Raymond v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER RAYMOND CIVIL ACTION

VERSUS NO. 22-3052

UNITED STATES OF AMERICA SECTION: “G”

ORDER AND REASONS

In this litigation, Plaintiff Walter Raymond (“Plaintiff”) brings claims against Defendant

the United States of America (“Defendant”) arising out of a motor vehicle collision.1 Before the

Court is Defendant’s Motion for Summary Judgment.2 In the motion, Defendant argues that

Plaintiff’s claims are time barred under the Federal Tort Claims Act (“FTCA”) because Plaintiff

did not file suit until eleven months after receiving an agency denial letter.3 Plaintiff opposes the

motion, arguing that his counsel never received the denial letter.4 Having considered the motion,

the memoranda in support and opposition, the record, and applicable law, this Court grants

Defendant’s motion.

I. Background

On February 11, 2019, a collision occurred between Plaintiff’s vehicle and a vehicle driven

1 Rec. Doc. 1 at 2.

2 Rec. Doc. 10.

3 Id. at 1.

4 Rec. Doc. 12.

by Ross David Dykman (“Dykman”).5 According to the Complaint, Dykman is an employee of

the National Parks Service (“Parks Service”).6 Plaintiff alleges that Dykman negligently caused

the collision, while operating a vehicle owned by Defendant and acting in the scope of his

employment.7 Plaintiff submitted a Standard Form 95 (“Original SF95”) describing the injuries

he allegedly sustained in the collision to the Parks Service on February 11, 2021.8 The Original

SF95 omitted the total monetary amount claimed.9 On March 12, 2021, Plaintiff submitted an

updated SF95 Form to the Parks Service (“Updated SF95”), which listed a claim amount of

$29,000.00.10

The Parks Service sent a claim denial letter to Plaintiff’s counsel via certified mail on

September 10, 2021.11 The denial letter informed Plaintiff that the claim was denied as time

barred under the FTCA’s statute of limitations because it was not submitted with a sum certain

prior to the two-year deadline for submission of a claim to an agency under the FTCA.12 The

denial letter stated that Plaintiff could seek reconsideration of his claim or alternatively file suit

in federal district court “not later than six months after the date on which this letter was mailed.”13

The United States Postal Service tracking services webpage indicates that the letter was

5 Rec. Doc. 10-2 at 1.

6 Rec. Doc. 1 at 2–3.

7 Id.

8 Rec. Doc. 10-2 at 1.

9 Id.

10 Id. at 2.

11 Id. at 1.

12 Rec. Doc. 10-6 at 1.

13 Rec. Doc. 10-2 at 1.

“delivered, left with individual” on September 21, 2021.14

Plaintiff filed a Complaint in this Court on August 30, 2022.15 On October 10, 2022,

Defendant filed the instant motion for summary judgment.16 Plaintiff opposed the motion on

November 8, 2022.17 On November 16, 2022, Defendant filed its reply.18

II. Parties’ Arguments

A. Defendant’s Motion for Summary Judgment

Defendant argues that Plaintiff’s claims must be dismissed with prejudice because it is

time-barred under the FTCA due to Plaintiff’s delay in filing suit.19 Defendant argues that

§ 2401(b) of the FTCA bars tort claims against the United States unless a claimant commences a

civil action within six months after the date of mailing a notice of denial of a claim by the agency

to which it was presented.20 Defendant contends that the Fifth Circuit and district courts within

the Fifth Circuit have dismissed FTCA claims as time-barred when a claimant fails to file suit

within six months of a denial.21

Defendant contends that the denial letter was sent via certified mail on September 10,

14 Id. at 2; Rec. Doc. 10-7 at 4.

15 Rec. Doc. 1.

16 Rec. Doc. 10.

17 Rec. Doc. 12.

18 Rec. Doc. 16.

19 Rec. Doc. 10 at 1.

20 Rec. Doc. 10-1 at 3.

21 Id. at 4–5 (citing Beard v. Bureau of Prisons, 538 F. App’x. 493, 494 (5th Cir. 2013); Ellis v. United

States Dep’t of Veterans Affairs, 721 F. App’x, 395, 397 (5th Cir. 2018)).

