Santiago-Ramirez v. Sec. Def.

• Court: Court of Appeals for the First Circuit
• Decided: January 27, 1993
• Docket: 92-1143
• Status: Published

Opinion

USCA1 Opinion

January 27, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1143

                              LYNETTE SANTIAGO-RAMIREZ,

                                Plaintiff, Appellant,

                                          v.

                   SECRETARY OF THE DEPARTMENT OF DEFENSE, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                               Fuste,* District Judge.
                                       ______________

                                 ____________________

            John Ward Llambias was on brief for appellant.
            __________________
            Isabel Munoz Acosta,  Assistant United States Attorney, with  whom
            ___________________
        Daniel  F.  Lopez  Romo, United  States  Attorney,  was  on brief  for
        _______________________
        appellees.

                                 ____________________

____________________

        _____________________

        *Of the District of Puerto Rico, sitting by designation.

FUSTE, District Judge.   The main question presented in
                           ______________

          this appeal is whether appellant properly notified the agency for

          which she  worked,  the  Army  and Air  Force  Exchange  Service,

          (AAFES), of her potential federal tort claim.  The district court

          found  the  letter  sent  to  the  agency by  appellant's  lawyer

          deficient for purposes of  the statutory notice provision of  the

          Federal Tort Claims Act, 28 U.S.C.   2675(a).  We find that under

          this circuit's  flexible rule  regarding notice  requirements for

          federal tort claims, the letter was sufficient as to part  of the

          claim.

                                          I.
                                          I.

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                    Appellant, Lynette Santiago-Ram rez,  was removed  from

          her  post at  the  cash register  of  Fort Buchanan's  Army  Post

          Exchange  store on June 29, 1990, under suspicion of having taken

          part in an  employee theft ring.  She was  interrogated for about

          forty-five  minutes in  her supervisor's  office.   She  was then

          taken to the office of Mr. Jacques Zayde, the Safety and Security

          Manager  of  the Exchange,  where she  was  again subjected  to a

          forty-five-minute  interrogation.  Appellant  alleges that, among

          other  things, she was threatened with  investigation by the FBI.

          After what  she alleges  was considerable harassment  in complete

          disregard  for her  pregnant condition,  she eventually  signed a

          typewritten  statement.  She was  then returned to  the office of

          her supervisor, who  informed her  that she  had been  terminated

from her job.  Upon concluding the investigation, no charges were

          pressed against plaintiff.

                    On  September  25, 1990,  appellant's  attorney  sent a

          letter to the  Director of Administration  of the AAFES,  stating

          that  appellant  was filing  an  administrative  complaint.   The

          letter  specifically mentioned  that appellant was  mistreated by

          officers and agents of the  agency in a manner which  resulted in

          "emotional distress  and mental  suffering."  The  letter further

          stated the exact  remedy which appellant was  requesting from the

          agency:  "reinstallation of  Mrs. Santiago  to her  position, the

          payment of any salaries and benefits and the reinstatement of any

          rights she would have earned if not improperly discharged and the

          amount of $50,000.00."   The  agency replied with  a letter  that

          indicated it was treating  the case as a routine  dismissal under

          military  regulations.   The letter  stated that  "Ms. Santiago's

          rights to reinstatement were  governed by the provisions  of Army

          Regulation (AR) 60-21/Air Force  Regulation (AFR) 147-15."  These

          regulations  require  that an  appeal  of  an adverse  action  be

          brought  within twenty-one  days.   Since appellant's  letter had

          been sent  after the twenty-one-day period,  the agency indicated

          that  it could  take no  action because  she lacked  a regulatory

          basis for a  review of her complaint.   The agency letter,  while

          addressing the reinstatement and  back-pay claim, did not respond

          to the claim for damages for emotional distress.  

                    After   receiving  this  letter,  appellant  filed  the

          present  suit in the United  States District Court.   She brought

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suit  against her  employer,  AAFES,  as  well as  her  immediate

          supervisor, Mayra Moore, and the security manager, Jacques Zayde,

          under the Tucker  Act, 28  U.S.C.   1346(a)(2),  and the  Federal

          Tort  Claims Act,  28 U.S.C.     1346, 2671-2680.    The district

          court dismissed the suit after substituting the  United States as

          the proper  party.   The district  court  found that  appellant's

          letter did not give  the agency sufficient notice  of appellant's

          claim and that appellant's complaint stated a cause of action for

          false imprisonment, a cause of action excepted under the statute.

          28 U.S.C.   2680(h).  Appellant now appeals the dismissal  of the

          claims under the Federal Tort Claims Act. 

