Anderson By and Through Anderson v. U.S.

• Decision Date: 07 November 1986
• Docket Number: No. 85-5923,85-5923
• Citation: 803 F.2d 1520
• Parties: Tami N. ANDERSON, a minor By and Through her parent and natural guardian, Linda ANDERSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1520

803 F.2d 1520

Tami N. ANDERSON, a minor By and Through her parent and natural guardian, Linda ANDERSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 85-5923.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 8, 1986.

Decided Nov. 7, 1986.

Vernon C. Krol, Torrance, Cal., for plaintiff-appellant.

Eugene Kramer, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.

On Appeal from the United States District Court for the Central District of California.

Before CANBY and REINHARDT, Circuit Judges, and COYLE, ^* District Judge.

COYLE, District Judge:

Tami Anderson, aged 5, was struck and injured by a United States Postal Service truck on April 1, 1983. On April 20, 1983, attorney Vernon Krol mailed a Claim for Damage, Injury or Death (SF 95) to the Postal Service. The accompanying cover letter states that the SF 95 was executed by Krol as the attorney for Tami Anderson and her parents and further states that Krol represents Max and Linda Anderson as parents and natural guardians of Tami Anderson. The SF 95 lists the claimants as Max and Linda Anderson, individually, and as parents and natural guardians of Tami Anderson. On May 18, 1983 the Postal Service informed Krol that the SF 95 was invalid because the name of the claimant should be Tami Anderson, and Tami's parents, not Krol, should sign the form. On June 8, 1983 Krol mailed the revised SF 95 which was received by the Postal Service on June 15, 1983.

On December 21, 1983, the Postal Service, in a certified letter to Krol listing Tami Anderson's name in the upper right-hand corner, denied all liability for the accident and informed Krol that his clients "Max and Linda Anderson" could "file suit against the United States in an appropriate United States District Court not later than six months from the date of this letter." Krol did not file suit until October 12, 1984, ten months after the administrative claim was denied.

The government moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that the complaint was not filed within six months of the denial of the administrative claim. The district court granted the motion and Anderson appeals.

This court reviews de novo orders dismissing for lack of subject matter jurisdiction. Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983).

The Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2675(a), requires that an administrative claim be presented to and finally denied by the appropriate federal agency before commencing suit in district court. Section 2675(a) further provides that "[t]he failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section." 28 U.S.C. Sec. 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.

In contending that she timely filed the complaint, Anderson argues that federal agencies are allowed pursuant to section 2675(a) only six months to act on a claim. If the agency fails to act on the claim within six months, a complaint may be filed at any time within the two-year statute of limitations set forth in section 2401(b). In support, Anderson relies on the phrase in section 2675(a) "at the option of the claimant any time thereafter." Under Anderson's interpretation, an agency's failure to act on a claim within six months of its submission strips it of all power to act on the claim. Thus, because the Postal Service denied her claim six months and one week after it was submitted, the denial was invalid and did not initiate the six-month filing period. Under her theory, her complaint was timely because she filed it within the two-year statute of limitations.

The government responds that issuance of a final denial of a claim more than six months after the claim is filed accords the claimant only six months from the date of the agency's denial to file suit in district court.

Anderson contends that the plain language "at the option of the claimant any time thereafter" vests absolute discretion in the claimant to file a complaint at any time within the two-year statute of limitations in section 2401(b). However, this interpretation conflicts with the plain meaning of Section 2401(b). The two-year period set forth in section 2401(b) pertains to the time during which an administrative claim must be filed with the appropriate agency. The six-month period in section 2401(b) governs the time during which suit must be commenced following final agency denial.

Anderson's challenge that the government's interpretation renders superfluous claimant's deemed denial option in section 2675(a) is without merit. Under the government's interpretation, a claimant has two options. Six months after the submission of the administrative claim, the claimant may either deem it denied and file suit in district court at any time prior to final agency action or the claimant may await final agency action and file suit within six months thereafter. See Douglas v. United States, 658 F.2d 445, 449-50 (6th Cir.1981).

Anderson claims that the government's interpretation effectively...