Carter v. John McHugh Secretary of the Army d/b/a Defense Commisary Agency

Filing 9

ORDER GRANTING 6 Motion to Dismiss. Signed by Judge Kathleen Cardone. (fm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
TRACEY CARTER
Plaintiff,
v.
JOHN MCHUGH, SECRETARY OF
THE ARMY D/B/A DEFENSE
COMMISSARY AGENCY
Defendant.

§
§
§
§
§
§
§
§
§
§
§

EP-11-CV-456-KC

ORDER
On this day, the Court considered “Defendant’s Motion to Dismiss” (“Motion”), ECF No.
6. For the reasons stated below, the Court GRANTS Defendant’s Motion.
I.

BACKGROUND
In this case, Plaintiff brings a claim under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 1346. See Pl.’s Original Complaint (“Complaint”) 3; Mot. 2. Plaintiff alleges that on
July 26, 2009, she slipped and fell on “water that was negligently left on the floor” of the Army’s
Fort Bliss Commissary. See Compl. 2. According to Plaintiff, she suffered bodily injuries, pain
and suffering, and mental pain and anguish due to the fall. Compl. 3-4.
On September 1, 2009, Plaintiff filed an administrative claim with the Army. Pl.’s Resp.
to Def.’s Mot. to Dismiss (“Response”) ¶ 2, ECF No. 7. On March 8, 2011, Lieutenant Colonel
Gregory Mathers wrote an offer letter to Plaintiff’s attorney (“Offer Letter”). Mot. Ex. 2, ECF
No. 6-2. In the Offer Letter, Mathers made a “final offer to settle . . . [for] $5,000.” Mot. Ex. 2.
Additionally, Mathers explained that “[i]f your client does not accept this offer within thirty (30)
1

days . . . , the offer is withdrawn.” Mot. Ex. 2. Finally, Mathers warned about the statue of
limitations: “If the offer is not acceptable, you may file suit in an appropriate U.S. District Court
no later than six months from the date of mailing of this notice. By law, failure to comply with
this time limit forever bars your client from further suit.” Mot. Ex. 2.
Plaintiff received the Offer Letter on March 11, 2011. See Resp. ¶¶ 2-3. Plaintiff then
filed her Complaint in this Court on November 9, 2011, nearly eight months after Mather’s sent
the Offer Letter. Resp. ¶ 3. Plaintiff’s attorney explains that he failed to file the Complaint
earlier “because of staff miscommunication.” Resp. ¶ 3. Plaintiff’s attorney “believed the claim
had been filed on an earlier date but discovered later that it had not been filed.” Resp. ¶ 3.
II.

DISCUSSION
In his Motion, Defendant argues that the Court should dismiss Plaintiff’s lawsuit under

the FTCA for failure to timely file this lawsuit in accordance with the statute of limitations. Mot.
2. The FTCA waives the United State’s sovereign immunity and allows a plaintiff to sue the
federal government for certain torts committed by government officials acting within the scope
of their employment. 28 U.S.C. § 1346(b)(1); Smith v. United States, 507 U.S. 197, 201 (1993).
Before filing an FTCA claim in federal court, the claimant must first present her claim to the
administrative agency allegedly responsible for the wrongful act. 28 U.S.C. § 2675(a). If the
agency fails to resolve the claim or denies the claim, the claimant can then sue in federal court.
Id.; In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)
(per curiam).
In addition to this process, the claimant must abide by the statute of limitations. 28
U.S.C. § 2401(b); In re FEMA, 646 F.3d at 189. Title 28 U.S.C. § 2401(b) requires:
2

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.
28 U.S.C. § 2401(b).
Although phrased in the disjunctive, § 2401(b) requires the claimant to both file the
administrative claim within two years and to file the lawsuit in court within six months of the
denial. See In re FEMA, 646 F.3d at 189 (citing Ramming v. United States, 281 F.3d 158, 162
(5th Cir. 2001)).
In this case, both parties agree Plaintiff filed her Complaint more than six months after
the Army had denied her claim. See Mot. 1-2; Resp. ¶¶ 2-3. However, Plaintiff argues dismissal
is inappropriate because she is entitled to equitable tolling, or alternatively that the final notice
was defective. Resp. ¶ 4. The Court examines each of Plaintiff’s arguments in turn.
A.

