Jerves v. U.S.

Citation966 F.2d 517
Decision Date11 June 1992
Docket NumberNo. 90-16749,90-16749
PartiesMildred JERVES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Henry N. Kitamura, Shim, Tam, Kirimitsu, Kitamura & Chang, Honolulu, Hawaii, for plaintiff-appellant.

Ted Meeker, Asst. U.S. Atty., Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: FLETCHER, D.W. NELSON and FERNANDEZ, Circuit Judges.

FLETCHER, Circuit Judge:

Mildred Jerves appeals the dismissal of her action against the United States for lack of subject matter jurisdiction. We affirm.

I.

On September 1, 1987, Mildred Jerves fell and broke her leg at the Pearl Harbor Naval Base Commissary. After her fall, she filed a $250,000 damages claim against the United States with the Naval Legal Service Office (NLSO), the appropriate federal agency. Less than five months later, on December 28, 1989, she commenced this action against the United States in district court. In a judgment entered on October 26, 1990, the district court dismissed the suit for lack of subject matter jurisdiction. Jerves timely appeals.

II.

The Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (1988) (FTCA), waives the sovereign immunity of the United States for actions in tort. The Act vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of Government employees. However, the Act further provides that before an individual can file an action against the United States in district court, she must seek an administrative resolution of her claim. Thus, 28 U.S.C. § 2675(a) reads, in relevant part:

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) (1988).

As we noted in Caton v. United States, 495 F.2d 635, 638 (9th Cir.1974), "[t]he statutory procedure is clear." A tort claimant may not commence proceedings in court against the United States without first filing her claim with an appropriate federal agency and either receiving a conclusive denial of the claim from the agency or waiting for six months to elapse without a final disposition of the claim being made. Id. We have repeatedly held that this "claim requirement of section 2675 is jurisdictional in nature and may not be waived." Burns v. United States, 764 F.2d 722, 724 (9th Cir.1985); see also Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir.1991) ("The claim requirement of § 2675(a) is a jurisdictional limitation."); Spawr v. United States, 796 F.2d 279, 280 (9th Cir.1986).

Jerves filed an administrative claim with the NLSO on August 8, 1989. On August 14, 1989, she received a letter from the agency acknowledging receipt of her claim. The letter stated that the agency was "now in the process of having this incident investigated. After we have completed our investigation you will be notified as to the disposition of the claim ... This letter should not be construed as an admission of liability or a waiver of any right or defense of the United States." On December 6, 1989, Jerves received another letter from the NLSO offering to settle her claim for $15,000. Jerves did not respond to the offer but instead, on December 28, 1989, filed this action in district court. Subsequently, on February 14, 1990, she received a final letter from the NLSO denying her claim in light of her failure to respond to the settlement offer and advising her of her right to bring suit in district court.

Jerves, therefore, has not met the jurisdictional requirements of Section 2675(a). She commenced this action before receiving the NLSO's final denial of her claim on February 14, 1990, and without allowing six months to elapse from the date of her initial administrative filing. On these facts, the district acted correctly in dismissing her suit for lack of subject matter jurisdiction. See Caton, 495 F.2d at 638-39.

Jerves argues, however, that the letter received by her counsel from the NLSO on December 6, 1989 represented a conclusive rejection of her claim and warranted the filing of suit shortly thereafter. The language of the letter, however, belies this argument. After a brief introduction, the letter states as follows:

This office has concluded its preliminary investigation into this matter. Without admitting liability and without prejudice, the United States of America is willing to settle all claims of Mrs. Mildred Jerves for the sum of $15,000.00.

In your telephone conversation with Lieutenant Penick on October 24, 1989, you stated that Mrs. Jerves had received all of her medical treatment from Tripler Army Medical Clinic. I feel that $15,000.00 in addition to the medical treatment your client has already received at government expense should be adequate to compensate her for her loss. A settlement agreement for that amount is enclosed.

If you have any questions, please contact Lieutenant Penick at 471-0291.

Nowhere in the letter does the NLSO declare that it has reached a final conclusion regarding Jerves' claim. To the contrary, the agency simply states that it has completed its preliminary investigation into her accident. Although the NLSO does not admit liability neither does it deny liability on behalf of the United States for Jerves' injury. Nor does it inform Jerves that her next step, should she be dissatisfied with the letter's contents, is to file suit in district court. Instead, the NLSO offers Jerves $15,000 in resolution of her claim, and provides an explanation as to why it considers this amount appropriate. It also invites further inquiry. The offer is not of a "take-it-or-leave-it" variety. Further communication between the agency and Jerves is not foreclosed, and additional settlement negotiations appear possible.

Furthermore, the letter does not comply with the requirements of 28 C.F.R. § 14.9(a), which provides that the

[f]inal denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification.

28 C.F.R. § 14.9(a) (1991) (emphasis added). Jerves therefore bore no risk that, in failing to treat the December 6 letter as a final denial, she would run afoul of 28 U.S.C. § 2401(b), which provides that an individual must commence court proceedings within six months of an agency's rejection of her grievance. In Dyniewicz v. United States, 742 F.2d 484 (9th Cir.1984), we observed that Section 14.9's requirement that an agency include language in its final denial letter concerning the right to bring suit in district court provides an individual "with a clear landmark that [her] claim has been denied and that [Section 2401(b)'s] six month clock has begun to run." Id. at 486. We rejected the Government's efforts to dismiss a suit brought over six months after the receipt of a letter which failed to include such language. Thus, prudence did not require that Jerves file suit upon receiving the NLSO's letter of December 6.

The cases cited by Jerves in support of her construction of the NLSO letter provide her with little comfort. In Dyniewicz, we simply held that the Government could not treat as final an agency letter which failed to include Section 14.9's mandatory language. While we did state that a "prudent attorney might have suspected [that the letter in question], being certified, was meant as a final denial of appellant's claim," id. at 486, that letter was very different in nature from the initial letter received by Jerves. Far from constituting a settlement offer, the Dyniewicz letter informed the recipients that their claim was time-barred. Again, the "final" letter in Hatchell v. United States, 776 F.2d 244 (9th Cir.1985), differed in significant respects from the one received by Jerves. "The letter, addressed to Hatchell's attorney, stated...

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