Opinion
No. C 02-1406 VRW
March 10, 2004
ORDER
Plaintiffs Anton Vacek (Vacek) and Golden Eagle Insurance Company (Golden Eagle) bring claims based on Vacek's personal injuries under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and 2671-80. Before the court is defendant United States Postal Service's (USPS) FRCP 12(b)(1) motion to dismiss those claims for lack of subject matter jurisdiction. Doc # 40. Because the court finds these matters suitable for determination without oral argument, the hearing scheduled for March 11, 2004, is VACATED. See Civ LR 7-1(b). For the following reasons, the court GRANTS USPS' motion to dismiss in its entirety.
I
The claims in this case arise from a motor vehicle accident that occurred on March 9, 1999, in Mill Valley, California, and involved a private truck and a USPS truck. See Vacek Opp Mot Dism (Doc # 45) at 1:22-24. Plaintiff Vacek alleges that he was riding in the private truck, which belonged to his employer, when the USPS truck backed into the private truck. See First Am Compl (FAC; Doc # 1) at 1-2 ¶¶ 1, 3. In addition to Vacek, an individual named Humberto Sequeria was also riding in the private truck. See Golden Eagle Exhibit A (Doc # 49) at 1. Both men were evidently injured as a result of the accident. Plaintiff Golden Eagle is the insurer for both men's employer. See Golden Eagle Opp Mot Dism (Doc # 48) at 3:22-24. In March 2000, Golden Eagle submitted a demand letter to USPS regarding its worker's compensation lien with respect to Sequeria. See Golden Eagle Exhibit A at 1. Included in the submitted documentation was an accident report listing Vacek as a passenger in the vehicle. See id at 4.
In July 2000, Vacek's counsel, Harold Truett, spoke to a USPS torts claims officer, who informed Truett that he should submit Vacek's claim on a "Standard Form 95" and mail the form to an individual named Truedell Griffin at a PO box address in San Francisco. Decl Harold J Truett (Truett Decl; Doc # 46) at 1 ¶ 2. A Form 95 is the Department of Justice's designated form for administrative tort claims. See 28 C.F.R. § 14.2. Truett then received a Form 95 in the mail and completed it. Id at 2 ¶ 3, Exh 1. Truett declares that the form and the envelope in which it was later mailed were prepared on August 7, 2000. Id at 2 ¶ 4, Exhs 2-4. Truett also declares that he mailed the Form 95, along with a "designation of authority" that demonstrated his authority as Vacek's counsel to file the claim, on that same date. Id at 2-3 ¶ 5. USPS has no record of receiving this Form 95. Decl Kathleen Arndt (Arndt Decl; Doc # 41) at 1-2 ¶ 2; Decl Truedell Griffin (Griffin Decl; Doc # 42) at 2 ¶ 3. Griffin declares that if such a form had been received, Griffin would have followed standard procedure requiring that he write and send a letter acknowledging receipt of the Form 95. Griffin Decl at 2 ¶ 7. No such acknowledgment letter appears in USPS' administrative records. Id.
About two weeks after mailing the Form 95, Truett received a letter from Griffin regarding the proper method for filing an administrative claim. Truett contends that the letter was accompanied by no enclosures at all, but Griffin declares that his administrative records disclose that the letter enclosed a Form 95. Truett Decl at 3 ¶ 6; Griffin Decl at 2 ¶ 3. Truett replied to Griffin on August 23, 2000, to confirm that Truett had previously mailed a completed Form 95 and that he would forward medical records to USPS as they became available. Truett Decl at 3 ¶ 6.
On September 28, 2001, Truett wrote a detailed letter to Griffin setting forth the facts supporting Vacek's claim. Id at 2 ¶ 4, Exh B; Truett Decl at 3 ¶ 7. Truett also stated that "Golden Eagle has the right to reimbursement in the sum of $23,414.00" and offered to resolve Vacek's claim and Golden Eagle's lien in a total amount of $75,000. Griffin Decl at 2 ¶ 4, Exh B. Truett wrote to Griffin on several other occasions requesting a reply to his September 28, 2001, letter. Truett Decl at 3 ¶¶ 8-10, Exhs 6-8. In June 2002, Truett spoke with Kathleen Arndt, an attorney with USPS' tort claims division. Truett declares that Arndt told him that USPS had lost Vacek's entire file and that Arndt requested a copy of Truett's entire file. Id at 4 ¶ 13. Truett provided USPS with the contents of his file, including a copy of the August 7, 2000, Form 95. Id at 4 ¶ 13, Exh 11; Griffin Decl at 2 ¶ 5.
