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Ruscigno v. United States Government


June 3, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Defendant United States moves to dismiss Plaintiff's complaint. Plaintiff Stephanie Ruscigno opposes this motion pro se. On April 14, 2005, the Court issued a tentative order denying Defendant's motion to dismiss (hereinafter the April 14 Order). The Court allowed the parties to file supplemental briefing in response. Defendant filed a supplemental memorandum in support of its motion to dismiss. Having considered the brief filed by Defendant, the Court adopts its April 14 Order and denies Defendant's motion to dismiss.


As described in the April 14 Order, Plaintiff brings a claim against Defendant under the Federal Tort Claims Act (FTCA) for two slip-and-fall incidents that occurred on January 11, 2000 and July 26, 2000. Pursuant to the FTCA's exhaustion requirements, Plaintiff filed administrative claims for personal injury with the General Services Administration (GSA) for the slip-and-falls in January, 2000 and July, 2000. On or about August 8 and 11, 2003, the GSA mailed two letters denying Plaintiff's administrative claims arising out of her falls. Both letters informed Plaintiff, "[I]f you are dissatisfied with the General Services Administration's denial of your claim, you may file suit in an appropriate United States District Court within six (6) months from the date this decision is mailed to you." Neither letter mentioned that Plaintiff was entitled to ask for reconsideration of the GSA's determination or explained the procedure for doing so.

On February 4, 2004, Plaintiff emailed GSA employee Stuart Willoughby asking for his "assistance in resolving a claim I made to the GSA." Arbuckle Decl. Ex. E. Plaintiff noted that she needed "an answer as my time is nearing the end to filing with the federal courts." Id. Plaintiff stated her desire to avoid litigation and asserted, "All I am asking for is to settle these matters fairly and expeditiously." Id. Plaintiff subsequently filed this suit on March 1, 2004, more than six months after the GSA first mailed her denials but less than six months after Plaintiff sent her email to Willoughby.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant moves to dismiss Plaintiff's complaint as barred by the applicable statute of limitations and therefore failing to state a claim. In its April 14 Order, the Court tentatively ruled that the limitations period was tolled by her email to Willoughby, which could be construed as a request for reconsideration of the GSA's determination. This order addresses the new arguments and evidence introduced by Defendant to support its position that the email was not a request for reconsideration and therefore the statute of limitations was not tolled.


The United States, "as sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Testan, 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA's statute of limitations provides,

A tort claim against the United States shall be forever barred . . . unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of the final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b). However, Plaintiff was entitled to restart the six month limitations period upon filing a request for reconsideration of the GSA's determination. The Code of Federal Regulations provides in pertinent part,

Prior to the commencement of suit and prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b), a claimant . . . may file a written request with the agency for reconsideration of a final denial of a claim under paragraph (a) of this section. Upon the timely filing of a request for reconsideration the agency shall have 6 months from the date of filing in which to make a final disposition of the claim and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of a request for reconsideration.

28 C.F.R. § 14.9(b).

As Defendant notes, a "waiver of the traditional sovereign immunity 'cannot be implied, but must be unequivocally expressed.'" Testan, 424 U.S. at 399 (quoting United States v. King, 395 U.S. 1, 4 (1969)). Here, however, Defendant does not dispute that the GSA's reconsideration procedure, set forth in 28 C.F.R. § 14.9(b), is an unequivocal expression of waiver; instead, Defendant disputes whether Plaintiff's email unequivocally falls within the scope of the regulation allowing requests for reconsideration.

Defendant points to the Ninth Circuit's holding that potential plaintiffs must comply with agency regulations requiring inter alia that requests for reconsideration be received by a specific agency division and by a particular time. Berti v. V.A. Hospital, 860 F.2d 338, 340 (9th Cir. 1988). Veterans Administration regulations specifically required that requests for reconsideration be "received by [V.A.] General Counsel." Id. Here, however, Defendant has identified no public source for a similarly specific requirement. Instead, Defendant proffers a declaration prepared for this litigation by GSA's Assistant Regional Counsel, Mark Ezersky. According to Mr. Ezersky, the procedure for a claimant to request reconsideration of the GSA's final denial of his or her administrative FTCA claim has been for the claimant to file a written request for reconsideration with GSA's Regional Counsel's office that handled and adjudicated the initial claim. Consequently, if a claim is denied that relates to an incident occurring in Oakland, CA, the request for reconsideration should be presented to my office located in San Francisco CA. . . . A request for reconsideration must specifically state that a claimant is requesting reconsideration of the GSA's final denial.

