Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-01214-WQH-RBB

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KAREN P. HEWITT United States Attorney ERNEST CORDERO, JR. Assistant U.S. Attorney State of California Bar No. 131865 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 557-7473 Email: [email protected] Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VENUS ANGELIQUE HISAW, ) ) ) Plaintiff, ) ) v. ) ) ) UNITED STATES; and DOES 100, inclusive, ) ) ) Defendants. ) _____________________________________ ) I. INTRODUCTION A prerequisite to filing a lawsuit under the Federal Tort Claims Act ("FTCA") is the presentation of an administrative claim to the federal agency involved in the tortious activity. If a timely administrative claim is denied in writing, the claimant may file suit within six months of the date the agency sends the claimant its denial letter via certified or registered mail. A suit filed beyond the six-month period is jurisdictionally barred. In this case, Plaintiff cannot maintain her FTCA claims because she failed to file suit within six months of the date the Department of the Interior, Bureau of Land Management ("BLM") denied her claim. As demonstrated by the record, Plaintiff presented an administrative claim to the BLM on January 19, 2007. BLM sent via certified mail a written Case No. 08cv1214-WQH (RBB) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT DATE: October 14, 2008 TIME: 11:00 a.m. CTRM: 4 Hon. William Q. Hayes

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denial of the claim to Plaintiff's address of record on February 2, 2007. Plaintiff did not commence an FTCA action within the six-month limitations period following the denial. On December 21, 2007, Plaintiff filed a second administrative claim with BLM based on the same incident. This second filing was an apparent attempt to "restart the clock" on the sixmonth limitations period. However, as discussed below, applicable law does not permit Plaintiff to resurrect her claims by filing a second administrative claim. Because Plaintiff did not file this suit within six months of the denial of her first administrative claim, the Court lacks subject matter jurisdiction to hear Plaintiff's FTCA causes of action in this case. Finally, Plaintiff also has alleged a claim under 42 U.S.C. § 1983. However, the United States is not a proper party to a Section 1983 claim. Therefore, Plaintiff's Section 1983 claim should be dismissed. II. PROCEDURAL HISTORY AND BACKGROUND FACTS This case arises out of the death of Plaintiff's son, Kyle Przysiecki, in an off-road accident which occurred while he was riding his motorbike at the Imperial Sand Dunes Recreation Area ("ISDRA"). (Complaint, ¶ 9.) On January 19, 2007, Plaintiff filed an

administrative claim with BLM alleging negligence with respect to BLM's staffing, maintenance and supervision of the ISDRA (hereinafter, "First Administrative Claim"). (Declaration of Donna L. Reynolds ("Reynolds Decl."), ¶ 1; First Administrative Claim, Exhibit 1 to Reynolds Decl.)1/ Plaintiff filed the claim in her own name. (Id.) Nowhere in the claim is there any reference to an attorney representing Plaintiff. (Id.)2/