Vacek and Golden Eagle filed the instant suit on March 22, 2002. Doc # 1. An amended complaint was filed on September 20, 2002. Doc # 14. The instant motion to dismiss was filed on December 24, 2003, and noticed for a February 5, 2004, hearing date. Doc # 40. The clerk subsequently continued the hearing date to March 11, 2004. Doc # 44. Vacek filed his opposition to the motion on February 18, 2004. Doc # 45. Golden Eagle filed its opposition to the motion on February 19, 2004. Doc # 48. USPS filed its reply on February 26, 2004. Doc # 53.
The motion to dismiss presents two issues: (1) whether Vacek's claim should be dismissed for failure timely to submit his claim to USPS; and (2) whether Golden Eagle's claim should be dismissed for failure to submit its claim to USPS.
II A
When considering whether subject matter jurisdiction exists, the court must keep in mind the fundamental principle that federal courts are of limited jurisdiction. Ass'n of American Medical Colleges v. United States, 217 F.3d 770, 778 (9th Cir 2000) (AAMC); Stock West, Inc v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir 1989), quotingOwen Equip Erection Co v. Kroger, 437 U.S. 365, 374 (1978). Thus, it is presumed that a cause of action lies outside that limited jurisdiction. AAMC, 217 F.3d at 778-79 (citing Kokkonen v. Guardian Life Ins Co of America, 511 U.S. 375, 377 (1994));Stock West, 873 F.2d at 1225. The plaintiff suing in federal court has the burden of demonstrating that subject matter jurisdiction exists. Tosco Corp v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir 2001); see Kokkonen (stating presumption that cases lie outside federal jurisdiction and that the party asserting jurisdiction has the burden of proving it); St Clair v. City of Chico, 880 F.3d 199, 201 (9th Cir 1989) (finding that it is "necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction").Unlike many other defenses that may be raised pursuant to motions under Rule 12(b), defects in subject matter jurisdiction cannot be waived by the parties and may be raised at any time during the proceedings or even sua sponte by the court. Fox v. Board of Trustees of the State University of New York, 42 F.3d 135, 140 (2d Cir 1994); Prescott v. United States, 973 F.2d 696, 701 (9th Cir 1992). Rule 12(h)(3) allows the court to dismiss a case "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter."
In determining whether a challenge to subject matter jurisdiction is warranted under FRCP 12(b)(1), the court need not accept the factual allegations in the complaint as true.Thornhill Publishing Co v. General Telephone Electronics Co, 594 F.2d 730, 733 (9th Cir 1979); see also Thigpen v. United States, 800 F.2d 393, 396 (4th Cir 1986). If the jurisdictional issue is separable from the merits of the case, the court may consider the evidence presented with respect to the jurisdictional issue and resolve factual disputes where necessary to the determination of jurisdiction. AAMC, 217 F.3d at 778;Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir 1983). If the jurisdictional issue involves factual issues going to the merits of the underlying claim, the court should employ the standard applicable to a motion for summary judgment.Augustine, 704 F.2d at 1077; Thornhill, 594 F.2d at 733-35.
B
A longstanding principle in our legal system is that the United States, as sovereign, cannot be sued without its consent. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941); Gould v. US Dep't of Health Human Services, 905 F.2d 738, 741 (4th Cir 1990). The United States can only be sued to the extent it has waived its sovereign immunity. Dep't of the Army v. Blue Fox, Inc, 525 U.S. 255, 260 (1999). The terms of the sovereign's consent define the federal court's jurisdiction to hear the suit. Testan, 424 US at 399. Any ambiguity in the terms of the waiver should be strictly construed in favor of the sovereign. Blue Fox, 525 US at 261; see United States v. Williams, 514 U.S. 527, 531 (1995) (finding that "we may not enlarge the waiver beyond the purview of the statutory language"); Thigpen, 800 F.2d at 394 (finding that "all waivers of sovereign immunity must be strictly construed in favor of the sovereign"). The burden of showing an unequivocal waiver of immunity lies with the party who seeks to bring suit against the federal government. West v. Federal Aviation Administration, 830 F.2d 1044, 1046 (9th Cir 1987).
The FTCA waives the United States' sovereign immunity for certain tort claims caused by the negligence or wrongful acts or omissions of United States employees while acting within the scope of their office or employment. Smith v. United States, 507 U.S. 197, 201 (1993); Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir 1995); 28 U.S.C. § 1346(b)(1). With respect to FTCA claims, the Supreme Court has noted that "in the long run, experience teaches us that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." McNeil v. United States, 508 U.S. 106, 113 (1993) (internal quotation and citation omitted). Thus, the FTCA's procedural requirements must be carefully observed to confer jurisdiction on the federal court to hear the claim. Cadwalder, 45 F.3d at 300.
