Johnson by Johnson v. U.S., No. 939

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore MANSFIELD, KEARSE and PRATT; MANSFIELD; GEORGE C. PRATT
PartiesMelissa JOHNSON, an infant by Barbara JOHNSON, her mother and natural guardian and Barbara Johnson, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. ocket 84-6335.
Docket NumberNo. 939,D
Decision Date08 April 1986

Page 845

788 F.2d 845
54 USLW 2545
Melissa JOHNSON, an infant by Barbara JOHNSON, her mother
and natural guardian and Barbara Johnson,
individually, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
No. 939, Docket 84-6335.
United States Court of Appeals,
Second Circuit.
Argued April 8, 1985.
Decided April 8, 1986.

Page 847

Kathleen Peratis, New York City (Richard Frank, P.C., New York City, of counsel), for plaintiffs-appellants.

Kevin P. Simmons, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for defendant-appellee.

Before MANSFIELD, KEARSE and PRATT, Circuit Judges.

MANSFIELD, Circuit Judge:

Barbara and Melissa Johnson, mother and daughter respectively, appeal from a judgment of the Eastern District of New York, 594 F.Supp. 728, Eugene H. Nickerson, Judge, dismissing their claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671 et seq. The Johnsons seek damages stemming from the United States Postal Service's alleged negligence in the employment and supervision of a letter carrier who sexually assaulted the infant Melissa. Judge Nickerson ruled that the court lacked subject matter jurisdiction because the plaintiffs failed to comply with 28 U.S.C. Sec. 2675(a), 1 which requires that claims against the United States be presented to the appropriate agency before an action may be maintained. We hold that the Johnsons' claim met the requirements of the statute and that the district court erred in this respect. However, we conclude that the district court lacked subject matter jurisdiction over the suit because it "aris[es] out of" an assault and battery and is therefore barred by 28 U.S.C. Sec. 2680(h). 2 Accordingly, we affirm.

On October 3, 1983, Barbara Johnson submitted a claim to the Postal Service for injury and damages, utilizing the appropriate one page standard form prepared by the federal government. See 28 C.F.R. Sec. 14.2 (1985). In response to question 11, which requires the applicant to "[s]tate below, in detail, all known facts and circumstances attending the damage, injury, or death, identifying persons and property involved and the cause thereof" she stated that on June 3, 1982 "and various dates prior thereto"

"Melissa Johnson was sexually molested assaulted and, on information and belief, sodomized and threatened by Postman Luis Ojeda.

"Barbara Johnson sustained damage for medical and psychological treatment and loss of services."

Page 848

The claim further stated that Melissa Johnson suffered "vaginal and genital injuries, psychiatric and emotional injuries [of which the] full nature and extent [are] unknown at present." It stated that Barbara Johnson incurred "expenses for medical and psychological treatment" and suffered "loss of services". The Johnson's sought $6,000,000.

By letter dated January 6, 1984, the Postal Service denied the claim. First, the agency maintained that Ojeda acted outside the scope of his employment in assaulting Melissa Johnson. Second, the letter stated:

"The incident you describe as the basis of your claim is an assault and battery. While Congress has generally waived the Government's immunity for certain wrongful acts of its employees commited [sic] within the scope of their employment, Congress has specifically provided, in 28 U.S.C. Sec. 2680(h), that the Government's immunity from suit and from considering claims for personal injury has not been waived for any claim arising out of an assault and battery." (Emphasis in original).

On April 4, 1984, plaintiffs filed the complaint in this action, alleging that the sexual assault on Melissa was "caused by the carelessness, recklessness and negligence of the defendant, its agents, servants and/or employees" in their "employment, supervision and assignment of Ojeda". Although plaintiffs alleged generally that the defendant and its agents acted "with notice or knowledge of Ojeda's criminal and perverted propensities and tendencies" no facts supporting these assertions or further specification were provided in the complaint.

