154 F.3d 1010 (9th Cir. 1998), 97-15695, Lehman v. United States

Docket Nº:97-15695, 97-16454.
Citation:154 F.3d 1010
Party Name:98 Daily Journal D.A.R. 9552 Judy LEHMAN, wife; Mark Lehman, husband, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Judy LEHMAN, wife; Mark Lehman, husband, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:September 02, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1010

154 F.3d 1010 (9th Cir. 1998)

98 Daily Journal D.A.R. 9552

Judy LEHMAN, wife; Mark Lehman, husband, Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

Judy LEHMAN, wife; Mark Lehman, husband, Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

Nos. 97-15695, 97-16454.

United States Court of Appeals, Ninth Circuit

September 2, 1998

Argued and Submitted Aug. 14, 1998.

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[Copyrighted Material Omitted]

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Frank M. Sandler, Solomon, Relihan & Blake, Phoenix, Arizona, for plaintiffs-appellants.

Richard G. Patrick, Assistant United States Attorney, Phoenix, Arizona, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV 95-00216-SMM.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV 94-00083-EHC.

Before: BRUNETTI, TASHIMA, and GRABER, Circuit Judges.

GRABER, Circuit Judge:

This case involves issues of first impression for the Ninth Circuit regarding the interplay between two provisions of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2401(b) and 2675(a). 1 We hold that (1) a claimant's filing of an action pursuant to section 2675(a), before an agency issues a written notice of final denial, does not preclude the agency from later issuing a written notice of final denial, and (2) the six-month statute of limitations provided by section 2401(b) begins to run on the date when the agency mails that written notice by certified or registered mail. We further hold that, in the circumstances of this case, (1) plaintiffs are not entitled to relief from the voluntary dismissal of their first, timely action, and (2) plaintiffs' second action was time-barred. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Judy Lehman and Mark Lehman are wife and husband. On February 6, 1993, Judy Lehman was struck and injured by a United States Postal Service vehicle driven by Postal Service employee Ted Dailey. Less than four months later, on May 28, 1993, plaintiffs timely filed an administrative claim with the Postal Service, pursuant to the FTCA. The Postal Service finally denied the claim on January 21, 1994, by mailing a written notice in the requisite manner.

On July 16, 1993, before receiving the Postal Service's notice of final denial, plaintiffs filed an action against Dailey, as an individual, in Arizona state court (Lehman I ). See Staple v. United States, 740 F.2d 766, 768 (9th Cir.1984) ("We do not believe that the filing of [a state court] action, during the period which section 2401(b) gives plaintiff to pursue her administrative remedy, violates section 2675."). Plaintiffs did not, however, serve the summons and complaint until December 29, 1993, more than six months after they filed the administrative claim. On January 11, 1994, the United States removed plaintiffs' action to federal court and substituted itself as the sole defendant. As noted, the Postal Service mailed its notice of final denial on January 21, 1994, nearly nine months after receiving plaintiffs' administrative claim.

On March 9, 1994, plaintiffs voluntarily dismissed Lehman I without prejudice, pursuant to Fed.R.Civ.P. 41(a)(1). 2 Plaintiffs assert that they dismissed that action in reliance on an agreement with opposing counsel that the action "would be voluntarily dismissed until Ms. Lehman's medical condition had stabilized, at which point settlement negotiations" would resume. Plaintiffs further assert that defendant's new counsel repudiated the agreement and refused to settle plaintiffs' claim. Plaintiffs filed a new FTCA action, Lehman II, on February 3, 1995, more than a year after the Postal Service had mailed its notice of final denial.

The United States moved to dismiss Lehman II, pursuant to Fed.R.Civ.P. 12(b)(6). 3

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The district court dismissed Lehman II as time-barred, on the ground that plaintiffs had failed to bring that action within six months after the date of mailing of the Postal Service's notice of final denial, 28 U.S.C. § 2401(b). The district court later denied plaintiffs' motion for reconsideration.

While the motion for reconsideration was pending, plaintiffs also moved, pursuant to Fed.R.Civ.P. 60(b)(6), 4 to vacate their voluntary dismissal of Lehman I. They argued that defense counsel's repudiation of the agreement constituted an exceptional circumstance warranting such relief. The district court denied plaintiffs' motion.

Plaintiffs appeal, challenging the district court's dismissal of Lehman II and its refusal to reinstate Lehman I.

STATUTE OF LIMITATIONS APPLICABLE TO LEHMAN II

We review de novo a district court's interpretation of a statute. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1315 (9th Cir.1998). The statutes that we interpret here are 28 U.S.C. §§ 2401(b) and 2675(a).

Title 28 U.S.C. § 2401(b) 5 contains two provisions pertaining to the timing of FTCA litigation. The first requires that any tort claim against the United States be "presented in writing to the appropriate Federal agency within two years after such claim accrues." Plaintiffs satisfied that requirement by filing their administrative claim with the Postal Service on May 28, 1993, less than four months after the accident. The second provision requires that any tort action be brought "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." Taken together, those statutes are statutes of limitation that address the question: Was the claimant's FTCA action brought too late?

Title 28 U.S.C. § 2675(a), 6 on the other hand, addresses a different question: Was the claimant's FTCA action brought too early? That section prohibits a claimant from bringing an FTCA action "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." (Emphasis added.) A claimant need not, however, await an agency's response indefinitely. Section 2675(a) further provides that, if the agency fails "to make final disposition of a claim within six months after it is filed," the claimant may, at any time thereafter, deem the agency's silence to be "a final denial of the claim for purposes of this section. " (Emphasis added.) Thus, if an agency fails to issue a notice of final denial within six months of receiving an administrative claim, "the...

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