BEATTY et al v UNITED STATES OF AMERICA

Filing 28

ENTRY - United States' Motion for Summary Judgment [Dkt. No. 14 ] must be GRANTED and the action DISMISSED for lack of subject matter jurisdiction. Judgment consistent with this Entry shall now issue. Signed by Judge Tanya Walton Pratt on 11/7/2011. **SEE ENTRY** (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RALPH BEATTY and LUCINDA BEATTY,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 1:11-cv-170-TWP-DKL

ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiffs Ralph and Lucinda Beatty (“Plaintiffs”) have brought this action against
Defendant, the United States of America (“United States”), pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §1346. The United States seeks resolution of the Plaintiffs’ claim
through summary judgment grounded on the defense that Plaintiffs’ lawsuit was not timely filed.
Plaintiffs have opposed the motion for summary judgment.
For the reasons set forth in this Entry, the United States’ motion for summary judgment
[Dkt. #14] must be GRANTED.
I. MATERIAL FACTS
On the basis of the pleadings and the expanded record, and specifically on the portions of
that record which comply with the requirements of Rule 56(c), the following facts, construed in the
manner most favorable to Plaintiffs as the non-movants, are undisputed for purposes of the motion
for summary judgment:
The Claims Branch of the Department of Health and Human Services (“HHS”) received an
administrative tort claim under the FTCA from Ralph and Lucinda Beatty on behalf of Monty Rae
Beatty, alleging that medical staff of Indiana Health Centers, Inc. provided negligent medical care

to Monty Rae Beatty, causing his death. On July 27, 2009, the HHS denied Plaintiffs’
administrative tort claim, Claim No. 09-0266, by letter mailed by Certified U.S. Mail. Although
the United States initially argued that it had not received any request for reconsideration from
Plaintiffs, the Plaintiffs have produced a sworn statement that they mailed a request for
reconsideration on January 27, 2010. Plaintiffs have also presented a copy of a certified mail
receipt showing that a mailing from them was received by the HHS on February 2, 2010.
Plaintiffs filed this lawsuit on January 26, 2011.
II. ANALYSIS
The FTCA waives the United States' sovereign immunity for certain classes of tort claims,
including claims for 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....”
28 U.S.C. §1346(b)(1). Before bringing suit under the FTCA in district court, a plaintiff must
first present a tort claim to the appropriate agency within two years of the claims’ accrual. 28
U.S.C. §2401(b). If the administrative claim is denied, a plaintiff must act within six months to
either file a request for reconsideration or file suit in district court. If neither of these procedures
is followed, the claim is “forever barred” and the court lacks jurisdiction over the suit. See 28
U.S.C. §2401(b) (“A tort 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.”) (emphasis added).
The denial of Plaintiffs’ administrative tort claim sent on July 27, 2009, informed Plaintiffs
that it constituted the notice of final determination on their claim. The denial notice also informed

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Plaintiffs that if they were dissatisfied with the determination, they were entitled to: 1) file a
written request with the agency for reconsideration of the final determination denying the claim
within six (6) months from the date of mailing of the determination (28 C.F.R. §14.9); or 2) file
suit against the United States in the appropriate federal district court within six months from the
date of mailing of the determination (28 U.S.C. §2401(b)).
The FTCA statute of limitations is to be narrowly construed. McCall ex rel. Estate of Bess
v. United States, 310 F.3d 984, 988 (7th Cir. 2002). “[C]ourts must not construe the FTCA’s
limitation provisions ‘so as to defeat [their] obvious purpose, which is to encourage the prompt
presentation of claims’” and “courts should not ‘extend the waiver beyond that which Congress
intended.’” Id. (quoting United States v. Kubrick, 444 U.S. 111, 117 (1979)).
The issue presented in this case is whether Plaintiffs’ request for reconsideration was
timely filed. Plaintiffs mailed their request for reconsideration on the final day that their request
would be deemed timely, January 27, 2010. The notice was not received, however, until six days
later. The United States argues that the request for reconsideration is not considered “filed” until
it is “received.” Plaintiffs respond that if the statute of limitations begins to run upon mailing of
the notice, then it is only fair to accept as the date of filing the date the request for reconsideration
was mailed as well. Otherwise, they contend, they do not receive the full six month period in
which to file their request. Plaintiffs’ position is well-reasoned, unfortunately however, it is not
supported by case law. Rather, case law provides that a request for reconsideration is “presented”
when the agency “receives” the request from the claimant. Moya v. United States, 35 F.3d 501,
504 (10th Cir. 1994). “Mailing of a request for reconsideration is insufficient to satisfy the
presentment requirement.” Id.

