Miller v. United States, 4-76-Civ. 12.

• Decision Date: 09 June 1976
• Docket Number: No. 4-76-Civ. 12.,4-76-Civ. 12.
• Citation: 418 F. Supp. 373
• Parties: Mathias Leo MILLER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

418 F. Supp. 373

Mathias Leo MILLER, Plaintiff, v. UNITED STATES of America, Defendant.

No. 4-76-Civ. 12.

United States District Court, D. Minnesota, Fourth Division.

June 9, 1976.

J. J. Willenbring, Willenbring, Lickteig & Dahl, Cold Spring, Minn., for plaintiff.

Stephen G. Palmer, Asst. U. S. Atty., Minneapolis, Minn., for defendant.

LARSON, District Judge.

On October 10, 1973, plaintiff Mathias Miller, while driving a pickup truck owned by Donald Kiess, and towing a trailer owned by the plaintiff, was involved in a collision with a vehicle driven by Robert A. Voss. Voss was operating within the scope of his employment as a meat and poultry inspector for the Department of Agriculture. On April 17, 1974, Kiess and Miller commenced a State court proceeding against Voss, seeking property damages of $900 for Kiess and personal injury damages of $25,000 for Miller. Voss notified his superiors, who brought the matter to the attention of the United States Attorney. On May 9, 1974, a letter was sent by the United States Attorney to J. J. Willenbring, attorney for the two State court plaintiffs, explaining that an administrative claim would have to be filed with the Department of Agriculture pursuant to 28 U.S.C. § 2675, since Voss was a Federal employee who had been operating within the scope of his employment on the day of the accident. To assist Mr. Willenbring in that endeavor, Government counsel enclosed several copies of Standard Form 95, commonly used for the filing of such administrative claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. Apparently recognizing their need to exhaust administrative remedies, Kiess and Miller voluntarily dismissed the State action on June 21, 1974.

Mr. Willenbring did file an administrative claim on Form 95 on behalf of Kiess on the day following dismissal of the State court action.¹ That claim, which sought $821 for property damage, was allowed in part by the Department of Agriculture, and Kiess settled for a recovery of $671 in January 1975. An administrative claim was not filed immediately on behalf of Miller, however, and on November 18, 1974, Mr. Willenbring stated in a letter to the Acting General Counsel of the Department of Agriculture:

"You understand that a claim will be made for damages for injuries arising out of this accident which were sustained by Mathias Leo Miller, but as of yet, I have not been able to receive a written medical report from his doctor. As soon as I have this report, I will file a claim for him." Emphasis supplied.

More than one year later, on November 25, 1975, the Department of Agriculture received an administrative claim, filed on Standard Form 95, seeking a total of $5,750 in personal injury and property damages alleged to be owing to the plaintiff. The administrative claim was denied on December 10, 1975, as being time-barred under the Federal Tort Claims Act. The present action was commenced on January 8, 1976.

The Court presently has before it the motion of the defendant to dismiss for lack of jurisdiction. Oral argument was heard on that motion on June 8, 1976, and the parties have fully briefed the matter. For the reasons set forth herein, the Court will grant the defendant's motion to dismiss.

Section 2675(a) to which plaintiff's attorney was directed by the United States Attorney, provides that a tort claim against the Federal government may not be asserted in litigation "unless the claimant shall have first presented the claim to the appropriate Federal agency" and the agency shall have acted on it. The time limits for this process are set out in 28 U.S.C. § 2401(b):

"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."

Regulations of the Department of Justice provide that:

". . . a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain . . .." 28 C.F.R. § 14.2 Emphasis supplied.

