Bailey v. United States

642 F.2d 344

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 1981
• Docket: No. 79-3136
• Status: Published

Opinions

DUNIWAY, Circuit Judge:

The district court dismissed this wrongful death action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., because of plaintiffs’ failure to present their claim to the federal agency within two years of the accident. We affirm.

I. The Facts

The facts, as set forth in the pleadings and “Joint Statement of Facts,” may be summarized as follows:

On May 21, 1975, Eddie Bailey died from an explosion while employed at a gunnery range on the Gila Air Force Field in Arizona. Two co-workers, James Hawkins and Bert Ferganchick, were injured in the explosion and the same law firm represented Hawkins, Ferganchick and the heirs of Bailey in asserting tort claims against the United States for alleged negligence in connection with the accident.

The attorneys mailed claims for Ferganchick and Hawkins to the Air Force claims office in mid-August 1975. Receipt of these claims was promptly acknowledged by the claims officer in charge. Because a personal representative had not yet been appointed for the Bailey estate, no claim was filed on behalf of the Bailey heirs at that time, although the attorneys did notify the claims officer that such a claim would be forthcoming and that they would be representing the Bailey heirs.

Over the course of the next thirteen months, several letters passed between the attorneys and the Air Force concerning the Bailey claim. In a letter of January 13, 1976, the attorneys sent an autopsy report on Bailey and a wage statement from his employer. In a letter of January 20, 1976, the claims officer requested information concerning Bailey’s dependents, earnings,- and length of employment. The officer noted that the Air Force had not yet received a claim from Bailey’s estate but that it was his understanding that a claim would be filed once a personal representative was appointed. In March, 1976, the attorneys sent additional information, including Bailey’s funeral bills. The claims officer acknowledged this letter and informed the attorneys that when Bailey’s administrative claim and certain medical information about Hawkins were received, agency files on the three claims would be complete.

On September 13, 1976, following appointment of a conservator, the attorneys mailed the claim forms for Bailey to the Air Force claims officer. The government admitted for purposes of its motion to dismiss in this case that the claim forms had indeed been mailed; however, the evidence is that the cover letter and enclosed claim forms were never received by the Air Force.

Some nine months later, on June 14, 1977, the attorneys were notified that the Air Force denied the Hawkins claim. The Ferganchick claim had previously been denied and suit had been filed in March, 1977. On learning that the Hawkins claim was denied, the attorneys inquired by telephone as to the status of the Bailey claim. They were then told that the Air Force had no record of receiving a claim form from Bailey’s estate. The attorneys immediately sent copies of the claim, but the Air Force refused to consider it for failure to file within two years of the accident as required by 28 U.S.C. §§ 2401(b), 2675(a) and regulations implementing these statutory provisions, 28 C.F.R. § 14.2(a); 32 C.F.R. § 842.-105(a)(1). This lawsuit followed.

In the district court the government presented the affidavits of four claims officers all stating that the Bailey claim had not been received until after the two year limitation period had elapsed. The government moved to dismiss the action for lack of jurisdiction and the motion was granted. Bailey’s heirs appeal.

II. The Merits.

In cases dealing with 28 U.S.C. § 2401(b) and § 2675(a), neither the Supreme Court nor this court has departed from the principle that the Federal Tort Claims Act “waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended.” United States v. Kubrick, 1979, 444 U.S. 111, 117-118, 100 S.Ct. 352, 357-58, 62 L.Ed.2d 259.

See: House v. Mine Safety Appliances Co., 9 Cir., 1978, 573 F.2d 609, 613-614 (Administrative claim requirement of § 2675(a) “is jurisdictional in nature and cannot be waived”); Caidin v. United States, 9 Cir., 1977, 564 F.2d 284, 286; Blain v. United States, 9 Cir., 1977, 552 F.2d 289, 291; Caton v. United States, 9 Cir., 1974, 495 F.2d 635, 637; Claremont Aircraft, Inc. v. United States, 9 Cir., 1969, 420 F.2d 896, 898; Mann v. United States, 9 Cir., 1968, 399 F.2d 672, 673; Powers v. United States, 9 Cir., 1968, 390 F.2d 602, 604.