In this respect, a critical procedural requirement under the FTCA is the presentation of the claim to the appropriate administrative body. Cadwalder, 45 F.3d at 300. A negligence claim may not be instituted against the United States unless it is first presented to the appropriate federal agency and either the agency denies the claim or six months pass without the agency making a final resolution of the claim. Id at 300 n1; Burns v. United States, 764 F.2d 722, 724 (9th Cir 1985); 28 U.S.C. § 2675(a). This administrative exhaustion prerequisite is jurisdictional in nature and cannot be waived. Failure to comply with the terms of the requirement deprives the court of jurisdiction and results in the claim being forever barred.Cadwalder, 45 F.3d at 300; Blain v. United States, 552 F.2d 289, 291 (9th Cir 1977). The purpose of the exhaustion requirement is "to encourage administrative settlement of claims and avoid unnecessary litigation." Palm v. United States, 835 F. Supp. 512, 521 (ND Cal 1993) (citing Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir 1985)). Such purpose is served when: (1) the claimant presents a written description of the claim that gives the agency sufficient notice to commence an investigation; and (2) the claimant presents a sum certain damages claim. Burns, 764 F.2d at 724; Shipek, 752 F.2d at 1354; Palm, 835 F. Supp at 521. While the standard does not define precisely what constitutes sufficient notice, the prevailing view is that the notice requirement is minimal. Shipek, 752 F.2d at 1354; Palm, 835 F. Supp at 521. The administrative exhaustion prerequisite also states that:
[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). Thus, a plaintiff has two years from the date his claim accrues to present it to the appropriate agency.Cadwalder, 45 F.3d at 300. Typically, this issue of timely and complete presentation is not bound up with the underlying merits of the action, and whether a plaintiff has complied with the administrative exhaustion requirement is an appropriate issue to resolve on a Rule 12(b)(1) motion to dismiss. Cf Augustine, 704 F.2d at 1077-78 (determining that when a factual dispute regarding the accrual of plaintiff's claim also went to the merits of that claim, the court must apply a summary judgment standard and may not resolve the factual disputes).
C 1
USPS contends that subject matter jurisdiction over Vacek's claim is improper because Vacek failed timely to present his claim to USPS. Mot Dism (Doc # 40) at 5:22-6:17. USPS argues, and Vacek does not contest, that Vacek's claim accrued on March 9, 1999. Id at 5:23. Thus, to satisfy the FTCA's administrative exhaustion requirement, Vacek must have presented USPS with a document that adequately described his claims and included a sum certain on or before March 9, 2001.
The court agrees with USPS that Vacek has not sustained his burden. First, Vacek alleges that he mailed a Form 95 regarding Vacek's claim to USPS on August 7, 2000. Vacek Opp Mot Dism at 4:9-13. Vacek presents substantial evidence that his attorney prepared the form and the envelope in which the form was mailed on August 7, 2000. See Truett Decl at 2-3 ¶¶ 2-4, Exhs 1-5. But USPS also presents substantial proof that it never received that form. Arndt Decl at 1-2 ¶ 2; Griffin Decl at 2 ¶¶ 3, 7. Thus, the court must determine how to resolve this conflict.
In making this determination, the court finds it significant that the regulations implementing the FTCA's administrative exhaustion requirement state that "a claim shall be deemed to have been presented when a Federal agency receives [it]." 28 C.F.R. § 14.2(a) (emphasis added). The regulations also note that, if the claim is presented to the incorrect agency, the claim should be transferred by that agency to the appropriate agency — but the claim is not deemed presented "as required by § 2401(b) [until] the date it is received by the appropriate agency." 28 C.F.R. § 14.2(b)(1) (emphasis added). Thus, it is not the date of the claim's submission that is relevant for presentment purposes, but rather the date of the claim's receipt by the correct agency.