Equitable Tolling

Plaintiff argues that the Court should equitably toll the statue of limitations because
Defendant failed to notify Plaintiff of her right to request that the Army reconsider its final offer.
Mot. ¶ 2. Defendant replies that equitable tolling is not available under the FTCA because the
statute of limitations is jurisdictional. Def.’s Reply to Pl.’s Resp. to Mot. to Dismiss (“Reply”) 2,
ECF No. 8. In the alternative, Defendant argues that even if equitable tolling is available, this
case does not warrant equitable tolling. Reply 2-4.
Whether a court can equitably toll the § 2401(b) statute of limitations has confounded

3

courts and litigants for decades.1 See Santos ex rel. Beato v. United States, 559 F.3d 189, 194-97
(3d Cir. 2009) (holding equitable tolling is available under the FTCA); Marley v. United States,
567 F.3d 1030, 1034-38 (9th Cir. 2009) (holding equitable tolling is unavailable); Perez v.
United States, 167 F.3d 913, 915-17 (5th Cir. 1999) (holding equitable tolling is available);
Houston v. U.S. Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987) (holding equitable tolling is not
available). The Supreme Court of the United States has never decided the issue.2 And although
the Court of Appeals for the Fifth Circuit has addressed the issue several times, the law is still
unsettled. Compare In re FEMA, 646 F.3d at 189 with Perez, 167 F.3d at 915-17.
Before 1990, the Fifth Circuit consistently held that courts could not equitably toll the §
2401(b) statute of limitations. See Perez, 167 F.3d at 915-16 (examining the Fifth Circuit
precedent). The general view was “that equitable tolling was never available against the
government.” Id. at 915-16. The rationale was that the statute of limitations was a condition
upon which the United States waived its sovereign immunity. See Houston, 823 F.2d at 902;
Gregory C. Sisk, The Continuing Drift of Federal Sovereign Immunity Jurisprudence, 50 Wm. &
Mary L. Rev. 517, 544-55 (2008). In other words, Congress did not waive its sovereign
immunity to stale claims, and thus the courts had no jurisdiction over stale claims asserted

1

“‘The doctrine of equitable tolling preserves a plaintiff’s claims when strict
application of the statute of limitations would be inequitable.’” United States v.
Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quoting Davis v. Johnson, 158
F.3d 806, 810 (5th Cir. 1998)).

2

The Supreme Court has noted that § 2401(b) is a “a condition” of the waiver of
sovereign immunity. United States v. Kubrick, 444 U.S. 111, 117 (1979). This
is not dispositive in this case for two reasons. First, the statement is dicta.
Second, the Supreme Court itself subsequent to Kubrick characterized a statute
of limitations as a condition of waiver of sovereign immunity but nevertheless
allowed equitable tolling. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
94-96 (1990)).

4

against the government. See Houston, 823 F.2d at 902.
But the legal landscape shifted in 1990 when the Supreme Court in Irwin v. Department
of Veterans Affairs held that equitable tolling was allowed in a Title VII claim against the United
States. 498 U.S. 89, 95-96 (1990). The Supreme Court held that there should be no presumption
against equitable tolling because once Congress has waived it sovereign immunity, equitable
tolling “amounts to little, if any, broadening of the congressional waiver.” Id. at 95. In other
words, the Supreme Court directed that courts should not presume that Congress intended to
withhold jurisdiction from the courts to adjudicate stale claims, but rather Congress simply
wanted stale claims to lose in court. See id. at 94-95. Indeed, this is how courts generally treat
statute of limitations in suits not involving the government as a defendant — the statute of
limitations is a defense, not a jurisdictional pre-requisite. See Fed. R. Civ. P. 8(c)(1)
(characterizing statue of limitations as an affirmative defense); Citigroup Inc. v. Federal Ins. Co.,
649 F.3d 367, 371, 373-34 (5th Cir. 2011) (treating the statute of limitations as an affirmative
defense). Unless there is evidence that Congress intended to withhold power from the courts, the
Supreme Court held that “the same rebuttable presumption of equitable tolling applicable to suits
against private defendants should also apply to suits against the United States.” Irwin, 498 U.S.
at 95-96.
The Irwin decision led to a shift in the Fifth Circuit. In Perez v. United States, the Fifth
Circuit reasoned that Irwin called into question the Fifth Circuit’s previous holdings that §
2401(b) was jurisdictional. Perez, 167 F.3d at 915-16 (5th Cir. 1999). Accordingly, the Fifth
Circuit re-examined the text and history of § 2401(b), and concluded that neither suggested that
Congress intended § 2401(b) to be jurisdictional. See id. at 916-17. Thus, the court held that §
5

