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Mar v. United States


March 19, 2009



Previously pending on this court's law and motion calendar for January 7, 2009, was defendant's motion to dismiss or for summary judgment. Assistant U.S. Attorney Jason Ehrlinspiel appeared on behalf of defendant United States. No appearance was made on behalf of plaintiff, who is represented by attorney Erik Child. Mr. Child did, however, file an opposition to the motion which acknowledged his awareness of the date, time and location for the hearing.*fn1

This action proceeds before the undersigned for all purposes pursuant to 28 U.S.C. § 636(c). For the following reasons, the court dismisses this action.


The complaint, filed pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2401 et seq., alleges negligence by the employees of defendant U.S. Postal Service ("USPS" or "agency"), at its Brookfield Drive location in Sacramento. The complaint states that on April 3, 2006, plaintiff slipped on water accumulated on the floor of the post office lobby, and fell, injuring her spine, a direct and proximate result of defendant's negligence. The complaint seeks $900,000 in damages.

On April 30, 2007,*fn2 plaintiff presented to defendant an administrative tort claim, set forth in a detailed letter in which she sought $200,000 settlement for her injuries, medical expenses and lost wages. Def.'s Mot., Exh. A. On December 10, 2007, plaintiff presented to defendant a completed and executed Standard Form 95 ("SF-95" of "Form 95"), seeking $750,000 in damages. Id., Exh. B.

Plaintiff filed this action on March 24, 2008, seeking $900,000 in damages.

Thereafter, on May 6, 2008, and again on May 17, 2008, USPS mailed a "final denial" letter to plaintiff's counsel by certified mail. The first letter, sent to counsel's former office, was returned. Id., Exh. C. Plaintiff's counsel signed for and accepted the second letter on June 2, 2008. Id., Exh. E. Because the letters are identical,*fn3 and the first letter was returned, the operative letter is that mailed May 17, 2008. See, e.g., Graham v. United States, 96 F.3d 446, 448 (9th Cir. 1996) ("The time for filing a district court action begins to run when the agency mails the notice of denial. See 28 U.S.C. § 2401(b)."); see also 28 C.F.R. § 14.9(a) (plaintiff may file suit "not later than 6 months after the date of mailing of the notification").

On June 5, 2008, plaintiff served her previously-filed judicial complaint upon defendant. Defendant answered the complaint on July 30, 2008, and filed this motion on December 5, 2008.

Defendant contends that plaintiff's complaint was prematurely filed because her second administrative filing, on December 10, 2007, constituted an "amended claim" that reset the six-month period within which the administrative agency could act, 28 U.S.C. § 2675, thus rendering this court without subject matter jurisdiction due to plaintiff's failure to exhaust her administrative remedies.

Plaintiff responds that her Form 95 filing was intended, and should be construed, as only a reminder to USPS of plaintiff's initial claim, filed April 30, 2007, and therefore that the six-month period for agency action expired on October 30, 2007, rendering her action timely filed in this court on March 24, 2008.


Defendant moves to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action").*fn4 "[W]here a jurisdictional issue is separable from the merits of the case, the Court may determine jurisdiction by the standards of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). "In ruling on a challenge to subject matter jurisdiction, the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See Thornhill Publishing Co. v. General Telephone Corp., 594 F.2d 730, 733 (9th Cir.1979). In such circumstances, '[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.' Thornhill, 594 F.2d at 733." Augustine v. United States, 704 F. 2d 1074, 1077 (9th Cir. 1983).

A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). Lack of subject matter jurisdiction is so fundamental that it may be raised at any time by any party or by the court. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). Plaintiff bears the burden of demonstrating the court's jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) ("A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction"). "A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case," unless the defect can be remedied by amendment. Smith v. McCullough, 270 U.S. 456, 459 (1926); see also Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001).