Vacek has presented ample proof that he was prepared to submit the claim on August 7, 2000. Vacek's proof that the USPS received the claim on or around that date, however, is less substantial. Vacek's only ground for proving that the claim was received by USPS is reliance upon evidentiary presumptions. Vacek relies upon Busquets-Ivars v. Ashcroft for the proposition that "if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed." 333 F.3d 1008, 1009-10 (9th Cir 2003) (emphasis in original). This presumption, while providing Vacek with some evidence that the USPS received the letter, is nevertheless insufficient for several reasons. First, while Vacek presents substantial evidence that the Form 95 was prepared on August 7, 2000, he presents sparse evidence regarding how and when the form was delivered to the post office or to the postman. Second, Busquets-Ivars itself states that notice sent by regular mail is not entitled to as strong a presumption of delivery as is notice sent by certified mail. 333 F.3d at 1009; see also Salta v. INS, 314 F.3d 1076, 1079 (9th Cir 2002) (stating that "delivery by regular mail does not raise the same `strong presumption' as certified mail"). As Vacek does not present evidence that his Form 95 was sent via certified mail, any presumption to which he is entitled regarding receipt is comparatively weak. Third, the presumption of delivery is rebuttable by evidence, such as a sworn affidavit, that the person to whom the mail was addressed never received it. Salta, 314 F.3d at 1079. When the mail is sent via regular mail and not via certified mail, "less should be required to rebut such a presumption." Id. In the case at bar, two USPS employees have testified in declarations that USPS has no record of receiving the August 7, 2000, Form 95. Thus, the relatively weak presumption of receipt has probably been rebutted. Fourth, the notion that jurisdictional requirements be strictly construed in favor of the sovereign would seem to require more rather than less substantial proof that the USPS actually received the form.
Given that there is no other proof that the USPS received the August 7, 2000, Form 95, the court finds that Vacek has not carried his burden with respect to receipt. The August 7, 2000, form therefore does not provide a basis for satisfying the FTCA administrative exhaustion requirement. The next possible communication that might satisfy that requirement is the September 28, 2001, letter from Vacek's counsel to USPS describing the nature of Vacek's claims and offering to settle the case for $75,000. USPS contends that this letter is insufficient for several reasons. First, USPS argues that the letter does not satisfy the requirement that the written notice provide a sum certain for Vacek's claims. All that is required, however, is that Vacek specify an amount to which he claims to be entitled. See, e.g., Walley v. United States, 366 F. Supp. 268, 269 (ED Penn 1973). The purpose of specifying a sum certain is to facilitate settlement, and the figure must be of "use in guiding settlement talks with [Vacek] individually[,]" as opposed to a figure that covers more than one individual in an undifferentiated fashion. Caidin v. United States, 564 F.2d 284, 286-87 (9th Cir 1977). The letter provides two figures — the total amount for which Vacek is willing to settle his claim (including the amount of Golden Eagle's lien) and the precise amount of Golden Eagle's lien. Although it is true that the settlement offer covers both Vacek and Golden Eagle, the amount to which Vacek believes he is entitled is easily ascertainable. By subtracting the amount of Golden Eagle's lien from the total amount offered in settlement, USPS should have a clear idea of the valuation of Vacek's individual claims.
Despite the fact that the September 28, 2001, letter likely satisfies the notice and sum certain requirements, it is nevertheless inadequate. Vacek does not dispute that his claim accrued on March 9, 1999. Thus, the two-year limitation on submitting the claim means that USPS must have received adequate written notice of the claim on or before March 9, 2001. The September 28, 2001, letter clearly falls outside this period and thus cannot serve as a basis for satisfaction of the administrative exhaustion requirement.
Vacek presents one final argument for finding the exhaustion requirement satisfied. Vacek's counsel wrote to USPS following submission of the August 7, 2000, Form 95 and requested that the torts claim administrator reply to him if that submission was inadequate. Vacek Opp Mot Dism at 4:15-19. Vacek contends that such correspondence should have put USPS on notice of the August 7, 2000, submission and that USPS intentionally took advantage of Vacek's failure to submit the claim. Id at 4:19-23. Thus, Vacek contends that the two-year period should be equitably tolled and that USPS should be equitably estopped from asserting that the exhaustion requirement precludes jurisdiction. Id at 4:21-23.
This argument fails for several reasons. First, at least one Ninth Circuit decision states that the jurisdictional requirements of the administrative exhaustion provisions are not subject to equitable tolling. See Burns, 764 F.2d at 724. Vacek presents no authority permitting equitable tolling in the context of the FTCA's jurisdictional prerequisites. Second, even assuming that equitable tolling is allowed in this context, the authority cited by Vacek does not support equitable tolling in this case. "Equitable tolling applies where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action." English v. Pabst Brewing Co, 828 F.2d 1047, 1049 (4th Cir 1987). The statute of limitations is not tolled unless the plaintiff's failure timely to file "is the consequence either of a deliberate design by [the defendant] or of actions that [the defendant] should unmistakably have understood would cause [the plaintiff] to delay filing his charge." Id (internal quotation and citation omitted). There is no evidence of a deliberate design by USPS to conceal that it had not received the Form 95. Nor has Vacek proved that its actions should unmistakably have put USPS on notice that Vacek would delay filing his claim. USPS presents evidence that its usual practice with respect to Form 95s is to send the claimant a letter acknowledging receipt of the letter. Given that USPS had not sent Vacek such a letter, Vacek should have been aware that the Form 95 might not have been received and certainly could have re-submitted the form, rather than simply asking USPS for a response. Third, Vacek's equitable estoppel argument is misplaced. "[A] party seeking to raise estoppel against the government must establish affirmative conduct going beyond mere negligence." Carrillo v. United States, 5 F.3d 1302, 1306 (9th Cir 1993) (internal quotation and citation omitted; emphasis added). To meet this requirement, Vacek would have to prove that USPS made affirmative misrepresentations regarding his Form 95 or that USPS affirmatively concealed that it had not received his Form 95. See id. USPS' failure to reply to Truett's letters hardly constitutes such an affirmative act and at most could be characterized as "mere negligence." Thus, Vacek's equitable arguments are unavailing.
