Alicea Baez v. U.S.

• Citation: 976 F.Supp. 102
• Decision Date: 13 August 1997
• Docket Number: Civil No. 97-1522(JP).
• Parties: Maria ALICEA BAEZ, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

976 F.Supp. 102

Maria ALICEA BAEZ, Plaintiff, v. UNITED STATES of America, Defendant.

Civil No. 97-1522(JP).

United States District Court, D. Puerto Rico.

August 13, 1997.

COPYRIGHT MATERIAL OMITTED

Juan M. Masini-Soler, San Juan, PR, for Plaintiff.

Lillian E. Mendoza-Toro, Asst. U.S. Atty., Hato Rey, PR, for Defendant.

OPINION AND ORDER

PIERAS, Senior District Judge.

Before the Court is defendant's unopposed motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (2)¹ (docket No. 4). For the reasons set forth below, the motion to dismiss is hereby GRANTED.

I. INTRODUCTION

Plaintiff commenced this suit seeking compensation for damages she allegedly suffered because of the Small Business Administration's ("SBA") failure to convey title to a piece of property for which she deposited $7,000.00, but which was ultimately sold to another party. Plaintiff seeks $10,000.00 for injuries she incurred because of the SBA's refusal to admit the pledge and obligations derivative of the contract she claims was formed in March of 1995; $10,000.00 she allegedly invested in cleaning the property; $45,000.00 in lost profits; $10,000.00 for the time plaintiff invested in the initial contract, cleaning the property, claiming her rights and instituting the present action. Plaintiff asserts a cause of action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680.

II. THE FEDERAL TORT CLAIMS ACT

The United States government waived much of its sovereign immunity in 1946 with passage of the FTCA. Under the FTCA, injured parties may sue the United States for damages caused by federal employees acting within the scope of their duties, if a private person would be liable under the law of the state where the tort occurred. 28 U.S.C. § 2674. This waiver of immunity is subject to numerous conditions. In cases such as the one at bar, these conditions include: 1) presentation of a claim for a sum certain within two years of accrual of the cause of action to the appropriate federal agency and denial of said claim before bringing suit, 28 U.S.C. § 2675(a); 2) institution of a civil suit within six months of denial of the administrative claim, 28 U.S.C. § 2401(b); 3) limitation of damages to the amount of the claim presented to the administrative agency, 28 U.S.C. § 2675(b); 4) unavailability of punitive damages and pre-judgment interest, 28 U.S.C. § 2674; 5) trial by the Court without a jury, 28 U.S.C. § 2402; 6) limitation of attorney's fees to twenty-five percent of any judgment or twenty percent of a settlement, 28 U.S.C. § 2678; and 7) recourse against the United States exclusive of any other civil action against the employee whose acts gave rise to the claim, 28 U.S.C. § 2679(b). "It is essential that the requirements of the Federal Tort Claims Act be strictly adhered [to] prior to asserting a claim in federal court." Segarra Ocasio v. Banco Regional de Bayamn, 581 F.Supp. 1255, 1257 (D.P.R.1984). "When a legal action is instituted against the United States, the moving party has the burden of showing that the sovereign has consented to be sued by explicitly creating a cause of action. The plaintiff also has to establish that all conditions set forth by the waiver of sovereign immunity have been complied with." Borrego v. United States, 622 F.Supp. 457, 460 (D.P.R.1985), rev'd on other grounds, 790 F.2d 5 (1st Cir.1986). Courts have a duty to strictly interpret the FTCA. Id., 622 F.Supp. at 460 (citing Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941); and Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 294-95, 83 L.Ed. 235 (1939)).

III. DISCUSSION

Defendant United States of America asserts four objections in its motion to dismiss: 1) plaintiff's administrative claim did not meet the requirements of 28 U.S.C. § 2675; 2) plaintiff failed to comply with the sixmonth statute of limitations established by 28 U.S.C. § 2401(b); 3) plaintiff's claim is precluded under the discretionary function and misrepresentation exceptions under 28 U.S.C. § 2680; 4) this Court lacks subject matter jurisdiction under the Tucker Act, 28 U.S.C. § 1491. We address defendant's arguments seriatim.