                                         II.
                                         II.

                               FEDERAL TORT CLAIMS ACT
                               FEDERAL TORT CLAIMS ACT
                               _______________________

          A.  Administrative Requirements of the FTCA
          A.  Administrative Requirements of the FTCA
              _______________________________________

                    The Federal  Tort Claims Act (FTCA), 28 U.S.C.    1346,

          2671-2680, waives the sovereign immunity of  the United States to

          suits in tort.  The prerequisite for liability under the Act is a

          "negligent or wrongful  act or  omission of any  employee of  the

          Government  while  acting  within  the  scope  of  his  office or

          employment,  under circumstances  where the  United States,  if a

          private person,  would be liable  to the  claimant in  accordance

          with the law  of the place where  the act or omission  occurred."

          28 U.S.C.   1346(b).   However, unlike  a suit against a  private

          person, the Congress has created an administrative procedure that

          claimants must follow  and exhaust.   This  procedure allows  the

          agency  involved to  receive  a claim,  investigate, and  perhaps

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settle the dispute  before a suit  is filed.   28 U.S.C.    2675.

          Section 2675 provides  that "[a]n action shall  not be instituted

          upon a claim against the United  States . . . unless the claimant

          shall  have first presented the  claim to the appropriate Federal

          agency and his claim shall have been finally denied."  The stated

          legislative  purpose of  this administrative prerequisite  was to

          balance the  goal of  efficiently encouraging settlement  between

          the agency and the claimant with  the desire to provide "fair and

          equitable  treatment of  private individuals  and claimants  when

          they  deal with the Government or are involved in litigation with

          their  Government."   S.Rep. No.  1327, 89th  Cong., 2d  Sess. 2,

          reprinted in 1966 USCCAN 2515, 2516.
          ____________

                    Section 2675 requires that the potential plaintiff give

          notice to  the  government of  the nature  of the  claim and  the

          damages  requested.   28 U.S.C.    2675(a).1   Failure  to timely
                                 
             ____________________

             1Section 2675(a) states:

                       (a)  An action  shall not  be instituted
                       upon a  claim against the  United States
                       for money damages for  injury or loss of
                       property  or  personal  injury or  death
                       caused by the  negligent or wrongful act
                       or  omission  of  any  employee  of  the
                       Government while acting within the scope
                       of his office  or employment, unless the
                       claimant shall have first  presented the
                       claim to the agency  in writing and sent
                       by  certified or  registered mail.   The
                       failure  of  an  agency  to  make  final
                       disposition of a claim within six months
                       after it is  filed shall, at the  option
                       of the claimant any time  thereafter, be
                       deemed  a final denial  of the claim for
                       purposes   of   this   section.      The
                       provisions of this subsection  shall not
                       apply to such claims  as may be asserted

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                                          5

file an administrative claim  with the appropriate federal agency

          results in dismissal  of the plaintiff's claim,  since the filing

          of  an  administrative  claim  is a  non-waivable  jurisdictional

          requirement. United States  v. Kubrick, 444 U.S. 111, 113 (1979);
                       _________________________

          Attallah v. United  States, 955  F.2d 776, 779  (1st Cir.  1992);
          __________________________

          Corte-Real v. United States,  949 F.2d 484, 485 (1st  Cir. 1991);
          ___________________________

          Gonz lez-Bernal v. United  States, 907  F.2d 246,  248 (1st  Cir.
          _________________________________

          1990); Richman v. United States, 709 F.2d 122 (1st Cir. 1983).  
                 ________________________

                    The  Justice  Department  has  promulgated  regulations

          which  flesh  out  the   requirements  for  the  presentation  of

          administrative claims  for settlement.  28  C.F.R.    14.1-14.11.

          The statutory  notice requirement of section  2675 coincides with

          the presentment requirement  in 28 C.F.R.   14.2(a): "an executed

          Standard  Form 95 or  other written notification  of an incident,

          accompanied by a claim  for money damages in a sum certain  . . .

          ."  The difficulty created by the overlap between the presentment

          requirements  of the regulation and the notice requirement of the

          statement  is  that  the  regulations  also   require  additional

          information  which  is  only  relevant  for  settlement purposes.

          Acknowledging that the additional information is not relevant for

          notice  purposes, this  circuit  has followed  the general  shift

          among  all  circuits  toward  a recognition  of  the  distinction

          between  presenting  a  claim  in  a  section  2675  context  and

          presenting a claim for  settlement.  L pez v. United  States, 758
                                               _______________________
                                 
             ____________________

                       under   the   Federal  Rules   of  Civil
                       Procedure  by   third  party  complaint,
                       cross-claim, or counterclaim.

