Martinez v. US, Civ. A. No. 89-4603.

• Decision Date: 31 May 1990
• Docket Number: Civ. A. No. 89-4603.
• Parties: Juanita MARTINEZ, Marisol Martinez and Caroline Martinez by her guardian-ad-litem Juanita Martinez, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Jersey

743 F. Supp. 298

Juanita MARTINEZ, Marisol Martinez and Caroline Martinez by her guardian-ad-litem Juanita Martinez, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 89-4603.

United States District Court, D. New Jersey.

May 31, 1990.

Larry A. Chamish, P.A. by Dalwyn T. Dean, Newark, N.J., for plaintiffs.

Samuel A. Alito, Jr., U.S. Atty. by Susan Handler-Menahem, Asst. U.S. Atty., Newark, N.J., for defendant.

OPINION

BISSELL, District Judge.

This matter arises before the Court on the basis of a motion by the defendant United States of America to dismiss the complaint by Juanita Martinez, et al., for lack of subject matter jurisdiction.

I. FACTS AND BACKGROUND

The events that gave rise to this litigation are not presently in dispute. On November 2, 1987, plaintiffs Juanita Martinez, Marisol Martinez, and Caroline Martinez (by her guardian-ad-litem Juanita Martinez), were passengers in a car driven by Virginia Martinez when it collided with a car driven by FBI Special Agent Jeffrey McCoy in Newark, New Jersey. The plaintiffs were taken to a hospital and later released.

On May 17, 1988 Larry A. Chamish, Esquire wrote a letter to the FBI stating that he was enclosing a Notice of Intention to Make Claim which he had executed on behalf of his clients. (Defendant's Br., Exh. A). The enclosures were three Standard Forms 95 (SF-95), one for each plaintiff. Stating that the forms were not signed and that they failed to state the total amount of claim, the FBI returned the forms to counsel by letter dated May 25, 1988. The letter also noted (1) that when an SF-95 is signed by a legal representative of the claimants, rather than by the claimants themselves, it must be accompanied by evidence of the authority of the representative to present the claims on the claimants' behalf and (2) that any future submission of the SF-95 should include documentation of the claims. (Defendant's Br., Exh. B).

On March 2, 1989, Frederick C. Ritger, Jr., Esquire returned the SF-95s to the FBI. They contained a statement of the total claim amount and were predated May 17, 1988. Ritger's cover letter stated that he was executing the claims on behalf of his clients. However, the amended forms still bore no documentation in support of the claims, and the claimants provided no specific authorization of Ritger to represent them. (Id., Exh. C).

Finally, on March 6, 1989, the FBI wrote to advise Ritger that it required both written authorization of Ritger's representation of the plaintiffs and supporting documentation of the alleged personal injuries and property damage before it could forward the claim to Washington, D.C. for processing. (Id., Exh. D). Plaintiffs took no further action on the administrative level. However, they instituted this litigation in the United States District Court on November 21, 1989 under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.

Now defendant United States has moved for dismissal for lack of subject matter jurisdiction, alleging that plaintiffs have not completed the prerequisites for filing their claim in this Court.

II. DISCUSSION

A. The Statutory and Regulatory Framework

Title 28 U.S.C. § 2675 sets forth the requirements for filing an action under the Federal Tort Claims Act. It provides in relevant part:

(a) 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....

Title 28 C.F.R. § 14.2 purports to set forth the criteria for proper presentation of an administrative claim:

(a) 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.

B. Decisional Law on Federal Court Jurisdiction over Cases Brought against Federal Agencies Pursuant to the Federal Tort Claims Act

The Third Circuit has held that because "the terms of a sovereign's waiver of immunity define a court's jurisdiction ... under the Federal Tort Claims Act, ... one consequence of the rule is that compliance with the requirements for filing an action against the federal government may not be waived." Richardson v. Knud Hansen Memorial Hospital, 744 F.2d 1007, 1010 (3d Cir.1984) (citing Bialowas v. United States, 443 F.2d 1047, 1048-1049 (3d Cir. 1971)). However, the parties' dispute here centers on the precise scope of the jurisdictional requirements for filing Federal Tort Claims Act litigation in this court.

