Sheldon et al v. United States of America
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,
Case No. 3:05-cv-0119-RRB
UNITED STATES OF AMERICA,
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
Before the Court is Defendant United States of America
(“Defendant”) with a Motion to Dismiss (Docket No. 9).
argues the Court should dismiss this action because Plaintiff
administrative claim with the appropriate agency, a jurisdictional
prerequisite to filing a lawsuit against the United States for a
More to the point, Defendant argues Plaintiff’s “claim was
Clerk’s Docket No. 9 at 1.
ORDER DENYING MOTION TO DISMISS - 1
filed late - six days after the claim was time barred.”2
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
The Court agrees.4
“[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
Maryland, “the address specified for service of administrative
claims on the Public Health Service Claims Branch, for, among
Id. at 5.
Clerk’s Docket No. 14.
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.
Clerk’s Docket No. 14 at 3.
ORDER DENYING MOTION TO DISMISS - 2
others, the Indian Health Service and the Department of Health and
deliver the package to Room 18-20 but could not do so because the
occupants of that suite would not accept it.”8
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
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 . . . .
Id. at 4.
Id. (footnote omitted).
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
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
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.
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
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.
Clerk’s Docket No. 14 at 8
ORDER DENYING MOTION TO DISMISS - 4
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