Willis v. U.S.
| Citation | 719 F.2d 608 |
| Decision Date | 12 October 1983 |
| Docket Number | D,No. 81,81 |
| Parties | Timothy J. WILLIS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Daryl MacNEIL and Paul D. MacNEIL, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. Robert J. SEUFERT, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. ocket 83-6098. |
| Court | U.S. Court of Appeals — Second Circuit |
Cheryl S. Fisher, Asst. U.S. Atty., Buffalo, N.Y. (Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Buffalo, N.Y.), for defendant-appellant.
Kevin J. Sullivan, Buffalo, N.Y. (Paul William Beltz, P.C., Buffalo, N.Y.), for plaintiffs-appellees.
Before FEINBERG, Chief Judge, FRIENDLY and NEWMAN, Circuit Judges.
Section 2401(b) of 28 U.S.C. states:
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.
The accident giving rise to the claims of plaintiffs in these three actions under the Federal Tort Claims Act occurred on December 13, 1979. The plaintiffs filed claims with the United States Postal Service on or about February 20, 1980. Final notice of denials was mailed to their attorney and received by him on July 7, 1980. For reasons which are unexplained in the record and we were unable to elicit at argument the actions were not brought until April 13, 1981, some nine months after the denial but only sixteen months after the accident. If the statute had used the word "and" to connect the two "unless" clauses, it would be too plain for discussion that the Government was entitled to have the actions dismissed as untimely. The issue is whether the result should be different because the statute uses the word "or".
To state the case in somewhat more detail, the plaintiffs alleged that they were injured on December 13, 1979, when a former postal jeep that had been purchased from the United States Postal Service in 1975 "flipped or fell over due to defect in [the jeep] among other things." Claims aggregating more than $8,000,000 were promptly filed with the Postal Service on or about February 20, 1980. 1 On July 3, 1980, in accordance with 39 C.F.R. Sec. 912.9(a), an official in the Claims Division of the Law Department of the Postal Service sent a notice to the attorney for the claimants by certified mail finally denying the claims; on July 7 the attorney signed a form acknowledging receipt of the notice. The notice first took the position that any claim would have accrued in 1975 and was thus time-barred. It stated in the alternative that no evidence had been submitted to show any negligent or wrongful conduct on the part of postal employees; it claimed, on the contrary, that "[f]rom the reports by the investigating police officer and witness to the accident it appears that the accident resulted from the operation of the vehicle at an imprudent speed." The notice concluded:
Regulations require us to inform you that if your clients are dissatisfied with the final action on their claims, they may file suit against the United States in an appropriate United States District Court not later than six months from the date of this letter. [See 39 C.F.R. Sec. 912.9.]
Actions against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671 et seq., were filed in the District Court for the Western District of New York on April 13, 1981. The United States moved to dismiss the actions as untimely since they had not been filed within six months after receipt of the final notices of denial. Plaintiffs answered by substantially taking the position that they ought not to be worse off than claimants who take full advantage of the two year period for filing claims with the agency and then file actions after receiving final notices of denial from the agency. Plaintiffs also cross-moved for leave to file new claims or to have second claims which had been filed on September 10, 1981 regarded as timely served and proper. The Postal Service had promptly denied these latter claims and plaintiffs instituted three new actions, which the United States moved to dismiss as duplicative of the initial actions.
Judge Elfvin denied the Government's motion to dismiss the initial actions in an opinion filed on February 25, 1983. Recognizing that the Government's position had been sustained in Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9 Cir.1969) and Childers v. United States, 442 F.2d 1299 (5 Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971), he noted the absence of Second Circuit authority on the issue and thought a more liberal attitude toward claimants had been indicated by Kelley v. United States, 568 F.2d 259 (2 Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). Essentially he upheld claimants' contention that it would be inequitable to enforce the six months provision of Sec. 2401(b) when suit had been brought within two years after the claim had accrued. In light of this decision he dismissed the new actions filed in September 1981 as duplicative. Finding that there was substantial ground for differences of opinion upon the controlling question of law he had decided, he certified his ruling for interlocutory appeal under 28 U.S.C. Sec. 1292(b); this court accepted the certification and the Government appealed.