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                                          6

F.2d 806 (1st Cir.  1985); see also  GAF Corp. v. United  States,
                                     ________  ___________________________

          818  F.2d 901, 919 (D.C.Cir. 1987); Johnson v. Unites States, 788
                                              ________________________

          F.2d  845, 848  (2d. Cir.),  cert. denied,  479 U.S.  914 (1986);
                                       ____________

          Tucker  v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir.
          _____________________________________

          1982); Adams v.  United States,  615 F.2d 284,  288-89 (5th  Cir.
                 _______________________

          1980);  Douglas v.  United States,  658 F.2d  445, 447  (6th Cir.
                  _________________________

          1981); Charlton v.  United States,  743 F.2d 557,  561 (7th  Cir.
                 __________________________

          1984); Farmers State Sav.  Bank v. Farmers Home Admin.,  866 F.2d
                 _______________________________________________

          276 (8th Cir. 1989);  Warren v. United States Dep't.  of Interior
                                ___________________________________________

          Bureau of Land  Management, 724  F.2d 776, 780  (9th Cir.  1984);
          __________________________

          Bush v.  United States, 703 F.2d 491, 494 (11th Cir. 1983).  Only
          ______________________

          after  the process  of  settlement has  been  initiated does  the

          additional  information  required   by  the  regulations   become

          relevant.   All that  is needed  for notice  is what  the statute

          specifies.

                    We understand a plaintiff  to have satisfied the notice

          requirement of section 2675 if he or she provides a claim form or

          "other  written  notification"   which  includes  (1)  sufficient

          information for the agency to investigate the claims, and (2) the

          amount of damages sought.  L pez, 758 F.2d at 809-10  (citing the
                                     _____

          standard  in Adams,  615 F.2d  at 289,  with approval);  see also
                       _____                                       ________

          Corte-Real, 949 F.2d at  485 (claim should not be thrown  out for
          __________

          failure to  specify  sum certain  with absolute  clarity).   This

          circuit approaches the notice requirement leniently, "recognizing

          that individuals wishing to  sue the government must  comply with

          the details of the law, but also keeping in mind that the law was

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not  intended to  put up  a barrier  of technicalities  to defeat

          their claims."  L pez, 758  F.2d at 809.  A flexible  approach to
                          _____

          the notice  requirement is in  keeping with the  original purpose

          behind the filing  of an administrative  claim: that of  allowing

          the efficient  investigation  of a  claim by  the agency  without

          sacrificing the entitlement of a claimant to his or  her cause of

          action  against  the government.    This approach  to  the notice

          requirement  recognizes  that  Congress  intended  to  leave  the

          ultimate choice between settlement  and suit in the hands  of the

          claimant.  GAF Corp., 818 F.2d at 918.  In the context of section
                     _________

          2675,  the emphasis is on the agency's receipt of information: it

          must  have enough  information  that it  may reasonably  begin an

          investigation  of  the  claim.2    "Our  decision  in  Corte-Real
                                                                 __________

          supports  saving a claim  that is  flawed, when  the government's

          investigatory needs  are satisfied."   Kokaras v.  United States,
                                                 _________________________

          No. 92-1616, slip op. (1st Cir. Nov. 23, 1992).

                    The  district  court   found  that   the  letter   from

          appellant's  counsel to  the  Director of  Administration of  the

          AAFES failed  to fulfill the requirements of  the statute because

          it did not  mention either the  FTCA, negligence or  tort.   This

          failure  to mention the basis  of any potential  claim, the court

          found,  meant that the agency  did not have  sufficient notice of

          the  nature  of the  appellant's  complaint  against the  agency.

          However,  it  is  clear  that  appellant's  letter  fulfills  the
                                 
             ____________________

             2In Corte-Real,  we emphasized  that it was  the information
                 __________
             available  in the notice supplied to the agency, and not the
             form in which it was presented, that was crucial.

