WESTON v. MCQUAIN
Filing
16
MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 9/17/2015, that Defendant's Motion to Dismiss (Doc. 10 ) for Plaintiff's failure to exhaust her administrative remedies is GRANTED. Plaintiff's complaint (Doc. 3 ) is DISMISSED WITHOUT PREJUDICE. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEBORAH WESTON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
1:15CV84
MEMORANDUM OPINION AND ORDER
OSTEEN, Jr., District Judge
The United States of America (“Defendant”) moves to dismiss
Deborah Weston’s (“Plaintiff”) claim under the Federal Tort
Claims Act (“FTCA”) pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure. (Doc. 10.) Defendant claims that
Plaintiff’s suit should be dismissed for failure to exhaust
administrative remedies as required under the FTCA. (Id.)
Plaintiff has filed a response (Doc. 13), and Defendant has
filed a reply (Doc. 14).
For the reasons stated below, this
court agrees and will dismiss Plaintiff’s claim without
prejudice.
I.
BACKGROUND
This action arises out of a February 14, 2014 automobile
accident. (Complaint (“Compl.”) (Doc. 3) ¶ 3.) Plaintiff was
driving her automobile and had right of way when Timothy
McQuain, the original named individual Defendant and an employee
of the Federal Aviation Administration (“FAA”), pulled out into
an intersection without yielding, resulting in a collision
between the cars that demolished Plaintiff’s car and inflicted
serious bodily injury to Plaintiff. (Id. ¶ 3-5.)
On May 15, 2014, McQuain and his supervisor filled out a
Standard Form 91, Motor Vehicle Accident Report. (Def.’s Reply
Br. in Supp. of Mot. to Dismiss (“Def.’s Reply”), Ex. B (Doc.
14-2).) On May 21, 2014, Plaintiff’s counsel sent a letter to an
FAA Claims Investigator, in which he stated that an FAA employee
caused the accident. (Pl.’s Resp. in Opp’n to Def.’s Mot. to
Dismiss (“Pl.’s Resp.”), Ex. 1. (Doc. 13-1).) He also stated
that, despite not having accounted for all medical bills at that
point, Plaintiff demanded $3,000 to resolve her injury and
damages. (Id.) On May 27, 2014, the FAA investigator sent two
copies of Standard Form 95, Claims for Damage, Injury, or Death
(“SF-95”), to be filled out by Plaintiff, with accompanying
instructions. (Id., Ex. 2 (Doc. 13-2).) On August 9, 2014,
Plaintiff’s counsel submitted one SF-95. (Def.’s Br. in Supp. of
Mot. to Dismiss (“Def.’s Br.”), Ex. A attached to Declaration of
Helen Kelley (“Kelley Decl.”) (Doc. 11-2).) A second SF-95 was
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submitted on November 12, 2014. (Id., Ex. B. attached to
Declaration of Helen Kelley (Doc. 11-3).)
During the following months, contact between Plaintiff’s
counsel and the FAA investigator ensued. (Id., Ex. C (Doc.
11-4).) After being asked to provide proof for various claims of
damage, counsel declined to provide the FAA with documentation,
and gave his intention to file suit. (Id. at 2-3.)1
Plaintiff commenced this action on January 5, 2015, in
Guilford County Superior Court, alleging negligence. (Compl.
(Doc. 3).) On January 21, 2015, McQuain made a sworn declaration
that he was within his scope of employment at the time of the
accident. (Def.’s Reply, Ex. A, Declaration of Timothy R.
McQuain (“McQuain Decl.”) (Doc. 14-1).) On January 23, 2015,
McQuain filed two notices – one to substitute the United States
of America for himself as Defendant, and one to remove the
action to this court. (See Notice of Removal of a Civil Action
(Doc. 1); Notice of Substitution (Doc. 7).)2
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
1
On February 20, 2015, McQuain filed a Motion to Substitute
(Doc. 9), and the court entered an order on April 21, 2015,
allowing the United States to be substituted as the sole
Defendant in this action. (Doc. 15.)
2
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On February 19, 2015, the FAA completed its review of
Plaintiff’s claims and issued a final denial. (Pl.’s Resp., Ex.
3 (Doc. 13-3).) On February 20, McQuain filed this motion to
dismiss, alleging that failure to exhaust administrative
remedies has deprived this court of subject matter jurisdiction
under the FTCA. (Def.’s Mot. to Dismiss (Doc. 10).)
