Jessica Hernandez v. United States

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-11336

Non-Argument Calendar

____________________

JESSICA HERNANDEZ,

SHEILA C. FIGUEROA,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:24-cv-80511-AMC

____________________

Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges.

PER CURIAM:

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2 Opinion of the Court 25-11336

Plaintiffs Jessica Hernandez and Sheila Figueroa appeal the

district court’s dismissal of their Federal Tort Claims Act (“FTCA”)

claims, which arose out of a collision with a United States Postal

Service (“USPS”) vehicle. The district court concluded that the

plaintiffs failed to properly “present” their claims to the USPS

within two years of the collision, which is a precondition for an

FTCA lawsuit. On appeal, the plaintiffs argue that: (1) emails sent

by their law firm to two USPS employees satisfied the presentation

requirement; (2) the district court should have applied the doctrine

of “constructive filing” to deem their claims presented; and (3) the

district court should have equitably tolled the two-year presenta-

tion deadline. After careful review, we affirm.

I.

The relevant background is this. On November 16, 2020, in

Boynton Beach, Florida, a USPS truck driven by a USPS employee

allegedly ran a stop sign and collided with a vehicle driven by Her-

nandez. Figueroa was a passenger in Hernandez’s vehicle; accord-

ing to their complaints, both women sustained serious injuries.

The plaintiffs retained Berman Law Group (“Berman”) to repre-

sent them in a potential suit against the USPS.

Berman initially contacted the USPS shortly after the acci-

dent, sending letters to the agency through certified mail. It ad-

vised that the plaintiffs intended to make claims against the agency

and cited Florida’s statutory waiver of sovereign immunity.

The agency promptly responded in two letters to the law

firm. It explained that any claims against the agency must be made

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25-11336 Opinion of the Court 3

under the FTCA, not Florida’s waiver of sovereign immunity. It

also provided detailed instructions on how to submit the plaintiffs’

claims to the USPS. It advised them to complete Standard Form 95

(“SF-95”) and to submit the form to the USPS’s Tort Claim Coor-

dinator Specialist in Fort Lauderdale, Florida. It warned that “nei-

ther the Department of Justice regulations nor Postal regulations

provide for acceptance of electronically mailed tort claims.”

Berman received the first of these letters in December 2020,

and the second in January 2021, leaving the firm with about

twenty-two months to properly present the plaintiffs’ claims pur-

suant to the two-year statute of limitations. It apparently delegated

that task to a paralegal. The paralegal claimed that she mailed the

required forms to the USPS at the appropriate address on June 14,

2021 and September 22, 2022. However, she could not provide

corroborating details or proof of the mailings, and the USPS had no

record of either mailing. 1

The paralegal also sent an email containing the SF-95 forms

to four USPS email addresses on June 24, 2022. The email’s subject

line was “20-500.27137.BI Hernandez, Jessica v. United States

Postal Service.” The body of the email read only: “Please advise

correct adjuster on this claim, 330-21-004929937A,” followed by the

paralegal’s signature block. The SF-95 forms were attached as a

PDF file entitled “USPS COMPLETED CLAIM FORM.”

1 The paralegal claimed that the June package was addressed to the wrong

recipient, but at the correct address.

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4 Opinion of the Court 25-11336

Notably, none of the email’s recipients worked in tort claims

for the USPS, nor did any of them work out of South Florida. Two

of the recipients did not work for the USPS at all -- they were em-

ployed by an independent contractor. The other two recipients

worked for the USPS as “Mail Transport Equipment Quality Exam-

iners” in Jacksonville, Florida and Detroit, Michigan. The paralegal

had no recollection of why she emailed those specific employees.

Neither USPS employee opened the SF-95 form attached to

the email. The Jacksonville employee deleted the email without

reading it. The Detroit employee did read the email. However, he

reported it as suspicious by clicking on his USPS account’s “Cyber-

Safe” button, apparently commenting “[d]oes not look legit.” The

employee testified that he was trained to take that step when con-

fronted with a suspicious email from an unknown sender.

On November 28, 2022 -- 12 days past the two-year “presen-

tation” deadline -- Berman mailed completed SF-95 forms to the

correct USPS employee at the appropriate address in Fort Lauder-

dale, Florida. The USPS received that mailing. However, it denied

the claims as untimely, explaining that it did not receive them

within the statutory two-year window.

Each plaintiff subsequently filed suit against the United

States in the United States District Court for the Southern District

of Florida. The United States moved to dismiss both plaintiffs’

claims, arguing that they did not comply with the presentation re-

quirement. The district court consolidated the cases and referred

the motions to a federal magistrate judge. The magistrate judge

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ordered limited discovery and held an evidentiary hearing to re-

solve disputes of fact related to the presentation requirement.

