Cormier v. US DOL

Opinion

USCA1 Opinion

July 19, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 94-1061

GERARD A. CORMIER, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                          U.S. DEPARTMENT OF LABOR, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                             Torruella, Selya and Stahl,
                                   Circuit Judges.
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                                 ___________________

               Gerard A. Cormier on brief pro se.
               _________________
               Donald  K. Stern,  United  States Attorney,  and Roberta  T.
               ________________                                 ___________
          Brown, Assistant U.S. Attorney, on brief for appellees.
          _____

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                                  __________________

Per Curiam.  This is a pro se appeal from a summary
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            judgment  entered  by the  district  court  in  favor of  the

            government  and  against  plaintiffs-appellants,   Gerard  A.

            Cormier ("Cormier"), his wife and children.  We affirm.

                                      Background
                                      __________

                 In October,  1992, Cormier filed  a complaint pro  se in
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            the  United  States  District   Court  for  the  District  of

            Massachusetts on  behalf of himself and  his family, claiming

            violation  of  the  Federal   Tort  Claims  Act  ("FTCA").1  

            Essentially,  Cormier claims  that  his former  employer, the

            United  States Department  of the Treasury,  Internal Revenue

            Service ("IRS"),  and the United States  Department of Labor,

            Office of Workers Compensation  Programs ("OWCP") caused pain

            and suffering to Cormier and his  family as a result of their

            mishandling of his worker's compensation claim.

                 Cormier  had  filed  a  worker's  compensation claim  in

            February,  1979, claiming  a "disabling  emotional condition"

            resulting  from harassment  by  an irate  taxpayer and  other

            work-related   stresses.2     The   OWCP   originally  denied

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            1.   Cormier, acting pro se,  is representing himself and his
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            wife  and children  in  this appeal.    This court  generally
            prohibits non-lawyers from representing litigants  other than
            themselves.  See Amann  v. Stow School System, 982  F.2d 644,
                         ___ _____     __________________
            648 n.2 (1st Cir.  1992).  "However, because we affirm on the
            merits, we  need not determine whether  [Cormier's wife's and
            children's appeals] are properly before us."  Id.
                                                          ___

            2.  This   procedural   history    of   Cormier's    worker's
            compensation claim is taken from his complaint.

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Cormier's claim on the ground that  his emotional illness was

            not caused by the  conditions of his employment.   On appeal,

            the  case  was remanded  to  resolve  a conflict  in  medical

            opinions.  

                 The OWCP granted Cormier an award in July, 1984, only to

            rescind  the award in October,  1984.  Cormier  appealed to a

            hearing officer and eventually  to the Employees Compensation

            Appeals Board ("ECAB").   After a hearing, the ECAB  ruled in

            Cormier's favor  and,in an opinion dated  September 18, 1986,

            remanded to the OWCP for referral to a medical specialist for

            an  impartial  medical  evaluation  to  be  followed  by  the

            issuance of a de novo decision.  In February,  1988, the OWCP
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            awarded benefits to  Cormier.  His  request for interest  and

            attorneys' fees was denied.   

                 In  his   complaint,  Cormier  requests   the  following

            compensation for the alleged  violation of the FTCA: interest

            on the worker's compensation award, attorneys' fees and costs

            for the worker's compensation case, three days' pay allegedly

            still due, and $500,000  for each of the five  plaintiffs for

            emotional distress, pain and  suffering.  In September, 1993,

            the government moved for summary judgment on the grounds that

            Cormier's failure to  file an  administrative claim  deprived

            the district  court of jurisdiction  over the tort  claim and

            that the  OWCP's denial of  interest and attorneys'  fees was

            not reviewable by a court of law.

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Judge  William G.  Young of  the United  States District

            Court for the District of Massachusetts held a motion hearing

            on November  23, 1993.   Cormier was represented  by counsel.

            The hearing was  held at  the Boston College  School of  Law,

            apparently before a group of law students.  At the conclusion

            of the  hearing, the district  court granted  the motion  for

            summary judgment  for lack of subject  matter jurisdiction on

            the  ground of  Cormier's failure  to file  an administrative

            claim.  The district court did not issue a written opinion.

                                      Discussion
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                 We review  a district court's grant  of summary judgment

            de novo.  See  Calenti v. Boto, et al., No. 93-1759, slip op.
            __ ____   ___  _______    ____  _____

            at 6 (1st Cir. May 23, 1994).  "We read  the record indulging

            all inferences  in favor  of the  non-moving party.   Summary

            judgment  is appropriate only if there is no genuine issue of

            material fact and the moving party is entitled to judgment as

            a matter of law."   Id. (citations omitted).
                                __

                 Cormier raises two issues  on appeal.  First, he  argues

            that the motion hearing conducted by  Judge Young amounted to

            a denial of due process because he was  not given an adequate

            opportunity  to address  the court,  the court  discriminated

            against  his  out-of-state  attorney,  the  classroom  format

            imposed unreasonable time restrictions on the hearing and the

            court was  unfamiliar with the  contents of the  case record.

            Second, Cormier  contests the court's finding  that he failed

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to  file the  required administrative tort claim in  a timely

            fashion.

                 There is simply  no support in the  record for Cormier's

            claim  that he  was  denied a  fair  hearing on  the  summary

            judgment motion.    A  review  of  the  transcript  from  the

            motion hearing  indicates that the district  court gave ample

            opportunity  to  Cormier  and  his  attorney  to  make  their

            arguments,  treated  both parties  and  their  attorneys with

            respect,  demonstrated   a  complete  understanding   of  the

            relevant  facts and  law  and decided  the motion  correctly.