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                                          8

statutory   requirement.     The   letter   provides   sufficient

          information  to allow the agency  to investigate:   it states the

          identity  of appellant, the date of the incident, the location of

          the incident,  the government  agents involved,  and the type  of

          injury alleged.   It also  states the  amount of the  damages the

          appellant is  requesting.   The letter adequately  indicated that

          appellant's complaint was premised  on her emotional distress and

          mental suffering.  The language put  the agency on notice that it

          should investigate the possibility of potential tortious behavior

          on  the  part  of  its  agents.     The  fact  that  the   agency

          misunderstood appellant's letter, choosing to interpret it solely

          as  a  belated  appeal  of an  adverse  administrative  personnel

          action,  should not  prejudice appellant's  suit.   The appellant

          satisfied the statutory requirements  and under the current state

          of the law  is not  required to give  any additional  information

          unless it is requested.3  

                    The  court  has subject  matter  jurisdiction  over the

          appellant's claims under the FTCA.  However, appellant's claim is

          limited to the information she included  in the letter.  In other

          words,  she   alone,  and  not   her  husband  or   the  conjugal

          partnership, may bring  a claim for damages  up to $50,000.   Nor

          are appellant's claims for  reinstatement and back pay cognizable

____________________

             3The  court  in L pez  distinguishes  between  the situation
                             _____
             where the agency is simply being given notice of a claim and
             the situation embodied in  an earlier case, Swift  v. United
                                                         ________________
             States, 614 F.2d 812  (1st Cir. 1980), where the  agency, in
             ______
             an attempt to further settlement, requested more information
             which the claimant ignored.  L pez, 758 F.2d at 810.
                                          _____

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                                          9

under   the  FTCA,   which  provides   only  for   tort  monetary

          compensation.     The  appellant's   claim  is  limited   to  the

          information  included in the letter which  gave the agency notice

          of her claim.

          B.  The Intentional Tort Exception to the FTCA
          B.  The Intentional Tort Exception to the FTCA
              __________________________________________

                    The Federal Tort Claims Act excepts certain intentional

          torts from its general  waiver of sovereign immunity.   28 U.S.C.

            2680.   One of these  exceptions is  "any claim arising  out of

          assault,  battery, false  imprisonment,  false arrest,  malicious

          prosecution, abuse of process, libel, slander, misrepresentation,

          deceit  or  interference with  contract  rights."   28  U.S.C.   

          2680(h).    The  district  court correctly  determined  that  the

          exceptions  in  28 U.S.C.     2680 are  interpreted  according to

          federal law in order  to avoid any dependence of  federal subject

          matter jurisdiction upon state law.  Hydrogen Technology Corp. v.
                                               ____________________________

          U.S.,  831  F.2d 1155,  1161 (1st  Cir.  1987); United  States v.
          ____                                            _________________

          Neustadt,  366 U.S. 696 (1961).   However, while  this might mean
          ________

          that  the district court could  properly decide that  a claim for

          false  imprisonment  or  false  arrest is  precluded  by  section

          2680(h), this does  not mean that appellant's  complaint does not

          give rise to another cause of action which is available under the

          FTCA.  

                    The  appellant's complaint  might  be read  to plead  a

          cause  of  action  for  intentional or  negligent  infliction  of

          emotional  distress.  There is no exception in section 2680 which

          disallows a  claim for  the infliction of  emotional distress  by

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government agents.  Claims against the government for intentional

          infliction of emotional distress are  not excepted from the FTCA.

          Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990).  Nor has
          ________________________

          such  an exception been read into the statute.  The Supreme Court

          has taken a very strict approach  to the reading of section 2680.

          It  has held that "[t]here is  no justification for this Court to

          read exemptions into the Act beyond  those provided by Congress."

          Rayonier, Inc. v.  United States, 352 U.S. 315, 321  (1957).  And
          ________________________________

          even in the case where the facts of the complaint might give rise

          to similar  torts, "the  partial overlap between  . . .  two tort

          actions does not support  the conclusion that if one  is excepted

          under the Tort Claims Act the other  must be as well."  Block  v.
                                                                  _________

          Neal, 460 U.S.  289, 298 (1983).  Therefore, although appellant's
          ____

          claim  for  intentional  infliction  of  emotional  distress  may

          overlap with a claim  for false imprisonment, which is  excepted,

          it does not follow that the first claim is also excepted.  

                                         III.
                                         III.

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                    Appellant  has adequately  informed  the agency  of her

          intention to file  suit for her alleged  harassment by government

          agents.   The  dismissal  of appellant's  suit as  excepted under

          section 2680 was premature.  Because the complaint can be read as

          stating  a  claim  for  intentional or  negligent  infliction  of

          emotional distress, the plaintiff may go forward on that theory. 

          The present  disposition is  without prejudice of  further motion

          disposition under Fed. R. Civ. P. 56 once the parties have had an

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opportunity  of  addressing  the issues  consistently  with  this

          opinion.

                    Reversed and Remanded.
                    _____________________

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