Robert F. Burns v. United States

764 F.2d 722, 1985 U.S. App. LEXIS 20111

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 1985
• Docket: 84-3599
• Status: Published

Opinions

J. BLAINE ANDERSON, Circuit Judge:

Robert F. Burns filed suit against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging medical malpractice as a result of treatment he received at a Veterans Administration (V.A.) hospital. Relying on 28 U.S.C. § 2675(a), the district court granted defendant’s motion for summary judgment and dismissed the action, ruling that a sufficient administrative claim had not been filed, which deprived the court of subject matter jurisdiction. Burns now appeals. We affirm.

I. BACKGROUND

In August of 1976, Burns was admitted into the Veterans Administration hospital in Fort Harrison, Montana, for surgical treatment of suspected bronchogenic carcinoma. A nonmalignant abscess cavity was located in his lung and removed. A second operation was performed when he developed post operative empyema, an accumulation of pus in the chest. Burns was discharged from the V.A. hospital on October 4, 1976. Later that year, Burns was again hospitalized, this time at the Deaconess Hospital in Great Falls, Montana. Multiple bilateral brain abscesses were discovered and surgically removed, leaving Burns disabled.

Burns first contacted the V.A. concerning his medical problems in early 1977 by filing a “Veteran’s Application for Compensation or Pension,” V.A. Form 21-526. This form was apparently completed by a V.A. caseworker since Burns was then unable to communicate. Upon review of his application, Burns was awarded a pension of $199 per month.

In 1980, after his pension was reduced due to an increase in Social Security benefits, Burns wrote United States Senator Max Baucus seeking an increase in pension by having his disability classified as service connected. Senator Baucus forwarded this letter to the V.A.

In May of 1981, Burns received a “Statement of the Case” from the V.A. which clearly listed the issue involved as “[additional disabilities ... under 38 USC 351.” The Board of Veterans Appeals rendered its decision on May 27, 1982, denying additional pension.

Burns commenced this action of June 9, 1982, against the United States, alleging that the treating physician at the V.A. hospital in Fort Harrison, Montana, had performed the surgery in a negligent manner by allowing purulent material to get into his chest, by improperly draining the incision, and by failing to prescribe proper antibiotics. He alleged that this negligence was the cause of his later brain abscesses.

II. DISCUSSION

If Burns has failed to file a sufficient administrative claim, this action is forever barred since substantial evidence and case law support the district court’s finding that Burns’s cause of action accrued no later than August 8, 1980, when the letter to Senator Baucus was written. 28 U.S.C. § 2401(b) (1983); United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir.1970). In this letter Burns writes that “[d]uring surgery the abscess ruptured, and not being cleansed properly the infection got in my blood stream and went to my brain.” It is apparent that Burns was aware of his injury and its probable cause.

According to the FTCA, a negligence suit may not be instituted against the United States unless it is first presented to the appropriate Federal agency and one of the following conditions is met: the claim is finally denied, or six months have passed without a final resolution having been made. 28 U.S.C. § 2675(a) (1983).

The claim requirement of section 2675 is jurisdictional in nature and may not be waived. Blain v. United States, 552 F.2d 289 (9th Cir.1977). Since it is jurisdictional, what constitutes a sufficient claim for section 2675 has often been an important issue in FTCA litigation. In the past, there has been a significant divergence of opinion within and without this circuit. See generally Warren v. United States Department of the Interior Bureau of Land Management, 724 F.2d 776 (9th Cir.1984) (en banc); Note, The Art of Claimsmanship: What Constitutes Sufficient Notice of a Claim Under the Federal Tort Claims Act? 52 U.Cin.L.Rev. 149 (1983). But the prevailing view and the view held by the Ninth Circuit is that the jurisdictional requirement of minimum notice is satisfied by “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.” Warren, 724 F.2d at 780; Avila v. Immigration and Naturalization Service, 731 F.2d 616, 619 (9th Cir.1984); Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980).

The only document submitted by Burns, or on his behalf, to the V.A. which could arguably be called an administrative claim for money damages, is the letter written to Senator Baucus. While it might convincingly be asserted that this letter did not afford the V.A. sufficient notice of an imminent lawsuit to enable them to initiate their own investigation, we need not consider this contention because it is clear that nowhere in the letter is contained the requisite sum certain claim. Thus, we find that Burns has failed to satisfy section 2675, and that his action was correctly dismissed by the court below.

We have considered Burns’s remaining contentions: that the United States should be estopped from asserting the insufficiency of his administrative claim under section 2675(a); and that principles of equity should toll the statute of limitations, 28 U.S.C. § 2401(b). We find that these contentions lack merit. Both requirements are jurisdictional. Mann v. United States, 399 F.2d 672, 673 (9th Cir.1968); Avery v. United States, 680 F.2d 608, 610 (9th Cir. 1982). The government may not be equitably barred from asserting jurisdictional requirements. Cooper v. Bell, 628 F.2d 1208, 1212 (9th Cir.1980); United States v. Glenn, 231 F.2d 884, 886 (9th Cir.1956).

The decision of the district court is

AFFIRMED.