Pascale v. U.S., 92-00695

• Decision Date: 08 July 1993
• Docket Number: No. 92-5563,No. 92-01351,No. 92-00695,92-00695,92-01351,92-5563
• Citation: 998 F.2d 186
• Parties: Joseph M. PASCALE v. UNITED STATES of America (D.C. Civil). Joseph M. PASCALE v. James S. KALAFATIS; United States of America; Department of the Treasury; United States Secret Service; John Doe (a fictitious name) (D.C. Civil). Joseph M. Pascale, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 186

998 F.2d 186

62 USLW 2060

Joseph M. PASCALE v. UNITED STATES of America (D.C. Civil No. 92-00695).

Joseph M. PASCALE v. James S. KALAFATIS; United States of America; Department

of the Treasury; United States Secret Service;

John Doe (a fictitious name) (D.C. Civil

No. 92-01351).

Joseph M. Pascale, Appellant.

No. 92-5563.

United States Court of Appeals Third Circuit.

Argued May 6, 1993.

Decided July 8, 1993.

Jeffrey W. Warden (Argued), Bongiovanni, Collins & Warden, P.A., Denville, NJ, for appellant.

Michael Chertoff, U.S. Atty., Suzanne R. Dyer (Argued), Asst. U.S. Atty., Anthony J. LaBruna, Sp. Asst. U.S. Atty., Newark, NJ, for appellee.

Before: SLOVITER, Chief Judge, COWEN and LEWIS, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

This case requires us to consider the interaction of the two statutory provisions governing timely filing of claims under the Federal Tort Claims Act: 28 U.S.C. § 2401(b) (1988), which requires a claimant to file suit within six months of the agency's final denial of the claim, and 28 U.S.C. § 2675(a) (1988), which authorizes a claimant to treat inaction by the agency for six months as a final denial. We conclude that the district court erred by collapsing the two provisions, and we will vacate the dismissal of plaintiff's suit as time-barred and remand.

I. Facts and Procedural History

Plaintiff, Joseph M. Pascale, who was injured on March 12, 1990 when his motor vehicle was involved in a collision with a vehicle driven by a Secret Service Agent employed by the United States Department of the Treasury, filed an administrative claim (Standard Form 95) with the United States Secret Service on April 18, 1990. The Secret Service did not act on his claim and thus, on July 15, 1991, fifteen months after filing the claim, plaintiff filed a federal complaint deeming the agency's inaction a final denial of the claim under 28 U.S.C. § 2675(a) (1988). He named the driver, the United States, the Department of the Treasury, the Secret Service, and a John Doe defendant, alleging that the negligence of the driver caused him severe and painful permanent injuries.

Plaintiff served the United States Attorney and the Attorney General of the United States with the summons and complaint on November 21 and November 29, 1991, respectively. On January 31, 1992, six and a half months after the complaint was filed, the government moved to dismiss the complaint because plaintiff had failed to effect service of process within 120 days of filing as required by Fed.R.Civ.P. 4(j). Conceding the inadequacy of the service, ¹ plaintiff consented to a dismissal without prejudice on February 26, 1992. In the interim, plaintiff refiled this federal action on February 18, 1992, naming the United States as sole defendant. Plaintiff had also filed a state court action on February 11, 1992 against the driver, which was removed and consolidated with the federal action after the government certified that the driver was acting within the scope of his employment at the time of the accident.

The government moved to dismiss the consolidated cases under Fed.R.Civ.P. 12(b) on the ground that plaintiff's action was time-barred under 28 U.S.C. § 2401(b) (1988), which requires a claimant to file a federal action within six months of a "final denial" by the federal agency considering the administrative claim. The district court granted the government's motion on the ground that plaintiff filed his second complaint more than six months after he deemed the agency's inaction a "final denial" by filing his first complaint.