The date of claim presentation is deemed to be the day the agency receives the administrative claim. 28 C.F.R. § 14.2(a) (a formal claim is not filed for purposes of 28 U.S.C. § 2401(b) until a federal agency receives written notification of an incident and a claim from the claimant, an authorized agent or representative); see also Bailey v. United States, 642 F.2d 344, 346 (9th Cir. 1981); Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994). Currently pending before the Court is a related case entitled The Estate of Kyle Przysiecki, et al. v. Shannon Duane Eifert, et al., Case No. 07cv0039-WQH (RBB). That case, and this action, both involve claims arising out of the death of Plaintiff's son, Kyle Przysiecki. In a Motion to Join as Intervenor filed by Plaintiff in the related case, she stated that a conflict of interest prevented Avila & Peros, LLP from representing both her and Michael Przysiecki (continued...) 2
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In her First Administrative Claim, Plaintiff listed her address as 16302 Rhone Lane, Huntington Beach, CA 92647. (Reynolds Decl., ¶ 2; First Administrative Claim, Exhibit 1 to Reynolds Decl.) On February 2, 2007, BLM sent Plaintiff a letter denying the claim via certified mail. (Reynolds Decl., ¶ 2; February 2, 2007 Denial Letter (see envelope attached to the letter), Exhibit 2 to Reynolds Decl.) The letter was sent to the same address listed in Plaintiff's administrative claim. (Id.) On or about February 26, 2007, the Postal Service returned the denial letter to BLM with an explanation that the letter had been unclaimed. (Reynolds Decl., ¶ 3; February 2, 2007 Denial Letter (see notations from Postal Service on envelope attached to the letter), Exhibit 2 to Reynolds Decl.) The documentation from the Postal Service appears to indicate that notice of the letter was left at Plaintiff's residence on February 5 and February 15, 2007 before the letter was returned to BLM on February 26, 2007. (Id.) Although Plaintiff was not represented by an attorney when she filed her First Administrative Claim, on March 2, 2007 BLM sent a copy of the denial letter to Michael Avila of the Avila & Peros firm because he was the attorney representing the Estate of Kyle Przysiecki and might be in contact with Plaintiff. (Reynolds Decl., ¶ 4; Denial Letter with Notation of Mailing to Attorney, Exhibit 3 to Reynolds Decl.) BLM has no record of any communications from Mr. Avila in response to the letter. (Reynold Decl., ¶ 4.) On December 21, 2007, BLM received a Second Administrative Claim from Plaintiff which was presented to BLM by the Avila & Peros firm on Plaintiff's behalf. (Reynolds Decl., ¶ 5; Second Administrative Claim, Exhibit 4 to Reynolds Decl.) Plaintiff filed this suit on July 1, 2008. (Complaint, Clerk's Docket No. 1.) BLM did not act on the Second Administrative Claim prior to the filing of this suit. (Reynolds Decl., ¶ 5.)

(...continued) in that action. (See Motion to Join as Intervenor, Case No. 07cv0039, Clerk's Docket No. 46, pp. 6-7.) Presumably, the conflict was the same reason the Avila & Peros firm did not represent Plaintiff when she filed her First Administrative Claim. However, the Avila & Peros firm did file a Second Administrative Claim on behalf of Plaintiff which BLM received on December 21, 2007. (Reynolds Decl., ¶ 5; Second Administrative Claim, Exhibit 4 to Reynolds Decl.) 3

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III. PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED PLAINTIFF'S FTCA CLAIMS MUST BE DISMISSED DUE TO THE COURT'S LACK OF SUBJECT MATTER JURISDICTION

The United States, as sovereign, is immune from suit save as it consents to be sued. 5 United States v. Dalm, 494 U.S. 596, 608 (1990); United States v. Mitchell, 445 U.S. 535, 538 6 (1980); Quarty v. United States, 170 F.3d 961, 972 (9th Cir. 1999). The right to sue the United 7 States can be acquired only by specific consent of Congress; and the terms of such consent 8 narrowly define a district court's jurisdiction to entertain suit on any given matter. FDIC v. 9 Meyer, 510 U.S. 471, 475 (1994); United States v. Sherwood, 312 U.S. 584, 586-87 (1941). 10 A jurisdictional prerequisite to suing the United States in tort is the filing of an 11 administrative claim with the appropriate federal agency, as required by 28 U.S.C. § 2675(a). 12 Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000); Cadwalder v. United States, 45 F.3d 13 297, 300 (9th Cir. 1995). The administrative claim must be presented to the agency within two 14 years of the claim's accrual. 28 U.S.C. § 2401(b). Once an FTCA claim has been presented, 15 the involved federal agency has six months to act. See 28 U.S.C. § 2675(a). A claimant can 16 file suit under the FTCA only after the agency denies his claim in writing or, in the alternative, 17 after the agency fails to make a final disposition of the claim within six months. Id. If the 18 agency does not act within six months, the claimant may deem the agency's silence to be a 19 final denial. Lehman v. United States, 154 F.3d 1010, 1013 (9th Cir. 1998). 20 There is a six-month statute of limitations for filing an FTCA lawsuit when an agency 21 denies a claim in writing. 28 U.S.C. § 2401(b); Erlin v. United States, 364 F.3d 1127, 1130 (9th 22 Cir. 2004). Specifically, a claimant must file an FTCA lawsuit within six months "after the date 23 of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to 24 which it was presented." Parker v. United States, 935 F.2d 176, 177 (9th Cir. 1991). A district 25 court does not have jurisdiction to hear a tort claim against the United States unless the 26 claimant files a complaint in federal court within six months after the final agency decision. 27 Goodman v. United States, 298 F.3d 1048, 1053 (9th Cir. 2002). Administrative exhaustion 28 4 08cv1214