Plaintiffs' argument proceeds from the premise that since "or" is a disjunctive, a person can prevail if he satisfies either condition specified in 28 U.S.C. Sec. 2401(b). It is beyond dispute that "or" generally is a disjunctive. E.g., The Random House Dictionary of the English Language 1011 (1973); Webster's Twentieth Century Dictionary 1257 (2d ed. 1968); Webster's Third New International Dictionary 1585 (1961). However, as stated in Schuler v. United States, 628 F.2d 199, 201 (D.C.Cir.1980) (en banc):
Were we to read the "or" in the section as really intending the disjunctive, a claimant who filed a claim with the agency within two years would then be able to bring it to a District Court at any remote future time after the agency denied him relief.
It could also be said that such a reading would mean that there would be no time limitation on the filing of claims with agencies under 28 U.S.C. Sec. 2675(a).
Apparently recognizing that the result of a strictly literal reading would be absurd, plaintiffs press the point that their actions were in fact filed well within the two year period allowed for filing a claim and still further within the period, which could considerably exceed two years and six months, if they had waited until the last day of that period. What plaintiffs are proposing, in substance, is that we read the second "unless" clause in Sec. 2401(b) as saying "within six months of the date of mailing ... of notice of final denial of the claim by the agency to which it was presented or within two years after such claim accrues, whichever date shall be later." Such a reading would eliminate the difficulty posited by the District of Columbia Circuit and the additional one we have mentioned. We have not hesitated to perform similar surgery upon statutory texts when convinced that we were thereby giving effect to what Congress meant as distinguished from what it said. See Cabell v. Markham, 148 F.2d 737 (2 Cir.) (L. Hand, J.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945); Cawley v. United States, 272 F.2d 443 (2 Cir.1959) (L. Hand, J.); J.C. Penney Co. v. C.I.R., 312 F.2d 65 (2 Cir.1962).
History provides the plaintiffs with somewhat more support than they or the district judge developed or than the other circuits that have dealt with the problem have indicated. Section 2401(b) has existed in its present form only since 1966. Section 403 of the Federal Tort Claims Act as originally enacted, 60 Stat. 842, 843 (1946), conferred authority upon the head of each federal agency to settle any claim for money damages against the United States accruing on or after January 1, 1945, of the sort as to which the United States had waived immunity under the FTCA, where the total amount of the claim did not exceed $1000. If a claim was presented, no suit could be instituted until final disposition, but the claimant could, upon fifteen days notice, withdraw the claim and commence suit, Federal Tort Claims Act, ch. 753, Sec. 410(b), 60 Stat. 842, 844 (1946). The Act contained a statute of limitations, Sec. 420, 60 Stat. at 845 (1946), reading as follows:
Every claim against the United States cognizable under this title shall be forever barred, unless within one year after such claim accrued or within one year after the date of enactment of this Act, whichever is later, it is presented in writing to the Federal agency out of whose activities it arises, if such claim is for a sum not exceeding $1,000; or unless within one year after such claim accrued or within one year after the date of enactment of this Act, whichever is later, an action is begun pursuant to part 3 of this title. In the event that a claim for a sum not exceeding $1,000 is presented to a Federal agency as aforesaid, the time to institute a suit pursuant to part 3 of this title shall be extended for a period of six months from the date of mailing of notice to the claimant by such Federal agency as to the final disposition of the claim or from the date of withdrawal of the claim from such Federal agency pursuant to section 410 of this title, if it would otherwise expire before the end of such period.
It is quite clear that under this language a claimant having a claim not exceeding $1,000 who brought suit within one year would not be time-barred even if, because of great expedition by the claimant in filing and by the...
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