In Bialowas, the Third Circuit stated simply that

the Federal Tort Claims Act specifically requires an initial presentation of the claim to the appropriate federal agency and a final denial by that agency as a prerequisite to suit under the Act.

(Id. at 1049).

In this case the defendant bottoms its motion for dismissal on its contention that a written designation of agency by the plaintiffs authorizing Attorney Ritger to file the claims as their agents is also a jurisdictional requirement for bringing a federal court action. Defendant asserts that because such written authorization was not provided by plaintiffs, they have not brought a valid administrative claim within two years of the accident, and this Court lacks subject matter jurisdiction over the merits of plaintiffs' claim.¹

The Court determines first that its inquiry here must be directed to construing the ineluctable jurisdictional requirements for filing an action under the Federal Tort Claims Act.

In Commonwealth of Pennsylvania v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11 (3d Cir.1975), the Court stated that "the requirements for an initial presentation of a claim in specific amount to the appropriate federal agency and a final denial of that claim are prerequisites to suit under the Act." (Id. at 19). "Although the purpose of the Federal Tort Claims Act is essentially remedial (citing United States v. Muniz, 374 U.S. 150, 165-66, 83 S.Ct. 1850, 1859, 10 L.Ed.2d 805 (1963); City of Pittsburg v. United States, 359 F.2d 564, 567 (3d Cir.1966), and 1966 U.S.Code Cong. & Admin.News, p. 2515 et seq.), the procedures established pursuant to the Act nonetheless have been strictly construed inasmuch as the Act constitutes a waiver of sovereign immunity." (Id. at 19-20).

"The purpose of presentation is to permit the agency to know whether it has the authority to settle under 28 U.S.C. § 2670 or must have the approval of the Attorney General." Collins v. United States Dep't of Army, 626 F.Supp. 536, 537 (W.D.Pa. 1985) (citing Bialowas, 443 F.2d at 1050), which set forth in full the reasons for having certain "indispensable prerequisites" for stating a valid claim under the Federal Tort Claims Act:

The initial purpose of the regulations requiring a statement of the specific sum claimed is to enable a determination by the head of the federal agency as to whether the claim falls within the jurisdictional limits of his exclusive authority to process, settle or to properly adjudicate the claim. Above those limits the settlement must have the prior written approval of the Attorney General or his designee. Furthermore, the requirements of the regulations are intended to set up uniform procedures in the exercise of settlement authority. The necessity for a signature to the claim is to fix responsibility for the claim and the representations made therein.

Bialowas, 443 F.2d at 1050. Accord Jordan v. United States, 333 F.Supp. 987 (E.D.Pa.1971), aff'd mem., 474 F.2d 1340 (3d Cir.1973).

The Flood Insurers court reiterated that claims for damage must be presented "(1) by written notification, ... (2) from the owner of the property or the owner's duly authorized agent or legal representative, ...; (3) and set forth the amount claimed in sum certain with respect to each item of property,...." (Id. at 20). (Emphasis added). See also Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982); Adams v. United States, 615 F.2d 284 (5th Cir.), on rehearing, 622 F.2d 197 (5th Cir.1980); Douglas v. United States, 658 F.2d 445 (6th Cir.1981); Erxleben v. United States, 668 F.2d 268 (7th Cir.1981).

Finally, it is clear that in almost every circumstance, to avoid dismissal for lack of subject matter jurisdiction in federal court, claims must be brought under the Federal Tort Claims Act within two years of accrual of the action or within two years of discovery by the plaintiff of his injury and its cause. 28 U.S.C. § 2401(b) (cited in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and Peterson v. United States, 694 F.2d 943, 944-45 (3d Cir.1982)). See also Bradley v. United States, 856 F.2d 575, 578 (3d Cir. 1988).

Before 1987 several courts held that the "authorized agent" language in 28 U.S.C. § 2675(a) and 28 C.F.R. § 14.2(a) (formerly § 14.3(e)) was not a threshold jurisdictional requirement. For example, in Graves v. United States Coast Guard, 692 F.2d 71 (...