Santiago-Ramirez v. Secretary of Dept. of Defense

Decision Date07 October 1992
Docket NumberP,SANTIAGO-RAMIRE,No. 92-1143,92-1143
Citation984 F.2d 16
PartiesLynettelaintiff, Appellant, v. SECRETARY OF the DEPARTMENT OF DEFENSE, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

John Ward Llambias, Santurce, PR, on brief, for plaintiff, appellant.

Isabel Munoz Acosta, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, PR, on brief, for defendants, appellees.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and FUSTE, * District Judge.

FUSTE, District Judge.

The main question presented in this appeal is whether appellant properly notified the agency for which she worked, the Army and Air Force Exchange Service, (AAFES), of her potential federal tort claim. The district court found the letter sent to the agency by appellant's lawyer deficient for purposes of the statutory notice provision of the Federal Tort Claims Act, 28 U.S.C. § 2675(a). We find that under this circuit's flexible rule regarding notice requirements for federal tort claims, the letter was sufficient as to part of the claim.


Appellant, Lynette Santiago-Ramirez, was removed from her post at the cash register of Fort Buchanan's Army Post Exchange store on June 29, 1990, under suspicion of having taken part in an employee theft ring. She was interrogated for about forty-five minutes in her supervisor's office. She was then taken to the office of Mr. Jacques Zayde, the Safety and Security Manager of the Exchange, where she was again subjected to a forty-five-minute interrogation. Appellant alleges that, among other things, she was threatened with investigation by the FBI. After what she alleges was considerable harassment in complete disregard for her pregnant condition, she eventually signed a typewritten statement. She was then returned to the office of her supervisor, who informed her that she had been terminated from her job. Upon concluding the investigation, no charges were pressed against plaintiff.

On September 25, 1990, appellant's attorney sent a letter to the Director of Administration of the AAFES, stating that appellant was filing an administrative complaint. The letter specifically mentioned that appellant was mistreated by officers and agents of the agency in a manner which resulted in "emotional distress and mental suffering." The letter further stated the exact remedy which appellant was requesting from the agency: "reinstallation of Mrs. Santiago to her position, the payment of any salaries and benefits and the reinstatement of any rights she would have earned if not improperly discharged and the amount of $50,000.00." The agency After receiving this letter, appellant filed the present suit in the United States District Court. She brought suit against her employer, AAFES, as well as her immediate supervisor, Mayra Moore, and the security manager, Jacques Zayde, under the Tucker Act, 28 U.S.C. § 1346(a)(2), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680. The district court dismissed the suit after substituting the United States as the proper party. The district court found that appellant's letter did not give the agency sufficient notice of appellant's claim and that appellant's complaint stated a cause of action for false imprisonment, a cause of action excepted under the statute. 28 U.S.C. § 2680(h). Appellant now appeals the dismissal of the claims under the Federal Tort Claims Act.

                replied with a letter that indicated it was treating the case as a routine dismissal under military regulations.   The letter stated that "Ms. Santiago's rights to reinstatement were governed by the provisions of Army Regulation (AR) 60-21/Air Force Regulation (AFR) 147-15."   These regulations require that an appeal of an adverse action be brought within twenty-one days.   Since appellant's letter had been sent after the twenty-one-day period, the agency indicated that it could take no action because she lacked a regulatory basis for a review of her complaint.   The agency letter, while addressing the reinstatement and back-pay claim, did not respond to the claim for damages for emotional distress
A. Administrative Requirements of the FTCA

The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, waives the sovereign immunity of the United States to suits in tort. The prerequisite for liability under the Act is a "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). However, unlike a suit against a private person, the Congress has created an administrative procedure that claimants must follow and exhaust. This procedure allows the agency involved to receive a claim, investigate, and perhaps settle the dispute before a suit is filed. 28 U.S.C. § 2675. Section 2675 provides that "[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied." The stated legislative purpose of this administrative prerequisite was to balance the goal of efficiently encouraging settlement between the agency and the claimant with the desire to provide "fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government." S.Rep. No. 1327, 89th Cong., 2d Sess. 2, reprinted in 1966 USCCAN 2515, 2516.

Section 2675 requires that the potential plaintiff give notice to the government of the nature of the claim and the damages requested. 28 U.S.C. § 2675(a). 1 Failure to timely file an administrative claim with the appropriate federal agency results in dismissal of the plaintiff's claim, since the filing of an administrative claim is a non-waivable jurisdictional requirement. United The Justice Department has promulgated regulations which flesh out the requirements for the presentation of administrative claims for settlement. 28 C.F.R. §§ 14.1-14.11. The statutory notice requirement of section 2675 coincides with the presentment requirement in 28 C.F.R. § 14.2(a): "an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain...." The difficulty created by the overlap between the presentment requirements of the regulation and the notice requirement of the statement is that the regulations also require additional information which is only relevant for settlement purposes. Acknowledging that the additional information is not relevant for notice purposes, this circuit has followed the general shift among all circuits toward a recognition of the distinction between presenting a claim in a section 2675 context and presenting a claim for settlement. Lopez v. United States, 758 F.2d 806 (1st Cir.1985); see also GAF Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987); Johnson v. United States, 788 F.2d 845, 848 (2d Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 315, 93 L.Ed.2d 288 (1986); Tucker v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir.1982); Adams v. United States, 615 F.2d 284, 288-89 (5th Cir.1980); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981); Charlton v. United States, 743 F.2d 557, 561 (7th Cir.1984); Farmers State Sav. Bank v. Farmers Home Admin., 866 F.2d 276 (8th Cir.1989); Warren v. United States Dep't. of Interior Bureau of Land Management, 724 F.2d 776, 780 (9th Cir.1984); Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983). Only after the process of settlement has been initiated does the additional information required by the regulations become relevant. All that is needed for notice is what the statute specifies.

States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 355, 62 L.Ed.2d 259 (1979); Attallah v. United States, 955 F.2d 776, 779 (1st Cir.1992); Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir.1991); Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir.1990); Richman v. United States, 709 F.2d 122 (1st Cir.1983).

We understand a plaintiff to have satisfied the notice requirement of section 2675 if he or she provides a claim form or "other written notification" which includes (1) sufficient information for the agency to investigate the claims, and (2) the amount of damages sought. Lopez, 758 F.2d at 809-10 (citing the standard in Adams, 615 F.2d at 289, with approval); see also Corte-Real, 949 F.2d at 485 (claim should not be thrown out for failure to specify sum certain with absolute clarity). This circuit approaches the notice requirement leniently, "recognizing that individuals wishing to sue the government must comply with the details of the law, but also keeping in mind that the law was not intended to put up a barrier of technicalities to defeat their claims." Lopez, 758 F.2d at 809. A flexible approach to the notice requirement is in keeping with the original purpose behind the filing of an administrative claim: that of allowing the efficient investigation of a claim by the agency without sacrificing the entitlement of a claimant to his or her cause of action against the government. This approach to the notice requirement recognizes that Congress intended to leave the ultimate choice between settlement and suit in the hands of the claimant. GAF Corp., 818 F.2d at 918. In the context of section 2675, the emphasis is on the agency's receipt of information: it must have enough information that it may reasonably begin an investigation of the claim. 2 "Our decision in Corte-Real supports saving a claim that is flawed, when the government's investigatory needs are satisfied." Kokaras v. United States, 980 F.2d 20 (1st Cir.1992).

The district court found that the...

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