Defendant moved to dismiss the complaint for lack of subject matter jurisdiction, contending that the United States had not waived its sovereign immunity in this case because it was one "arising out of" assault or battery. 28 U.S.C. Sec. 2680(h) provides a number of exceptions to the broad waiver of sovereign immunity embodied in the FTCA, including a bar on suits "arising out of assault [and] battery." Judge Nickerson granted the motion but did not address the grounds proffered by defendant. Instead, the district court ruled that the claim raised by the complaint had not been submitted to the Postal Service as required by 28 U.S.C. Sec. 2675(a). The court noted that, although the complaint alleged negligent supervision, the administrative claim made no mention of such a legal theory or of facts suggesting that "anyone other than Ojeda might be culpable for the[ ] injuries".

DISCUSSION

Sufficiency of the Administrative Claim

Appellants contend that the administrative claim filed with the Postal Service, alleging only sexual assault and injuries stemming from it, was sufficient to enable them to maintain a court action against the United States for negligent supervision. 28 U.S.C. Sec. 2675(a) makes the filing of a claim with the appropriate agency a prerequisite to jurisdiction of the courts. As we have stated

"Section 2675 is designed, in conjunction with Section 2672, to provide a procedure under which the government may investigate, evaluate and consider settlement of a claim. This purpose requires that the Notice of Claim provide sufficient information both to permit an investigation and to estimate the claim's worth." Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984); see Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981); Adams v. United States, 615 F.2d 284, 289 (5th Cir.), clarified, 622 F.2d 197 (1980).

Thus, an administrative claim need not meet formal pleading requirements. All that is necessary is that a claim be specific enough to serve the purposes intended by Congress in enacting Sec. 2675(a)--"to ease court congestion and avoid unnecessary litigation,

Page 849

while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." S.Rep. No. 1327, 89th Congress, 2d Sess. 2 (1966), reprinted in 1966 U.S.Code Cong. & Ad.News ("USCCAN") 2515, 2516. Toward this end, the government requires all claimants to submit Standard Form 95, a one page claim form requesting a "description of accident" and the "nature and extent of injury".

Appellants' administrative claim met these requirements. By stating the cause of the injury, the name of the employee who committed the assault, and the date and location of the attack, the claim notified the agency of sufficient factual circumstances to enable it to investigate the matter. Although the claim supplied no facts evidencing negligent supervision and did not allege all the factual elements of such a theory of liability, a reasonably thorough investigation of the incident should have uncovered any pertinent information in the government's possession relating to the agency's knowledge, or lack of knowledge, of any prior sexual misconduct by its employee Ojeda. See Rise v. United States, 630 F.2d 1068 (5th Cir.1980) (administrative claim alleging negligent failure to diagnose and treat illness sufficient to maintain action for negligent referral to private hospital and failure to supervise treatment).

A more difficult issue is presented by Judge Nickerson's conclusion that the claim was inadequate because, as submitted, it alleged only assault, a tort clearly barred by Sec. 2680(h), and therefore the agency could have reasonably refrained from investigating the claim at all. Although this position might have some logic if the claimant were to be held strictly to principles of common law pleading we believe that a more liberal standard was intended. In enacting Sec. 2675(a) Congress was aware that the Postal Service was one of the few agencies that dealt with the vast bulk of claims against the federal government and had acquired familiarity with the task of settling tort claims, S.Rep. 1327, supra, at 3, USCCAN supra, at 2517. Given this familiarity, and the well settled principle that legal theories need not be submitted to the agency, Broudy v. United States, 722 F.2d 566, 568-69 (9th Cir.1983); Rise, supra, 630 F.2d at 1071, the agency could reasonably be required to have anticipated that appellants' claims encompassed recovery based on negligent supervision and to conduct an investigation accordingly.

