McKenith v. US, Civ. A. No. 90-2662.

• Decision Date: 01 September 1991
• Docket Number: Civ. A. No. 90-2662.
• Citation: 771 F. Supp. 670
• Parties: Joseph McKENITH, Plaintiff, v. UNITED STATES of America, United States Postal Service, and Samuel Banks, Jr., Defendants.
• Court: U.S. District Court — District of New Jersey

771 F. Supp. 670

Joseph McKENITH, Plaintiff, v. UNITED STATES of America, United States Postal Service, and Samuel Banks, Jr., Defendants.

Civ. A. No. 90-2662.

United States District Court, D. New Jersey.

September 1, 1991.

Michael Chertoff, U.S. Atty. for New Jersey by Anthony J. La Bruna, Jr., Sp. Asst. U.S. Atty., Newark, N.J., for plaintiff.

William J. Ewing, Montclair, N.J., for defendants.

HAROLD A. ACKERMAN, District Judge:

This matter comes before the court on the motion of the defendant United States to dismiss the complaint for lack of jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Specifically, the government argues that plaintiff's complaint is barred by the statute of limitations contained in the Federal Tort Claims Act. See 28 U.S.C. § 2401(b) (1988). Joseph McKenith ("McKenith") opposes the government's motion and contends his complaint is timely. For the reasons set forth below, I grant the government's motion and dismiss McKenith's complaint in its entirety.

I. Background

On October 5, 1987, a Post Office Truck allegedly driven by Samuel Banks collided with McKenith's car. Contending that the accident was caused by Bank's negligence, McKenith filed a notice of claim with the Post Office as required by the Federal Tort Claims Act. See 28 U.S.C. § 2675(a) (1988). The parties agree and this court acknowledges that the Post Office failed to issue a final determination on McKenith's claim within six months of its submission.

Pursuant to the Federal Tort Claims Act, a claimant who has submitted a claim to an appropriate federal agency may commence an action against the United States if the agency does not issue a final denial within six months of the claim's submission. See 28 U.S.C. § 2675(a) (1988). Accordingly, on June 15, 1989, McKenith filed his original complaint with this court, naming the United States as a defendant. Federal Rule of Civil Procedure 4(j) gives a plaintiff 120 days from the date a complaint is filed to effectuate proper service on any defendant. McKenith did not serve the United States Attorney until January 17, 1990, more than 120 days after the filing of his original complaint. On May 29, 1990, Judge Devevoise of this court dismissed McKenith's original complaint for insufficient service. McKenith refiled this action on July 6, 1990 and served the United States Attorney in a timely manner.

II. Discussion

Pursuant to the Federal Tort Claims Act:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (1988) (emphasis added). The Act also provides that "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." Id. § 2675(a). The pivotal issue before this court is whether these two provisions should be read together or separately. Put differently, this court must decide whether or not the six month statute of limitation period set forth in section 2401(b) is triggered when a claimant exercises his option to deem a federal agency's inaction regarding his claim a final denial and commences suit as permitted by section 2675(a). If it does, then McKenith's second complaint is barred because the six month period had long elapsed by the time it was filed. If it does not, then McKenith's claim is timely.

Upon a careful review of these two provisions within the Federal Tort Claims Act, their legislative history, and the relevant caselaw, I conclude that the six month statute of limitations period IS triggered when a claimant exercises his option to deem an agency's inactivity a final denial of his claim and commences suit. To begin with, Section 2675(a) clearly provides for alternative definitions of a "final denial." For the first six months after a claim is filed, only a federal agency may issue a final denial. The legislative history of this provision indicates that Congress intended this period to be used to settle tort claims prior to the institution of a civil action. See, e.g., Sen.Rep. No. 1327 at 5-8, 89th Cong., 2d Sess. 6, 1966 U.S.Code Cong. & Admin.News 2515-18; Tucker v. United States, 676 F.2d 954, 958 (3rd Cir.1982). However, when this period expires without agency action, section 2675(a) provides a claimant with an equivalent power, namely the power to deem an agency's failure to act a final denial.¹ In either case, the purpose and, hence, effect of the final denial is to end the administrative process and permit the claimant to seek resolution of his claim in court. Id.

Despite section 2675(a)'s provision for alternative types of final denials, section 2401(b) sets forth a six month statute of limitation period which is explicitly applicable only to actual denials by an agency. However, an analysis of the two types of final denials indicates that section 2401(b)'s narrow scope is more reflective of the practical difference between the two types of final denials rather than any legal one. More specifically, when an agency actually denies a claim, the claimant must still file suit if he wishes to pursue his claim. Put differently, the denial itself and the commencement of suit constitute separate actions taken by different parties. In these instances, a statute of limitations provision has real meaning because it defines what is the permissible length of time between these two separate actions. By contrast, when a claimant exercises his option to deem his claim constructively denied, he does so by commencing suit. In other words, there is no initial time gap between the denial and the commencement of suit because they are both expressed by the same action. Accordingly, when a claimant has deemed his claim constructively denied by a federal agency, a statute of limitations provision would usually have little applicability.

Of course, this is not the usual case. Through his own error, McKenith rendered his initial commencement of suit ineffective and thereby created a gap between the time he deemed the Post Office's inaction a constructive denial of his claim and the time when he instituted suit for the second time. Nevertheless, he argues the six month statute of limitation period should not be applied to him because his situation is not explicitly encompassed within section 2401(b)'s scope. Again, I disagree. As the Supreme Court has noted, "it is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute." See Bob Jones University v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025, 76 L.Ed.2d 157 (1983). In this instance, the plain purpose of section 2401(b) is to define and limit the time period during which an individual may institute a tort action against the government. Accordingly, claimants who actually receive a final denial from a federal agency must comply with this requirement. Similarly, in the usual case, claimants who deem the agency's inaction a constructive final denial automatically comply with it. This court sees no reason why McKenith should be placed in a more favorable position than these other claimants. Nor has ...