College v. United States, Civ. No. B-75-1409.

• Citation: 411 F. Supp. 738
• Decision Date: 12 April 1976
• Docket Number: Civ. No. B-75-1409.
• Parties: Robert N. COLLEGE, personal representative of the Estate of Ruth College, Deceased v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

411 F. Supp. 738

Robert N. COLLEGE, personal representative of the Estate of Ruth College, Deceased v. UNITED STATES of America.

Civ. No. B-75-1409.

United States District Court, D. Maryland.

April 12, 1976.

Alexander Breuer, Marlow Heights, Md., for plaintiff.

Daniel M. Clements, Asst. U. S. Atty., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

BLAIR, District Judge.

On March 31, 1972, while patronizing the Bolling Air Force Base Non-Commissioned Officer's Club (the Club), Mrs. Ruth College sat on a bar stool which collapsed under her weight. The resulting fall caused an injury to her hip. She was taken to the Malcolm Grow United States Air Force Medical Center, Andrews Air Force Base (the Medical Center), where her injury was diagnosed and surgery performed. Subsequent to her release a second operation was performed at the Medical Center on July 6, 1973. Mrs. College presented a claim for damages to the Department of the Air Force, alleging negligence on the part of the Club and its employees. This claim was denied by the Air Force on May 21, 1975, and suit against the United States was brought in this court. Ruth College subsequently died and her estate has been substituted as plaintiff. Defendant has moved that the case be dismissed for lack of subject matter jurisdiction, F.R. Civ.P. 12(b)(1). Defendant contends that the plaintiff's claim was not presented to the Air Force within the time period required by 28 U.S.C. § 2401(b) (1976).

Absent consent, sovereign immunity bars a suit for damages against the United States. The conditions of the consent define the contours of the court's jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058, 1061 (1941). In actions brought under the Federal Tort Claims Act, disposition by a federal agency involved is a prerequisite to a court suit:

(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The 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. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.

28 U.S.C. § 2675(a) (1976). A claim pursuant to the act must be made within the statute of limitations:

(b) 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. As amended July 18, 1966, Pub.L. 89-506, § 7, 80 Stat. 307.

28 U.S.C. § 2401(b). As a condition of suit against the United States, this statute of limitations is jurisdictional. Binn v. United States, 389 F.Supp. 988, 991 (E.D.Wis.1975). Hence the plaintiff must have presented her "claim" in writing to the Air Force by March 31, 1974 to obtain the jurisdiction of this court. Molinar v. United States, 515 F.2d 246, 249 (5th Cir. 1975); Caton v. United States, 495 F.2d 635, 637 (9th Cir. 1974); Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971).

Plaintiff initially contacted counsel on March 6, 1974, twenty-five days before the statutory time limit expired. Counsel on March 8, 1974 mailed two letters to the Air Force. One was to the Medical Center requesting information on hospital costs and Mrs. College's medical reports. The other was to the Club, informing it that counsel had been retained regarding Mrs. College's injury.¹ Both letters were forwarded to Claims Officer Frank H. Massey, who replied on March 25, 1974 with a letter furnishing claim forms 95 and requesting additional facts concerning details of the incident and the amount to be claimed. Though subsequent letters were exchanged, the two letters of March 8 are the only written communications by the plaintiff before the March 31, 1974 running of the statute of limitations. Any subsequent action by the Air Force does not constitute a waiver of the jurisdictional statute of limitations. Bialowas v. United States, supra, 443 F.2d at 1049; Binn v. United States, 389 F.Supp. at 991. Nor does Mrs. College's hospital treatment toll the statute of limitations.² Therefore the disposition of the motion to dismiss depends upon whether the letters of March 8, 1974 constitute a "claim" within the meaning of 28 U.S.C. § 2401(b).

A claim "is something more than mere notice of an accident and an injury." Avril v. United States, 461 F.2d 1090 (9th Cir. 1972); Molinar v. United States, supra, 515 F.2d at 249. It must have the content specified by 28 C.F.R. § 14.2(a) (1975):

(a) For purposes of the provisions of section 2672 of Title 28, United States Code, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. If a claim is presented to the wrong Federal agency, that agency shall transfer it forthwith to the appropriate agency. (emphasis added).

A similar regulation with identical content specifically applies to claims made against the Air Force. 32 C.F.R. § 842.106(a)(1) (1975).

This administrative interpretation of the word "claim" applies not only to 28 U.S.C. § 2672, but also to 28 U.S.C. §§ 2675 and 2401(b). Molinar v. United States, supra, 515 F.2d at 248. The purpose of this regulation is to facilitate the administrative settlement of tort claims against federal agencies. It enables the agency to determine if a settlement would be less than $2,500 and therefore be paid out of that agency's appropriations as required by 28 U.S.C. § 2672 (1976). The same statute requires the Attorney General's prior approval of any administrative settlement of a claim against an agency that exceeds $25,000. Thus the claim must contain a sum certain to enable the agency to determine if approval by the Attorney General will be necessary to effect a settlement. See Molinar v. United States, supra, 515 F.2d at 249; Caton v. United States, supra, 495 F.2d at 637; Bialowas v. United States, supra, 443 F.2d at 1050. Identification of the amount of the claim involved may be needed in connection with any insurance coverage that might exist for the agency involved. Caton v. United States, supra, 495 F.2d at 638. The inclusion of a sum certain with the initial claim is also necessary to enable the agency to make a final disposition of the claim within six months. If the agency does not make a final disposition within that time the claim can be considered denied and a claimant could institute suit in the federal courts. 28 U.S.C. § 2675(a) (1976). To allow a claim to be presented without a sum certain would encourage claimants to withhold vital information and hinder settlement of a claim in hopes of obtaining a better disposition in court. Molinar v. United States, supra, 515 F.2d at 249. Most importantly, the requirement of the inclusion of a sum certain in a claim gives meaning to 28 U.S.C. § 2675(b) which provides that "action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence . . . relating to the amount of the claim." Molinar v. United States, supra, 515 F.2d at 248-49; Ianni v. United States, 457 F.2d 804, 805 n.1 (6th Cir. 1972). Therefore 28 C.F.R. § 14.2(a) is a reasonable interpretation of the content of a "claim," and is a valid regulation under the power granted the Attorney General in 28 U.S.C. § 2672. Timely compliance is a prerequisite to a lawsuit. Molinar v. United States, supra, 515 F.2d at 249; Caton v. United States, supra, 495 F.2d at 638; Bialowas v. United States, supra, 443 F.2d at 1049-50.

Neither of the...