The alleged conduct of the postal employee should normally have prompted an inquiry into the Postal Service's prior knowledge of his propensities since experience indicates that it is the kind of conduct that may be repetitive. Section 2675(a) does not require formal pleadings or that a valid legal claim be alleged but only "the basic elements of notice of accident and injury and a sum certain representing damages" so that the agency may investigate it. Broudy, supra, 722 F.2d at 568 (citing Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982) ). Although these requirements are jurisdictional and must be adhered to strictly, Keene, supra, 700 F.2d at 841, the district court erred in extending them to require that a ground of liability cannot be maintained unless factual elements uniquely related to that theory were first presented in the administrative claim.

Our decision of this issue accords with that of other courts which have held that claims stating plainly-barred causes of action may...

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  • Pagel v. U.S., No. C-97-20091 EAI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 1997
    ...States Postal Service, 676 F.2d 954 (3rd Cir.1982); Douglas v. United States, 658 F.2d 445 (6th Cir.1981); and Johnson v. United States, 788 F.2d 845 (2d Cir.1986). Only the First and Eighth Circuits still hold the minority view. See Swift v. United States, 614 F.2d 812 (1st Cir.1980) and L......
  • Motor Ave. Co. v. Liberty Indus. Finishing Corp., No. CV 91-0968 (CBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 29, 1994
    ...designed to provide a procedure to enable the government to investigate and consider settlement of tort claims. Johnson v. United States, 788 F.2d 845, 848 (2d Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 315, 93 L.Ed.2d 288 (1986). The notice of claim provided for by § 2675 is intended to ......
  • Wise v. U.S., No. 2:97CV610.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 9, 1998
    ...claim involving an assault or battery, at least where a government employee committed the intentional tort. See Johnson v. United States, 788 F.2d 845, 850-854 (2d Cir.1986); Thigpen v. United States, 800 F.2d 393, 395 (4th Cir.1986); Hoot v. United States, 790 F.2d 836, 838, (10th Cir.1986......
  • Mulloy v. US, Civ. A. No. 93-11716NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 31, 1995
    ...Hughes v. United States, 662 F.2d 219 (4th Cir.1981); Hoot v. United States, 790 F.2d 836 (10th Cir.1986); Johnson v. United States, 788 F.2d 845, 850-854 (2d Cir.1986). Other courts, however, read the exception more narrowly, refusing to bar claims alleging that antecedent governmental neg......
  • Request a trial to view additional results
89 cases
  • Pagel v. U.S., No. C-97-20091 EAI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 1997
    ...States Postal Service, 676 F.2d 954 (3rd Cir.1982); Douglas v. United States, 658 F.2d 445 (6th Cir.1981); and Johnson v. United States, 788 F.2d 845 (2d Cir.1986). Only the First and Eighth Circuits still hold the minority view. See Swift v. United States, 614 F.2d 812 (1st Cir.1980) and L......
  • Motor Ave. Co. v. Liberty Indus. Finishing Corp., No. CV 91-0968 (CBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 29, 1994
    ...designed to provide a procedure to enable the government to investigate and consider settlement of tort claims. Johnson v. United States, 788 F.2d 845, 848 (2d Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 315, 93 L.Ed.2d 288 (1986). The notice of claim provided for by § 2675 is intended to ......
  • Wise v. U.S., No. 2:97CV610.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 9, 1998
    ...claim involving an assault or battery, at least where a government employee committed the intentional tort. See Johnson v. United States, 788 F.2d 845, 850-854 (2d Cir.1986); Thigpen v. United States, 800 F.2d 393, 395 (4th Cir.1986); Hoot v. United States, 790 F.2d 836, 838, (10th Cir.1986......
  • Mulloy v. US, Civ. A. No. 93-11716NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 31, 1995
    ...Hughes v. United States, 662 F.2d 219 (4th Cir.1981); Hoot v. United States, 790 F.2d 836 (10th Cir.1986); Johnson v. United States, 788 F.2d 845, 850-854 (2d Cir.1986). Other courts, however, read the exception more narrowly, refusing to bar claims alleging that antecedent governmental neg......
  • Request a trial to view additional results

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