            Although the forum  for the hearing was somewhat  unusual, it

            did  not deprive Cormier of a  fair hearing.  Nor did Cormier

            object  to the forum, although he had advance notice that the

            hearing would be held at Boston College Law School.  

                 The  district  court   correctly  ruled  that  Cormier's

            failure  to  file  an  administrative claim  deprived  it  of

            jurisdiction  over   Cormier's   tort  claims   against   the

            government.   The  timely filing  of an  administrative claim

            with  the appropriate  federal  agency  is  a  jurisdictional

            prerequisite to the  prosecution of  an FTCA claim.   See  28
                                                                  ___

            U.S.C.   2675(a); see  also Cotto v. United States,  993 F.2d
                              ___  ____ _____    _____________

            274,  280 (1st  Cir. 1993).   The  district court  found that

            plaintiffs had failed to file an administrative claim on time

            and, therefore, dismissed the  case for lack of jurisdiction.

            Cormier argues on appeal  that his letter to the  ECAB, dated

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October  1,  1990,   constituted  an  administrative   claim.

            Alternatively,  he argues that the  Form 95s that  he and the

            other  plaintiffs  filed  in  November,  1993  satisfied  the

            administrative claim requirement.  

                 "This   circuit   approaches   the  notice   requirement

            leniently,"  Santiago-Ramirez   v.  Secretary  of   Dep't  of
                         ________________       _________________________

            Defense, 984 F.2d 16, 19 (1st Cir. 1993). Cormier's letter to
            _______

            the  ECAB,   however,  failed   to  meet  even   the  minimal

            requirements imposed  by  this court:  that the  notification

            include  "1)   sufficient  information  for   the  agency  to

            investigate the claims, and 2) the amount of damages sought."

            Id.  
            ___

                 The  letter requested  that the  ECAB review  the OWCP's

            award to Cormier, specifically  its failure to award interest

            and attorneys' fees.   In  the last sentence  of his  letter,

            Cormier states his  belief that "this  is being filed  within

            one year of  the decision as I  thought the check of  10/2/89

            would include the interest for the 10 years," indicating that

            the  letter was intended as an appeal from the OWCP's failure

            to   award  interest  and  attorneys'  fees.    There  is  no

            suggestion  in the  letter that  Cormier was  also requesting

            damages  for himself  and his family  for emotional  pain and

            suffering.  By failing to state the most basic information --

            the  type  of  injury  alleged  and  the  amount  of  damages

            requested  as  compensation for  that  injury  -- the  letter

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clearly  fails  to  fulfill  the statutory  requirement.  See
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            Santiago-Ramirez, 984 F.2d at 20 (letter  fulfilled statutory
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            requirement where  it stated the  type of injury  alleged and

            the amount  of damages  requested  and "adequately  indicated

            that  appellant's  complaint  was premised  on  her emotional

            distress and mental suffering.")

                 At best, Cormier's letter  gave notice to the government

            of  his  claims  for  interest and  attorneys'  fees.   Those

            claims, however, amount to a request for review of the OWCP's

            award under the Federal  Employee's Compensation Act.   It is

            well  established that we have no jurisdiction to review such

            awards.   "The Secretary  [of Labor's]  action in  denying or

            granting compensation is final and conclusive and may not  be

            reviewed by a court of law. 5 U.S.C.   8128(b)(1) and (2) and

              8145." Bruni  v. United States,  964 F.2d 76, 79  (1st Cir.
                     _____     _____________

            1992) (footnote omitted).

                 The  administrative  claim  forms  (Form  95s)  filed by

            Cormier  and his  family  in November,  1993  also failed  to

            fulfill  the statutory  requirement.   The  forms were  filed

            after  Cormier commenced  the FTCA  action in  federal court.

            The Supreme Court recently held  that a district court lacked

            jurisdiction over  an FTCA action where  "the claimant failed

            to exhaust his administrative  remedies prior to filing suit,

            but did  so  before  substantial  progress was  made  in  the

            litigation."  McNeil v. United States,  113 S. Ct. 1980, 1981
                          ______    _____________

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(1993).  The Court specifically held that a litigant's pro se
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            status  does  not  excuse  his  failure  timely  to  file  an

            administrative claim. Id. at 1984.3
                                  ___

                 For the foregoing reasons, the district court's entry of

            summary judgment in favor of the government is affirmed.

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            3.  The  Form 95s are also insufficient in that they were not
            filed within  the two-year statute of  limitations period for
            FTCA  claims.  See 28  U.S.C.   2401(b).   Cormier's argument
                           ___
            that   his  children's   minority  tolled   the   statute  of
            limitations  is  without merit.    See  Vega-Velez v.  United
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            States, 800 F.2d 288,  290 (1st Cir. 1986) (holding  that "it
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            is  well established  that  state (and  commonwealth) tolling
            rules  do  not affect  the  two-year  statute of  limitations
            applicable to  federal  claims."  and  citing  Jastremski  v.
                                                           __________
            United States,  737 F.2d 666  (7th Cir. 1984)  (minority does
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            not toll federal statute  of limitations)); see also Landreth
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            By and Through Ore v.  United States, 850 F.2d 532, 534  (9th
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            Cir. 1988) ("The fact  of minority does not toll  the statute
            [of limitations established by 28 U.S.C.   2401(b)]."), cert.
                                                                    ____
            denied,, 488 U.S. 1042 (1989).
            _______

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