We start with the recognition that the United States may not be sued without its specific consent, United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 83 L.Ed. 235 (1939), that Congress, in granting a waiver of sovereign immunity, may define the exact conditions of such waiver, and that any waiver of immunity must be strictly construed by the courts. See Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). Judicial interpretation of the Federal Tort Claims Act provides no exception to these rules. It is beyond dispute that the filing of an administrative claim is jurisdictional, and "is an absolute prerequisite to maintaining a civil action against the Government for damages arising from a tortious occurrence due to the negligence of a federal employee." Meeker v. United States, 435 F.2d 1219, 1220 (8th Cir. 1970). Accord, Melo v. United States, 505 F.2d 1026, 1028 (8th Cir. 1974). Moreover, the case law uniformly concludes that, if a sum certain, as required by 28 C.F.R. § 14.2, is lacking from a purported "claim," the claim fails to comply with § 2401(b). See Avril v. United States, 461 F.2d 1090, 1091 (9th Cir. 1972); Bialowas v. United States, 443 F.2d 1047, 1050 (3d Cir. 1971); Landis v. United States, 335 F.Supp. 1321, 1322-23 (N.D.Ohio 1972); Jordan v. United States, 333 F.Supp. 987, 990 (E.D.Pa.1971), aff'd without opinion, 474 F.2d 1340 (3d Cir. 1973); Driggers v. United States, 309 F.Supp. 1377, 1379 (D.S.C.1970).

The plaintiff clearly failed to file an administrative claim within the two years provided by the Act. His attorney implicitly acknowledged this fact on more than one occasion. Mr. Willenbring's letter of November 18, 1974, stated that "a claim will be made" upon the happening of certain future events. The letter did not advise that a pending claim would be amended or brought up to date, as provided by 28 C.F.R. § 14.2(b); rather, it simply declared that the plaintiff would file an administrative claim in the future when he finally became prepared to do so. Mr. Willenbring's subsequent conduct on November 25, 1975, in filing a Standard Form 95 on behalf of the plaintiff further demonstrates that no administrative claim had previously been presented as required by § 2675(a). The latter filing occurred 36 days after the statutory time for filing of such a claim had expired, and the Department of Agriculture correctly ruled that this claim was time-barred under the Act. This Court has no power to waive the jurisdictional requirement of timely administrative filing.

The plaintiff seeks to extricate himself from this predicament under any one of four theories. First, he argues, the letter of November 18, 1974, informed the agency's general counsel that a claim would be forthcoming in the near future; this, coupled with the fact that "most of the temporal and geographic factors surrounding the accident would be the same for both Kiess who had filed a claim and Miller," is said to fulfill the requirements of § 2401(b). There is no merit to this contention. The statute requires that the claim be presented to the agency within two years, not that the Government be put on notice that such a claim will be forthcoming. The Government need not prove prejudice to its interest to raise the defense of § 2401(b); indeed, the Government need not even raise the issue of timeliness at all, for the matter is jurisdictional and must be raised sua sponte by the Court. The prophetic declarations of plaintiff's attorney, coming within the statute of limitations, are no more effective in this regard than would be letters to the Clerk of Court indicating an intention to file suit in the future, or letters to an adversary in any civil litigation declaring that suit is soon to be commenced. It is the nature of all statutes of limitations to require the performance of a specific, formal act before a given deadline; by plaintiff's own admission, the formal act required by § 2401(b) was not undertaken here until after the time had run.

Second, the plaintiff urges that the filing of the State lawsuit, when coupled with Voss' duty under 28 U.S.C. § 2679(c) to notify the United States Attorney of such a suit, provided an effective alternative to the ordinary administrative claim. In particular, the plaintiff stresses — as he must — that this technique satisfied the "sum certain" requirement of 28 C.F.R. § 14.2. It is true that Judge Bright, concurring in Melo v. United States, supra, at 1030, noted the possibility that a claimant might conceivably be said to have given "actual notice" to the agency of the amount of a claim "by serving a summons and complaint, in the state court action, within two years of the accrual of the claim." At the same time, Judge Bright declared that he was expressing no opinion on that issue. Now that the issue is being squarely faced, this Court is convinced that "a plaintiff does not satisfy the requirement of filing an administrative claim by commencing an action in state court against the individual employee." Smith v. United States, 328 F.Supp. 1224, 1226 (W.D.Tenn.1971). The statute requires that the claim be "presented in writing to the appropriate Federal agency," not that it come to the attention of the United States Attorney by some other means. The "statutory scheme for initial agency consideration of tort claims . . . cannot be so easily defeated." Meeker v. United States, supra, at 1221. The Eighth Circuit declared in Melo v. United States, supra, at 1029:

". . . We held in Meeker v. United States, supra,

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