2401(b) was not jurisdictional, and courts could equitably toll the § 2401(b) statute of
limitations. See id. at 915, 917.
Although the Perez decision appeared to settle the issue, the Fifth Circuit has continued
to cite and quote the older cases that held § 2401(b) was jurisdictional without mentioning Perez.
See, e.g., Ramming v. United States, 281 F.3d 158, 165 (5th Cir. 2001) (citing Houston, 823 F.2d
at 898, 902); Waggoner v. United States, 95 Fed. App’x 69, 71 & n.5 (5th Cir. 2004) (quoting
Flory v. United States, 138 F.3d 157, 159 (5th Cir. 1998)). Most recently, the Fifth Circuit in In
re FEMA stated that § 2401(b) was jurisdictional and rejected the plaintiff’s argument for
equitable tolling. 646 F.3d at 189 (5th Cir. 2011) (citing Flory, 138 F.3d at 159). Similarly, two
other courts of appeals have recently examined the issue in depth, and come to opposite
conclusions. See Santos, 559 F.3d at 194-97 (3d Cir. 2009) (holding § 2401(b) was not
jurisdictional and equitable tolling was available); Marley, 567 F.3d at 1034-38 (9th Cir. 2009)
(holding § 2401(b) was jurisdictional and equitable tolling was unavailable).
In the meantime, the Supreme Court issued several opinions addressing the use of the
term jurisdictional. See Henderson ex rel. Henderson v. Shinseki, --- U.S. ----, 131 S.Ct. 1197,
1202-03 (2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S. ----, 130 S.Ct. 1237, 1244-45 (2010);
Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006). The Supreme Court explained that the
phrase jurisdiction “is a word of many, too many, meanings.” Arbaugh, 546 U.S. at 510 (quoting
Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 90 (1998)). Accordingly, the Supreme Court
wished to “bring some discipline to the use of this term.” Shinseki, 131 S.Ct. at 1202. And in a
recent unanimous opinion, the Supreme Court explained:
Among the types of rules that should not be described as jurisdictional are what
6

we have called “claim-processing rules.” These are rules that seek to promote the
orderly progress of litigation by requiring that the parties take certain procedural
steps at certain specified times. Filing deadlines . . . are quintessential
claim-processing rules.
Id. at 1203 (citations omitted).
However, the Supreme Court also reiterated that “Congress is free to attach the conditions
that go with the jurisdictional label to a rule that we would prefer to call a claim-processing rule.”
Id. Thus, the “bright line rule” is to “see if there is any clear indication that Congress wanted the
rule to be jurisdictional.” Id. (quoting Arbaugh, 546 U.S. at 508) (internal quotations omitted).
To glean Congress’s intent, a court examines (1) whether the text of the statute clearly states the
limitation is jurisdictional, (2) whether the structure of the statute suggests the limitation is
jurisdictional, and (3) whether a long line of cases or other factors suggest that Congress intended
for the limitation to be jurisdictional. See id.; Reed Elsevier, 130 S.Ct. at 1244-47.
The Supreme Court in John R. Sand & Gravel Co. v. United States examined a statue of
limitations that is similar to the § 2401(b) statue of limitations at issue in this case. 552 U.S.
130, 132 (2008). Specifically, the statute of limitations at issue in John R. Sand & Gravel
applied to non-tort money claims filed in the Court of Federal Claims. Id. at 132-33 (examining
28 U.S.C. § 2501). Although the Supreme Court recognized that “Irwin adopted a ‘rebuttable
presumption’ of equitable tolling,” the Supreme Court held that it should not overturn its over
one hundred year old precedent holding that the statue of limitations was jurisdictional. See id. at
135-39. The Supreme Court rested its decision solely on stare decisis, and thus that case fits
neatly into the third factor — whether a long line of cases suggest that Congress intended to
follow the course set by the courts. See Shinseki, 131 S.Ct. at 1203.
Unlike the statute at issue in John R. Sand & Gravel, there is not a long-line of Supreme
7