2021, and delivered to Plaintiff’s counsel’s office on September 21, 2021.22 Defendant avers that

the denial letter informed Plaintiff that he could either request a written reconsideration of the

denial or file suit not later than six months after the date on which the letter was mailed.23

Defendant avers that Plaintiff took no action until filing this suit on August 30, 2022.24 Thus,

Defendant asserts that Plaintiff’s claims should be dismissed as time-barred under the FTCA

because Plaintiff did not file suit timely as required by § 2401(b).25

B. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment

In opposition, Plaintiff argues that Defendant has not shown that it delivered the denial

letter to Plaintiff’s counsel.26 Plaintiff argues that Defendant had a non-waivable statutory

obligation under § 2401 to provide Plaintiff with effective notice of the final denial of his claim

so that he could have timely filed suit.27 Plaintiff asserts that Defendant’s purported summary

judgment evidence shows that the denial letter was not received by his counsel.28 Plaintiff asserts

that the certified letter slips accompanying Defendant’s motion lack any signature indicating

receipt of delivery of the certified letter.29

Relying on authority addressing tax-deficiency notices, Plaintiff further asserts that there

is no presumption of delivery for certified mail where the return receipt is not received by the

22 Id.

23 Id.

24 Id.

25 Id.

26 Rec. Doc. 12 at 4.

27 Id.

28 Id.

29 Id.

sender.30 Plaintiff cites persuasive authority to argue that Defendant should have been on notice

that Plaintiff’s counsel may not have received the letter because Defendant did not receive a

signed return receipt.31 Thus, Plaintiff argues that Defendant should have inquired with Plaintiff’s

counsel or re-sent the denial letter to initiate the time limitation period under the FTCA.32

Plaintiff avers that the unverified USPS tracking webpage, upon which Defendant relies,

states that the denial letter at issue was: “left with an individual at the address at 12:25 pm on

September 21, 2021,” but omits the address that the alleged letter was delivered to and the name

of the alleged “individual” that received the letter. 33 Plaintiff argues that Defendant provided

defective notice to him.34 Plaintiff notes that USPS services were inconsistent around the time

the Parks Service sent its denial letter because Hurricane Ida impacted the New Orleans area a

few weeks prior.35

Therefore, Plaintiff alleges that the only notice of the alleged denial of his administrative

claim was the August 17, 2022 email sent to his council stating that the denial letter was sent on

September 10, 2021.36 Plaintiff argues that Defendant failed to comply with 28 U.S.C.

§ 2401(b).37 Accordingly, Plaintiff argues that Defendant’s motion for summary judgment should

30 Id. at 5 (citing Mulder v. Commissioner, 855 F.2d 208, 212 (5th Cir. 1988)).

31 ID. at 5–8 (first discussing Moya v. United States, 35 F.3d 501, 503 (10th Cir. 1994); and then discussing

Matos v. United States, 380 F. Supp. 2d 36 (D.P.R. 2005)).

32 Id. at 5 (first citing Moya 35 F.3d at 503; and then citing Matos, 380 F. Supp. 2d at 36).

33 Id. at 5.

34 Id. at 8.

35 Id. at 3.

36 Id. at 9.

37 Id. at 9.

be denied because his lawsuit was timely filed after receiving notice on August 17, 2022.38

C. Defendant’s Reply in Support of its Motion

In reply, Defendant argues that equitable tolling cannot apply here.39 Defendant asserts

that “while Plaintiff does not expressly argue that equitable tolling should apply . . . [it] is the

only legal mechanism that could save Plaintiff’s claims.”40 Defendant argues that equitable

tolling does not apply because Plaintiff has both failed to prove that he has diligently pursued his

rights and “that some extraordinary circumstance stood in his way.”41

Defendant asserts that Plaintiff’s argument that he never received the denial letter due to

complications from Hurricane Ida is irrelevant because receipt of the denial letter is immaterial

for purposes of the FTCA.42 Defendant asserts that the Fifth Circuit has found that the plain

language of 28 U.S.C. § 2401(b) requires that the statute of limitations begin to run the moment

the government mails notice of an FTCA claim denial.43 Defendant further argues that under 28

U.S.C. § 2675(a), Plaintiff could have filed suit six months after he presented his claim to the

Parks Service, or any time after August 11, 2021.44 Defendant points out that another judge in the

