Gorman v. United States of America

Filing 17

ORDER directing parties to supplement briefs by November 15, 2012. So Ordered by Judge Steven J. McAuliffe.(vln)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel Gorman,
Plaintiff
v.

Case No. 11-cv-538-SM
Opinion No. 2012 DNH 186

United States of America,
Defendant
O R D E R
Daniel Gorman brings this action seeking damages for
injuries he sustained when his car was struck by a vehicle driven
by an employee of the United States Postal Service (“USPS”).

The

government moves to dismiss Gorman’s suit, saying he failed to
file a timely administrative claim with the USPS and, therefore,
this court lacks subject matter jurisdiction over his claims.
Gorman objects.

Standard of Review
When faced with a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), the plaintiff, as the
party invoking the court’s jurisdiction, has the burden to
establish by competent proof that such jurisdiction exists.

See

Bank of N.H. v. United States, 115 F. Supp. 2d 214, 215 (D.N.H.
2000).

And, in determining whether that burden has been met, the

court must construe that complaint liberally, “treating all well-

pleaded facts as true and indulging all reasonable inferences in
favor of the plaintiff.”
1210 (1st Cir. 1996).

Aversa v. United States, 99 F.3d 1200,

Importantly, however, the court may also

consider whatever evidence the parties have submitted, such as
depositions, exhibits, and affidavits, without converting the
motion to dismiss into one for summary judgment.
In a situation where the parties dispute the predicate
facts allegedly giving rise to the court’s
jurisdiction, the district court will often need to
engage in some preliminary fact-finding. In that
situation, the district court enjoys broad authority to
order discovery, consider extrinsic evidence, and hold
evidentiary hearings in order to determine its own
jurisdiction. In such a case, the district court’s
findings of fact will be set aside only if clearly
erroneous.
Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003)
(citation and internal quotation marks omitted).

See also

Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162-63 (1st
Cir. 2007); Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st
Cir. 2001).

Background
On April 30, 2009, Daniel Gorman was injured when a USPS
truck, operated by a USPS employee, struck the side of Gorman’s
vehicle.

In addition to the damage to his automobile, Gorman

says he sustained head, neck, and back injuries.

On July 22,

2009, Gorman (acting pro se) filed a notice of claim with the
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USPS for damage to his vehicle.

The USPS granted his claim and

sent him a check for approximately $2,100.

Subsequently,

however, Gorman sought legal advice, returned the check, and
advised the USPS that he would be submitting a revised claim
which would include his physical injuries and medical expenses.

On December 2, 2009, Gorman filed a revised notice of claim,
seeking $33,500 in damages for both personal injury and property
damage to his vehicle.

But, because he was still receiving

treatment, he could not yet document (or, apparently, calculate)
the full extent of his medical expenses.

His counsel, Attorney

Quinn, spoke with the claims specialist assigned to Gorman’s case
to discuss the fact that Mr. Gorman was still undergoing
treatment.

See Affidavit of Attorney Francis S. Quinn (document

no. 14-4) at para. 2.

The claims specialist, Francine Fenton,

took contemporaneous notes of those conversations and describes
one of them as follows:
On January 14, 2010, I contacted Francis Quinn to
obtain any remaining medical invoices in support of his
client, Daniel Gorman’s, claim. Mr. Quinn advised at
that time that Daniel Gorman was still treating. I
explained to Mr. Quinn at that time that without
medical documentation of the claim, it could possibly
be denied. I explained to Mr. Quinn that he may wish
to consider withdrawing Mr. Gorman’s claim until such
time as they had medical documentation to support it.
I additionally advised him that, should he choose to
withdraw the claim, then he would have two years from
the date of the accident to resubmit it.

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Affidavit of Francine Fenton (document no. 12-2), at par. 7
(emphasis supplied).

Attorney Quinn appears to dispute that

claim, saying:
At no time during our telephone calls did Ms. Fenton
advise me that, in following her advice, the
“withdraw[al]” would be treated as a complete
withdraw[al] of Mr. Gorman’s claim requiring an
additional notice of claim form to be resubmitted.
Affidavit of Attorney Quinn at para. 3.

See also Id. at para. 4.

