Steele v. United States, Civ. No. 74-406.

• Decision Date: 06 March 1975
• Docket Number: Civ. No. 74-406.
• Citation: 390 F. Supp. 1109
• Court: U.S. District Court — Southern District of California
• Parties: Dorris Leo STEELE, Plaintiff, v. UNITED STATES of America, Defendant.

390 F. Supp. 1109

Dorris Leo STEELE, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 74-406.

United States District Court, S. D. California.

March 6, 1975.

Ernest E. Wideman, Luce, Forward, Hamilton & Scripps, San Diego, Cal., for plaintiff.

Peter W. Bowie, Asst. U. S. Atty., San Diego, Cal., for defendant.

ORDER

GORDON THOMPSON, Jr., District Judge.

This matter is before the Court on defendant's motion to dismiss filed pursuant to Rule 12(b), Federal Rules of Civil Procedure. The underlying action is founded upon the alleged negligent exercise of control over plaintiff's aircraft, causing it to collide in midair with another plane. The negligence alleged is that of employees of the Federal Aviation Administration in their alleged control and coordination of the flight of plaintiff's aircraft. The basis for the motion of defendant to dismiss is the failure of plaintiff to timely present an administrative claim to the appropriate federal agency.

There is no factual dispute with respect to the date and time the midair collision occurred: June 17, 1972, at approximately 1:00 p. m. The administrative claim form reflects, and plaintiff admits, that the forms were executed by plaintiff on June 17, 1974. The claim forms were, on the same evening, deposited in a mailbox at the central San Diego Post Office, one in an envelope addressed to the office of the Federal Aviation Administration in Los Angeles, and one in an envelope addressed to the United States Attorney for the Southern District of California. The claim form addressed to the United States Attorney was received on June 18, 1974, and the one addressed to the F.A.A. was received on June 19, 1974.

The applicable statute of limitations is found at 28 U.S.C. § 2401(b), and provides in pertinent part:

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 . . ..

Defendant has argued a number of grounds in support of its motion. The first argument is that the statute of limitations had run prior to the execution and mailing of the claim form. The second ground advanced by defendant is that Rule 6 regarding computation of time cannot aid plaintiff because a rule of procedure cannot alter a substantive statute of limitation. The third argument is that the act of mailing is not sufficient to toll the statute of limitation. As to the latter argument, defendant has urged that mailing does not constitute "presentment" within the meaning of the Federal Tort Claims Act, nor does it constitute "receipt by a federal agency" within the meaning of 28 C.F.R. § 14.2. Plaintiff, in opposition to the motion, has argued the converse of each of the positions asserted by defendant.

The first two issues advanced by defendant are related, involving as they do the operation of Rule 6, Federal Rules of Civil Procedure, upon the statute of limitations of the Federal Tort Claims Act. The basic and very serious question for resolution is whether the United States Supreme Court, in promulgating the Federal Rules of Civil Procedure, can possibly alter or affect the running of a statute of limitation which has been held to be a substantive statute. Lomax v. United States, 155 F.Supp. 354 (E.D. Pa.1957); Carr v. Veterans Administration, Civil Action No. 73-J-173 (N), S. D. Mississippi, July 18, 1974. That the question is of considerable import can be readily understood from a reading of the Notes of Advisory Committee on Rules, Rule 3, 28 U.S.C.A. p. 200; United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L.Ed. 1058 (1941); 2 Moore's Federal Practice, § 4.06-1, p. 981; 4 Wright & Miller, Federal Practice and Procedure, § 1163 (1969).

However, because of the conclusions reached regarding the third argument advanced by defendant, this Court need not reach the foregoing question, and expresses no opinion on its ultimate resolution. This results from the fact that, assuming arguendo, the Federal Rules of Civil Procedure were applicable and did extend the statute of limitations as argued by plaintiff, plaintiff nevertheless failed to present his administrative claim to the appropriate federal agency within two years.

A jurisdictional prerequisite to suit against the United States is found at 28 U.S.C. § 2675(a), which provides in pertinent part:

An action shall not be instituted upon a claim . . . unless the claimant shall have first presented the claim to the appropriate Federal agency . . .. (emphasis supplied)

As noted above, the pertinent statute of limitation, 28 U.S.C. § 2401(b), contains the identical requirement.

Plaintiff has asserted, as a defense to the foregoing, the language of 28 C.F.R. § 14.2(a). The relevant portion of that section provides:

For purposes of the provisions of section 2672 of Title 28, United States Code, 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 . . .. If a claim is presented to the wrong Federal agency, that agency shall transfer it forthwith to the appropriate agency.

Plaintiff argues from the foregoing regulation that the...