Eastern District of Louisiana dismissed a case where the plaintiff claimed to have never received

the denial letter from the relevant agency and did not file suit until nine months after the six-

38 Id.

39 Rec. Doc. 16 at 1.

40 Id.

41 Id. at 1 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

42 Id. at 2.

43 Id. (citing Beemer v. Holder, 495 F. App’x. 396, 400 (5th Cir. 2012)).

44 Id. at 3.

month period in § 2675(a) expired.45 Defendant further points out that Plaintiff relies solely on

nonbinding authority from cases not addressing the FTCA in support of his argument that the

notice was deficient.46 Thus, Defendant argues that this Court must grant Defendant’s motion

because any argument that the denial letter was never received is immaterial.47

Defendant further argues that the declaration of Department of the Interior paralegal

Robin Deguara (“Deguara”) is competent summary judgment evidence.48 Defendant avers that

Deguara’s declaration states that Deguara mailed Plaintiff’s denial letter on September 10,

2021.49 Defendant argues that the declaration further states that Deguara “personally searched the

tracking number and found that the letter was delivered to Plaintiff’s counsel on September 21,

2021.”50 Defendant further argues that the declaration should be considered competent summary

judgment evidence because Deguara “has the personal knowledge to attest to actions she took

herself.”51 Therefore, Defendant argues that Plaintiff’s suit is “untimely and must be dismissed”

because the “undisputed evidence proves the denial letter was mailed on September 10, 2021

[and] Plaintiff did not file suit until nearly a year later.”52

45 Id. (citing Sandoz v. United States, No. 15-3697, 2016 WL 1545662 at *6 & n.3 (E.D. La. Apr. 15, 2016)

(Barbier, J.)).

46 Id. at 3–4.

47 Id. at 4.

48 Id. at 4–5. Defendant notes that the original declaration omitted Deguara’s electronic signature as result

of a technological failure. Id.at 4 &n.4. Defendant attaches a signed declaration to the reply brief. Rec. Doc. 16-1.

49 Rec. Doc. 16 at 5.

50 Id.

51 Id.

52 Id.

III. Legal Standard

Summary judgment is appropriate when the pleadings, discovery, and affidavits

demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.”53 To decide whether a genuine dispute as to any material fact exists, the court

considers “all of the evidence in the record but refrain[s] from making credibility determinations

or weighing the evidence.”54 All reasonable inferences are drawn in favor of the nonmoving

party.55 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”56

If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then

no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a

matter of law.57 The nonmoving party may not rest upon the pleadings.58 Instead, the nonmoving

party must identify specific facts in the record and articulate the precise manner in which that

evidence establishes a genuine issue for trial.59

The party seeking summary judgment always bears the initial responsibility of showing

the basis for its motion and identifying record evidence that demonstrates the absence of a genuine

53 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

54 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008) (citing

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

55 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at

150).

56 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

57 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank

of Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)).

58 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

59 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

issue of material fact.60 “To satisfy this burden, the movant may either (1) submit evidentiary

documents that negate the existence of some material element of the opponent’s claim or defense,

or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at

trial, demonstrate that the evidence in the record insufficiently supports an essential element of

the opponent’s claim or defense.”61 If the moving party satisfies its initial burden, the burden

shifts to the nonmoving party to “identify specific evidence in the record, and to articulate”

precisely how that evidence supports the nonmoving party’s claims.62 The nonmoving party must

set forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential

component of its case.”63

The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied

merely by creating “some metaphysical doubt as to the material facts,” “by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”64 Moreover, the

nonmoving party may not rest upon mere allegations or denials in its pleadings.65

IV. Analysis

The Federal Tort Claims Act (“FTCA”) offers a limited waiver of sovereign immunity

whereby parties can sue the United States for torts committed by federal employees acting within

60 Celotex, 477 U.S. at 323.

61 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).

62 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris

v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

63 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).

64 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).