II.
LEGAL STANDARD
When a defendant makes a facial challenge to subject
matter jurisdiction, the plaintiff, in effect, is
afforded the same procedural protection as he would
receive under a Rule 12(b)(6) consideration. In that
situation, the facts alleged in the complaint are
taken as true, and the motion must be denied if the
complaint alleges sufficient facts to invoke subject
matter jurisdiction.
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)
(internal citations and quotation marks omitted). Rule 12(b)(6)
protects against meritless litigation by requiring sufficient
factual allegations “to raise a right to relief above the
speculative level” so as to “nudge[] the[] claims across the
line from conceivable to plausible.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662 (2009).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Iqbal, 556 U.S. at
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678 (quoting Twombly, 550 U.S. at 570). A claim is facially
plausible when the plaintiff provides enough factual content to
enable the court to reasonably infer that the defendant is
liable for the misconduct alleged. Id. The pleading setting
forth the claim must be “liberally construed” in the light most
favorable to the nonmoving party, and allegations made therein
are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421
(1969). However, “the requirement of liberal construction does
not mean that the court can ignore a clear failure in the
pleadings to allege any facts [that] set forth a claim.” Estate
of Williams-Moore v. Alliance One Receivable Mgmt., Inc., 335 F.
Supp. 2d 636, 646 (M.D.N.C. 2004).
“Federal courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Generally, federal court jurisdiction stems from either
(1) a federal question or (2) diversity of the parties. “Article
III of the Constitution gives the federal courts power to hear
cases ‘arising under’ federal statutes.” Merrell Dow Pharm. Inc.
v. Thompson, 478 U.S. 804, 807 (1986). This matter was removed
to this court under 28 U.S.C. §§ 1441, 1442, 1446, and 2679, and
the United States was substituted as Defendant pursuant to 28
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U.S.C. § 1346(a)(2). (Notice of Removal (Doc. 1); Motion to
Substitute (Doc. 9) at 1-2.)
III. ANALYSIS
A.
Removal
In her response to the motions to substitute and to
dismiss, Plaintiff raises several objections pertaining to
removal. Plaintiff first contends that the matter was improperly
removed from state court, and that the state court has both
original and concurrent jurisdiction. (Pl.’s Resp. (Doc. 13) at
2.) For reasons set forth below, this action was properly
removed and this court has original jurisdiction under 28 U.S.C.
§ 1346(a)(2).3
Plaintiff also makes the argument that the individual
Defendant was not acting within his scope of employment, and
that the certification submitted by opposing counsel was
insufficient proof. (Pl.’s Resp. (Doc. 13) at 1-2.)
Certification by the Attorney General’s designee that an
employee was acting within the scope of his federal employment
is conclusive unless challenged. See Gutierrez de Martinez v.
Lamagno, 515 U.S. 417 (1995). If challenged, the certification
3
The proper objection to removal is a motion to remand if
federal jurisdiction does not exist. See 28 U.S.C. § 1447(c).
Because Plaintiff has not moved for remand, her argument as to
removal is irrelevant.
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serves as prima facie evidence and shifts the burden to the
plaintiff to prove by a preponderance of the evidence that the
federal employee was acting outside of the scope of employment.
Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1155 (4th Cir.
1997). In this challenge, a plaintiff must submit specific
evidence contradicting the certification, as opposed to
conclusory allegations and speculation. Id. Here, Plaintiff’s
statement that “upon information and belief,” Defendant was
outside of the scope of his employment is conclusory and, absent
evidentiary support, fails to carry her burden of proof. (See
Pl.’s Resp. (Doc. 13) at 1.) Further, McQuain gave a statement
under penalty of perjury that he was acting with the scope of
his employment, (Def.’s Reply, Ex. A, McQuain Decl. (Doc. 14-1),
and a completed SF-91 corroborates McQuain’s statement. (Id.,
Ex B (Doc. 14-2).)
Plaintiff next states that any damages do not meet the
requisite jurisdictional amount for federal court and also
raises lack of diversity jurisdiction. (Pl.’s Resp. (Doc. 13) at
2.) For reasons set forth in Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546 (2005), diversity jurisdiction is
irrelevant to this action. This action was removed by virtue of
the FTCA. (See Notice of Removal (Doc. 1).)
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B.
