Romulus v. U.S., Civil Action No. CV-96-0920 (DGT).

• Decision Date: 28 March 1997
• Docket Number: Civil Action No. CV-96-0920 (DGT).
• Citation: 983 F.Supp. 336
• Parties: Marie C. ROMULUS and Pierrot Romulus, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

983 F.Supp. 336

Marie C. ROMULUS and Pierrot Romulus, Plaintiffs, v. UNITED STATES of America, Defendant.

Civil Action No. CV-96-0920 (DGT).

United States District Court, E.D. New York.

March 28, 1997.

Michael S. Felman, Brooklyn, NY, for Plaintiffs.

Zachary W. Carter, U.S. Atty., Eastern District of New York by Claire S. Kedeshian, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge.

This is an action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1994). Plaintiffs Marie and Pierrot Romulus seek damages for injuries caused by a collision between a car driven by Marie Romulus and a United States Postal Service truck. The government has moved to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, on the ground that plaintiffs have failed to exhaust their administrative remedy, a jurisdictional predicate. Plaintiffs contend that subject matter jurisdiction exists, and that even if the case is dismissed for lack of subject matter jurisdiction they can simply refile.

Background

Plaintiff Marie Romulus alleges that she was injured by a post office truck that struck her auto from behind on August 19, 1994. She filed a Form 95 claim form with the Postal Service approximately a week later. Her filed claim states that there was no property damage; that she was injured as the result of being struck from behind by the postal truck; and that she "sustained severe personal injuries to her head, body, and extremities, pain and suffering, and emotional distress." Form 95 of Marie Romulus, Ex. A, Declaration of Geraldine Price attached to Def.'s Mot. ("Price Decl."). She sought one million dollars in damages. The date, time, and approximate location of the accident were given, but there was no identification of the driver of the truck, the number of the vehicle,¹ or any other information pertinent to the claim, such as medical records. See id. Her spouse Pierrot Romulus also filed a claim at the same time. His claim stated that his wife's vehicle was struck from behind by a Postal Service truck. He sought $100,000.00 for loss of services and $3,500.00 for damage to the vehicle. See Form 95 of Pierrot Romulus, Ex. B, Price Decl.

Subsequently, on November 29, 1994, the government sent to plaintiffs a letter at the address they provided on the form, acknowledging receipt of their claim. See Price Decl. ¶ 6. On March 7, 1995, the government wrote to plaintiffs, stating that they had not provided information about their claim. In this letter, the government stated:

Postal Regulations ... [39 C.F.R. §§ 912.7, 912.8] provide that a claimant shall submit substantial evidence to prove the extent of any losses incurred and any injury sustained, so as to provide the Postal Service with sufficient evidence for it to properly evaluate the claim, in order to exhaust the administrate remedy provided in the Federal Tort Claims Act.

Therefore, if you fail to furnish the information requested, you will not have presented valid claims because of failure to submit the required support material, and you may not have met the jurisdictional requirement of filing an administrative claim as required by 28 U.S.C. 2675(a).

Letter to Plaintiffs from Geraldine Price of 3/7/95, Ex. D, Price Decl. Plaintiffs did not respond. See Price Decl. ¶ 8. The government wrote again on October 4, 1995, again requesting information. Plaintiffs again failed to respond. See id. ¶ 9-10. On November 7, 1995, the government notified plaintiffs that their claim was deemed abandoned — and thus denied — on the ground that the plaintiffs had made no effort to contact the Postal Service "concerning the requested information." Letter to Plaintiffs from Price of 11/7/95, Ex. D, Price Decl. Plaintiffs acknowledged receipt of this letter. See id. ¶ 12. The return of this receipt form and the initial claim forms are the only communications between plaintiffs and the Postal Service. See id. ¶ 13. Plaintiffs then filed their complaint on February 26, 1996, seeking $1,000,000.00 in damages for Marie Romulus and $250,000.00 in damages for Pierrot Romulus.