Court cases holding that the § 2401(b) statute of limitations is jurisdictional. As discussed
above, the Supreme Court has never decided whether § 2401(b) is jurisdictional or whether a
court can toll the § 2401(b) statue of limitations. And the courts of appeals have struggled with
the issue and are divided. See, e.g., In re FEMA, 646 F.3d at 189; Santos, 559 F.3d at 194–97;
Marley, 567 F.3d at 1034-38; Perez, 167 F.3d at 915-17. Thus, the Court turns to the remaining
two factors, the text and the structure of the statute.
The text of § 2401(b) does not suggest that Congress intended the statute of limitations to
be jurisdictional. Section § 2401(b) states:
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.
28 U.S.C. § 2401(b).
This language is typical of a statute of limitations and never mentions jurisdiction. See Shinseki,
131 S.Ct. at 1204 (rejecting that a 120-day filing limit as jurisdictional because the “provision
does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [court]”);
Dunlap v. United States, No. CV 11–01360–PHX–FJM, 2012 WL 510532, at *4 (D. Ariz. Feb.
16, 2012) (finding 2401(b)’s text suggests it is not jurisdictional, but rather a statue of
limitations); see also Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 324 (noting that
25 U.S.C. § 15(b) that states “[a]ny action to enforce any cause of action under [the Clayton Act]
shall be forever barred unless commenced within four years after the cause of action accrued” is
a statue of limitations) (emphasis added). Congress did use strong language — “shall be forever
barred” — but the Supreme Court has explained that emphatic language does not necessarily

8

mean the statute is jurisdictional. See Arbaugh, 546 U.S. at 510.
The structure also does not suggest that § 2401(b) is jurisdictional. In the original FTCA
that Congress passed in 1946, the statute of limitations and the jurisdictional grants are in
separate parts of the bill. Federal Tort Claims Act of 1946, ch. 753, §§ 410(a), 420, 60 Stat. 843,
845. The grant of jurisdiction is in part three of the bill, and the statute of limitations is in part
four. See id. Given that Congress physically separated the provisions, the structure of the
original bill suggests that Congress did not intend the statute of limitations to be jurisdictional.
See Shinseki, 131 S.Ct. at 1205 (reasoning that a statute’s physical separation from the
jurisdiction provision suggested that the statute was not jurisdictional).
Moreover, after Congress codified the grant of jurisdiction, Congress amended the
jurisdictional provision to state that the “exclusive jurisdiction” of federal district courts over
FTCA actions was “[s]ubject to the provisions of chapter 171.” Act of May 24, 1949, ch. 139, §
80(b), 63 Stat. 101 (codified as amended at 28 U.S.C. § 1346(b)(1)). This suggests that the
provisions of chapter 171 may be jurisdictional because Congress explicitly stated that
jurisdiction is “subject” to chapter 171's provisions. See Mader v. United States, 654 F.3d 794,
807-08 (8th Cir. 2011) (holding that the FTCA’s administrative exhaustion is jurisdictional in
part because the provision is in chapter 171). Critically, the § 2401(b) statute of limitations is not
in chapter 171. Thus, the structure of the current FTCA suggests that § 2401(b) is not
jurisdictional. See Dunlap v. United States, No. CV 11–01360–PHX–FJM, 2012 WL 510532, at
*4 (D. Ariz. Feb. 16, 2012) (“Because § 2401(b) does not appear within [chapter 171], the
structure of the FTCA does not clearly indicate that the time limits imposed by § 2401(b) have
jurisdictional impact.”)
9

In conclusion, neither the text of § 2401(b), nor the structure of the FTCA suggests that
Congress intended to make § 2401(b) jurisdictional. And the Supreme Court has not established
a long-line of precedent regarding § 2401(b), as was the case with § 2501 in John R. Sand &
Gravel.
However, there is a long-line of precedent from the Fifth Circuit holding that § 2401(b) is
jurisdictional, albeit with a significant departure in the Perez decision. See Perez, 167 F.3d at
915-17. And although the Supreme Court cases above appear applicable and persuasive, it is
noteworthy that none of those decisions involved § 2401(b), and two of the cases did not involve
the United States as a party. See Reed Elsevier, 130 S.Ct. at 1242; Arbaugh, 546 U.S. at 503-04.
But see Shinseki, 131 S.Ct. at 1201, 1203-05 (applying the analysis explained above to a case in
which the defendant was the Secretary of Veteran Affairs).
Fortunately, the Court need not make a definitive holding on this thorny issue to resolve
this case because even if equitable tolling is available as the Court suspects, Plaintiff is not
entitled to equitable tolling. “‘The doctrine of equitable tolling preserves a plaintiff’s claims
when strict application of the statute of limitations would be inequitable.’” United States v.
Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th
Cir. 1998)). However, “[f]ederal courts have typically extended equitable relief only sparingly.”
Irwin, 498 U.S. at 96; see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
“The plaintiff has the burden to provide justification for equitable tolling.” Granger v.
Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011) (citing Wilson v. Sec’y, Dep’t of Veterans
Affairs, 65 F.3d 402, 404 (5th Cir. 1995) (per curiam)). Equitable tolling is available (1) where
the plaintiff actively pursued his judicial remedies, but in the wrong forum, (2) where the
10