Motion to Dismiss
In opposition to Defendant’s Motion to Dismiss, Plaintiff
raises several arguments. First, Plaintiff states that because
the action was filed against an individual and not an agency,
the FTCA does not apply. (Pl.’s Resp. (Doc. 13) at 3.) This is
contrary to the plain language of 28 U.S.C. § 2679, which states
that the United States shall be substituted as the party
defendant upon certification by the Attorney General that the
defendant employee was acting within the scope of his employment
at the time of the incident. See also Rogers v. United States,
675 F.2d 123 (6th Cir. 1982). As stated above, McQuain admitted
he was acting within the scope of his employment, (McQuain Decl.
(Doc. 14-1) ¶ 6), implicating § 2679 and the Federal Tort Claims
Act. Plaintiff has provided no plausible objection to these
facts.
Plaintiff next contends that she bargained in good faith to
resolve the dispute and that Defendant did not, and therefore an
equitable exception to the six-month time period is warranted.
(Pl.’s Resp. (Doc. 13) at 3.) The Supreme Court has ruled that
it has no authority to create equitable exceptions to
jurisdictional requirements. Because the FTCA’s exhaustion
requirement is jurisdictional in nature, no equitable exception
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is warranted. See Trueman v. United States, No. 7:12-CV-73-F,
2014 WL 1057267, at *10 (E.D.N.C. Mar. 17, 2014); see also
Bowles v. Russell, 551 U.S. 205, 206 (2007) (“[T]his Court has
no authority to create equitable exceptions to jurisdictional
requirements.”).
Plaintiff further contends that, because the claim was
examined and denied by the FAA, Defendant’s motion is moot.
(Pl.’s Resp. (Doc. 13) at 3.) This contradicts the holding in
McNeil v. United States, 508 U.S. 106 (1993), which rejected a
plaintiff’s argument that an agency’s later denial of his claim
cured his premature filing of an action. Id. at 112 (“The most
natural reading of the statute indicates that Congress intended
to require complete exhaustion of Executive remedies before
invocation of the judicial process.”). This court is bound by
the Supreme Court’s decision in McNeil.
Plaintiff’s final contention is that Plaintiff’s letter of
May 21, 2014, constitutes a claim and, because that letter was
sent more than six months before the filing of this action,
Plaintiff was not in violation of the FTCA’s exhaustion
requirements. (Pl.’s Resp. (Doc. 13) at 3.)
Under 28 U.S.C. § 2675, no action shall be instituted
against the United States for monetary damages unless the claim
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is first presented to the appropriate federal agency and then
finally denied in writing. The statute also provides that the
failure of an agency to make final disposition of a claim within
six months after filing will be deemed a final denial. 28 U.S.C.
§ 2675. Read in tandem, these clauses set forth an unambiguous
requirement that a claimant may not file a civil action against
the United States until either an agency has finally denied the
claim or six months have elapsed from the filing of the claim,
whichever occurs first. The Supreme Court has found this
requirement to be “unambiguous,” and that it bars claimants from
filing federal lawsuits until they have exhausted their
administrative remedies. McNeil, 508 U.S. at 112-13.
Here, the FAA entered its denial of Plaintiff’s claim on
February 19, 2015. (Pl.’s Resp., Ex. 3 (Doc. 13-3).) Given
Plaintiff’s filing of this action on January 5, 2015, the issue
is whether six months had elapsed between that date and the
filing of the claim with the FAA. While apparently an issue of
simple arithmetic, this question turns on how a claim is
defined.
Under 28 C.F.R. § 14.2, a claim is presented when the
agency receives a completed Standard Form 95 or other written
notification of an incident from a claimant, his duly authorized
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agent or legal representative, accompanied by a claim for money
damages in a sum certain. 28 C.F.R. § 14.2(a). The Fourth
Circuit has held that a claim is “presented” -- satisfying the
requirement of filing an administrative claim -- if it gives the
government adequate notice to properly investigate the
underlying incident and places a “sum certain” on the claim’s
value. Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir.
1994) (citing Adkins v. United States, 896 F.2d 1324, 1326 (11th
Cir. 1990)). Additionally, the title or legal capacity of the
person signing, along with evidence of his authority to present
the claim on behalf of the claimant, is required. 28 C.F.R.
§ 14.2(a).
The central issue in this case is therefore whether the
letter from Plaintiff’s counsel to the FAA on May 21, 2014, is a
claim. If the letter is a claim, the question becomes whether
the SF-95 forms filed by Plaintiff in August and November of
2014 act as amendments to that claim.
