McNeil v. U.S.

• Citation: 964 F.2d 647
• Decision Date: 26 June 1992
• Docket Number: No. 91-1303,91-1303
• Parties: William McNEIL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 647

964 F.2d 647

23 Fed.R.Serv.3d 5

William McNEIL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 91-1303.

United States Court of Appeals Seventh Circuit.

Argued April 27, 1992.

Decided May 20, 1992.

As Amended May 26, 1992.

Rehearing and Rehearing En Banc

Denied June 26, 1992.

Allen E. Shoenberger, Chicago, Ill. (argued), for plaintiff-appellant.

Eileen M. Marutzky, Jack Donatelli (argued), Asst. U.S. Attys., Office of the U.S. Atty., Civil Div., Appellate Section, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

William McNeil is a prisoner of Illinois. In March 1989 he filed this action under the Federal Tort Claims Act, contending that the prison had compelled him to participate in experiments conducted or financed by the United States Public Health Service. One of these experiments, McNeil alleged, was to share a cell with another prisoner who has AIDS. He demanded $20 million in damages.

Among the suit's problems was McNeil's failure to pursue administrative remedies as the FTCA requires. 28 U.S.C. § 2675(a). McNeil filed a claim in June, seeking $500,000 on the assertion that he had contracted hepatitis and been exposed to AIDS. The Department of Health and Human Services denied this claim on July 21, 1989. Instead of commencing a new suit, McNeil sought assistance in the existing one, attaching the administrative decision to a request filed in August 1989 for the appointment of counsel. The district judge eventually dismissed the action on the ground that it had been filed too soon. It is too late to file another.

According to 28 U.S.C. § 2401(b), a tort claim against the United States must be "begun within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented." The administrative denial was mailed on July 21, 1989, so McNeil had between then and January 21, 1990, to begin his action. The complaint filed in March 1989 was too early. This left two options. Perhaps the document filed in March 1989 loitered on the docket, springing into force when the agency acted. Or perhaps the request for counsel in August 1989, during the six-month period, marks the real "beginning" of the action. The district court rejected both options, and McNeil, with the assistance of counsel appointed by this court, renews the arguments here.

Two courts of appeals have held that when "the administrative claim is denied before any substantial progress has been made in the pending litigation, the suit need not be refiled to be effective.... To hold that refiling was necessary would involve duplicitous pleadings and wasted effort." Kubrick v. United States, 581 F.2d 1092, 1098 (3d Cir.1978), reversed on other grounds, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Accord, Celestine v. Veterans Administration, 746 F.2d 1360, 1363 (8th Cir.1984). One circuit has gone the other way. Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981); Reynolds v. United States, 748 F.2d 291 (5th Cir.1984); United States v. Burzynski Cancer Research Institute, 819 F.2d 1301, 1306-07 (5th Cir.1987). Make that two: we join the fifth circuit.

Neither the third nor the eighth circuit discussed the language of § 2675(a): "An action shall not be instituted upon a claim against the United States for money damages ... 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" or six months have passed without decision. This statute does not authorize suits or postpone adjudication of suits; it forbids the institution of suits prior to the administrative decision. Judges of two circuits believe that Congress erred in writing a prohibition, but that does not explain why the statute Congress actually enacted may be disregarded.

Many statutes have a structure similar to § 2675(a), most prominently the environmental laws. Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), considers a typical provision, in the Resource Conservation and Recovery Act of 1976: "No action may be commenced ... prior to 60 days after the plaintiff has given notice of the violation" to various persons. 42 U.S.C. § 6972(b)(1). Some courts read this language just as the third and eighth circuits treat § 2675(a): The plaintiff may file the suit any time, but the litigation must remain inactive on the docket during the 60 days reserved for negotiation. The Supreme Court disagreed, holding that "[n]o action may be commenced" means that "[n]o action may be commenced ", not that "[n]o action may be prosecuted ". Section 2675(a) is no less insistent that "[a]n action shall not be instituted " before the administrative action (or six months of administrative inaction). Hallstrom observes that negotiation may be more effective if there is not already a lawsuit on file; that observation is no less true of the FTCA than of the RCRA. And § 2675(a), as a condition on access to the Treasury, is a prime candidate for literal interpretation, see Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 356-57, more so than fetters on litigation against persons despoiling the environment. Hallstrom ordains the interpretation of § 2675(a).

March 1989 was too early. The suit did not linger, awaiting administrative action. Unless McNeil began a fresh suit within six months after July 21, 1989, he loses. The only candidate is the collection of materials filed in August 1989: a letter protesting conditions in the prison and implicitly requesting counsel, an "Affidavit in Support of Motion for Appointment of Counsel" (although there was no motion), a statement of the balance in McNeil's prison trust account ($2,117.61), and a copy of the administrative decision plus a cover letter from the agency. McNeil's lawyer contends that the complaint of March was not begun until these documents "perfected" the filing. Yet Fed.R.Civ.P. 3 says that "[a] civil action is commenced by filing a complaint with the court." A complaint, not a request for a lawyer, begins the action. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). McNeil's contention that the set of documents "perfected" the action repackages his submission that the suit lingered, awaiting activation by the administrative action. This variation meets the fate of the theme.

Only if the letter was itself a complaint does the submission satisfy the statute. Baldwin County Welcome Center holds that the combination of a request for counsel plus an...