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requirements are jurisdictional and must be interpreted in favor of the United States because they involve a waiver of sovereign immunity. Vacek v. United States Postal Service, 447 F.3d 1248, 1250 (9th Cir. 2006). Here, Plaintiff filed her first administrative claim related to the death of her son on January 19, 2007. On February 2, 2007, BLM denied the claim in a letter sent via certified mail to Plaintiff's address of record. Plaintiff therefore had six months from the date of denial to file her FTCA lawsuit. However, she did not file this case until July 1, 2008, approximately one year and five months later. This was well beyond the six-month limitations period. Plaintiff may argue that the six-month limitations period did not begin to run on February 2, 2007 because she did not receive actual notice of the denial letter. Instead, the letter was returned to BLM as "unclaimed." However, this argument is not consistent with the statutory language of Section 2401(b) which does not require actual notice, but instead states that an action must be instituted "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) (emphasis added). The Ninth Circuit also has held that actual notice of an administrative claim's denial is not required to start the six-month limitations period for filing suit. In Berti v. V.A. Hospital, 860 F.2d 338, 340 (9th Cir. 1988), the Veterans Administration sent a letter denying a claim by certified mail to a claimant's attorney. The letter was returned and marked "unclaimed." A second letter was sent to a new address for the attorney. It also was returned and marked "unclaimed." A third letter to the attorney finally was claimed. The plaintiff then filed an FTCA action more than six months after the first unclaimed denial letter had been mailed. The plaintiff argued that the six-month period began only when actual notice of denial was received, not as of the date of the first unclaimed letter. The Ninth Circuit rejected this argument. Section 2401(b) designates the date of the certified mailing as the starting point for the six-month statutory period. Berti would have this court impose the additional requirement that the mailing result in actual notice to the claimant. Yet, in the face of clear statutory language that begins the running of the statutory period from the date of mailing of a certified or registered letter, Berti's request would "enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit." 5 08cv1214

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[Citation.]... Accordingly, we refrain from adopting Berti's proposal, and hold that the date of the initial mailing of a properly certified or registered letter begins the six-month statutory period. Berti's complaint, filed August 21, 1985, was thus untimely as it was filed more than six months after December 7, 1984, the mailing date of the V.A.'s first denial letter. Berti v. V.A. Hospital, 860 F.2d at 340; see also Claremont Aircraft, Inc. v. United States, 420