The district court held that plaintiff "triggered" the six-month period when he filed his first lawsuit, and that his second suit was therefore time-barred. The court acknowledged the split of authority in the case law, but concluded that the legislative history and statutory purposes of the two provisions favored the government's position. The court also relied on a decision by another court in the same district, McKenith v. United States, 771 F.Supp. 670 (D.N.J.1991), which dismissed as time-barred a second-filed action in an identical situation.

Plaintiff filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291 (1988), and we exercise plenary review over the district court's dismissal of a complaint. Lampe v. Xouth, Inc., 952 F.2d 697, 700 (3d Cir.1991).

II. Statutory Provisions

The Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1988 & Supp. III 1991), enacted in 1946, permits the government to be sued for the negligence of its employees under the same circumstances and to the same extent as a private party. The Supreme Court has described the Act as "mark[ing] the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit." Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152 (1950).

In 1966, the Act was amended to require all injured persons to present their claims to the federal agency that employed the alleged tortfeasor before filing suit. Federal Tort Claims Act, Pub.L. No. 89-506, 80 Stat. 306 (1966). The new procedures were intended to ensure that "meritorious [claims] can be settled more quickly without the need for filing suit and possible expensive and time-consuming litigation." S.Rep. No. 1327, 89th Cong., 2d Sess. 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2517 [hereinafter 1966 Senate Report ].

One of the amended provisions sets out the exhaustion requirement:

(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....

28 U.S.C. § 2675(a) (1988).

Most important to the present case, section 2675(a) also contains a "deeming" provision, which gives a claimant the option to treat the agency's failure to act as a final denial of the claim:

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. (emphasis added).

The other amended provision relevant here contains the applicable statute of limitations and provides:

(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.

28 U.S.C. § 2401(b) (1988) (emphasis added).

It is undisputed that plaintiff timely filed a satisfactory administrative claim within two years of the accident. See Bialowas v. United States, 443 F.2d 1047, 1049-50 (3d Cir.1971). The sole question in this case is whether plaintiff's second suit was untimely because it was filed more than six months after he filed his first suit. In other words, when plaintiff filed his first suit under section 2675(a) (which authorizes a claimant to deem the agency's inaction a "final denial of the claim"), was that the equivalent of a "final denial" for purposes of section 2401(b), which requires suit to be brought within six months of the agency's "final denial"?

III. Discussion

A. Statutory Language

The government points to no statutory language that supports its position that section 2675(a) and section 2401(b) are meant to be read together for purposes of ascertaining the meaning of "final denial" in section 2401(b). In fact, the statutory language is to the contrary. The relevant sentence of section 2675(a) authorizes the claimant to deem six months of inaction by the agency as a final denial "for purposes of this section." It is difficult to imagine language that could more expressly limit the application of the deemed "final denial" to section 2675(a) than that which Congress used. Both provisions were amended in 1966; if Congress had intended the six-month statute of limitations in section 2401(b), which applies when an agency issues a written final denial, to apply also when a claimant has exercised the deeming option under section 2675(a), we can assume it would have so stated.

The premise of the government's position is that the "final denial" language of section 2401(b), which requires that a federal action be filed within six months of any "final denial," encompasses both a written agency denial and a section 2675(a) deemed final denial. This interpretation is contradicted not only by the express limitation in section 2675(a), but also by statutory language in section 2401(b). Section 2401(b) provides that the federal action must be filed "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). This clearly is limited to final denial by the agency. We see no reason to add to section 2401(b) the words "or within six months after the plaintiff has deemed the claim finally denied under section 2675(a) by filing a complaint."

In short, we see no basis under the plain language of the statute to apply the six-month limitation of section 2401(b) to a claimant who deems an administrative claim denied, files suit under section 2675(a), and, for an unrelated reason, must refile that complaint.

B. Legislative History

An examination of the legislative history supports this conclusion. As noted above, the Federal Tort Claims Act was enacted in 1946 to waive the sovereign immunity of the United States for private tort...