Bond v. US, CV95-6867-R.

• Decision Date: 29 July 1996
• Docket Number: No. CV95-6867-R.,CV95-6867-R.
• Citation: 934 F. Supp. 351
• Court: U.S. District Court — Central District of California
• Parties: Corinne BOND, Plaintiff, v. UNITED STATES of America, United States Postal Service, Association of Postal Lessors, Phillip Bowers, and Don Bowers, Defendants.

934 F. Supp. 351

Corinne BOND, Plaintiff, v. UNITED STATES of America, United States Postal Service, Association of Postal Lessors, Phillip Bowers, and Don Bowers, Defendants.

No. CV95-6867-R.

United States District Court, C.D. California.

July 29, 1996.

Rhoda Walsh, Los Angeles, California, Michael J. Treman, Santa Barbara, California, for plaintiff.

Lawrence Kole, Asst. U.S. Atty., Los Angeles, CA, for defendants United States of America and United States Postal Service.

Neil Popowitz, Wilner Klein & Siegel, Beverly Hills, CA, for defendants Association of Postal Lessors, Phillip Bowers, and Don Bowers.

OPINION AND ORDER

REAL, District Judge.

I. BACKGROUND

Plaintiff Corinne Bond (BOND) brings suit against the above named Defendants based on personal injuries she alleges to have sustained on November 18, 1994, while walking on property operated by the United States Postal Service (USPS). Defendants Phillip Bowers and Don Bowers own this property. BOND claims she suffered physical injuries on a pedestrian access ramp at the postal facility located at 11420 Santa Monica Boulevard in Los Angeles. BOND is now suing the United States (the Government) under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2671, et seq.

Presently before the Court is a Motion to Dismiss brought by the Government,¹ pursuant to Federal Rule of Civil Procedure 12(h)(3). Specifically, the Government argues that this Court currently lacks subject matter jurisdiction in this case because BOND filed her Complaint prior to exhausting her administrative remedies. By jumping the gun, so to speak, subject matter jurisdiction conferred by the FTCA has not ripened. See 28 U.S.C. §§ 2401(b) and 2671, et seq.

What is unique about this motion is that although BOND did exhaust the administrative remedies mandated by the express language of 28 U.S.C. § 2675, the Government claims that because BOND filed this action before the USPS denied her request for reconsideration under 28 C.F.R. § 14.9 — the regulation permitting reconsideration of the USPS' final denial of BOND's claim — subject matter jurisdiction is absent. This precise issue raised in this factual context has yet to be decided by any court, as far as the parties' and the Court's research reveals.

Properly framed, the central question presented by the Government's motion is whether the requirements of 28 C.F.R. § 14.9(b) are jurisdictional. If the answer is yes, any departure from its requirements would thereby wrest subject matter jurisdiction from this Court.

Based on the pleadings and arguments of counsel, the Court finds that 28 C.F.R. § 14.9(b) is not jurisdictional and does not supplant Congress' statutory language establishing what constitutes a final denial. Therefore, the Court concludes subject matter jurisdiction does indeed exist in this action.

II. DISTRICT COURT'S JURISDICTION

As alleged, the incident giving rise to this action occurred on November 18, 1994. BOND presented her administrative claim on January 11, 1995, well-within two years of the accident as required by 28 U.S.C. § 2401(b).² The parties do not dispute this fact, and thereby concede the first requirement of § 2401(b) has been met. The issue at hand concerns the language of §§ 2401(b) and 2675(a) as to what constitutes a final denial, triggering the six-month period in which to file this action in federal court.³

The USPS executed its first "final denial" of BOND's claim by notifying her in writing by certified mail on April 28, 1995. In the April 28 "final denial" letter, the USPS informed BOND of her option to request reconsideration of the "final denial"; this option to seek reconsideration of the USPS' denial is provided by administrative regulation. 28 C.F.R. § 14.9(b).⁴

BOND, in turn, elected to request reconsideration of the denial of her claim by letter dated June 28, 1995, instead of filing suit, which was her absolute right to do at that time. If she had brought this action after the first "final denial," no viable jurisdictional objection would have then existed.⁵ The Government declares that it received this letter on July 3, 1995. Then, on October 12, 1995, less than four months after sending the request for reconsideration, and within six months of the first "final denial," BOND filed this action in federal district court. The USPS had not acted on BOND's request for reconsideration prior to BOND filing suit (see footnote 5).