After the hearing, the magistrate judge issued a Report and

Recommendation (“R&R”) recommending that the government’s

motions be granted. The R&R found that the USPS did not receive

the mailings sent on June 14, 2021 and September 22, 2022, and that

these mailings did not fulfill the presentation requirement. The

R&R further determined that the June 24, 2022 emails did not meet

the plaintiffs’ obligations because, regardless of whether the

presentation requirement could be met by email, the specific

emails sent were inadequate. Finally, it explained that the plain-

tiffs’ claims could not be deemed “constructively filed” and that the

plaintiffs were not entitled to the benefit of equitable tolling.

Over the plaintiffs’ objections, the district court granted the

motions to dismiss, accepting the R&R’s factual findings and agree-

ing that the plaintiffs’ actions did not fulfill the statutory presenta-

tion requirement. This timely appeal followed.

II.

First, we are unpersuaded by the plaintiffs’ argument that

the district court erred in dismissing their claims upon finding that

emails sent by their law firm did not satisfy the FTCA’s statute of

limitations. As we’ve noted, the FTCA requires tort victims to pre-

sent their claims to the appropriate federal agency before filing suit.

28 U.S.C. § 2675(a). The time to do so is limited -- under 28 U.S.C.

§ 2401(b), “[a] tort claim against the United States shall be forever

barred unless it is presented in writing to the appropriate Federal

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6 Opinion of the Court 25-11336

agency within two years after such claim accrues.” For purposes

of this appeal, we will review the trial court’s factual findings for

clear error and its interpretation and application of § 2401(b)’s time

bar de novo. Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015);

Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008). 2

2 In United States v. Wong, 575 U.S. 402 (2015), the Supreme Court held that §

2401(b)’s two-year time bar is non-jurisdictional. Id. at 420. So, a motion pred-

icated on that time bar generally should be brought as either a Rule 12(b)(6)

motion for failure to state a claim, or a Rule 56 motion for summary judgment.

See, e.g., Morales-Melecio v. United States, 890 F.3d 361, 367 (1st Cir. 2018); Trinity

Marine Prods., Inc. v. United States, 812 F.3d 481, 486 (5th Cir. 2016).

In this case, the district court did not apply the Rule 12(b)(6) or Rule

56 standards in dismissing the plaintiffs’ claims; instead, it relied on our deci-

sion in Bryant, a case that dealt with administrative exhaustion under the

Prison Litigation Reform Act (“PLRA”). In Bryant, a district court dismissed a

prisoner’s 42 U.S.C. § 1983 claims for lack of exhaustion after considering ma-

terials outside the complaint (contrary to the Rule 12(b)(6) standard) and re-

solving factual disputes (contrary to the Rule 56 summary judgment standard).

783 F.3d at 1371, 1373–74, 1377. Nevertheless, we affirmed in Bryant, explain-

ing that “[w]here exhaustion . . . is treated as a matter in abatement and not

an adjudication on the merits” the district court may “consider facts outside of

the pleadings and . . . resolve factual disputes so long as the factual disputes do

not decide the merits and the parties have sufficient opportunity to develop a

record.” Id. at 1366 (citation modified).

Borrowing from Bryant, the district court here made findings based on

documents outside the complaint to resolve the § 2401 limitations issue. How-

ever, we need not decide if the district court erred in doing so, because neither

party ever has objected to the district court’s approach, even on appeal. See

Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002) (noting that issues not

briefed on appeal by litigants are deemed abandoned). To the contrary, the

parties have adopted the district court’s approach (both on appeal and in dis-

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25-11336 Opinion of the Court 7

The plaintiffs argue that they presented their claims to the

USPS within the limitations period because the emails sent on June

24, 2022 fulfilled the presentation requirement. 3 But regardless of

whether email is a valid form of presentation under 28 U.S.C. §§

2401(b), 2675(a), the emails at issue here did not properly “present”

the plaintiffs’ claims.

The statute does not define how a plaintiff must “present”

her claim. However, the Code of Federal Regulation provides that

“a claim shall be deemed to have been presented when the U.S.

Postal Service receives from a claimant, his duly authorized agent

or legal representative, an executed Standard Form 95.” 39 C.F.R.

§ 912.5(a). It further stipulates that “[c]laims should be filed with

the Tort Claims Coordinator for the Postal Service District Office

where the accident occurred, but may be filed at any office of the

trict court), and thus the error, if any, was harmless. Marine Coatings of Ala-

bama, Inc. v. United States, 792 F.2d 1565, 1568 (11th Cir. 1986) (“[W]hen the

parties are aware of the court’s intent to consider matters outside the record

and have presented all the materials and arguments they would have if proper

notice had been given, failure to notify may be harmless error.”); Galanti v.

