Sheldon et al v. United States of America

Filing 20

Order on Motion to Dismiss

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MICHAEL SHELDON, as Personal
Representative of the Estate
of Marie (Hart) Sheldon,
deceased,
Plaintiff,

Case No. 3:05-cv-0119-RRB

vs.
UNITED STATES OF AMERICA,

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

Defendant.
I.

INTRODUCTION
Before the Court is Defendant United States of America

(“Defendant”) with a Motion to Dismiss (Docket No. 9).

Defendant

argues the Court should dismiss this action because Plaintiff
Michael

Sheldon

(“Plaintiff”)

“failed

to

file

a

timely

administrative claim with the appropriate agency, a jurisdictional
prerequisite to filing a lawsuit against the United States for a
tort.”1

1

More to the point, Defendant argues Plaintiff’s “claim was

Clerk’s Docket No. 9 at 1.

ORDER DENYING MOTION TO DISMISS - 1
3:05-CV-0119-RRB

filed late - six days after the claim was time barred.”2

Plaintiff

opposes at Docket No. 14 and argues the claim was tendered in a
timely manner, “but was rejected by the occupant of the office
because the “Claims Branch” had moved to a different office within
the same building . . . .”3
II.

The Court agrees.4

FACTS
“[P]laintiff’s decedent, Donna Marie Hart Sheldon, died

on October 16, 1997, as the result of alleged negligent medical
care received at the Alaska Native Medical Center in Anchorage.”5
On October 14, 1999, Plaintiff’s attorney “delivered to
Federal Express an administrative claim addressed to the Public
Claims Branch of the Department of Health and Human Services.”6
More specifically, the claim was addressed to Room 18-20 of the
Parklawn

Building,

located

at

5600

Fishers

Lane,

Rockville,

Maryland, “the address specified for service of administrative
claims on the Public Health Service Claims Branch, for, among

2

Id. at 5.

3

Clerk’s Docket No. 14.

4

Having now thoroughly reviewed the matter, Court deems
oral argument unnecessary.
As a result, the oral argument
presently scheduled for Thursday, March 23, 2006, at 10:30 a.m., in
Courtroom 2, is hereby VACATED.
5

Clerk’s Docket No. 14 at 3.

6

Id.

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3:05-CV-0119-RRB

others, the Indian Health Service and the Department of Health and
Human Services.”7
On

October

15,

1999,

“Federal

Express

attempted

to

deliver the package to Room 18-20 but could not do so because the
occupants of that suite would not accept it.”8

“Neither Federal

Express nor the Department of Health and Human Services notified
[P]laintiff of the non-delivery and the package was returned to
Federal Express in Anchorage on October 20[, 1999].”9
Plaintiff’s attorney “once again arranged for shipment of
the claim to the Department of Health and Human Services, this time
addressing it to the room currently occupied by the Claims Branch,
Room 5C-10 of the Parklawn Building,”10 It was accepted. The Court

7

Id. (citing 25 C.F.R. § 900.201).
provides in relevant part:

25 C.F.R. § 900.201

Claims should be filed in Standard Form 95 (Claim for
Damage, Injury or Death) or by submitting comparable
written information (including a definite amount of
monetary damage claimed) with the Chief, PHS Claims
Branch, Room 18-20, Parklawn Building, 5600 Fishers Lake,
Rockville, MD 20857 . . . .
8

Id. at 4.

9

Id. (footnote omitted).

10

Id. The Court notes the actual address, i.e., Room 5C-10
of the Parklawn Building, was not reflected in the applicable
regulation(s) at the time.
ORDER DENYING MOTION TO DISMISS - 3
3:05-CV-0119-RRB

notes, however, that it was accepted on October 22, 1999, six days
after the two years provided by 28 U.S.C. § 2401(b).11
III. DISCUSSION/CONCLUSION
The relevant facts reveal “service was . . . tendered in
conformance with [25 C.F.R. § 900.201] to the extent that is was
humanly possible to comply with it.”12

As a result, the Court

concludes Plaintiff’s claim was timely served on October 15, 1999,
within the two years of the accrual of his claim.

Defendant’s

Motion to Dismiss (Docket No. 9), therefore, is hereby DENIED.
ENTERED this 14th day of March, 2006.
/s/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

11

28 U.S.C. § 2401(b) provides:

A claim against the United States shall be forever barred
unless it is presented in writing to the appropriate
Federal Agency within two years after such claim accrues
or unless action is begun within six months after the
date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to
which it was presented.
12

Clerk’s Docket No. 14 at 8

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