Houston v. U.S. Postal Service

• Citation: 823 F.2d 896
• Decision Date: 13 August 1987
• Docket Number: No. 85-3639,85-3639
• Parties: Alton J. HOUSTON, Plaintiff-Appellee, Cross-Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 896

823 F.2d 896

Alton J. HOUSTON, Plaintiff-Appellee, Cross-Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants-Appellants Cross-Appellees.

No. 85-3639.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1987.

Rehearing and Rehearing En Banc Denied Sept. 23, 1987.

Nancy A. Nungesser, Asst. U.S. Atty., New Orleans, La., Joan Bernott, Washington, D.C., Boggs, Loehn & Rodrigue, New Orleans, La., for U.S. Postal Service.

Adolph J. Levy, Thomas A. Gennusa, II, New Orleans, La., for Houston.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The question in this Federal Tort Claims Act case is whether the district court had jurisdiction to try Alton Houston's suit against the United States. We hold that the lower court lacked jurisdiction and accordingly reverse the judgment below and dismiss the case.

Facts and Proceedings Below

When the events giving rise to this suit occurred, Alton Houston was a laborer for the New Orleans Sewerage and Water Board. On January 27, 1976, he was sitting in a large city truck parked in a crowded New Orleans street when a United States Postal Service (USPS) van, clearly marked as such, collided with the mirror of the city truck. Except for the shattered mirror, the truck was not damaged.

According to Houston, this impact caused him a variety of injuries, including back problems and alcohol dependency. These injuries reduced his earning potential. The district court found in Houston's favor and held the United States liable for $121,887.20.

The procedural history of the case is quite important. On January 27, 1977, one year after the collision, Houston sued the United States; Joseph Howard, the driver of the postal van; and the USPS in Louisiana court. Pursuant to his direction, process was not issued or served.

Just under two years after the accident, on January 17, 1978, Houston filed an administrative claim with the USPS. As we will explain, the filing of such an administrative claim within two years after its accrual was required by the Federal Tort Claims Act (FTCA) (codified at 28 U.S.C. Secs. 1346(b), 1402(b), 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680). About three months after this claim was filed, the USPS notified Houston's attorney of its denial. That notification letter, dated April 26, 1978, stated, "[I]f your client is dissatisfied with the final action on his clain [sic ], he may file suit in an appropriate United States District Court not later than six months from the date of this letter." (Emphasis added.) The six-month limitations period explained in the letter is codified at 28 U.S.C. Sec. 2401(b). Houston's counsel stated during oral argument in this court that the denial letter was not "diaried" on a "prescription card" at his law firm. Because of this oversight, it was not until April 23, 1980, almost two years after the administrative denial, that Houston for the first time caused process in his Louisiana court suit to be served on the defendants therein.

After being served, the United States removed the case to federal court, as authorized by 28 U.S.C. Secs. 1441(a) and 1442(a)(1). (For some reason, the United States did not rely on the FTCA removal statute--28 U.S.C. Sec. 2679(d).) The USPS and the United States moved to dismiss the case on grounds that the United States was the only proper defendant and Houston had not sued it within six months of the administrative denial of his claim.

The district court dismissed the USPS (and Howard), but denied the dismissal motion as to the United States. In a thorough opinion, the court reasoned that Houston's state court suit sufficed as timely compliance with the limitations requirement of the FTCA. Because the district court considered the state suit sufficient under the FTCA, it did not view Houston's long delay in serving process as a jurisdictional defect. After a bench trial that covered portions of three days, the court rendered judgment for Houston.

The United States appeals the judgment, asserting that the district court lacked jurisdiction to try the case due to Houston's alleged noncompliance with the FTCA limitations period. Houston cross-appeals, complaining that the district court's $25,000 award for pain and suffering is too low.

Discussion

Essentially, this case raises only two questions: (1) whether the FTCA's procedural requisites apply to a tort claim arising out of a collision with a government vehicle; and, (2) if the FTCA's procedural requirements apply, whether Houston complied with them. We answer "yes" to the first question and "no" to the second.

I.

"The United States, as sovereign, is immune from suit save as it consents to be sued ...." United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). In construing waivers of sovereign immunity, courts are not free to extend or narrow the waiver beyond what Congress intended. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979). These familiar axioms undergird our analysis.