Discussion

The Federal Tort Claims Act allows suits against the United States, to the extent that a private party would likewise be liable, for certain torts of its employees. See G.A.F. Corp. v. United States, 818 F.2d 901, 904 (D.C.Cir.1987) (citing United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)). The Federal government has, however, retained the power to define the limits of this waiver of immunity, as well as the ability to establish jurisdictional prerequisites for suit. See G.A.F. Corp., 818 F.2d at 904. Section 2401(b) establishes a two year statute of limitations:

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)(1994). Section 2675(a) imposes a presentment requirement which must be satisfied to obtain jurisdiction to sue the United States. See id. Section 2675(a) provides:

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 ... 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.²

28 U.S.C. § 2675(a) (1994). As courts have observed, § 2675 was enacted with the goal of settling tort claims by requiring that claims be presented to the appropriate agency before suit is brought. See G.A.F. Corp., 818 F.2d at 917-19; Johnson v. United States, 788 F.2d 845, 848 (2d Cir.1986); Adams v. United States, 615 F.2d 284, 288-89 (5th Cir.1980). Congress did not define presentment, but courts have held that a claim meets the presentment requirements of § 2675(a) when the claim is "specific enough to serve the purposes intended by Congress in enacting § 2675(a) — `to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims.'" Johnson, 788 F.2d at 848-49 (quoting S.Rep. No. 1327, 89th Cong. 2d Sess. 2 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2516). At the same time Congress enacted § 2675(a), it enacted § 2672, which grants authority to an agency to settle a claim.³ Pursuant to § 2672, the Postal Service promulgated regulations governing the settlement of claims presented to it; these regulations state that a claimant may be required to provide information including, in the case of personal injury, "[a] written report by his attending physician ... setting forth the nature and extent of the injury...." 39 C.F.R. § 912.7 (1996). The government argues that because plaintiffs failed to comply with these regulations, they have failed to properly present their claim, and so their suit should be dismissed for lack of subject matter jurisdiction. Plaintiffs do not dispute that they failed to respond to the requests for information; rather, they assert that they need not do so.⁴ Plaintiffs argue that the exhaustion requirement is not a jurisdictional predicate; the true jurisdictional predicate is the filing of the Form 95 providing notice to the government. The parties do not dispute that the claimants each filed a Form 95.

The precise issue, then, is whether the procedures specified in § 2672 should be considered part of the presentment requirement established by § 2675(a). This issue has not been resolved in the Second Circuit. In Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.1983), the court noted that disagreement existed over "whether the administrative filing requirements of Section 2675 — which are jurisdictional in nature — should be read in the light of regulations issued under 28 U.S.C. § 2672" but declined to decide the issue. See Keene, 700 F.2d at 841 n. 9.⁵ The Keene court did note that because a claim filed under the FTCA is one permitted pursuant to a waiver of immunity, the notice of claim is a jurisdictional predicate, and compliance with § 2675 is strictly construed. See id. at 841.

In Johnson v. United States, 788 F.2d 845 (2d Cir.1986), the court held that a plaintiff who had filed a Form 95 that gave details of a sexual assault and subsequent injuries by a postal employee provided sufficient notice. The court held that although the Form 95 did not set forth all the facts that would be required in a complaint to state a cause of action for negligent supervision, it provided enough information "to enable [the agency] to investigate the matter." Johnson, 788 F.2d at 849. There, "a reasonably through investigation of the incident should have uncovered any pertinent information in the government's possession relating to the agency's knowledge, or lack of knowledge, of any prior sexual misconduct by its employee...." Id. The court did not, however, discuss whether § 2675(a) should be read with reference to regulations issued under § 2672.

Other circuits have split on the question of whether § 2675(a)'s presentment requirement should be construed to include compliance with the regulations issued under § 2672. In Swift v. United States, 614 F.2d 812 (1st Cir.1980), the Court of Appeals for the First Circuit held that a failure to submit documentation for a tort claim after repeated requests by the agency barred suit by the plaintiff. In Swift, the plaintiff had submitted a Form 95 seeking damages both for wrongful death and personal injury. As here, the agency wrote to plaintiff several times, stating that the portion of the claim relating to personal injury could not be considered without further information; the plaintiff...