The Federal Tort Claims Act is the exclusive vehicle for filing a tort action against a federal agency. See 28 U.S.C. § 2679; Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam). "The Act vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of Government employees." Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). "Unless Congress enacts legislation that subjects the federal government to tort liability, the United States, as sovereign, cannot be sued. The FTCA is a limited waiver of the federal government's historical immunity from tort liability." Marley v. United States, 548 F.3d 1286, 1289 (9th Cir. 2008).

The FTCA "provides that an 'action shall not be instituted upon a claim against the United States for money damages' unless the claimant has first exhausted his administrative remedies." McNeil v. United States, 508 U.S. 106, 107 (1993) (citing 28 U.S.C. § 2675(a)).*fn5

Upon an agency's denial of a claim, or expiration of the six months within which the agency may act, 28 U.S.C. § 2675(a), the claimant has six months within which to file an action in federal court, 28 U.S.C. § 2401 (b).*fn6

A claim is deemed to have been presented to a federal agency upon the agency's receipt of a Form 95 executed by the claimant or her legal representative, or other written notification of the challenged incident "accompanied by a claim for money damages in a sum certain." 28 C.F.R. § 14.2(a).*fn7 Amendment to a claim may be made at any time prior to final agency action or, thereafter, within the six-month period within which the claimant may exercise, but has not yet exercised, her right to file a judicial action. 28 C.F.R. § 14.2(c).*fn8

As plaintiff contends, if her original administrative claim filed April 30, 2007, remained operative, such claim would have been administratively final on October 30, 2007, thus triggering the six-month period for filing a judicial action, and rendering the instant action timely filed on March 24, 2008. This construction would require adoption of plaintiff's position that her second administrative filing, on December 10, 2007, was only a "reminder" of her pending claim, not an "amended claim," and that the agency's "final denial" letter was sent in response to plaintiff's first administrative filing. Plaintiff argues that the purpose of the second filing was only "an effort to remind the administration to respond to the original claim prior to [plaintiff] filing suit and imposing upon the court's limited resources." Pl.'s Opp'n, at p. 3. Plaintiff explains that the completed Form 95 comprised only a single page, as compared to her six-page, detailed initial claim letter, and contained no new information.

There is no legal support for plaintiff's position. Plaintiff directs the court to no case, and the court has found none, in which an ambiguous second administrative filing, filed within the period authorized for an amended claim, was construed as other than an amended claim. Moreover, plaintiff's second filing was not substantively "redundant" of her initial filing but presented new information by increasing plaintiff's damages claim from $200,000 to $750,000. This change is significant. An administrative filing will not be deemed a "claim" under the FTCA unless it seeks damages in a "sum certain." See 28 C.F.R. § 14.2(a), and n. 5, infra; see also Avril v. United States, 461 F.2d 1090, 1091 (9th Cir. 1972) (failure to state sum certain amount of damages renders claim a nullity); Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974) (sum certain also required to identify claims requiring the approval of the Attorney General for settlement pursuant to 28 U.S.C. § 2672, and to evaluate insurance coverage). The amount sought in an administrative claim is also significant because it limits the amount of damages that may be sought in a judicial action. See 28 U.S.C. § 2675(b).*fn9 These factors compel this court's construction of plaintiff's "Form 95" as an amendment to her initial claim. That defendant made the same inference is implied by the timing of its final denial letter. That letter was mailed on May 17, 2008, within six months of plaintiff filing her Form 95 on December 10, 2007. It is unreasonable to construe defendant's final denial letter as referencing plaintiff's initial filing of April 30, 2007, because more than a year had passed -- that is, expiration of the time period for plaintiff's initial claim to be deemed denied by the agency's inaction was October 30, 2007, and the ensuing six-month period within which plaintiff could file her judicial complaint expired on April 30, 2008.

The court therefore concludes that plaintiff's Form 95 filing effectively amended her initial claim, restarting the six-month period for agency action, and thus rendering her judicial action premature.