Ezersky Decl. ¶¶ 2-3. However, he does not state that these requirements are grounded in specific regulations other than the much more general 28 C.F.R. § 14.9(b), or explain how members of the public are otherwise apprised of the GSA's requirements. The GSA did not inform Plaintiff of any of these requirements in its communications to her. The GSA could have promulgated or publicized clear regulations for requests for reconsideration. In addition to providing Plaintiff with guidance, this would also alleviate Defendant's legitimate concern that many emailed requests for reconsideration could impede the agency's ability to track and process requests for reconsideration in an efficient and timely manner.

Defendant also argues that the Ninth Circuit case law shows that emails and other informal correspondence are not sufficient to meet § 14.9(b)'s "filing" requirements. Yet both Sommatino v. United States, 255 F.3d 704 (9th Cir. 2001) and Cooper v. Bell, 628 F.2d 1208 (9th Cir. 1980), overruling on other grounds recognized by Valenzuela v. Kraft, Inc., 801 F.2d 1170 (9th Cir. 1986), are factually inapposite. In both Sommatino and Cooper, the courts found that the content of the alternative communications belied the plaintiffs' assertion that they had requested reconsideration. See Sommatino, 255 F.3d at 709-710 (finding that the text of plaintiff's emails belied her argument because they disclaimed the formal filing of any complaint); Cooper, 628 F.2d at 1211 (finding that text of letters to supervisors belied plaintiff's characterization as EEOC charges because they failed to describe the legal basis for the charge). Here, in contrast, the Court has already found that Plaintiff's email could be construed as a request for reconsideration despite her failure to use the term "reconsideration."

As Defendant notes, plaintiffs must prove that their requests for reconsideration were received by the relevant agencies in order to satisfy the presentment requirement. See Bailey v. United States, 642 F.2d 344, 347 (9th Cir. 1981) (refusing to exempt a plaintiff from the requirement that requests be actually received); Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994) (holding that plaintiff had not met burden to prove presentment where affidavit was only evidence supporting mailing of request for reconsideration and agency denied receiving any request). In contrast to the plaintiffs in those cases, however, Plaintiff has provided clear, independent evidence, in the form of the GSA's written response, to support her assertion that the GSA did receive her email. See Complaint, Attachments, February 11, 2004 Letter from Rita M. Liotta, Assistant Regional Counsel, GSA Pacific Rim Region to Stephanie Ruscigno ("This office is in receipt of your e-mail dated February 4, 2004 to Stuart Willoughby . . . ."). Nor does Defendant deny that it received Plaintiff's email.

Defendant provides no authority for its contention that Plaintiff must have known that reconsideration was available and intended her email to take advantage of that option in order for it to be construed as a request for reconsideration. Finally, as the Court explained in its April 14 Order, the other cases cited by Defendant for the proposition that Plaintiff's email cannot be construed as a request for reconsideration are factually inapposite. Cf. Metropolitan Property & Cas. Ins. Co. v. United States, 1991 WL 37082 (E.D.N.Y. 1991) (finding that letter specifically stating "this is not an attempt to ask for reconsideration" was in fact not a request for reconsideration); Greenberg v. Kraich, 2004 WL 2414006 (S.D.N.Y. 2004) (finding claimant had not filed a request for reconsideration where he requested a copy of the accident report and informed the agency that he would be filing a claim in court).


For these reasons, the Court affirms the reasoning in its April 14, 2005 tentative order. The Court denies Defendant's motion to dismiss, but finds that Plaintiff is not entitled to a jury trial (Docket No. 15).



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