Again, to be clear, the Government does not assert that BOND failed to present her claim timely on either occasion, or that suit was filed after the statute of limitations had run. Instead, the Government argues that because BOND filed suit on October 12, 1995, before the USPS had issued a second "final denial," § 14.9(b) makes BOND's suit premature, and therefore this Court does not have jurisdiction over this matter. McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (holding that district court has no jurisdiction when an action is brought before the first final denial occurs).

The FTCA is a limited waiver of sovereign immunity and provides for tort liability and money damages against the United States in those actions falling within its scope. See Berti v. V.A. Hospital, 860 F.2d 338, 339-40 (9th Cir.1988) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058, (1941) ("The United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.")) (internal quotes omitted). This waiver of sovereign immunity must be strictly construed. Cadwalder v. United States, 45 F.3d 297 (9th Cir.1995).

Because the precise terms of the waiver of sovereign immunity dictate the grounds on which, and the procedures whereby, the Government may be sued, BOND must comply with the literal language of the FTCA in order for subject matter jurisdiction to exist. See Warren v. United States Department of the Interior Bureau of Land Management, 724 F.2d 776 (9th Cir.1984) (en banc); 28 U.S.C. § 2675(a). Neither party contends BOND failed to comply initially with either 28 U.S.C. § 2675(a), or 28 U.S.C. § 2401(b). Instead, in this case the Government asserts that BOND failed to comply with the regulations enacted pursuant to 28 U.S.C. § 2672 — specifically 28 C.F.R. 14.9⁶ — by commencing suit in federal court before a second "final denial" occurred. This failure, according to the Government, divests this Court of jurisdiction because § 14.9(b) establishes an alternative definition as to what constitutes a final denial. Following that reasoning, the Government posits that once BOND asked for reconsideration, no final denial had occurred. See Berti, 860 F.2d at 340.

The Ninth Circuit has already given this Court guidance with respect to the question at issue in this case. In Warren, supra, decided en banc, the Ninth Circuit resolved earlier conflicts within the Circuit by holding that the administrative regulations §§ 14.1 et seq., which were enacted pursuant to the agencies' claims settlement authority, were not jurisdictional limitations on tort claims. Id. at 778 (finding that "the relevant statutes and their legislative histories reveal that Congress did not intend to treat regulations promulgated pursuant to section 2672 as jurisdictional prerequisites under section 2675(a)").

The Government's argument, which tries to change the tenor and limit the scope of Warren, is not persuasive. Although specifically addressing 28 C.F.R. § 14.3(e) (since amended) and not § 14.9(b), the analysis in Warren dealt with the interrelationship between § 2672 (the enacting section), the regulations promulgated thereunder, and the jurisdictional effect of those regulations. Holding that Congress in fact did not delegate authority to agencies to create regulations that would have jurisdictional impact, the en banc panel observed:

The regulations in question were promulgated by the Attorney General pursuant to this authority § 2672. Nothing in this language suggests that these regulations are to be applied jurisdictionally under section 2675(a). If Congress intended to authorize the promulgation of jurisdictional regulations, it would have created that authority directly. Congress has never delegated such authority under section 2675(a).

Id. at 778.

Warren's broad pronouncement that "these regulations" are jurisdictionally impotent belies the Government's argument that § 14.9(b) dictates the occurrence or non-occurrence of a final denial. Section 14.9(b) cannot simply be dressed-up to be a definition of what constitutes a final denial, as the Government charges, if to do so would give these regulations jurisdictional force, contrary to the language in Warren.

Trying to escape this conclusion, the Government tries to curtail Warren by making a distinction on a basis that is plucked out of thin air. According to the Government, Warren only applies to regulations that restrict jurisdiction. The Court disagrees. That Warren stands only for the proposition that the regulations are not jurisdictional if they contract instead of expand subject matter jurisdiction ignores Warren's entire ratio decidendi. Congress in § 2672 allowed for administrative regulations to be enacted to facilitate settlement, but it never expressed an intent to repose jurisdictional gate-keeping to the Attorney General by way of regulatory enactment — either by way of raising or lowering jurisdictional hurdles.

The tenuous footing of the Government's argument is apparent. It puts forth great effort, as it must, to distance BOND's case from the rationale in Warren. To do so, the Government attempts to distinguish regulations that impose "limitations" on jurisdiction, as in Warren, from § 14.9(b), which "simply reaffirms the elements of the final denial requirement as stated in Section 2675(a)." The Government's exercise in argumentation...