Under 28 C.F.R. § 14.2(c), a valid claim may be amended if
in writing and signed by the claimant or a legal representative.
Timely filing of an amendment to a pending claim will give the
agency an additional six months from that date in which to make
a final disposition of the claim, and a claimant may not file a
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lawsuit until that date or a final disposition. 28 C.F.R.
§ 14.2(c).
1.
The May 21 letter was a valid presentation of a
claim under 28 C.F.R. § 14.2.
i.
Letter from Plaintiff’s counsel provided
sufficient notification to enable
investigation and settlement.
The Fourth Circuit considers a claim to be properly
presented when the government receives either a completed SF-95
or other written notification of an incident, and a claim for
money damages in sum certain. Kokotis v. United States Postal
Serv., 223 F.3d 275, 278 (4th Cir. 2000). The former requirement
fulfills one of the purposes of § 2675 by informing the
government agency of the circumstances so that it may
investigate the claim, evaluate its merits, and respond by
settlement or preparation of a defense. See Nelson v. United
States, 541 F. Supp. 816, 817 (M.D.N.C. 1982) (citing Rise v.
United States, 630 F.2d 1068 (5th Cir. 1980)); Speer v. United
States, 512 F. Supp. 670 (N.D. Tex. 1981)). Put simply, notice
is sufficient if it enables the agency to investigate the claim.
Ahmed v. United States, 30 F.3d 514 (4th Cir. 1994) (citing
Adkins, 896 F.2d at 1326). The Fourth Circuit has followed the
Eleventh Circuit on the matter of the level of detail required
in the claim, saying, “[w]e do not require the claimant to
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provide the agency with a preview of his or her lawsuit by
reciting every possible theory of recovery . . . or every
factual detail that might be relevant. . . . In short, the
amount of information required is ‘minimal.’” Drew v. United
States, 217 F.3d 193, 203 (4th Cir. 2000) (reh’g en banc
granted, opinion vacated, aff’d with no opinion) (quoting
Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir.
1999) (citations omitted).
In 2014, another court in this district considered an FTCA
personal injury action where a civilian employee of the United
States Coast Guard allegedly shot the plaintiff and damaged his
property. Boles v. United States, 3 F. Supp. 3d 491 (M.D.N.C.
2014). In Boles, the court found the plaintiff’s administrative
claim was sufficient when he identified the incident in which he
was injured and demanded a sum certain. “So long as the
administrative claim ‘provides sufficient notice to enable
investigation and settlement,’ a complaint based upon it will
not be jurisdictionally barred.” Id. at 504 (quoting White v.
United States, 907 F. Supp. 2d 703, 705 (D.S.C. 2012). The
claimant in Boles stated that the plaintiff’s injuries resulted
from a negligent action of a government employee acting within
her scope of employment and described the injuries suffered by
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the plaintiff. The plaintiff argued that this was sufficient to
put the government on notice of the claim’s substance, and this
court agreed.
Here, the May 21 letter gave sufficient notice to enable
investigation and settlement. Like in Boles, the claim stated
that Plaintiff’s injuries resulted from the government
employee’s action, and specified the injuries to Plaintiff’s
health and personal property. This court finds that the May 21
letter adequate to put the FAA on notice of its substance.
ii.
Letter from Plaintiff’s counsel placed a sum
certain on the claim’s value.
Defendant contends that the demand for money contained in
Plaintiff’s May 21 letter does not place a sum certain on the
claim’s value. The pertinent language in the letter says: “All
of her bills are not accounted for as of this date but we are
demanding $3,000 to resolve her injury and damages.” (Pl.’s
Resp., Ex. 1 (Doc. 13-1).) Defendant argues that this statement
does not amount to a sum certain. While it is a very close
argument, this court disagrees for the following reasons.
The sum-certain requirement is “one of substantial
importance, and even courts liberally construing the presentment
requirement under the FTCA require that the claimant place a
certain value on the claim.” Ahmed, 30 F.3d at 517 (citing
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Williams v. United States, 693 F.2d 555, 557 (5th Cir. 1982)
(“[W]e have held that no particular form or manner of giving
such notice is required as long as the agency is somehow
informed of the fact of and amount of the claim within the two
year period prescribed by § 2401(b).” (Emphasis added))). The
sum certain requirement allows the agency to “determine whether
the claim can legally be settled by the agency and, if so, from
where the payment should come.” White-Squire v. United States
Postal Service, 592 F.3d 453, 459 (3d Cir. 2010) (citing 28
U.S.C. § 2672; Bialowas v. United States, 443 F.2d 1047, 1050
(3d Cir. 1971)).