Ms. Fenton followed-up on her January 14, 2010, telephone
conversation with a letter dated January 28, 2010, in which she
reminded Attorney Quinn that “before this claim can be considered
for adjudication it must be supported by competent medical
evidence.”

Letter from Francine Fenton to Attorney Quinn

(document no. 14-4) at 1.

She went on to ask that such

supportive evidence be provided within thirty days and noted that
“if these materials are not furnished, we will be unable to
properly evaluate the claim and will have no recourse but to
issue a denial.”

Id.

Attorney Quinn appears to have been concerned that he could
not provide the requested documentation within the short time
frame specified by Ms. Fenton.

So, by letter dated February 4,

2010, he “withdrew” Mr. Gorman’s pending administrative claim.

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This letter is to confirm that due to Mr. Gorman’s need
to obtain further medical treatment as a result of
injuries sustained in the above-referenced collision,
we are withdrawing his claim at this time.
We will provide supplemental medical information once
the medical treatment has been completed. We reserve
the right to supplement the claim based on other
damages that may result.
Letter from Attorney Quinn to Ms. Fenton (document no. 12-2) at
13 (emphasis supplied).

There is, at least arguably, some

ambiguity in that letter, since it purports to “withdraw” Mr.
Gorman’s pending claim, and yet it also refers to his intent to
“supplement” (not “refile”) that claim at a later date.

On May 12, 2011 (more than two years after the accident),
Attorney Quinn telephoned Ms. Fenton, informing her that he now
had medical bills to support Mr. Gorman’s claim.
Francine Fenton at para. 9.

Affidavit of

She advised Attorney Quinn that

“there was no claim pending from Mr. Gorman and reminded him that
[she] had told him at the time he withdrew the claim that it
would need to be re-filed within two years of the accident.”

Id.

That same day, Attorney Quinn sent a letter to Ms. Fenton,
resubmitting Mr. Gorman’s administrative claim, and enclosing
“all medical records and bills in our file to date.”

Letter from

Attorney Quinn to Ms. Fenton (document no. 12-2) at 15.
letter, Attorney Quinn noted the following:

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In that

As I indicated in my letter of February 4, 2010
[purportedly withdrawing Mr. Gorman’s claim], . . . it
was my understanding that the “claim” had been timely;
however, it was being held until such time as Mr.
Gorman had completed his treatment. I withdrew the
claim with the understanding that the medicals could be
supplemented. I apologize for my misunderstanding and
I am respectfully asking that this claim be processed
based on the initial application.
Id.

Two weeks later, Ms. Fenton informed Attorney Quinn that Mr.

Gorman’s claim was denied, as untimely.
Pursuant to 28 U.S.C. § 2401(b), the statute of
limitations period for an action brought pursuant to
the Federal Tort Claims Act is two years. Claimant
originally filed his claim with the Postal Service on
December 4, 2009. However, via your letter dated
February 4, 2010, you withdrew Mr. Gorman’s claim.
Accordingly, Mr. Gorman was obligated to file a claim
on or before April 30, 2011. Your correspondence dated
May 12, 2011 attempting to re-file Mr. Gorman’s claim
was untimely. Accordingly, this claim is denied.
Letter from Ms. Fenton to Attorney Quinn (document no. 12-2) at
17.

This litigation ensued and the government moves to dismiss
Mr. Gorman’s complaint, saying he failed to exhaust available
administrative remedies and, therefore, this court lacks subject
matter jurisdiction over his claims.

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Gorman objects.

Discussion
Mr. Gorman brings this action against the government
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2401(b), 2671 et seq.

As the court of appeals has

observed:
The FTCA is a limited waiver of sovereign immunity by
the United States whereby a claimant can sue for the
negligent or wrongful act or omission of certain
government employees. However, 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. The general
rule is that a tort claim accrues at the time of the
plaintiff’s injury.
Ramirez-Carlo v. United States, 496 F.3d 41, 46 (1st Cir. 2007)
(citations and internal punctuation omitted) (emphasis supplied).
Here, the government says Gorman withdrew his (timely) notice of
claim with the USPS and, before he refiled a notice of claim, the
two-year limitations period lapsed.