United States, 709 F.2d 706, 709 n.3 (11th Cir. 1983) (holding that where the

district court “technically erred” in granting the government’s Rule 12(b)(6)

motion to dismiss by going “beyond the pleadings and consider[ing] the fac-

tual stipulation of the parties,” we would not reverse where the appellant

“failed to raise this issue on appeal” and made “extensive use of the factual

stipulation in support of her arguments”). Accordingly, we assume arguendo

that the approach in Bryant applies and use the same standards of review our

Court used there.

3 They do not argue that any of their physical mailings constituted timely

presentation of their claims.

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8 Opinion of the Court 25-11336

Postal Service, or sent directly to the Chief Counsel, Torts, General

Law Service Center.” Id. § 912.4.

The plaintiffs did not comply with 39 C.F.R. § 912.4. There

is no dispute that they did not email “the Tort Claims Coordinator

. . . or . . . the Chief Counsel, Torts, General Law Service Center.”

Nor could they reasonably be said to have filed their claim “at any

office of the Postal Service,” which reads naturally as referring to a

filing that occurs at a physical location, i.e., a brick-and-mortar post

office. Indeed, interpreting “office” to include every USPS em-

ployee’s email address -- as the plaintiffs suggest -- would extend

the regulation to the point of meaninglessness. The USPS has over

500,000 employees, and each of their inboxes cannot be an “office

of the Postal Service” that the agency must monitor for tort claims.

A Decade of Facts & Figures, U.S. POSTAL SERV.,

https://facts.usps.com/table-facts (last visited Mar. 23, 2026).

Moreover, even if Congress gave “present” a broader mean-

ing in 28 U.S.C. §§ 2401(b), 2675(a) than the USPS did in its regula-

tions, the emails at issue still cannot be construed as having been

presented to the USPS. The Berman paralegal emailed two postal

employees seemingly at random, who were not located in South

Florida and whose job responsibilities had nothing to do with pro-

cessing tort claims. To the extent the plaintiffs claim the Detroit-

based employee had been in a “Supervisor Customer Service” role

a decade earlier (and thus may have received training on how to

process tort claims), his current role was neither customer-facing

nor tort-related. Moreover, the emails bore several hallmarks of a

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25-11336 Opinion of the Court 9

phishing scam: they appeared to make a claim for money, con-

tained dubious grammar, came from an unknown sender, and in-

dicated that the recipient should open an attachment. Both em-

ployees understandably treated the email as suspicious, precisely

the sort that employees are trained not to open. One deleted the

email outright without reading it, and another electronically

marked it as potentially dangerous, commenting “Does not look

legit.”

Emails like this one are insufficient to “present” a claim un-

der 28 U.S.C. §§ 2401(b), 2675(a). The presentation requirement is

meant to “giv[e] agencies an opportunity to settle suits before liti-

gation commence[s],” which in turn can “ease court congestion

and avoid unnecessary litigation, while making it possible for the

Government to expedite the fair settlement of tort claims asserted

against the United States.” Burchfield v. United States, 168 F.3d 1252,

1255 (11th Cir. 1999) (citation modified). Suspicious emails, sent to

geographically remote employees selected seemingly at random,

cannot be expected to further these goals.

Plaintiffs also cite to the USPS’s Administrative Support

Manual (“ASM”). The ASM provides that “written tort claims can

be filed and must be accepted at any Post Office or other postal

facility” and that “[a]ny postal employee who receives a completed

tort claim form or other writing indicating that it is a claim should

immediately stamp or write the date received on the claim . . . and

sign his or her name next to the date. The claim should then be

forwarded to the district tort claims coordinator.”

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But even assuming the ASM’s regulations -- which instruct

USPS employees on how to deal with submissions they might rec-

ognize as tort claims -- bind USPS employees, they would not win

the day for the plaintiffs. For starters, the cited provisions of the

manual do not offer a definition of “present.” They explain where

a claim may be presented and how an employee should handle a

presented claim. But they do not articulate what it means to “pre-

sent” a claim. Further, as the district court explained, the Berman

paralegal’s email “was so suspicious that it did not even indicate

that it was a claim.” Thus, even if the plaintiffs could have pre-

sented their claims by email, the email correspondence in this case

does not qualify as “present[ing]” the plaintiffs’ claims under 28

U.S.C. §§ 2401(b), 2675(a).

III.