In Ahmed, the plaintiffs failed to allege a sum-certain
value because of the uncertain nature of the plaintiff’s
injuries at the time.4 Ahmed, 30 F.3d at 517-18. In rejecting
this justification for failure to place a sum certain on the
claim’s value, the court stated that the plaintiffs need only to
have presented “some specific valuation of their claims,” and
plaintiffs’ failure to do so means they did not present a claim.
Id. at 518. Here, Plaintiff did present a “specific valuation”
4
On an SF-95, the claimant in Ahmed sought $2,255.22 for
property damages, but added language saying that the $2,255.22
will be full satisfaction of the claim “FOR PROPERTY DAMAGE
ONLY, PERSONAL INJURY CLAIM PENDING.” Ahmed, 30 F.3d at 516.
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of $3,000 in the May 21 letter. (Pl.’s Resp., Ex. 1 (Doc.
13-1).)
However, there is qualifying language in the claim. (Id.)
(“All of her bills are not accounted for as of this date but we
are demanding $3,000 to resolve her injury and damages.”) Courts
have generally treated qualifying language as having no effect
on the existence of a claim for sum certain. See, e.g., CorteReal v. United States, 949 F.2d 484, 486 (1st Cir. 1991)
(holding that a sum certain had been stated where claimant had
written “$100,000 plus because still treating and out of work”
under personal injury section of SF-95, and explaining that the
risk of plaintiff using the qualifying language to “weasel”
additional damages at a later date was mitigated by the
prohibition in 28 U.S.C. § 2675(b) against suing for any sum in
excess of the amount of the claim presented to the federal
agency); see also Indus. Indem. Co. v. United States, 504
F. Supp. 394, 395-96 (E.D. Cal. 1980) (holding that a sum
certain was stated where plaintiff claimed “$560.00*” on an
SF-95, with qualifying language stating that “[s]ubstantiation
will be supplied upon request. Compensation benefits are
continuing and will continue for an indefinite period of time”);
Fallon v. United States, 405 F. Supp. 1320 (D. Mont. 1976)
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(holding that a sum certain was presented where a claimant wrote
“Approximately $15,000.00” on line designated for “Personal
Injury” on SF-95). Additionally, some courts have held that
claims for a sum certain are still valid despite the claimant
stating that the exact amount of the claim is unknown. See,
e.g., Walley v. United States, 366 F. Supp. 268, 270 n.2 (E.D.
Pa. 1973) (holding that a letter presented a sum certain where
the claimant stated the claim to “approximate $100,000.00”
despite being “presently unaware of [plaintiff’s] out-of-pocket
expenses”).
Here, Plaintiff presented a specific valuation of her claim
when the $3,000 figure was demanded. Despite the qualifying
language stating that all medical bills were yet to be accounted
for, the letter clearly sets out a $3,000 demand for payment. It
was sufficient to notify the government of the fact of and
amount of the claim. This court will treat the language “[a]ll
of her bills are not accounted for as of this date” as mere
surplusage.
With the policy purpose of aiding parties in settlement,
the FTCA’s requirement for presentation of a sum certain is
satisfied here. The demand would have created an adequate
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starting point for settlement negotiations between Plaintiff and
the agency.
iii. Letter from Plaintiff’s counsel demonstrates
counsel’s authority to make the claim on
behalf of Plaintiff.
Defendant argues that the May 21 letter did not
sufficiently demonstrate that counsel was authorized by
Plaintiff to file a claim on her behalf. (Def.’s Reply (Doc. 14)
at 7.) In support of this, Defendant argues that counsel’s
statement that he “represent[s] the [Plaintiff]” inadequately
demonstrated authorization from Plaintiff, and that counsel’s
failure to sign the May 21 letter in his representative capacity
also renders the letter deficient. (Id.)
Courts have long held that the appearance of an attorney
for a party raises a presumption that the attorney has the
authority to act on that party’s behalf. See, e.g., Hill v.