plaintiff “has been induced or tricked by his adversary’s misconduct into allowing the filing
deadline to pass,” or (3) other extraordinary circumstances. See Irwin, 498 U.S. at 96; Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); Granger, 636 F.3d at 712. Although the remedy is
based on the equities, courts “are reluctant to apply equitable tolling to situations of attorney
error or neglect, because parties are bound by the acts of their lawyer.” Granger, 636 F.3d at 712
(citing Coleman v. Thompson, 501 U.S. 722, 753, (1991); Wion v. Quarterman, 567 F.3d 146,
149 (5th Cir. 2009)).
In this case, there is no suggestion that Plaintiff was induced or tricked into letting the
deadline pass, or any other extraordinary circumstances that would warrant equitable tolling.
Plaintiff explains that she filed her Complaint late “because of staff miscommunication with the
attorney of record. The attorney of record believed the claim had been filed on an earlier date but
discovered later that it had not been filed.” Resp. ¶ 3. This is the type of “attorney error or
neglect” that does not warrant equitable tolling. See Granger, 636 F.3d at 712; see also Irwin,
498 U.S. at 96 (holding lawyer’s absence from the office was “at best a garden variety claim of
excusable neglect,” and thus did not warrant equitable tolling).
Plaintiff attempts to avoid this result by arguing that Defendant failed to inform Plaintiff
of her right to request reconsideration as required by 32 C.F.R. § 536.89(b), and thus the Court
should toll the statue of limitations. Resp. ¶¶ 5-7. As a preliminary matter, it is not clear that 32
C.F.R. § 536.89(b) applies to this case. Section 536.89(b) states: “[n]otice of disapproval or final
offer issued by [a head of area claims office (“ACO head”)] will advise the claimant of a right to
reconsideration.” Id. In this case, Lt. Col. Mathers wrote the Offer Letter. Mot. Ex. 2. But there
is no indication that Mathers is the head of the area claims office, and Defendant has offered an
11

uncontradicted affidavit that states “Mathers was not an ‘ACO head’” according to the regulation
that defines the term. Reply Ex. Decl. of Evelyn H. Dolan Under Penalty of Perjury ¶ 3, ECF
No. 8. Thus, 32 C.F.R. § 536.89(b) appears inapplicable.
Nevertheless, there is another regulation governing the processing of claims against the
Army, 32 C.F.R. § 536.64(b), that states “[a] final offer under [the FTCA] will notify the
claimant of the right to sue, not later than six months from the notice’s date of mailing, and of the
right to request reconsideration.” 32 C.F.R. § 536.64(b) (emphasis added). Although neither
party mentions or cites § 536.64(b), it appears to mandate notice of the right to reconsideration
when the Army denies an FTCA claim. See id. Therefore, the Court will assume, without
deciding, that the regulations required Defendant to notify Plaintiff of her right to
reconsideration.
However, even with that assumption, Plaintiff’s argument is not persuasive. Plaintiff
asks the Court to allow equitable tolling because of Defendant’s mistake, but never explains how
notification of the right to reconsideration would have changed the outcome. There is no
suggestion that Plaintiff was late because Defendant failed to tell her about the right to
reconsideration. Rather, Plaintiff admits the cause of the delay was a staff miscommunication.
Resp. ¶ 3. Therefore, Defendant’s alleged error was not the cause of Plaintiff’s delay, and thus
cannot be her excuse for tardiness. See Perez, 167 F.3d at 919 (holding equitable tolling did
apply when “there is a clear causal connection between the government’s failure to follow its
regulations and the plaintiff’s” mistake, but would not necessarily apply “[i]f there had been no
causation”); see also San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (requiring a
“causal connection between the alleged extraordinary circumstances and the late filing of the
12

petition”).
B.

