Karthauser v. U.S., 85-4016
| Decision Date | 25 February 1988 |
| Docket Number | No. 85-4016,85-4016 |
| Citation | 841 F.2d 1129 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Eugene KARTHAUSER, Plaintiff/Appellant, v. UNITED STATES of America, Defendant/Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before SKOPIL, FLETCHER and POOLE, Circuit Judges.
Karthauser appeals the dismissal of his claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671-2680 (1982). He contends the district court erred in concluding that he had failed to file an administrative claim within two years of the discovery of his injury as required by 28 U.S.C. Sec. 2401(b) (1982). We do not reach that issue. We vacate and dismiss for lack of jurisdiction.
An FTCA claimant may not commence a court action until the agency has either (1) made a final denial, or (2) failed to act within a six-month period. 28 U.S.C. Sec. 2675(a); Caton v. United States, 495 F.2d 635, 638 (9th Cir.1974). Premature filing deprives the court of jurisdiction. Caton, 495 F.2d at 638. In Caton, the claimant filed before the agency made a final denial and two months before the end of the six-month period. Id. We found that we lacked jurisdiction to consider the claim. Id. at 639.
Here, Karthauser filed before the agency made a final denial and two days before the end of the six month period. He filed a claim with the Public Health Services Hospital on July 8, 1981, and filed his lawsuit on January 6, 1982. We conclude that Caton controls. We cannot distinguish this case from Caton merely on the basis of the difference between two months and two days.
Karthauser nevertheless argues that Kubrick v. United States, 581 F.2d 1092 (3d Cir.1978), rev'd on other grounds, 444 U.S. 111 (1979), requires a different result. In Kubrick, the Third Circuit held that the jurisdictional defect of early filing was considered cured when the claim was denied prior to any substantial progress in the litigation. Id. at 1098. The Eighth Circuit has adopted Kubrick. See Celestine v. Veterans Admin. Hosp., 746 F.2d 1360, 1363 (8th Cir.1984). But cf., Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981) ().
We decline to follow Kubrick. We are bound by Caton's authority. 1 Moreover, while Kubrick promotes economy, "[i]t also ... arguably constitutes a judicial abrogation of the limitation on sovereign immunity contained in the statute." Porter v. United States, 619 F.Supp. 137, 141 (S.D.Ohio 1985). The FTCA represents a waiver of sovereign immunity. Its provisions are to be strictly construed. See Bell Helicopter v. United States, 833 F.2d 1375, 1377 (9th Cir.1987); see also Campbell v. United States, 835 F.2d 193, 195 (9th Cir.1987) (). The plain language of the statute controls: "An action shall not be instituted" until the claim has been filed and six months have passed. 28 U.S.C. Sec. 2675(a) (emphasis added). Congress has drawn a bright line which we should not blur.
Dismissal may force Karthauser to perform a mere formality. We assume arguendo that he may be able to refile his complaint. See Anderson v. United States, 803 F.2d 1520, 1522 (9th Cir.1986) (). But under the FTCA and this court's case law, we are bound to dismiss. The result we reach is harsh, but harshness is in the nature of jurisdictional prerequisites and statutes of limitation. The "very purpose" of such requirements is to "often make it impossible to enforce what were otherwise perfectly valid claims." Kubrick, 444 U.S. at 125.
We VACATE the district court's order of dismissal and DISMISS for lack of jurisdiction.
The majority finds that the district court lacked jurisdiction to hear this case because Karthauser did not allow six months to pass from the time he filed his administrative claim until he brought his suit in district court, as required by 28 U.S.C. Sec. 2675(a). The requirements of that section are jurisdictional. United States v. Caton, 495 F.2d 635, 638 (9th Cir.1974). In this case, Karthauser filed his suit on January 6, 1982, two days short of six months from the date of filing his claim with the Public Health Services Hospital on July 8, 1981. Karthauser's haste, in my view, should not carry the serious consequences that the majority attach to it. The hospital did not act within six months and apparently has not acted yet on the administrative claim, and Karthauser has not received a notice of final denial on his claim. He therefore could have filed a supplemental complaint alleging facts that meet the jurisdictional requirement at any time after January 8, 1982, and could do so now if necessary.
