Charlton v. U.S.

• Decision Date: 25 July 1984
• Docket Number: No. 83-2444,83-2444
• Citation: 743 F.2d 557
• Parties: Parrish Ian CHARLTON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 557

743 F.2d 557

Parrish Ian CHARLTON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 83-2444.

United States Court of Appeals, Seventh Circuit.

Submitted July 25, 1984. ^*

Decided Sept. 12, 1984.

Lowell B. Komie, John L. Gubbins, Chicago, Ill., for plaintiff-appellant.

Dan K. Webb, U.S. Atty., Chicago, Ill., for defendant-appellee.

Before WOOD, CUDAHY, and ESCHBACH, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Parrish Ian Charlton appeals from the dismissal of his suit filed pursuant to the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671, et seq. The case presents the issue whether failure to comply with agency requests for further information constitutes a failure to exhaust administrative remedies and, consequently, is a jurisdictional bar to a suit filed under the Federal Tort Claims Act. For the following reasons, we conclude that there is no jurisdictional bar; therefore, we reverse the district court's dismissal of plaintiff's second count and remand for further proceedings.

Plaintiff Charlton, a Vietnam veteran, was treated at two different Veteran Administration (hereinafter "V.A.") hospitals. In the fall of 1979, plaintiff was admitted to the V.A. hospital in Nashville, Tennessee and underwent surgery for a pilonidal cyst. Charlton asserts that the surgery never healed properly and therefore required subsequent treatments, hospitalizations and surgery, including a stay at the V.A. hospital in Indianapolis in January, 1981.

Charlton felt that the V.A. hospitals treated his ailments improperly and, consequently, engaged the services of an attorney. The attorney filed two separate claims on behalf of Charlton pursuant to the Federal Tort Claims Act. Both claims, one directed at the Nashville hospitalization and one directed at the Indianapolis hospitalization, were filed with the V.A. on January 21, 1982. The V.A. denied Charlton's claim with respect to the Nashville hospitalization by letter dated June 2, 1982. On February 22, 1982, a representative of the V.A. contacted Charlton's attorney for further information regarding Charlton's claim concerning the Indianapolis hospitalization. By letter dated February 24, 1982, Charlton's attorney notified the V.A. representative that he had withdrawn from the case. Further correspondence from the V.A. was directed to Charlton himself. The V.A. representative requested information from Charlton through letters dated April 1, 1982 and May 18, 1982. Charlton never responded and the V.A. denied the second claim by letter dated July 21, 1982.

The record is silent as to what occurred from the date of the denial until January 14, 1983 when Charlton, after some searching, hired his present counsel. Counsel filed suit in federal court on January 17, 1983. After the United States filed a motion to dismiss, to which plaintiff's counsel did not respond, the district court granted the defendant's motion. Plaintiff appeals asserting that he has complied with the statutory requirements of the Federal Tort Claims Act and that the district court erred in dismissing both counts of his complaint. We will address each asserted error in turn.

As to the dismissal of the first count of plaintiff's suit, relating to his treatment in Nashville, we find no error. The claim was denied by letter dated June 2, 1982. A suit must be filed in court within six months of a denial of the claim by the federal agency charged with a tort. 28 U.S.C. Sec. 2401(b). Failure to file within six months of the denial divests the federal district court of jurisdiction. Stewart v. United States, 655 F.2d 741 (7th Cir.1981); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir.1972). The Federal Tort Claims Act is a congressional waiver of sovereign immunity, and a plaintiff's failure to comply with the requirements of the Act leaves the plaintiff with no forum for his or her claim. Erxleben v. United States, 668 F.2d 268 (7th Cir.1981). Plaintiff in the instant case did not file suit within six months of the date of the denial letter; consequently, the district court appropriately dismissed the claim, filed with regard to the Nashville hospitalization, for lack of subject matter jurisdiction.

Plaintiff's lawsuit, however, was filed within six months of the date of the denial letter relating to plaintiff's Indianapolis hospitalization. The suit was filed in a timely manner and, therefore, the issue presented with respect to plaintiff's second count is whether plaintiff's failure to answer the V.A.'s letters requesting further information requires dismissal of his suit. We conclude that it does not so require.