We also find no merit to the plaintiffs’ argument that their

claims were “constructively filed” with the USPS. The “construc-

tive filing” doctrine derives from 28 C.F.R. § 14.2(b)(1), which says:

When a claim is presented to any other Federal

agency [other than the one it should be presented to],

that agency shall transfer it forthwith to the appropri-

ate agency, if the proper agency can be identified

from the claim, and advise the claimant of the trans-

fer. If transfer is not feasible the claim shall be re-

turned to the claimant.

Relying on this regulation, some courts have deemed an

FTCA claim to be timely-presented when an “inappropriate federal

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agency (1) receives a claim that otherwise fully complies with §

14.2(a)’s presentation requirements with sufficient time before the

statute of limitations is set to run, and (2) then violates § 14.2(b)(1)’s

requirement to forward the claim to the appropriate agency or re-

turn the claim to the claimant.” Motta ex rel. A.M. v. United States,

717 F.3d 840, 844 (11th Cir. 2013) (explaining the parameters of the

constructive filing doctrine); see also Greene v. United States, 872 F.2d

236, 237 (8th Cir. 1989). We have yet to adopt the constructive

filing doctrine for FTCA claims, Motta, 717 F.3d at 844, but we as-

sume for the sake of this appeal that it is available to the plaintiffs.

Even still, the doctrine cannot save the plaintiffs’ claims. For

one thing, it addresses claims filed with the wrong agency. That’s

not the situation here; plaintiffs instead maintain that their claims

were sent to the wrong employee at the right agency. But the plain

language of the regulation clearly applies to different agencies, not

in the intra-agency context. And in any event, constructive filing

requires a claim “that otherwise fully complies with § 14.2(a)’s pre-

sentment requirements with sufficient time before the statute of

limitations is set to run.” Id. In turn, Section 14.2(a) explains that

“a claim shall be deemed to have been presented when a Federal

agency receives from a claimant . . . an executed Standard Form 95

or other written notification of an incident, accompanied by a claim

for money damages in a sum certain.” 28 C.F.R. § 14.2(a). As we’ve

detailed, the USPS cannot be said to have “receive[d]” plaintiffs’ SF-

95s via the suspicious-looking June 24, 2022 emails. Accordingly,

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12 Opinion of the Court 25-11336

plaintiffs did not “fully compl[y] with § 14.2(a)’s presentment re-

quirements” and could not have benefited from the constructive

filing doctrine, even if it were applicable.

IV.

Finally, plaintiffs are not entitled to the benefits of equitable

tolling. We’ve explained that “[t]he question of whether or not eq-

uitable tolling applies is a legal one and thus is subject to de novo

review, but we are bound by the trial court’s factual findings unless

they are clearly erroneous.” Wright v. Waste Pro USA, Inc., 69 F.4th

1332, 1336 (11th Cir. 2023) (citation modified).

“The doctrine of equitable tolling allows a court to toll the

statute of limitations until such a time that the court determines

would have been fair for the statute of limitations to begin running

on the plaintiff’s claims.” Dotson v. United States, 30 F.4th 1259, 1268

(11th Cir. 2022) (citation modified). Equitable tolling is proper only

“when a movant untimely files because of extraordinary circum-

stances that are both beyond [her] control and unavoidable even

with diligence.” Id. (citation modified). The plaintiffs bear the bur-

den of proving those extraordinary circumstances exist. Id.

Plaintiffs have not carried their burden. They claim that it is

“extraordinary” that the USPS did not accept their emails as filings.

But again, the USPS could hardly be expected to process filings

made through suspicious emails, arbitrarily mailed to employees

whose jobs had nothing to do with tort claim management. There

is nothing extraordinary about the failure of Berman’s emails to

“present” plaintiffs’ claims.

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What’s more, the plaintiffs have cited no circumstances -- let

alone extraordinary ones -- that could have prevented them from

making the proper mailings. Berman was told exactly which forms

to file, where to send them, and who should receive them. Com-

plying with these instructions within the limitations period re-

quired no unusual diligence from Berman. Its own behavior

demonstrates as much -- the firm successfully mailed the SF-95

forms to the USPS shortly after the limitations period expired. 4

In short, there is no basis to apply equitable tolling here.

AFFIRMED.

4 To the extent plaintiffs suggest that equitable tolling is warranted because

the USPS had “notice” of their claims, “present[ing]” a claim means more than

giving notice. It requires providing “a claim for money damages in a sum cer-

tain.” 28 C.F.R. § 14.2(a). In other words, the agency needs to know the size

of the potential claim. In any case, the standard for equitable tolling is not

whether the defendant had “notice” of the claim; it is whether “extraordinary

circumstances” prevented the plaintiff from properly complying with the stat-

ute of limitations.