In various statutes through the years, Congress has carved into the immunity of the federal government. See generally Hulen, Suits on Tort Claims Against the United States, 7 F.R.D. 689, 689-90 (1948) (discussing, inter alia, the Tucker Act); Comment, Administrative Claims and the Substitution of the United States as Defendant Under the Federal Drivers Act: The Catch 22 of the Federal Tort Claims Act?, 29 Emory L.J. 755, 758 (1980) (citing several statutory examples of sovereign immunity waiver). An important such waiver occurred in 1946, when Congress passed the FTCA. See Hulen, 7 F.R.D. 689 (explaining the original version of the FTCA). The FTCA provides that the United States is liable for damages "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." 28 U.S.C. Sec. 2675(a). ¹

The FTCA as originally enacted did not abolish the plaintiff's action against the negligent government employee. The plaintiff could "sue the employee by asserting his common law right against the tortfeasor or go against the government on the basis of respondeat superior." Note, The Constitutionality and Basic Fairness of the Government Drivers Law, 54 Minn.L.Rev. 645, 651-52 (1970) (footnotes omitted); see also Murdock, The Federal Government as an Insured Under an Employee's Auto Insurance Policy, 36 Mil.L.Rev. 91, 94 (April 1967) (noting that under the original FTCA the "plaintiff could always choose to ignore the FTCA remedy and sue the employee in an appropriate state court"); Comment, 29 Emory L.J. at 755 (1980) (same). Some government employees succeeded in procuring indemnification from the government through passage of private relief bills. S.Rep. No. 736, 87th Cong., 1st Sess., reprinted in 1961 U.S. Code Cong. & Ad. News 2784, 2794; Stevens, Scope of Employment and the Government Motor Vehicle Operator, JAG L.Rev. 13, 14 (Jan.-Feb. 1966). This procedure was expensive and time-consuming, and not all employees pursued it. In response to the problem, Congress in 1961 amended the FTCA by adding four subsections to 28 U.S.C. Sec. 2679. Act approved September 21, 1961, Pub.L. No. 87-258, 75 Stat. 539 (1961). The amendment, known as the Federal Drivers Act (FDA), deprived plaintiffs whose injuries arose from the negligent operation of a government vehicle of any claim against the driver in his individual capacity. "The remedy by suit against the United States as provided by [28 U.S.C.] section 1346(b) ... shall hereafter be exclusive of any other civil action or proceeding ...." Section 2679(b) (1961 version) (emphasis added). The design and effect of the FDA was to relieve government drivers "from the hazard of personal liability stemming from driving motor vehicles in the course of official duty." L. Jayson, Handling Federal Tort Claims Sec. 175.03, at 6-17 and 6-18.4 (1986) (footnote citing cases omitted).

In 1966, Congress again extensively amended the FTCA. Act approved July 18, 1966, Pub.L. No. 89-506, 80 Stat. 306 (1966). The amendments imposed a requirement that all tort claimants seek administrative relief before turning to the courts. See 28 U.S.C. Secs. 2401(b), 2675(a). Congress was motivated by a desire to reduce congestion in the courts and by statistics showing that most claims against the government were settled, thus suggesting that an administrative scheme could be very effective. S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 2515, 2516-18; Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1980) (recognizing these as the reasons for the administrative exhaustion requirement); Comment, 29 Emory L.J. at 766. The FDA, subsumed in section 2679(b)-(d) of the FTCA, which had previously referred to the plaintiff's exclusive remedy "by suit" was changed to read, "The remedy against the United States provided by sections 1346(b) and 2672 of this title ... shall hereafter be exclusive ...." Section 2679(b) (emphasis added). Congress' substitution of the administrative remedies provision, section 2672, for the phrase "by suit" strongly suggests that Congress intended FDA cases to begin with an administrative claim, not a lawsuit. This interpretation is borne out by the legislative history, which states that this change in the FDA was designed to "make it conform" with the administrative exhaustion requirement. S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 2515, 2521.

Houston argues that the amendment adds an administrative claim as a possible remedy, without eliminating the remedy by suit. ² Admittedly, Congress could have made the matter clearer by incorporating section 2675(a) within the FDA. Section 2675(a) says, "An action shall not be instituted" until the administrative claim is denied. See Comment, 29...