5 F.2d 896, 898 (9th Cir. 1969) (date of certified mailing commences the six-month statutory 6 period). 7 Consistent with Berti, Plaintiff in this case had to file suit within six months of BLM's 8 February 2, 2007 denial of her claim. If Plaintiff did not receive actual notice of the denial, it 9 was not due to any fault on the part of BLM. The denial letter was sent via certified mail to the 10 address on Plaintiff's administrative claim. If this Court were to impose an actual notice 11 requirement, it would run contrary to the Ninth Circuit's holding in Berti that actual notice is not 12 required. Berti v. V.A. Hospital, 860 F.2d at 340. Furthermore, courts have held that the six13 month limitations period, established by Congress, must be strictly observed and exceptions 14 thereto are not to be implied. See, e.g., Claremont Aircraft, Inc. v. United States, 420 F.2d at 15 898. The period for filing an action is jurisdictional and subject neither to estoppel principles 16 nor to equitable considerations. Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985). 17 The fact that the six-month limitations period runs even when the claimant does not 18 have actual notice of the agency's written denial does not prejudice diligent claimants. This 19 is so because the law allows a claimant to file suit if the agency does not act on an 20 administrative claim within six months. 28 U.S.C. § 2675(a). As a consequence, a diligent 21 claimant can file suit after six months pass without a response from the agency whether or not 22 there has been a written denial. Alternatively, the claimant can inquire about the status of the 23 claim if there is no response within six months. In sum, diligent claimants are able to prevent 24 any prejudice to themselves in the event a denial letter does not reach them once six months 25 from the presentation of the claim have passed. 26 Finally, Plaintiff filed a second administrative claim on December 21, 2007. Plaintiff may 27 argue that even if she waited too long to file suit based on the date her first administrative 28 6 08cv1214

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claim was denied, the second administrative claim allows her to start over with a new limitations period. However, this position is not supported by the law. The issue was addressed in Willis v. United States, 719 F.2d 608, 613 (2d Cir. 1983). There, several plaintiffs filed administrative claims with the Postal Service but failed to file their respective FTCA actions within six months of denial of their claims. Plaintiffs then filed a second set of suits and administrative claims. They also requested the district court to deem the second set of administrative claims timely and proper. In an opinion authored by Judge Friendly, the Court of Appeals rejected the notion that plaintiffs could "start over" after failing to file suit within six months of the denial of their initial claims simply by filing additional administrative claims. There is equally little force in the contention that plaintiffs could escape the consequences of their failure to bring suit within six months of the denial of their claims by filing new claims within the allowable two year period. If Congress mandated that suit be brought within six months after administrative denial of a claim, as we hold that it did, the bar cannot be avoided by starting all over again. Willis v. United States, 719 F.2d at 613. In this case, Plaintiff failed to file suit within six months of the denial of her first administrative claim. Similar to the plaintiffs in Willis, she could not simply start over by filing a second administrative claim. Accordingly, Plaintiff's FTCA claims should be dismissed.3/ B. PLAINTIFF'S 42 U.S.C. § 1983 CLAIM SHOULD BE DISMISSED

The United States is not a proper party to an action brought under 42 U.S.C. § 1983. Hindes v. Federal Deposit Insurance Corporation, 137 F.3d 148, 158-59 (3d Cir. 1998). By its plain language, the statute does not authorize redress against the United States. Davis v. United States, 439 F.2d 1118, 1119 (8th Cir. 1971). Federal agencies also are immune from suit under Section 1983 because Congress has not consented to such suits. See Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 343 (9th Cir. 1993). Congress also has not

The FTCA claims alleged in the Complaint are the First Cause of Action (Negligence), the Second Cause of Action (Premises Liability) and the Fourth Cause of Action (Wrongful Death). 08cv1214 7

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consented to suit against federal agencies under Bivens.4/ See FDIC v. Meyer, 510 U.S. 471, 486 (1994). Based on the foregoing authority, Plaintiff's Section 1983 claim should be dismissed. IV. CONCLUSION For the foregoing reasons, the Complaint should be dismissed in its entirety.

DATED: August 28, 2008

KAREN P. HEWITT United States Attorney s/ Ernest Cordero, Jr.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court established an implied private right of action against federal officials for tortious deprivations of constitutional rights. Bruns v. National Credit Union Administration, 122 F.3d 1251, 1255 (9th Cir. 1997). Bivens is the federal analog to suits brought against state officials under 42 U.S.C. § 1983. Hartman v. Moore, 545 U.S. 1130, 126 S.Ct. 1695, 1700 n. 2 (2006). 08cv1214 8
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ERNEST CORDERO, JR. Assistant U.S. Attorney Attorneys for Defendant United States of America