A. Satisfaction of Administrative Requirements

Defendant claims that plaintiff's administrative claim was not sufficiently particular to satisfy the notice requirements of 28 U.S.C. § 2675. Exhaustion of administrative remedies is a jurisdictional prerequisite to commencing an action against the United States under the FTCA. E.g., Santiago-Ramirez v. Secretary of Department of Defense, 984 F.2d 16, 18 (1st Cir.1993); Segarra Ocasio, 581 F.Supp. at 1257; Lazarini v. United States, 898 F.Supp. 40 (D.P.R.1995), aff'd, 89 F.3d 823 (1st Cir.1996). "It is well settled law that an action brought against the United States under the FTCA must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate federal agency." Attallah v. United States, 955 F.2d 776, 779 (1st Cir.1992) (collecting cases). However, numerous courts have held that while submission of an administrative claim as required by 28 U.S.C. § 2675 is jurisdictional, the technical and procedural requirements of the regulations are not. E.g., Santiago-Ramìrez, 984 F.2d at 19 (regulations require additional information that is only relevant for settlement purposes, not notice); Marricone v. United States, 697 F.Supp. 874, 876 (E.D.Pa.1988) ("Any additional requirements imposed by administrative regulations are not a bar to jurisdiction by the federal courts."); Leaty v. United States, 748 F.Supp. 268, 272 (D.N.J.1990) ("[R]egulations promulgated pursuant to § 2672 are not jurisdictional in nature"); Champagne v. United States, 573 F.Supp. 488, 491 (E.D.La.1983) ("Although the administrative claim submission requirement is jurisdictional and cannot be waived, the technical and procedural requirements of the regulations are not always strictly enforced"); contra Martinez v. United States, 743 F.Supp. 298, 301-302 (D.N.J.1990). The purpose of the FTCA is not to put up a barrier of technicalities to defeat claims but rather to notify the government of the existence of a claim and to provide the government with information regarding the number of persons interested in the claim so that the value of the settlement can be accurately assessed. Del Valle Rivera v. United States, 626 F.Supp. 347, 348-49 (D.P.R.1986) (citing Lòpez v. United States, 758 F.2d 806, 809-810 (1st Cir.1985) and Jackson v. United States, 558 F.Supp. 14 (D.D.C.1982), aff'd. 730 F.2d 808 (D.C.Cir.1984)). The United States Court of Appeals for the First Circuit has concluded that a plaintiff has satisfied the notice requirement of section 2675 "if he or she provides a claim form or `other written notification' which includes (1) sufficient information for the agency to investigate the claims, and (2) the amount of damages sought." Santiago-Ramìrez, 984 F.2d at 19 (citations omitted). A flawed claim may be saved where the government's investigatory needs are satisfied. See Kokaras v. United States, 980 F.2d 20, 23 (1st Cir.1992).

Applying this standard to plaintiff's two demand letters (Exhibits 1 and 2 of the Motion to Dismiss), we conclude that they provided sufficient information for the agency to investigate at least two of plaintiff's claims, and asserted the amount of damages sought. Plaintiff's letter of April 24, 1995, indicates the date of the incident; the name of the SBA agent that led her to believe her offer had been accepted; and the improvements she made to the property. In this letter, plaintiff demands the return of her $7,000.00 deposit, plus interest; $9,500.00 she spent cleaning the property; and $2,000.00 for her time. On May 9, 1995, plaintiff sent a second demand letter to the SBA through her counsel, attorney Julian R. Rivera-Aspinall. Attorney Rivera-Aspinall repeated the demand for a total sum of $18,500.00, plus interests and attorney's fees.

Although these letters are insufficient to put the SBA on notice as to plaintiff's claim for suffering and lost profits, they are adequate as to her claims for money she spent cleaning the property and for her lost time.

B. Plaintiff's Claim is Time-Barred

28 U.S.C. § 2401(b) provides:

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.

Plaintiff offered $7,000.00 for the property in February of 1995. By April 25, 1995, the date of her first demand letter, she had learned that the property had been sold to another party. Therefore, she presented the administrative claim within the two-year limitation prescribed by Section 2401(b). Defendant asserts, however, that she failed to institute judicial action within six months of notice of the final denial of her claim by the SBA. Mr. Jerome Smith, District Counsel for the SBA, wrote to plaintiff's attorney regarding her demands on May 15, 1995 (Exhibit 3 to Motion to Dismiss). Mr. Smith indicated that plaintiff's check for $7,000.00 had been returned to her via certified mail. He further explained that only the District Office Claims Committee was authorized to accept an offer in exchange for title to real estate, and, in plaintiff's case, the Committee had unanimously rejected her offer because it was considered to be well below the property's value. The letter also informed plaintiff that since she never had title to the property, any expense incurred was at her own risk, and the SBA had no authority to reimburse her. Attorney Juan M. Masini-Soler, plaintiff's current counsel, responded to Mr. Smith's letter on September 12, 1995 ...