Mendenhall, 88 U.S. 453 (1874); Osborn v. Bank of United States,
22 U.S. 738 (1824); Paradise v. Vogtlandische Maschinen-Fabrik,
99 F.2d 53 (3d Cir. 1938); Jama v. United States I.N.S., 22
F. Supp. 2d 353 (D.N.J. 1998); Child v. Beame, 412 F. Supp. 593
(S.D.N.Y. 1976). In order for the government’s claim to be
successful here, it would need to present sufficient evidence to
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overcome the presumption that counsel was authorized to
represent Plaintiff.
Here, the conduct of the FAA after receiving Plaintiff’s
letter lends support to the proposition that the May 21 letter
adequately sets forth counsel’s authority to act on behalf of
Plaintiff.
In the May 27, 2014 letter in response to Plaintiff,
the FAA makes no mention of needing further proof of counsel’s
authority to make a claim on behalf of Plaintiff.
(See Pl.’s
Resp., Ex. 2 (Doc. 13-2).) Instead, the letter merely includes
two SF-95 forms, instructions for filling them out, and a
quotation from 28 C.F.R. § 14.2. The SF-95 forms are sent “for
your use in filing a claim against the Federal Aviation
Administration.” (Id.)
The letter states that the SF-95 claim form constitutes a
legal document, and to follow its instructions and provide the
supporting documentation. (Id.) Quoting § 14.2, the letter
states that a claim has been presented when a federal agency
receives “from a claimant . . . or legal representative an
executed SF-95 or other written notification.” (Id.)
Nothing in
the letter indicates that further proof of counsel’s
authorization to file a claim on behalf of Plaintiff is needed.
While this letter uses language apparently indicating that the
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FAA did not recognize the May 21 letter as a valid claim, this
court cannot allow an agency to use its own characterization,
rather than following the explicit statutory and regulatory
language for recognizing a valid claim. The FAA implying the May
21 letter was deficient as a claim does not render the letter
deficient as a claim.
Defendant next argues that counsel’s failure to sign the
May 21 letter renders it deficient. (Def.’s Reply (Doc. 14) at
8 n.2.) In support of this, they cite § 14.2 and emphasize the
phrase “of the person signing,” apparently arguing that there is
an implicit requirement of an actual signature. This court
disagrees.
While there is little guidance from binding authority on
this issue, this court is persuaded by Warren v. United States
Dep’t of Interior Bureau of Land Mgmt., 724 F.2d 776 (9th Cir.
1984). Warren interpreted former 28 C.F.R. § 14.3(e), which
stated, in pertinent part, “[a] claim presented by an agent or
legal representative shall be . . . signed by the agent or legal
representative.” Id. at 777 n.2. Though the court did not
interpret the requirement of a signature, it did make a salient
point regarding failure to comply with this regulation, much of
which is now incorporated as part of § 14.2. “To interpret
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section 14.3(e) as jurisdictional,” the Court said, “would be to
impose upon claimants an added burden which would inevitably
result in barring otherwise meritorious claims. Such a result
would frustrate the purposes of both 28 U.S.C. § 2672 and
§ 2675(a).” Id. at 779. The FTCA was designed to “divert all
claims to the agencies first to provide claimants who desired
settlement the opportunity for it at minimum expense.” Id. at
779 n.6. Several other courts have held that the requirements of
§ 14.3(e) as incorporated in § 14.2 are not jurisdictional,
because the regulation was promulgated pursuant to 28 U.S.C.
§ 2672, the FTCA’s settlement provision, rather than § 2675, the
FTCA’s jurisdictional provision. See Graves v. United States
Coast Guard, 692 F.2d 71, 74-75 (9th Cir. 1982); Avery v. United
States, 680 F.2d 608, 611 (9th Cir. 1982); Pardy v. United
States, 575 F. Supp. 1078, 1079 (S.D. Ill. 1983).
This court agrees that refusing to grant jurisdiction
because of the absence of a signature is contrary to the
purposes of the FTCA. The 1966 amendments to the FTCA had three
specific purposes: reducing the burden placed on federal courts
by facilitating the settlement of claims at the administrative
level, decreasing the cost of processing claims at the
administrative and judicial levels, and promoting fair and
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equitable treatment of claimants. See H.R. Rep. No. 89-1532, at
6 (1966); S. Rep. No. 89-1327 (1966).