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Department of Justice regulations also support the government’s position. “For purposes
of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been
presented when a Federal agency receives from a claimant, his duly authorized agent or legal
representative, an executed Standard Form 95 or other written notification of an incident....” 28
C.F.R. §14.2 (emphasis added). Although this regulation specifically addresses only an initial
claim, courts have consistently held that requests for reconsideration are treated the same way.
“Nowhere is there any indication that what constitutes presentment of a request for reconsideration
is different from presentment of the claim itself.” Moya, 35 F.3d at 504 (internal quotation
omitted). See also Lightfoot v. United States, 564 F.3d 625, 628 (3d Cir. 2009) (“a plaintiff must
demonstrate that the Federal agency was in actual receipt of the claim, whether on initial
presentment or on a request for reconsideration.”).
Plaintiffs respond that HHS regulations promulgated under the Program Fraud Civil
Remedies Act (“PFCRA”), 31 U.S.C. § 3801, et seq., support their position that an administrative
claim is “filed” when it is mailed by certified mail. The court is not persuaded by that contention
nor to its application to this case. After an administrative law judge issues a decision under the
PFCRA, any party may file a motion for reconsideration within 20 days of receipt of the decision.
45 C.F.R. § 79.38(a). The regulation specifically provides that if service of the decision “was
made by mail, receipt will be presumed to be five days from the date of mailing in the absence of
contrary proof.” Id. The court cannot simply overlay this regulation onto the FTCA regulations
which do not contain this language. Moreover, the purpose of the FTCA is to provide a limited
waiver of consent on the part of the United States to be sued by persons claiming personal injury or
death. The PFCRA was enacted to allow federal agencies to recover penalties and assessments

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from individuals who have obtained benefits or payments from the government by making false or
fraudulent claims. 31 U.S.C. §3802. The disparity between the purposes of the two statutes
precludes any analogy as far as receipt of requests for reconsideration are concerned.
The Court accepts for purposes of the motion for summary judgment Plaintiffs’ evidence
showing that their request for reconsideration was received by the HHS on February 2, 2010.
Nonetheless, a reasonable fact-finder could not conclude that the United States received Plaintiffs’
request for reconsideration within six months of the July 27, 2009, final denial. Therefore, the
request for reconsideration was not timely filed. As an alternative, to have a timely claim,
Plaintiffs would have to have filed a complaint in district court within the same six month period.
It is undisputed that the complaint was filed a year and a half after the notice of final denial.
III. CONCLUSION
Because there is no genuine issue of material fact as to the timeliness of the lawsuit, the
United States is entitled to judgment as a matter of law. The United States’ motion for summary
judgment [Dkt. #14] must be GRANTED and the action dismissed for lack of subject matter
jurisdiction. Judgment consistent with this Entry shall now issue.

SO ORDERED.
11/07/2011
Date: __________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
______________________________
Southern Tanya Walton Pratt, Judge
Hon. District of Indiana
United States District Court

Distribution attached.
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DISTRIBUTION:
Lucinda Beatty
2945 South Peoria Drive
Peru, Indiana 46970
Ralph Beatty
2945 South Peoria Drive
Peru, Indiana 46970
Monty Rae Beatty
c/o Ralph and Lucinda Beatty
2945 South Peoria Drive
Peru, Indiana 46970
Jeffrey L. Hunter
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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