Accordingly, because Vacek fails to prove that USPS received his claim in a timely fashion, the claim is time-barred. Given that timely presentment is a jurisdictional issue, the failure to comply with that requirement deprives the court of jurisdiction, and the court must GRANT USPS' Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.
2
USPS also contends that Golden Eagle's claim should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because Golden Eagle never submitted its own claim to USPS. Mot Dism at 6:17-7:3. Golden Eagle presents several arguments in response. First, Golden Eagle contends that, as Vacek's subrogee, it "stands in the shoes of the insured" for the purposes of administrative exhaustion and can rely on the forms and letters submitted by Vacek. Id at 3:14-22; seeCummings v. United States, 704 F.2d 437, 439 (9th Cir 1983). InExecutive Jet Aviation, Inc v. United States, 507 F.2d 508, 515 (6th Cir 1974), the Sixth Circuit found that timely filing of an administrative claim by the insured served to toll the § 2401(b) limitation period with respect to the claim of the insurers and thus allowed the insurer to join the action under FRCP 17(a). The appellate court noted that litigation would have been necessary even if the insurers had not filed a claim, that the subrogee stands in the shoes of the subrogor and that no prejudice would result to the United States as a result of joining the insurer. Id at 515-16.
Golden Eagle's subrogee argument likely fails for several reasons. First, the continuing vitality of Executive Jet has been questioned by the Ninth Circuit in light of the Supreme Court's more recent announcement in McNeil that strict adherence to the FTCA procedural requirements is required.Cadwalder, 45 F.3d at 301 n4. Second, even if Executive Jet remains good law, it is doubtful that it would be of any assistance in the case at bar. The Executive Jet court took pains to emphasize that its "decision rests to a large extent on the particular facts of this case." 507 F.2d at 517. The court went on to note that the decision intimated nothing with respect to "cases in which the subrogor has not filed a timely and complete administrative claim." Id. Given that the court has concluded that Vacek has not presented a timely administrative claim, allowing Golden Eagle to rely on either the August 7, 2000, Form 95 or the September 28, 2001, demand letter is of no benefit to Golden Eagle.
Golden Eagle's remaining argument is that its submissions with respect to Sequeria should have put USPS on notice that Golden Eagle and Vacek would also be filing a claim, since the Sequeria submissions included an accident report listing Vacek's name. This argument is meritless. Even if the Sequeria claim was sufficient to put USPS on notice that Vacek and Golden Eagle might file claims with respect to the accident, the Sequeria claim certainly did not contain any information regarding the precise nature of Vacek's claim or Golden Eagle's claim with respect to Vacek, nor did the Sequeria claim contain a sum certain regarding either of the Vacek-related claims. Moreover, and more importantly, the Supreme Court has found and the Ninth Circuit has reiterated that strict adherence to the FTCA's procedural requirements is necessary to establish the court's jurisdiction over the claim. McNeil, 508 US at 113; seeCadwalder, 45 F.3d at 301 n4. Golden Eagle presents no authority that supports the proposition that administrative exhaustion is unnecessary when the governmental agency has information that might put it on notice that a claim might be filed. To allow such circumvention of the exhaustion requirements would fly in the face of the Supreme Court's repeated admonitions that exhaustion is a jurisdictional issue that cannot be waived. Golden Eagle's claims with respect to Sequeria present absolutely no basis for concluding that jurisdiction is proper regarding Golden Eagle's claims with respect to Vacek's injuries.
III
In sum, the court finds that the jurisdictional prerequisite of administrative exhaustion has been satisfied by neither Vacek nor Golden Eagle. Accordingly, the court GRANTS USPS' Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction (Doc # 40) with respect to both plaintiffs. Additionally, the court VACATES the March 11, 2004, hearing on this matter.IT IS SO ORDERED.