Arigo v. U.S., 92-1992

• Decision Date: 30 November 1992
• Docket Number: No. 92-1992,92-1992
• Citation: 980 F.2d 1159
• Parties: Austin ARIGO, Jr., Personal Representative of the Estate of Samuel A. Arigo, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1159

980 F.2d 1159

Austin ARIGO, Jr., Personal Representative of the Estate of Samuel A. Arigo, Deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 92-1992.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 10, 1992.

Decided Nov. 30, 1992.

Appeal from the United States District Court for the District of Nebraska. District No. 91-00620-CV. Lyle E.

Strom, Chief Judge.

For AUSTIN ARIGO, JR., Personal Representative of the Estate of Samuel A. Arigo, Deceased, Plaintiff - Appellant: E. Terry Sibbernsen, 402-493-7221, WELSH & SIBBERNSEN, 11590 W. Dodge Road, Omaha, NE 68154, 402-397-2292.

For UNITED STATES OF AMERICA, Defendant - Appellee: Daniel Alan Morris, U.S. ATTORNEY'S OFFICE, 215 N. 17th Street, Suite 8000, P.O. Box 1228-D.T.S., Omaha, NE 68101-1228, 402-221-4774. Bertha Mitrani, 202-501-7342, U.S. DEPARTMENT OF JUSTICE, Torts Branch, 601 D Street N.W., Washington, DC 20004.

Before Fagg, Beam, and Hansen, Circuit Judges.

FAGG, Circuit Judge.

Austin Arigo, Jr. appeals the district court's dismissal of his wrongful death action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671-2680 (1988). We affirm.

Arigo filed a wrongful death claim with the Department of Veteran's Affairs (VA) on August 8, 1990. After the VA failed to decide the claim for nearly eight months, Arigo sent the VA a letter on February 20, 1991 that stated:

On or about August 3, 1990 we forwarded to you a claim against the Veterans Administration Hospital concerning the death of Samuel Arigo. More than six months have elapsed since the filing of this claim and no action has been taken by your department. We are hereby withdrawing our claim and we intend on proceeding with a lawsuit in the United States District Court . . . .

(emphasis added). The VA then closed Arigo's claim file, but did not send Arigo a denial letter. About eight months later on October 28, 1991, Arigo filed this action.

Under 28 U.S.C. 2401, tort claimants must file an action against the United States within six years of the action's accrual. To encourage the prompt presentation of claims, 2401(b) requires claimants to present a claim to the appropriate federal agency within two years of the claim's accrual and file an action within six months of the agency's certified or registered mailing of a claim's final denial. United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). A claimant need not wait indefinitely, however, for the agency formally to deny the claim before filing an action. If the agency fails to decide the claim within six months of its filing, 28 U.S.C. 2675(a) gives the claimant discretion to consider the claim constructively denied by the agency for administrative exhaustion purposes and to file suit without waiting for the agency's formal denial.

The district court concluded Arigo's "letter to the [VA was] a clear and unequivocal election to treat [the VA's] inaction as a final denial of his claim." Because Arigo filed his suit over eight months after sending the VA his letter, the district court held Arigo failed to file his action within six months of an agency's formal denial of his claim as 28 U.S.C. § 2401(b) requires and dismissed Arigo's complaint. The district court essentially equated Arigo's statement that his claim was administratively exhausted under § 2675(a) and that he intended to file suit with a formal agency denial that activates the six-month limitations period in § 2401(b).

On appeal, Arigo contends that only a denial letter from an administrative agency triggers § 2401(b)'s six-month limitations period. Ordinarily this is true. An agency's failure to decide a claim within six months is not itself a formal agency denial that triggers § 2401(b)'s six-month limitations period. Taumby v. United States, 919 F.2d 69, 70 (8th Cir.1990); Stahl v. United States, 732 F.Supp. 86, 88 (D.Kan.1990). Further, a claimant's use of § 2675(a), which is designed to benefit claimants by excusing them from waiting for formal agency denials before filing suit, generally does not activate § 2401(b), a limit on the claimant's time to file suit. See Parker v. United States, 935 F.2d 176, 177-78 (9th Cir.1991). Indeed, the Ninth Circuit has held that when an agency has not formally denied a claim, the claimant's filing of an FTCA action does not trigger the six-month limitations period in § 2401(b). Id. But see Miller v. United States, 741 F.2d 148, 150 (7th Cir.1984) (filing of complaint after § 2675(a)'s six-month waiting period triggers § 2401(b)'s six-month limitations period); McKenith v. United States, 771 F.Supp. 670, 671-72 (D.N.J.1991) (same).

If Arigo's letter merely informed the VA that he had filed his administrative claim more than six months earlier, that the VA had not decided the claim, and that he intended to file suit, the letter would do nothing more than recognize Arigo's administrative remedies were exhausted under § 2675(a). To treat this kind of statement as a formal agency denial overlooks the fact that the agency can still consider the claim and trigger § 2401(b)'s six-month limitations period by denying the claim. If Arigo's letter went no further, it would not trigger § 2401(b)'s six-month limitations period. See McCallister v. United States, 925 F.2d 841, 842-43 (5th Cir.1991) (similar statement in complaint, filed fifteen months after filing of claim with...