Graham v. U.S.

• Decision Date: 19 September 1996
• Docket Number: No. 94-17218,94-17218
• Parties: , 96 Cal. Daily Op. Serv. 7000, 96 Daily Journal D.A.R. 11,477 Katherine GRAHAM, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 446

96 F.3d 446

65 USLW 2223, 96 Cal. Daily Op. Serv. 7000,

96 Daily Journal D.A.R. 11,477

Katherine GRAHAM, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 94-17218.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 12, 1996.

Decided Sept. 19, 1996.

Kevin P. Urbatsch, Bancroft & McAlister, San Francisco, California, for plaintiff-appellant.

Patricia J. Kenney, Assistant United States Attorney, San Francisco, California, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California, William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-94-02426-WHO.

Before SCHROEDER, D.W. NELSON, and KOZINSKI, Circuit Judges.

Opinion by Judge SCHROEDER, Dissent by Judge KOZINSKI.

SCHROEDER, Circuit Judge:

The district court dismissed this Federal Tort Claims Act ("FTCA") case as untimely. Plaintiff Katherine Graham appeals, contending that the notice of denial of her administrative claim was insufficient to trigger the time for filing the complaint pursuant to 28 U.S.C. § 2401 because the notice was not mailed to her counsel of record.

The facts are unusual. Graham was a federal prisoner who was injured when an eighty-pound roll of roofing material fell through a skylight and struck her. She retained counsel, filed an administrative claim with the Bureau of Prisons ("Bureau"), and listed her counsel on the claim form as her "personal representative." Graham's counsel corresponded with the Bureau to ensure that the agency's records correctly reflected Graham's representation. The Bureau advised counsel to notify the agency if his address changed.

The correspondence between the Bureau and Graham's counsel clearly contemplated that the agency would notify counsel of important developments in the case. However, when the agency decided the administrative claim, it did not notify Graham's counsel. Rather, it sent the notice of denial directly to Graham, who was then housed at a different prison. Graham did not realize the import of the denial and apparently threw it away.

The FTCA requires a claimant to file an administrative claim. See 28 U.S.C. § 2675(a). Any district court action must be filed within certain time constraints keyed to the date the agency disposes of the claim. See 28 U.S.C. § 2401(b).

The relevant statutes provide:

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.

Id. (emphasis added).

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.

28 U.S.C. § 2675(a) (emphasis added).

The FTCA does not specify to whom the notice of denial must be sent. In implementing the statute, the Department of Justice has attempted to prescribe the notice requirement more fully by providing that a final denial of an administrative claim shall be in writing and sent to the "claimant, his attorney, or legal representative by certified or registered mail." See 28 C.F.R. § 14.9(a). It is this regulation which gives rise to this appeal. The regulation accounts for the possibility that either an attorney or a legal representative is acting on the claimant's behalf and should receive the notice of denial.

Here, Graham's counsel never received a notice of denial and assumed that the agency had not acted on her claim. He waited the requisite six months and filed this action in district court. See 28 U.S.C. § 2675(a).

Defendant's counsel, an Assistant United States Attorney ("AUSA") moved to dismiss the complaint as untimely. Graham opposed this motion, contending that the mailing of the notice of denial to her was ineffective to trigger the six month statute of limitations because the Bureau should have sent it to her counsel, as required by the regulation.

The AUSA promptly, and commendably, filed a declaration stating that she was unaware of the correspondence between the Bureau and Graham's counsel. Before the district court, the AUSA acknowledged that the Bureau had "inadvertently" sent the notice of denial to Graham instead of to her counsel. Nevertheless, the AUSA successfully argued that the regulation authorized the notice of denial to be sent to Graham and that the mailing therefore triggered the statute of limitations. This appeal followed.

The issue on appeal concerns the interpretation of 28 C.F.R. § 14.9(a). The United States is immune from suit unless it consents to be sued. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). The FTCA is a limited waiver of sovereign immunity. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). The time for filing a district court action begins to run when the agency mails the notice of denial. See 28 U.S.C. § 2401(b). The agency is bound by its own regulation concerning the mailing of the notice of denial.

In deciding that notice was sufficient and that the complaint was therefore untimely, the district court ruled that the regulation authorized the Bureau to mail the notice of denial to Graham despite the fact that the Bureau knew she was represented and despite the language in the regulation authorizing the notice of denial to be mailed to the claimant's attorney or legal representative. The government contends that the Bureau is authorized to send the notice of denial to the claimant, even where, as here, the Bureau knows that the claimant is represented, or even when the claimant is incompetent and represented by a legal representative known to the agency.

We believe that interpreting the regulation to authorize the Bureau to mail the notice of denial to the claimant in every case detracts from the purpose of the statute: to ensure that notice is given in a manner that effectively triggers the time for filing a court action. See S.Rep. No. 1327, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 2515; H.R.Rep. No. 739, 102d Cong., 2d Sess. (1992); see also Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. We conclude that, where the agency knows the claimant is represented, the regulation directs the agency to mail the notice of denial to the attorney or legal representative, because that is the person who is usually responsible for preparing and filing the court action. See 28 C.F.R. § 14.9(a).

Authorizing direct contact with the claimant contradicts prevailing ethical standards that require dealings with counsel where an opposing party is known to be represented, unless counsel consents or the communication is authorized by law. See Model Code of Professional Responsibility DR 7-104(A)(1). The ethical rule is meant "to prevent lawyers from taking advantage of uncounselled lay persons and to preserve the integrity of the lawyer-client relationship." Model Rules of Professional Conduct 4.2 cmt. (1992); see Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564, 567 (1984); ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1498 (1983); see also Cronin v. Eighth Judicial Dist. Court, 105 Nev. 635, 781 P.2d 1150, 1154 (1989); Holiday Inn Downtown v. Barnett, 103 Nev. 60, 732 P.2d 1376, 1380 (1987) (characterizing as "reprehensible" the conduct of an attorney who engages in ex parte communications with an opposing party who is represented by counsel).

These standards are well known to the Department of Justice, the agency that promulgated the regulation and the defendant in this action. The Attorney General has gone to great pains, in the law enforcement context, to spell out when U.S. Attorneys may and may not deal with persons under investigation who are represented by counsel. See 28 C.F.R. §§ 77.1-77.12. In promulgating those regulations, the Attorney General observed that disciplinary authorities in all 50 states and the District of Columbia have adopted standards to prevent opposing counsel from contacting represented persons. California, for example, in referring to Rule 2-100 of the California Rules of Professional Conduct, has stated that the "rule and its predecessors have a history of being strictly enforced in California." California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op. 131 (1993). The rule is designed to shield opposing parties not only from an attorney's approaches which are intentionally improper, but from approaches which are well-intended but misguided. See Abeles v. State Bar, 9 Cal.3d 603, 108 Cal.Rptr. 359, 510 P.2d 719, 722 (1973).

While it is true that express legal authorization overrides ethical rules, the issue here is whether the regulation should be interpreted to constitute such express authorization. The government offers no guidance as to why such a blanket authorization is necessary, or even useful, in this context. Rather than interpreting the regulation as an exception to prevailing ethical norms, we believe that the regulation should be interpreted in accordance with those norms.

While this is an issue of first impression in this Circuit, the Eighth Circuit has upheld the direct mailing of a notice of denial...