65 Morris, 144 F.3d at 380.

the scope of their employment.66 Although substantive state law controls whether a cause of

action is available, federal law governs the statute of limitations for asserting a claim.67 The

FTCA’s statute of limitations provides:

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.68

The Fifth Circuit has consistently found that “[t]he plain language of 28 U.S.C. § 2401(b)

requires that the statute of limitations starts to run the moment the government mails notice of an

FTCA claim denial.”69 Furthermore, 28 U.S.C. § 2675(a) provides that “[t]he failure of an agency

to make final disposition of a claim within six months after it is filed shall, and the option of the

claimant anytime thereafter, be deemed a final denial of the claim,” and the claimant may file his

action in federal district court.70

In Beemer v. Holder, the Fifth Circuit affirmed the dismissal of the plaintiff’s FTCA claim

because the six-month statute of limitations following the agency denial letter expired four years

before the plaintiff filed suit.71 The plaintiff contended that the statute of limitations for his claim

did not expire before he filed suit because he never actually received the government’s denial

66 28 U.S.C. § 1346(b)(1).

67 Johnston v. United States, 85 F.3d 217, 218–19 (5th Cir. 1996).

68 28 U.S.C. § 2401(b).

69 Beemer v. Holder, 495 F. App’x. 396, 400 (5th Cir. 2012) (per curiam) (citing Carr v. Veterans Admin.,

522 F.2d 1355, 1357 (5th Cir. 1975)). Although an unpublished opinion issued on or after January 1, 1996, is

generally not controlling precedent, it may be considered as persuasive authority. See Ballard v. Burton, 444 F.3d

391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

70 McCallister v. United States, 925 F.2d 841, 844 (5th Cir. 1991).

71 Beemer, 495 F. App’x. at 400.

letter for his SF95 and the government could not produce a return receipt for the letter.72

Nonetheless, the Fifth Circuit affirmed the dismissal because receipt of the agency’s final decision

is immaterial to the analysis of the FTCA’s statute of limitations.73

Here, Plaintiff brings the same argument.74 The Department of the Interior sent a claim

denial letter to Plaintiff’s counsel via certified mail on September 10, 2021.75 Plaintiff did not file

suit until August 30, 2022.76 Plaintiff’s argument that the lack of signature on the certified mail

slip proves that the denial letter was not delivered to Plaintiff or his counsel is irrelevant. The

governing law in this case is clear that the statute of limitations period runs from the time of

mailing, not the time of receipt.

The Court notes that Plaintiff could have preserved his claims had he filed suit within the

period allowed under 28 U.S.C. § 2675(a), as it provides that a claim is functionally denied where

an agency fails to deliver a response within six months from the submission of a SF95 form.

Plaintiff submitted his Updated SF95 form to the Parks Service on March 12, 2021.77 Plaintiff

and his counsel waited seventeen months before asking for an update on the processing of

Plaintiff’s claims.78 Therefore, there are no material facts in dispute, and Plaintiff’s claims are

time-barred under the FTCA.

72 Id.

73 Id.

74 See Rec. Doc. 12 at 2 (“No response was received by Plaintiff, or his Counsel, regarding the administrative

decision regarding Plaintiff’s claim.”).

75 Rec. Doc. 10-2 at 1.

76 Rec. Doc. 1.

77 Rec. Doc. 10-2 at 1.

78 Rec. Doc. 10-8 at 2.

Furthermore, Plaintiff fails to make any argument for equitable tolling of the six-month

statute of limitations. Equitable tolling applies to preserve a plaintiff's claims when strict

application of a statute of limitations would be inequitable.’ For the doctrine of equitable tolling

to apply, a plaintiff “bears the burden of establishing two elements: (1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way.”®? While

Plaintiff offers some argument to the second element, he offers no argument to prove that he

pursued his rights diligently. Plaintiff's seventeen months of inaction from the submission of the

Updated SF95 on March 12, 2021, to the filing of the instant suit on August 30, 2022, is

insufficient to prove that Plaintiff diligently pursued his rights and the resolution of his claims.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment®! is

GRANTED.

IT IS FURTHER ORDERED that Plaintiff's claims in the above-captioned matter are

DISMISSED WITH PREJUDICE.

NEW ORLEANS, LOUISIANA, this 20th day of March, 2023.

NANNETTE JOJAVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

” Alexander vy. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002); see also Perez v. United States, 167 F.3d 913,

917 (5th Cir. 1999) (applying equitable tolling to the statute of limitations under the FTCA).

8 Pace, 544 U.S. at 418.

8! Rec. Doc. 10.

12