Final Offer

Finally, Plaintiff argues in the alternative that the statue of limitations was never triggered
because the final offer was defective. Resp. ¶ 20. According to Plaintiff, the final offer was
defective because it failed to tell Plaintiff about her right to request the Army reconsider its final
offer. Resp. ¶ 20.
To constitute a “final denial” or “final offer” for the purposes of triggering the statute of
limitations, the written notice must be clear that the decision is final. See 28 U.S.C. § 2401(b);
Martinez v. United States, 728 F.2d 694, 698 (5th Cir. 1984); Miller v. United States, 741 F.2d
148, 150 (7th Cir. 1984). Additionally, the agency must send the notice “by certified or
registered mail.” 28 U.S.C. § 2401(b). Finally, the notice “shall include a statement that, if the
claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District
Court not later than 6 months after the date of mailing of the notification.” 28 C.F.R. § 14.9(a);
Martinez, 728 F.2d at 698.
Here, Defendant’s Offer Letter fully complies with those requirements. First, the Offer
Letter was clear that this was a final offer. The Offer Letter stated that this is “[t]he
Government’s final offer to settle your client’s claim is $5,000 . . . . If your client does not accept
this offer within thirty (30) days . . . , the offer is withdrawn.” Mot. Ex. 2 (emphasis added).
Second, the Offer Letter was in writing and sent by certified mail. Id. Third, Defendant’s Offer
Letter explicitly warned that Plaintiff had six months from the date of mailing to sue or else the
“time limit forever bars” the lawsuit. Id. In conclusion, the Offer Letter constituted a final offer.
See Martinez, 728 F.2d at 698.
13

Plaintiff responds by arguing that Defendant’s Offer Letter was defective because it failed
to tell Plaintiff about her right to reconsideration. Resp. ¶ 20. As stated above, Plaintiff may be
correct that the regulations required Defendant to inform Plaintiff of her right to request
reconsideration. However, even assuming Defendant violated the notice requirement, the
violation does not save Plaintiff’s FTCA claim for two reasons.
First, Plaintiff provides no law, and the Court has found none, to support the proposition
that a failure to notify a claimant about a right to reconsideration makes the notice per se
defective. The Fifth Circuit in Martinez did find that a notice was defective in part because the
agency failed to abide by its own regulations. See Martinez, 728 F.2d at 698. But the regulation
at issue in Martinez ensured the claimant knew to file suit in U.S. District Court, and notice of
the deadline is critical to the fair operation of § 2401(b)’s short deadlines. See id.; see also
Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir. 1984) (explaining that notice of the six
month deadline “provides the claimant with a clear landmark that the claim has been denied and
that the six month clock has begun to run”). In contrast, a right to reconsideration is not even
contemplated by § 2401(b). Thus, failing to notify a claimant of the right to reconsideration does
not appear to be of such importance that a final offer is defective without it.
Second, although an agency must generally follow its own procedures, a violation is
typically only fatal when the claimant can show prejudice. See Hall v. Schweiker, 660 F.2d 116,
119 (5th Cir. 1981) (citing Pacific Molasses Co. v. Fed. Trade Comm’n, 356 F.2d 386, 390-91
(5th Cir. 1966); Alamo Express, Inc. v. United States, 613 F.2d 96, 98 (5th Cir. 1980)); Lee Moi
Chong vs. INS, 264 F.3d 378, 390 (3d Cir. 2001); see also Am. Farm Lines v. Black Ball Freight
Serv., 397 U.S. 532, 538-39 (1970) (“[T]here is no reason to exempt this case from the general
14

principle that it is always within the discretion of a court or an administrative agency to relax or
modify its procedural rules adopted for the orderly transaction of business before it when in a
given case the ends of justice require it. The action of either in such a case is not reviewable
except upon a showing of substantial prejudice to the complaining party.” (internal quotation and
punctuation omitted)). In this case, Plaintiff cannot show prejudice because Plaintiff has never
shown the relevance of the right to reconsideration. Nothing suggests that Plaintiff would have
requested Defendant reconsider her claim had Defendant notified her of the right to
reconsideration. Rather, Plaintiff admits that she failed to timely file in court “because of staff
miscommunication with the attorney of record.” Resp. ¶ 3. In other words, Defendant’s failure
to notify Plaintiff of her right to reconsideration had nothing to do with Plaintiff’s delay in filing
her Complaint. Moreover, Plaintiff would have had only six months to file a request for
reconsideration. 28 C.F.R. § 14.9(b); see 32 C.F.R. § 536.89(b). There is no suggestion that
Plaintiff would have been able to file her request for reconsideration within six months when she
was unable to file her claim in court within six months. In sum, Plaintiff has not shown
prejudice, and thus cannot rely on a possible violation of the regulations to save her claim.
III.

CONCLUSION
For the reasons stated above, the Court GRANTS “Defendant’s Motion to Dismiss,” ECF

No. 6.
The Clerk shall close the case.

15

SO ORDERED.
SIGNED on this 23rd day of April, 2012.

______________________________________
KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

16