Defendant asserts that the plaintiff, by failing to comply with the agency's request for further information, as authorized by regulations promulgated pursuant to the Federal Tort Claims Act, 28 C.F.R. Sec. 14.4(b), has not exhausted his administrative remedies and therefore is barred from filing suit. Section 14.4(b) allows an agency to request certain information deemed necessary to settle a claim. The defendant argues that this court should incorporate the regulation's obligations into the 28 U.S.C. Sec. 2675(a) jurisdictional requirement that the "claimant shall have first presented the claim to the appropriate federal agency ...." ¹

Many courts, including this one, agree that the Sec. 2675(a) requirement of first presenting the claim to the appropriate federal agency includes the giving of sufficient notice to enable the agency to investigate the claim and the setting of a "sum certain." ² These two elements, sufficient notice and "sum certain," are necessary for institution of a federal court suit. A notice not meeting these two requirements is invalid and a suit cannot be based upon an invalid request. A federal court lacks jurisdiction of a suit filed pursuant to an insufficient request. Erxleben v. United States; see also Keene v. United States, 700 F.2d 836, 841-42 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983).

The question remains, however, whether the condition precedent to jurisdiction of presenting a claim incorporates the requirement of 28 C.F.R. Sec. 14.4(b), as defendant argues that it does. Defendant relies on the reasoning of the First Circuit in Swift v. United States, 614 F.2d 812 (1st Cir.1980). In Swift, the counsel for claimant ignored the agency's request for information. After six months had passed, counsel filed suit in federal court pursuant to the language of Sec. 2675 allowing a claimant to file suit at his or her option if the agency does not act within six months. The court concluded that the failure to comply with the agency's request constituted a failure to exhaust administrative remedies and precluded filing suit; the suit was premature. The Swift case is distinguishable from the instant case because in Swift the agency had not finally denied the plaintiff's claim while waiting for the requested information. In the present case, the V.A. refused to wait for the further information after not receiving a response from the claimant and just denied the claim. Plaintiff in the instant case filed within six months of the denial as authorized by the statute. 28 U.S.C. Sec. 2675. Although the cases are factually distinguishable, we do not rest our decision on that ground. Upon a review of other circuit court cases that reached a conclusion contrary to that of the First Circuit, we conclude that we concur with the decisions of those courts.

Several circuits have held that the failure to supply requested additional information, where the notice to the agency contained all the required elements of a claim, was not a bar to filing a federal court suit. Avery v. United States, 680 F.2d 608 (9th Cir.1982); Tucker v. United States Postal Service, 676 F.2d 954 (3d Cir.1982); Douglas v. United States, 658 F.2d 445 (6th Cir.1981); Adams v. United States, 615 F.2d 284, modified, 622 F.2d 197 (5th Cir.1980). ³ These circuits have concluded that a claimant's failure to comply with agency requests for further information, as authorized by 28 C.F.R. Sec. 14.4(b), does not deprive a federal court of jurisdiction.

In Adams v. United States, the Fifth Circuit expressly held that the regulations promulgated pursuant to 28 U.S.C. Sec. 2672, specifically 28 C.F.R. Sec. 14.4(b), were not incorporated into the requirements of 28 U.S.C. Sec. 2675. The Fifth Circuit distinguished Sec. 2672 from Sec. 2675 by defining Sec. 2672 and the regulations promulgated pursuant to that section as a settlement procedure. Section 2675, on the other hand, sets a condition precedent to jurisdiction in the federal court. By looking to the differing purposes of the two sections, the Fifth Circuit concluded that Sec. 2672 and its attendant regulations are distinct from Sec. 2675 and not incorporated therein. The Fifth Circuit noted that while it may be rational and expeditious for a claimant to comply with the settlement provisions of Sec. 2672, "[a] claimant's refusal to settle his or her claim will not deprive the federal court of jurisdiction, if the claimant has provided the statutorily required notice ... Congress clearly did not deem settlement mandatory." Id. at 291. The Fifth Circuit also concluded that "[n]oncompliance with section 2672 deprives a claimant of the opportunity to settle his or her claim out of the courts." Id. at 290. Compliance with the settlement procedures could lead to avoidance of court costs on the part of a claimant. Although, technically, the procedures set forth in Sec. 2672 and the regulations are not merely settlement procedures, we agree with the Fifth Circuit's reasoning for the purpose of determining whether compliance with the regulations is jurisdictional.

Furthermore, were we to conclude that compliance with the regulations was jurisdictional, we would be creating the anomalous situation whereby an agency could prevent a claimant from going to court by forever requesting...