Palmer v. United States Postal Service et al

Filing 22

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge William J. Haynes, Jr on 12/11/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MICHAEL PALMER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 3: 13-0330
Chief Judge Haynes

MEMORANDUM
Plaintiff, Michael Palmer, filed this action under 28 U.S.C. § 1339 and asserts claims
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) against the Defendant United
States of America. Plaintiffs claims arise from injuries sustained by Plaintiff as a result of a
vehicle collision with a federal postal employee with the United States Postal Service ("USPS") ..
Before the Court is the Defendant's motion to dismiss (Docket Entry No. 15) contending
this action is time-barred for failure to file a timely request for reconsideration and a timely legal
action under the FTCA. Plaintiff responds that this action is timely filed after the last
administrative decision

A. Analysis of the Complaint
According to the complaint, on April 16, 2011, Plaintiff was involved in a motor vehicle
accident with a United States postal vehicle that was driven by a postal worker. This accident
occurred near the intersection of Gallatin Pike and Cude Lane, in Davidson County, Tennessee.
The USPS driver who was operating a "Gruman step van", was acting within the scope of her
employment as a city carrier.
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Thereafter, the parties exchanged a series ofletters. On April 28, 2011, USPS received a
letter from the Fisher Law Group representing Michael Palmer and Kyieta Palmer. (Docket
Entry No. 17-1 at 2). By letter dated April 28, 2011, USPS responded with an explanation of the
procedures for a tort claim. (Docket Entry No. 17-2). On May 20, 2011, USPS received a letter
from Fischer Law Group with a completed claim form 95 for $28,000.(Docket Entry No. 17-3).
On May 23, 2011, USPS acknowledged Plaintiffs claim, but informed Plaintiff about the lack
of necessary documentation of the claim that is required for agency consideration. (Docket Entry
No. 17-4). By letter dated July 7, 2011, USPS informed the Fischer Law Group that Plaintiffs
claim could not be considered absent documentation. (Docket Entry No. 17-5). By letter dated
August 18, 2011 letter to Fisher Law Group, USPS again cited the lack of necessary
documentation to consider Plaintiffs claims and absent such proof, USPS would deny the claim.
(Docket Entry No. 17-6).
Thereafter, USPS transferred Plaintiffs claim to another USPS unit. On September 14,
2011, the USPS advised the Fisher Law Group of the transfer of Plaintiffs claim to USPS's
Accounting Service Center ("ASC"), and provided information to contact ASC. (Docket Entry
No. 17-7). By letter dated October 3, 2011, ASC requested the Fisher Law Group to provide
documentation for Plaintiffs claim that must be competent evidence. (Docket Entry No. 17-8).
On November 4, 2011, ASC informed the Fisher Law Group that absent medical documentation,
within fourteen (14) days, Plaintiffs claim would be denied. (Docket Entry No. 17-9).
On December 7, 2011, USPS denied Plaintiffs claim citing the lack of competent
evidence, but explained that USPS would reconsider Plaintiffs claim, if a request for
reconsideration were filed within six (6) months from the date of the denial letter or Plaintiff

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could file his action. (Docket Entry No. 17-10). The six (6) month period for Plaintiff to request
reconsideration or to file a legal action expired on June 7, 2012 without a request or filing of a
legal action by Plaintiff.
On July 16, 2012, USPS received an unsigned claim form dated July 13, 2012 from
Chadwick W. Stanfill, an attorney that identified the claimants as "Michael and Kyieta Palmer"
with claims of $10,019.75 for injuries. (Docket Entry No. 17-11). Neither Stanfill nor Michael
Palmer or Kyieta Palmer signed this claim form. Id. By letter dated October 23, 2012, USPS
advised Stanfill of its receipt of "July 13, 2012" claim, but explained that because a request for
reconsideration had not been received by June 7, 2012, the July 13th claim was beyond the six
(6) month period, the July 13th claim could not be considered as a request for reconsideration.
(Docket Entry No. 17-11).

B. Conclusions of Law
"The United States, as sovereign, is immune from suit save as it consents to be sued .... "
United States v. Sherwood, 312 U.S. 584, 586 (1941). The Federal Tort Claims Act, 28 U.S.C. §
2671, et seq., ("FTCA") "provides a limited waiver of the national government's immunity from
suit for torts committed by federal employees and places several conditions on the waiver''.
Ellison v. United States, 531 F.3d 359, 361 (6th Cir. 2008). An FTCA tort claimant must present
his claim in writing to the appropriate agency within two years of the date the claim accrued, and
must also file a civil action within six months after the agency mails the notice of final denial of
the claim:
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

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certified or registered mail, of notice of final denial of the claim by the agency to
which it was presented.
28 U.S.C. § 2401(b) See Blakely v. United States, 276 F.3d 853, 865 (6th Cir. 2002).
Yet, this limitation period is tolled if within six months of the date of the mailing of the
final notice of denial of the claim, the claimant makes a timely request for reconsideration.
Prior to the commencement of suit and prior to the expiration of the 6-month
period provided in 28 U.S.C. 2401(b), a claimant, his duly authorized agent, or
legal representative, may file a written request with the agency for reconsideration
of a final denial of a claim under paragraph (a) of this section. Upon the timely
filing of a request for reconsideration the agency shall have 6 months from
the date of filing in which to make a final disposition of the claim and the
claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months
after the filing of a request for reconsideration. Final agency action on a
request for reconsideration shall be effected in accordance with the provisions of
paragraph (a) of this section.
Stewart v. U.S. Veterans Admin., 722 F. Supp. 406, 407 (W.D. Tenn. 1989) (quoting 28 C.F.R. §
9) (emphasis added).
Here, USPSe denied Plaintiff's claim on December 7, 2011 and under 28 U.S.C. §
21401(b, the deadline for any request for reconsideration or legal action was June 7, 2012, (b).
Plaintiff did not request reconsideration by June

7th

and Plaintiff's July 13th claim was not signed

and was received long after the June 7th deadline. Under the FTCA, an administrative claim must
be presented in the name of the claimant and signed by the claimant or his agent or legal
representative with evidence of his authority to act for the claimant. Moody v. United States, 585
F.Supp. 286, 287 (E. D. Tenn. 1984).
As to the filing of this action on April 11, 2013, this filing is also beyond the six month
limitation in 28 U.S.C. § 2401(b), given the December 7, 2011 denial letter. Thus, this Court
lacks jurisdiction to consider an untimely FTCA claim. Ellison, 531 F.3d at 364 ("When the
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Postal Service mailed its denial of Ellison's claim, it triggered the six-month countdown, and,
because Ellison did not file her lawsuit before that window closed, the Act bars her claim.");
Humphrey v. United States Attorney General's Office, 279 Fed. Appx. 328, 331 (6th Cir. 2008)
("The requirement that a claim pursuant to the FTCA be commenced within six months of an
administrative denial is a jurisdictional prerequisite to suit and a failure to comply warrants
dismissal on the merits.")
For these reasons, the Court concludes that the Defendant's motion to dismiss should be
granted.
An appropriate Order is filed herewith.
Entered this the

JL<f1/L/ December, 2013.
day of

United States District Judge

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