Defendant's numerous citations prescribe the draconian result of dismissal, concededly calamitous to individual plaintiffs. As the Supreme Court has explained, the FTCA requires "complete exhaustion of [administrative] remedies before invocation of the judicial process," which necessarily requires strict compliance with statutory requirements. McNeil, supra, 508 U.S. at 112 (dismissing complaint as premature because filed before plaintiff submitted an administrative claim). As the Court stated:

Every premature filing of an action under the FTCA imposes some burden on the judicial system and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims. The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command. . . .The remedy for noncompliance is simple:

any complaint filed before complete exhaustion must be dismissed. Id. at 112-113

The Supreme Court's holding in McNeil reflected the approach adopted by the Ninth Circuit, see Jerves v. United States, 966 F.2d 517 (9th Cir. 1992) (dismissing as premature a complaint filed five months before plaintiff filed her administrative claim, distinguishing the more permissive approaches of the Third and Eighth Circuits), and has continued to be reflected in the decisions of this district dismissing FTCA complaints filed less than six months after presentation of the plaintiff's administrative claim. See, e.g., Sparrow v. U.S. Postal Service, 825 F. Supp. 252, 254-55 (E.D. Cal. 1993) (Wanger, J.); Soto v. United States, No. CIV-S-07-00866- FCD- DAD, 2007 WL 2601411 (E.D. Cal. Sept. 6, 2007); Bueno-Watson v. United States, No. CIV-S-92-961-DFL, slip op. (E.D. Cal. July 2, 1993); Van Leuven v. United States, No. CIV-S-97-2383-WBS, slip op. (E.D. Cal. Mar. 15, 1999); Kozak v. United States, No. CIV-S-96-1038-WBS, slip op. (E.D. Cal. June 20, 1997); Hughley v. United States, No. CIV-S-94-0462-WBS, slip op. (E.D. Cal. July 27, 1995).

Plaintiff contends in the alternative that equitable tolling should apply to her "excusable neglect" in failing timely to file a judicial complaint on her amended claim, based on defendant's purportedly affirmative concealment of its position that plaintiff's complaint was prematurely filed. Plaintiff argues that defendant proceeded with this action as though it remained viable, by answering the complaint, and having numerous conversations with plaintiff's counsel from which counsel inferred defendant's agreement with plaintiff's position that the USPS denial letter referenced only plaintiff's initial filing. Plaintiff contends that defendant merely bided its time until the six-month period for filing a judicial complaint expired as to plaintiff's "amended" claim, and filed the instant motion.

Defendant responds that plaintiff was put on notice of this matter by (1) the agency denial letter, which explicitly accorded plaintiff six months within which to file a judicial complaint, and (2) defendant's answer, specifically, its Second Affirmative Defense ("The Court lacks subject matter jurisdiction over this matter"), and its Fifteenth Affirmative Defense ("This action is barred by reason of Plaintiff's failure to exhaust her administrative remedies").

The Ninth Circuit recently held, on December 8, 2008, in Marley v. United States, supra, 548 F.3d 1286, that the six-month limitations period of 28 U.S.C. § 2401(b) (see n. 6, supra) is jurisdictional and therefore not subject to equitable tolling or equitable estoppel. Relying on its previous decisions, with the exception of Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996), which it overruled, the Ninth Circuit held it was without flexibility to apply equitable doctrines to § 2401(b) because the deadline it sets is strict and therefore jurisdictional. Reviewing Senate Judiciary Committee commentary in promoting enactment of the statute in 1966, the court concluded that the purpose of the six-month deadline is to facilitate the broad administration of FTCA claims rather than to accord discretion in the handling of individual claims. Acknowledging the limited waiver of sovereign immunity under the FTCA, the court concluded that to apply equitable principles to such cases would improperly "impinge on Congress' role as regulator of the jurisdiction of the federal courts." 548 F.3d at 1292 (citations omitted).

Accordingly, no equitable considerations may countermand the necessary finding of this court that plaintiff's claim is barred by the doctrine of sovereign immunity due to plaintiff's failure to exhaust administrative remedies, and therefore this court lacks subject matter jurisdiction over this action.


For the foregoing reasons, defendant's motion to dismiss filed December 5, 2008, Dckt. No. 23, is hereby GRANTED. The Clerk is directed to close the case.

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