Kanar v. U.S.

• Decision Date: 23 July 1997
• Docket Number: No. 96-3621,96-3621
• Citation: 118 F.3d 527
• Parties: Melvin KANAR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 527

118 F.3d 527

Melvin KANAR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 96-3621.

United States Court of Appeals Seventh Circuit.

Submitted June 13, 1997.

Decided June 30, 1997.

Rehearing Denied July 23, 1997.

Marcellus Long, Jr. (submitted), Hatchett, Dewalt & Hatchett, Pontiac, MI, for Plaintiff-Appellant.

Gerald A. Coraz, Office of the United States Attorney, Indianapolis, IN, for Defendants-Appellees.

Before POSNER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

No one may file suit under the Federal Tort Claims Act without first making an administrative claim. 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). "A tort claim against the United States shall be forever barred unless it is presented to the appropriate Federal agency within two years after such claim accrues". 28 U.S.C. § 2401(b). But what is a "claim"? The statute does not say--and although it authorizes the Attorney General to promulgate regulations that agencies must follow when they "consider, ascertain, adjust, determine, compromise, and settle any claim", 28 U.S.C. § 2672 para. 1, it does not expressly authorize the Attorney General to define the term "claim." Treating authority to do so as implied, the Department of Justice adopted this definition:

For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, 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; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

28 C.F.R. § 14.2(a). Under this regulation a "claim" has four elements: (i) notification of the incident; (ii) a demand for a sum certain; (iii) the title or capacity of the person signing; and (iv) evidence of this person's authority to represent the claimant. On behalf of Melvin Kanar, attorney Marcellus Long, Jr., filed a document that meets the first three elements of a "claim" but not the fourth. With three months to go in the two years, the agency told Long that it needed "evidence of [Long's] authority to present a claim on behalf of [Kanar] as agent, executor, administrator, parent, guardian, or other representative." Long ignored this request. Nine months after the two years had run, Long finally submitted a power of attorney signed by Kanar. Too late, the agency replied. The district judge dismissed the eventual suit, ruling that all four elements of a "claim" identified in § 14.2(a) must be satisfied within the two years.

To resolve Kanar's appeal we must address three issues: (i) did the document Long sent before the two-year anniversary amount to a "claim"?; if not (ii) is failure to satisfy all elements of a "claim" within two years invariably fatal?; and if not, then (iii) is Kanar's a good case for an exception? Let us start with the first.

Twice this court has held that § 14.2(a) establishes the elements of a "claim." Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972); Erxleben v. United States, 668 F.2d 268, 271 (7th Cir.1981). Neither case dealt with the evidence-of-authority element, but the decision to use the regulation as the point of reference precludes selecting among its elements; then the court would not be using the regulation at all but would be supplying an independent definition of claim. One might justify an independent choice on the ground that § 2672 does not expressly authorize the Attorney General to define the statutory word "claim", but Kanar does not ask us to reexamine Best Bearings and Erxleben. Quite the contrary, Kanar's brief ignores these cases, even though the district court cited Best Bearings as the lead case supporting its decision.

Kanar's decision spares us the need for a full-dress review of what has become a conflict among the circuits. At least two other circuits share our view that the regulation supplies the definition of a "claim." See Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 19-20 (3rd Cir.1975); Lunsford v. United States, 570 F.2d 221, 225-27 (8th Cir.1977). But at least five circuits believe that "minimal notice" makes out a statutory "claim." See Adams v. United States, 615 F.2d 284, 290 (5th Cir.1980); Douglas v. United States, 658 F.2d 445, 447-48 (6th Cir.1981); Warren v. Department of the Interior Bureau of Land Management, 724 F.2d 776 (9th Cir.1984) (en banc); Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir.1992); GAF Corp. v. United States, 818 F.2d 901, 920 & n. 110 (D.C.Cir.1987). These courts of appeals treat as a "claim" any document that identifies the incident said to be tortious and demands a sum certain in damages. Where the sum-certain requirement comes from, if not from the regulation, is a mystery; it is not part of a claim for relief in judicial practice. Fed. R. Civ. P. 8. Section 2675(b) does say that suit is limited to "the amount of the claim presented to the federal agency", but this need not imply that a precise demand must appear in the initial administrative filing; moreover, statutory exceptions for newly discovered evidence and intervening facts suggest more flexibility than a sum-certain requirement tolerates. But let that pass. The larger question is why so many judges are willing to disregard a regulation that the Attorney General promulgated with statutory authority.

These courts' answer is not the possibility we have mentioned--that the statutory grant of authority covers only the means of claims-processing, and not the identification of "claims" in the first place. It is instead that the Federal Tort Claims Act, as a waiver of sovereign immunity, receives a strict reading, and that conditions in the FTCA must be treated as limitations on the jurisdiction of the federal courts. Because jurisdictional rules come from Congress rather than the Department of Justice, it follows (to these courts) that § 14.2(a) does not affect which suits may be brought. Some of these courts add a second reason: that the regulation did not mention § 2675. It was later amended so that the definition of "claim" applies to § 2675. None of these courts has changed its view, so we treat this as a makeweight and concentrate on the contention that a rule cannot affect "jurisdiction"--which we think does more to reveal how variegated that term can be than to show why a properly adopted regulation may be ignored.

"Jurisdiction" in its strongest sense is a case or controversy within the meaning of Article III. No one today doubts that Article III courts may entertain suits against the United States seeking money damages, although this was once doubtful given Congress' ability not to pay up. See Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372 (1933), and Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789 (1929), both of which were repudiated in Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), though a majority of the Court was unable to agree on a rationale to replace them. Another, slightly weaker, sense of the term is the statutory grant of adjudicatory power. These are the two senses of jurisdiction that may not be stipulated or waived by the parties--although pendent and ancillary jurisdiction (now codified in 28 U.S.C. § 1367 as supplemental jurisdiction, but for a long time a common law development), plus the concept of "jurisdiction to determine jurisdiction", show that the requirement of a statutory grant of jurisdiction has some fuzziness at the edges. At all events, subject-matter jurisdiction over Kanar's case is secure. Section 1346(b)(1) of the Judicial Code creates jurisdiction to decide cases under the FTCA.

Law teems with weaker uses of the word. Courts need jurisdiction over the persons of the litigants, but they may waive this requirement or forfeit it by objecting belatedly. Then there is a tendency to use "jurisdiction" to refer to the lack of a claim for relief, though cases such as Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), caution against equation of the two. Courts often use the word to denote the allocation of authority among coordinate parts of the judicial branch. See Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). "Jurisdiction" is appropriated as a shorthand for the commerce element in many a federal statute (which may require proof that acts were in or affected interstate commerce). See United States v. Lopez, 514 U.S. 549, 561-62, 115 S.Ct. 1624, 1630-31, 131 L.Ed.2d 626 (1995). And in the loosest sense of all the word denotes any condition precedent to the plaintiff's ability to prevail. See generally Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393-98, 110 S.Ct. 2447, 2454-57, 110 L.Ed.2d 359 (1990); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077-79 (7th Cir.1987).

Only the last of these casual uses of "jurisdiction" is at issue with respect to § 2675. A litigant who wants money from the Treasury needs two things: a grant of jurisdiction, and a waiver of sovereign immunity. See United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Section 1346(b)(1) supplies the former, § 2674 para. 1 the latter. Other parts of the FTCA, including §§ 2401(b) and 2675(a), establish some limitations on the waiver of sovereign immunity in § 2674. It may be that these limitations should be rigorously enforced, but incantation of the word "jurisdiction" does not help a court determine either how...