104 F.3d 410 (D.C. Cir. 1997), 95-5395, Mittleman v. United States

Docket Nº:95-5395.
Citation:104 F.3d 410
Party Name:Elaine MITTLEMAN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 10, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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104 F.3d 410 (D.C. Cir. 1997)

Elaine MITTLEMAN, Appellant,


UNITED STATES of America, Appellee.

No. 95-5395.

United States Court of Appeals, District of Columbia Circuit

January 10, 1997

Argued Nov. 19, 1996.

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[322 U.S.App.D.C. 368] Appeal from the United States District Court for the District of Columbia (No. 92cv01741).

Elaine Mittleman, appearing pro se, argued the cause and filed the brief, for appellant.

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[322 U.S.App.D.C. 369] Nancy R. Page, Assistant U.S. Attorney, argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Attorney, R. Craig Lawrence and Mark E. Nagle, Assistant U.S. Attorneys. Michael T. Ambrosino, Assistant U.S. Attorney, Washington, DC, entered an appearance.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.


We deal here with the United States's exhaustion defenses to several tort claims originally brought in 1986 against various government officials. The Federal Employees Liability and Reform Tort Compensation Act of 1988 (the "Westfall Act"), Pub.L. 100-694, 102 Stat. 4563, transformed these claims into ones against the United States under the Federal Torts Claims Act ("FTCA"). It thus subjected them to the FTCA's requirement that claims be initially presented to the responsible agency within two years after the claim accrued, and filed in court within six months after denial by the agency. See 28 U.S.C. § 2401(b); see also id. § 2675(a). Congress recognized that plaintiffs might suppose their claims to be against an individual government employee (as indeed they would still be if the employee had not been acting within the scope of his employment), and thus might fail to timely present their claims to the agency, so it fashioned special rules to account for the possibility. See 28 U.S.C. § 2679(d)(5). It also recognized that persons such as Mittleman, whose claims antedated the Westfall Act and originally did run against officials rather than the government, might be caught short by after-the-fact application of the FTCA's requirement of timely presentation; so it fashioned a transitional rule for that situation. See Pub.L. 100-694, § 8(d). Applying these rules to the present case, we find that the one claim whose boundaries are readily ascertainable was not timely presented even with the benefit of the special provisions; we affirm the district court's dismissal of that claim. The two remaining claims are not clear enough for us to apply the pertinent rules, and accordingly we remand the case for clarification and application of the controlling principles.

* * *

In 1986 Elaine Mittleman sued several government officials in federal district court, alleging both statutory violations and torts in their conduct toward her between 1980 and 1983, first when she worked at the Treasury Department as part of the team handling the Chrysler bailout, and later when she was denied a job by the Commerce Department. Mittleman's complaint, in its several variations, essentially maintains that in retaliation for her raising questions about Chrysler, Treasury officials made false and damaging statements about her, and otherwise mistreated her, with the consequence that she had to leave her job, suffered emotional distress and was later denied employment at Commerce. See Mittleman v. United States Treasury, 773 F.Supp. 442 (D.D.C.1991) ("Mittleman I").

Congress's enactment of the Westfall Act rendered Mittleman's suit against the officials obsolete. The Act provided that the United States would be substituted as a party whenever a federal employee was sued for tortious acts occurring within the scope of his employment. See 28 U.S.C. § 2679(b) (making a lawsuit against the United States the exclusive remedy for such claims). Accordingly, on certification by the Attorney General that the officials had been acting within the scope of their employment, see 28 U.S.C. § 2679(d), the suit became one against the United States under the FTCA. See Mittleman I, 773 F.Supp. at 454, 28 U.S.C. § 1346(b) (giving district courts exclusive jurisdiction over tort claims for money damages against the United States). Since Mittleman had not presented the tort claims to the various pertinent agencies as required by the FTCA, the district court dismissed them for want of jurisdiction. See Mittleman I, 773 F.Supp. at 454.

Following the dismissal, Mittleman presented her claims to the Treasury, the Secret Service, the Office of Personnel Management ("OPM"), and the Commerce Department. In 1992, after the several agencies denied the claims, she filed a new lawsuit against the

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[322 U.S.App.D.C. 370] United States. She also amended the complaint filed in the 1986 suit. The district judge dismissed both the 1992 suit (which consisted entirely of tort claims), and the tort claims included in the 1986 suit. See Mittleman v. United States Department of Treasury, 919 F.Supp. 461, 466 (D.D.C.1995) ("Mittleman II"). Because of a still extant Privacy Act claim in the 1986 lawsuit, however, there is no final judgment in that suit, and both parties agree that only the 1992 action is before us.

* * *

As we have said, the FTCA requires that claims be presented to the agency in question within two years of accrual, and filed in court within six months after denial by the agency. See 28 U.S.C. § 2401(b); see also id. § 2675(a). A claim not so presented and filed is "forever barred." Id. § 2401(b).

Because substitution of the United States as a party might occur long after this two-year presentation period ran out, the Westfall Act contained a savings provision that creates a 60-day grace period for presentation to the agency for claims originally filed against an individual employee and then dismissed for want of presentation. 28 U.S.C. § 2679(d)(5) provides:

(5) Whenever an action or proceeding in which the United States is substituted as the party...

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