Gorman, on the other hand, says he “never withdrew his claim
from the U.S. Postal Service’s consideration.”
memorandum (document no. 14-1) at 5.

Plaintiff’s

He explains his position as

follows:
The language of Mr. Gorman’s February 4, 2010 letter
cannot reasonably be interpreted as a withdrawal that
would require him to resubmit a new notice of claim.
In the first sentence of the letter, Mr. Gorman
explains that the reason for his letter is that he is
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in need of additional medical care and is not finished
treating his injuries. The claims representative, Ms.
Fenton, made statements to cause Mr. Gorman to believe
that if he did not submit all of his medical records
within thirty (30) days of her January 29, 2010 letter,
his claim would be denied. Mr. Gorman believed that
since he was still treating and not able to submit all
his medical records by that deadline his claim would be
denied without further consideration unless he took Ms.
Fenton’s advice. This “withdraw” would allow Mr.
Gorman additional time to receive medical treatment and
provide the necessary records upon Mr. Gorman’s
recovery without the threat of denial. Mr. Gorman did
not communicate to the Postal Service that he was
withdrawing his claim from consideration and
investigation.
Id. (citations omitted).

He goes on to point out that, “there

was no indication from the U.S. Postal Service that they would
treat Mr. Gorman’s February letter as a complete withdraw[al] of
his notice.

The government did not respond to this letter by

telephone or by letter to advise that it would interpret Mr.
Gorman’s letter as a withdraw[al].”

Id. at 6.

Omitted from his

argument, however, is any reference to authority or precedent
suggesting that the USPS had an obligation, regulatory or
otherwise, to acknowledge receipt of his letter or to notify him
that it would treat the letter as a withdrawal of his claim.

As the government points out, if Attorney Quinn’s letter of
February 4, 2010, operated as a “withdrawal” of Mr. Gorman’s
claim - that is, the complete discontinuation, cancellation, or
nullification of his then-pending administrative claim - then

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this court lacks subject matter jurisdiction over his lawsuit
under the FTCA.

If, on the other hand, that letter served merely

as a request that Ms. Fenton stay or hold in abeyance any final
administrative resolution of his pending claim, Gorman’s FTCA
suit is likely not barred.

Neither party has adequately briefed

that critical issue.

Conclusion
Accordingly, on or before November 15, 2012, each party
shall submit a supplemental legal memorandum addressing, at a
minimum, the following issues:
1.

Whether any regulations (or judicial precedent)
describe the procedure by which a claimant may withdraw
an administrative claim for damages against the
government and/or establish an obligation on the part
of the agency to specifically acknowledge that a claim
has been withdrawn. Cf. 38 C.F.R. § 20.204 (governing
the withdrawal of an appeal filed with the Board of
Veterans’ Appeals).

2.

Whether, when determining the legal effect of Attorney
Quinn’s February 4, 2010, letter, the court looks
exclusively to the objective manifestation of intent as
expressed in the letter, or whether Attorney Quinn’s
subjective intent is also relevant. In other words, is
the context in which that letter was sent - including
any representations or omissions that Ms. Fenton may
have made - relevant?

3.

Whether the withdrawal of a pending administrative
claim must be knowing, voluntary, and/or intelligently
made. Cf. Siobal v. Shinseki, 2011 WL 5966209 (Nov.
30, 2011 Vet. App.) (holding that the withdrawal of a
pending administrative appeal to the Board of Veterans’
Appeals must be knowing and concluding that “it is not
clear whether Mr. Siobal knowingly intended to withdraw
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his claim or whether he thought his claim was on
hold. . . ..”).; Marrero v. Shinseki, 2011 WL 108688
(Jan. 13, 2011 Vet. App.) (“The Court concludes that
the appellant’s pro se statement that he wished to
withdraw his claim was not a knowing withdrawal of the
claim because his submission of evidence during the
testimony demonstrated his continuous intent to seek
benefits . . ..”).
After the parties have submitted their supplemental legal
memoranda, the court will, if appropriate, schedule an
evidentiary hearing to resolve any outstanding disputed material
facts that bear on its exercise of subject matter jurisdiction
over Gorman’s claims.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
October 16, 2012
cc:

Francis X. Quinn, Jr., Esq.
Michael T. McCormack, Esq.

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