The Supreme Court has indicated that where such a supplemental filing is possible, and there has been no prejudice to the government, it will not require the useless acts of dismissal and refiling. In Mathews v. Diaz, 426 U.S. 67 (1976), a plaintiff did not file an administrative claim, a jurisdictional requirement under 42 U.S.C. Sec. 405(g), until after he had filed his complaint in the district court. The Supreme Court held that because the plaintiff could have filed a supplemental complaint at any time alleging The government's consent to be sued under 42 U.S.C. Sec. 405(g) "constitutes a limited waiver of sovereign immunity and must be strictly construed." Ro Ane v. Mathews, 476 F.Supp. 1089, 1093 (N.D.Cal.1977), aff'd, 604 F.2d 37 (9th Cir.1979). Since the Supreme Court was willing to find jurisdiction despite the limited waiver of Sec. 405(g), we likewise should find jurisdiction in this case. 28 U.S.C. Sec. 2675(a) is a statute that constitutes a limited waiver of sovereign immunity just as does 42 U.S.C. Sec. 405(g). The government agrees that more than six months have elapsed since Karthauser filed his claim; thus it was not deprived of time to consider the claim, and no policy behind the statute was violated. In similar cases, two other circuits have refused to require "duplicitous pleadings and wasted effort." See Kubrick v. United States, 581 F.2d 1092, 1098 (3rd Cir.1978), rev'd on other grounds, 444 U.S. 111 (1979); Celestine v. Veterans Admin. Hospital, 746 F.2d 1360, 1362-63 (8th Cir.1984).
the fact of filing and because the record disclosed, by affidavit and stipulations, that the jurisdictional requirement was met, the court had jurisdiction despite the failure to file a supplemental complaint. Id. at 75.
Because I would not require Karthauser to perform the empty formality of refiling, I would decide now whether Karthauser timely filed his administrative claim and is entitled to a trial on the merits. The issue is when Karthauser discovered the injury, since that date triggers the running of the two-year period for filing administrative claim.
Karthauser claims that doctors at the United States Public Health Services Hospital negligently failed to diagnose and treat his disc space infection, and failed to provide proper postoperative care. The injury that Karthauser alleges is not the infection, itself, but a more serious condition that developed as a result of the infection--lumbar canal stenosis, which is a narrowing of the spinal canal in the lumbar region. Karthauser alleges that the stenosis would not have developed if the infection had been detected promptly and treated.
The case was assigned to a magistrate, who recommended to the district court that it conclude as a matter of law that Karthauser had failed to file an administrative claim within two years of the discovery of his injury, as required by the Federal Tort Claims Act, 28 U.S.C. Sec. 2675(a). The magistrate found that by exercising due diligence, Karthauser could have been aware that the infection had resulted in lumbar canal stenosis prior to July of 1979, two years before his administrative claim was filed. In fact, although Karthauser's condition was constantly monitored following discovery of the disc space infection, the diagnosis of lumbar canal stenosis was not made until August, 1979. The magistrate presumably relied on his own recommended finding that, during a hospitalization in January of the same year, Karthauser "showed signs of scarring, bony changes and narrowing of the lumbar canal, all at the site of the infection." He also seems to have relied on later medical records that indicate a gradual ossification, or a filling-in of the disc space with bone growth. He apparently viewed the lumbar canal stenosis as the culmination of the ongoing process of ossification that took place as the disc space infection abated and healing progressed.
We should decide whether the magistrate erred in concluding that the plaintiff suffered from lumbar canal stenosis as early as January, 1979. If he was wrong, it affects the determination of timeliness of the filing of the administrative claim.
An examination of the medical records for Karthauser's hospital stay in January suggests the magistrate misread or misunderstood the scant information provided there. The report states only that "[t]he lumbar spine showed sclerotic bone changes" in the area of the surgery, and that "[t]here is evidence to indicate early bony repair and ankylosing formation." 1 From these statements, apparently, the magistrate concluded that narrowing of the lumbar canal had occurred by January....
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