE was at issue and no compelling circumstances for joinder were shown.
Texaco appealed the order of dismissal of the FTCA claim and the order dismissing DOE as a party. No argument has been made here in support of Texaco’s objection to the latter order apart from the dismissal of the tort claim, to which a complete disposition of Texaco’s appeal can be confined. Following the taking of this appeal DOE moved here for leave to file a motion to dismiss the appeal, and for an order dismissing it with prejudice, for lack of subject matter jurisdiction on the ground that Texaco had failed to satisfy the administrative claims requirement of 28 U.S.C. § 2675 and the applicable time limitation for filing a claim provided by 28 U.S.C. § 2401. We granted DOE’s motion to file its tendered motion to dismiss22 but denied without prejudice its motion to dismiss pending oral argument, choosing to have the issue of jurisdiction briefed, heard and considered in connection with the issues raised in the McWhirter appeal.
DOE’s Motion to Dismiss the Appeal for Lack of Jurisdiction
Texaco’s action against DOE, though nominally a “Federal Tort Claim,” arises directly under EPAA regulations, its gravamen being the assertion that DOE violated its own regulations promulgated pursuant to the EPAA by the decision to initiate an EPAA enforcement action and the issuance of an NOPV against Texaco. The FTCA is involved only as it might operate as a waiv[526]*526er of sovereign immunity within its proper scope. This analysis has dispelled an initial concern that Texaco’s action arose under the FTCA and not under the EPAA or regulations issued pursuant thereto, a point which neither party has argued.23
The jurisdictional issue which DOE presses relates to the timely presentation of an administrative claim as a prerequisite to reliance upon the FTCA. Neither party raised or addressed the latter issue in the district court, nor did that court sua sponte notice the problem, basing its dismissal instead upon the restricted reach of the Federal Tort Claims Act as already noted. Of course DOE’s motion to dismiss this appeal by reason of the asserted lack of jurisdiction in the lower court to grant relief under the FTCA for the assigned reason does not make sense; such dismissal would conceptionally stymie our ability on appeal to rule upon the question of the jurisdiction of the district court and to affirm its dismissal of Texaco’s tort action by reason of its lack of jurisdiction to do anything else. We do on the latter ground affirm the district court’s order of dismissal, while reaffirming our pre-argument denial of DOE’s motion to dismiss this appeal. DOE’s motion raised no genuine issue of the appellate jurisdiction of this court as distinguished from the jurisdiction of the district court to grant relief under the FTCA.
The Necessity of an Administrative Claim
Section 2401 of Title 28, United States Code, dealing with “Time for commencing action against United States,” provides that a federal tort claim is “forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” Title 28 U.S.C. § 2675(a) requires the presentation of such a claim to the appropriate federal agency and the agency’s written denial of the claim, or the lapse of six months without agency denial of the claim, before institution of suit against the United States under the FTCA. The record demonstrates without question that these provisions were not complied with.24
[527]*527The filing of an administrative claim to the extent required by 28 U.S.C. § 2675(a), is a jurisdictional prerequisite to suit in reliance upon the Federal Tort Claims Act and the waiver of immunity afforded by that act. Smith v. United States, 588 F.2d 1209 (8th Cir. 1978); Blain v. United States, 552 F.2d 289 (9th Cir. 1977); Rosario v. Am. Export-Isbrandtsen Lines, Inc., 531 F.2d 1227 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971). See also Anno. Tort Claims Act — Actions—Procedure, 13 A.L.R.Fed. 762 (1972).
Texaco contends that its tort claim falls within the exceptions contained in the last sentence of section 2675(a) covering claims asserted by third-party complaint, cross-complaint or counterclaim.25 These exceptions, however, are not applicable in this case. Rule 14(a), Federal Rules of Civil Procedure, permits the defendant, as third-party plaintiff, to bring in a third-party defendant, defined as one “who is or may be liable to him for all or part of the plaintiff’s claim against him.”
Notwithstanding the district court’s leave to Texaco for the filing of a “third-party claim” against DOE, the claim as filed did not in fact or law constitute a third-party claim under Rule 14 to which ancillary jurisdiction would attach. Texaco did not and could not seek indemnity or contribution with respect to any possible liability to the original plaintiff. Cf. West v. United States, 592 F.2d 487 (8th Cir. 1979). Nor was Texaco’s claim against DOE a cross-claim. Rule 13(g) defines a cross-claim as “any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter ... of the original action.” It is debatable whether Texaco’s claim arose out of the same transaction or occurrence as the plaintiffs’ claim did, but in any event Texaco and DOE were adverse parties rather than co-parties. See Schwab v. Erie Lackawanna Railroad Co., 438 F.2d 62, 66 (3d Cir. 1971). It would be specious to characterize them as co-parties since their actual and only relationship to each other throughout the litigation was that of plaintiff and defendant. See Stahl v. Ohio River Company, 424 F.2d 52, 55 (3d Cir. 1970); Rosario, 531 F.2d at 1231 n.8. It would be equally wrong to consider Texaco’s action as a “counterclaim” ; the government asserted no claim against Texaco in this litigation. Rosario, supra; 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1444 at 234, § 1404 at 15 (1971).
Texaco initially moved “to join [DOE] as a plaintiff in this action pursuant to Rules 19 and 21” and contends here that it should not be prejudiced by the district court’s improper designation of DOE as a “third-party defendant.” We are not here concerned with mere form. However designated, in substance Texaco’s claim against DOE constituted a direct, original complaint, Rosario, supra.
We have here simply an improper case for ancillary jurisdiction, which is the conceptual basis of the exceptions to the necessity of filing administrative claims under the FTCA. Beyond the question of whether the original complaint of the distributors and Texaco’s claim arose out of the same transaction or occurrence, is the problem of whether it should be considered a claim at all with jurisdictional consequences under the FTCA. Surely the district court was [528]*528right in its recognition that Texaco’s claim was in the nature of one for malicious prosecution or abuse of process. Such a claim not only is devoid of merit under the FTCA but for the purpose of avoiding the bar of governmental immunity should not be considered a counterclaim, cross-claim or third-party complaint at all within the contemplation of section 2675(a) of the Act. See United States v. Chatham, 415 F.Supp. 1214 (N.D.Ga.1976); Gaudet v. United States, 517 F.2d 1034 (5th Cir. 1975).26
We have considered all of the other counter-arguments presented by Texaco, but are constrained to conclude for the reasons stated that the district court had no jurisdiction to grant relief against DOE or the United States by reason of failure of Texaco to file an administrative claim. The circumstance that in any event Texaco could not recover because its claim falls within the exceptions to coverage by the FTCA, as we implicitly recognized in discussing the question of lack of jurisdiction, does not relieve us from the duty to rest our decision upon the latter ground which is preemptive and sufficient. We do not reach the additional asserted defenses of “discretionary function,” and “prosecutorial immunity,” nor the perhaps correctable defect in Texaco’s claim which does not name the “United States” as a party defendant.27
In No. 9-49 we reverse the district court’s decision granting the motion for summary judgment and remand for further proceedings consistent with this opinion.
In No. 9-50 we affirm the judgment of the district court dismissing Texaco’s counterclaim.
IT IS SO ORDERED.