Here, emphasis should be placed on promoting the fair and
equitable treatment of claimants. Allowing the government to
avoid claims based on technicalities would defeat that latter
purpose of the FTCA. Ultimately, this court is persuaded that
ruling the May 21 letter as a deficient claim would result in
unfair and inequitable treatment of a claimant, while, in
contrast, doing the opposite would not significantly increase
any burden on courts or agencies. With the goal of settling
claims at the administrative level, the FAA, initially
recognizing the May 21 letter as a valid claim, would serve the
goals of the FTCA.
Where the jurisdictional requirement of minimal notice
required to cause an agency to investigate a claim is met, a
failure to authenticate or sign a claim is not fatal. Here, even
assuming there is an implicit requirement of the signature of a
claimant’s legal representative, failure to meet this
requirement is not fatal by itself to the claim.
Defendant has not overcome the burden of showing that
counsel was unauthorized to act on behalf of Plaintiff.
Conclusory statements that counsel did not demonstrate
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authorization to act on behalf of Plaintiff are not sufficient
to overcome this burden.
The May 21 letter, having provided adequate written notice
of the incident, claimed damages in sum certain, and having been
validly filed by Plaintiff’s counsel, is a valid claim for
purposes of 28 C.F.R. § 14.2(a) and 28 U.S.C. § 2675(a).
2.
The August 11 and November 12 SF-95 forms are
both amendments to the May 21 claim.
Having found the May 21 letter to be a valid claim under
the FTCA, this court next must address how the SF-95 forms filed
by Plaintiff and received by the FAA on August 11 and
November 12, respectively, affect this action.
There is little precedent for determining how the filing of
additional valid claims arising out of the same incident affects
the original claim in terms of the timeliness requirements of
§ 2675(a). However, this court is persuaded that, though the
SF-95 forms submitted did not purport to substantively change
any detail of the incident, the forms did set out claims for
sums certain that were so much greater than the initial demand
that the agency would likely need to further investigate. See
Seals v. United States, 319 F. Supp. 2d 741, 743 n.2 (W.D. Tex.
2004) (agreeing with the government that a claim form that
doubles the asserted value of the injury constitutes an
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amendment). In fact, e-mails between the FAA and counsel
indicate that the FAA had in fact investigated further some of
the monetary claims from the SF-95 forms. (Def.’s Br., Ex. C
attached to Declaration of Helen Kelley (Doc. 11-4) at 2-3.)
Because the SF-95 filed on August 11 claimed damages of $40,000,
this substantial increase in sum certain claimed should
constitute an amendment. (Id., Ex. A (Doc. 11-2).) In addition,
because the November 12 SF-95 requests an additional $17,200 in
damages, it, too, should be considered an amendment. (Id., Ex. B
(Doc. 11-3).)
This court finds that both the August 11 and November 12
SF-95s should be treated as amendments to the May 21 letter.
Under § 14.2(c), the six-month period would have been reset on
November 12, meaning that Plaintiff could not have filed this
action until May 12, 2015. Actions that have been dismissed for
failure to exhaust administrative remedies have generally been
dismissed without prejudice. See, e.g., Jones v. Douglas Cty.
Corr. Ctr., 306 Fed. Appx. 339, 340 (8th Cir. 2009) (holding
that if a claimant fails to exhaust administrative remedies
under the FTCA then the claim should be dismissed without
prejudice); Fawcett v. United States, No. 4:13CV01828, 2014 WL
4183683, at *4 (E.D. Ohio Aug. 21, 2014) (recommending dismissal
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without prejudice because of plaintiff’s failure to exhaust
administrative remedies); Murphy v. United States, Civil Action
No. 3:12-1919, 2013 WL 4520756, at *5 (M.D. Pa. Aug. 26, 2013)
(dismissing premature claim under FTCA “while [plaintiff’s]
administrative claims are considered”); Diabate v. Delta
Airline, No.13-CV-0918 (PJS/JJK), 2014 WL 48001, at *8 (D. Minn.
Jan. 7, 2014) (“[B]ecause Diabate failed to comply with the
presentment requirements of § 2675(a), his conversion claim
against TSA must be dismissed without prejudice.”). This court
therefore will grant Defendant’s motion to dismiss and dismiss
Plaintiff’s claim without prejudice, allowing Plaintiff to
refile in this court after exhausting her administrative
remedies.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
(Doc. 10) for Plaintiff’s failure to exhaust her administrative
remedies is GRANTED.
Plaintiff’s complaint (Doc. 3) is
DISMISSED WITHOUT PREJUDICE.
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A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 17th day of September, 2015.
_______________________________________
United States District Judge
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