Section 2675(a) requires, as a prerequisite to suit, that the “claimant shall have first presented the claim to an appropriate Federal agency.” Section 2401(b) requires that the claim be “presented in writing . . . within two years after such claim accrues.” Part 14, § 14.2 of 28 C.F.R. provides that “a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.”

We have upheld the regulation, (see cases cited, supra) and Bailey does not question its validity here. Here, the claim was not “presented,” i. e., “received” by the agency, as the statute and the regulation require, within two years. Yet Bailey, in the face of these facts and the foregoing authorities, would have us read an exception into the statute and the regulations because of the particular circumstances in this case.

It is always tempting to try to extend statutory time limits in favor of those who have failed to comply with them. Judges naturally prefer that a person claiming to be injured shall have a chance to have his claim heard and decided on its merits. However, assuming, without deciding, that we may excuse literal compliance with the procedural requirements of the Act in a case in which unusual circumstances exist, this is not such a case.

Plaintiffs and their counsel do not claim ignorance of the statutory and regulatory requirements. They knew that a claim was required. They knew when it must be presented. The regulation gave them notice that a claim is not presented until it is received. Counsel had presented two other claims, arising from the same incident, and the Air Force had promptly (within a week) acknowledged receipt of those claims. Counsel mailed plaintiffs’ claim some eight months before the statutory deadline. They did not send it by certified or registered mail, a well known and easy way to establish receipt of the claim by the Air Force. They received no acknowledgment of the claim, a fact that should have suggested that the claim had not been received, but had gone astray, in view of the prompt acknowledgment of the other claims. They were under an obligation to their clients to see that the claim was received. Yet thereafter, for the better part of eight months, they did nothing at all. Apparently it was of no moment to them whether the claim was received. They did not inquire until after the two year period had run, and then only when they were awakened by a denial of one of their other claims. We do not think that we should now stretch and distort the statute and the regulation to rescue counsel from their own carelessness.

Accordingly, we reject appellant’s claim for relief from the requirements of the Act. The circumstances here do not warrant equitable relief, if indeed such relief is available. Nor do we accept appellants’ invitation to rewrite the Act and in effect repeal the regulation by holding that mailing alone is sufficient to meet the requirement that a claim be “presented.” See Steele v. United States, S.D.Cal., 1975, 390 F.Supp. 1109, 1111-1112.

Moreover, we cannot treat the furnishing of Bailey’s funeral expenses and wage data as a “claim,” for the reason that they do not meet the “sum certain” requirement of 28 C.F.R. § 14.2(a). House v. Mine Safety Appliances Co., supra, 573 F.2d at 615; Caidin v. United States, supra, 564 F.2d at 287. Finally, we reject appellants’ claim that a presumption of receipt arises in this case. Assuming, without deciding, that such a presumption may arise under federal law, it was amply rebutted by the affidavits presented to the district court by the government.¹ In light of these affidavits and of the particular facts of this case, the district court properly concluded, on the motion to dismiss, that the government had not received the Bailey claim. Berardinelli v. Castle & Cooke, Inc., 9 Cir., 1978, 587 F.2d 37, 39 (district court may rely on affidavits to make factual findings in deciding question of jurisdiction on a motion to dismiss under F.R.Civ.P. 12(b)(1)), Appellants could do little to contradict these affidavits except offer evidence of mailing.

Affirmed.

1 . In Cordaro v. Lusardi, S.D.N.Y., 1973, 354 F.Supp. 1147, aff'd without opinion, 2 Cir., 1975, 513 F.2d 624, on which appellants rely, it was not clear to the court whether or not the claim had been received within two years. See id. at 1149. The court relied in part upon a rebuttable presumption of receipt arising from proof of mailing within two years, to defeat a motion for summary judgment. Here, the presumption, assuming that it exists, is rebutted by proof of non-receipt.

Appellants are mistaken in arguing that state law governs the jurisdictional question in this case. Congress has specifically provided a federal limitations period in 28 U.S.C. §§ 2675(a) and 2401(b), and the interpretation of that limitation is a matter of federal law.