# Raymond v. United States of America

> District Court, E.D. Louisiana · March 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10189134

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10189134

## How later opinions describe it (automated extraction)

- applying equitable tolling to the statute of limitations under the FTCA

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189134. Public record. Not legal advice.