Opinion

Tucker

Court: District Court, M.D. Alabama
Filed: Jul 28, 2026
Cited by: 0 cases
Authority: More cited than 42.1%

The opinion

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MORRIS TUCKER, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:23cv63-MHT

) (WO)

UNITED STATES OF AMERICA, )

d/b/a United States )

Postal Service, )

)

Defendant. )

OPINION AND ORDER

This lawsuit stems from an accident in which a U.S.

Postal Service (USPS) truck hit and injured plaintiff

Morris Tucker while he was riding a bicycle. Tucker

seeks to recover damages from defendant United States of

America under the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 2671-2680. The government moves to dismiss

Tucker’s lawsuit for lack of subject-matter jurisdiction

based on two theories. It argues, first, that Tucker

‘settled’ his claim. Second, it argues that it has not

‘finally denied’ Tucker’s claim. For the following

reasons, the motion will be denied.

I. LEGAL STANDARD

“The United States is generally immune from suit

unless Congress explicitly waives the government’s

immunity.” Koletas v. United States, 159 F.4th 813, 817

(11th Cir. 2025). “In the FTCA, Congress waived the

United States’ sovereign immunity for claims arising out

of torts committed by federal employees.” Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 217–18 (2008). The

government contends that this court lacks subject-matter

jurisdiction over Tucker’s lawsuit because he cannot

recover under the FTCA and thus his suit falls outside

the waiver of sovereign immunity. The government seeks

dismissal under Federal Rule of Civil Procedure 12(b)(1).

There are two types of subject-matter-jurisdiction

attacks under Rule 12(b)(1): facial attacks and factual

attacks. When a defendant makes a facial attack on

jurisdiction, the court reviews the complaint to

determine whether the plaintiff has sufficiently alleged

a basis for subject-matter jurisdiction. See Lawrence

v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). In

contrast, when a defendant makes a factual attack, the

court must determine “the existence of subject matter

jurisdiction in fact, irrespective of the pleadings,” and

“matters outside the pleadings, such as testimony and

affidavits, are considered.” Id. (citation omitted).

Here the government brings a factual attack. “In

the face of a factual challenge to subject matter

jurisdiction, the burden is on the plaintiff to prove

that jurisdiction exists.” OSI, Inc. v. United States,

285 F.3d 947, 951 (11th Cir. 2002).

II. BACKGROUND

The court will first provide the factual background

leading up to the filing of this lawsuit under the FTCA.

The court will then briefly summarize the relevant

structure of the FTCA.

A. Factual Allegations

On or about January 27, 2020, Tucker was riding a

bicycle in Montgomery, Alabama, when a USPS box truck hit

him. He suffered “severe and permanent personal

injuries” and other permanent and future damages.

Complaint (Doc. 1) at 6.

On January 25, 2022, counsel for Tucker submitted an

administrative claim for Tucker’s injuries to the USPS,

along with a cover letter. On the Standard Form 95

(“SF-95”)--the vehicle for submitting an FTCA claim to a

government agency--his counsel wrote that the total

amount in damages was $ 16,460.58 for personal injuries

and signed the form. The form contained a line stating:

“I CERTIFY THAT THE AMOUNT OF CLAIM COVERS ONLY DAMAGES

AND INJURIES CAUSED BY THE INCIDENT ABOVE.” Claim

(Doc. 15-1) at 1 (capitalization in original). It goes

on to say that, “[I] AGREE TO ACCEPT SAID AMOUNT IN FULL

SATISFACTION AND FINAL SETTLEMENT OF THIS CLAIM.” Id.

However, in the accompanying cover letter, counsel wrote:

“Please see the attached Standard Form 95 attached along

with Mr. Tucker’s medical records and billing. Please

note that Mr. Tucker has seen additional medical

providers and has consistently been treated throughout

the end of 2021. At this time, our office has requested

additional medical records and will supplement upon

receipt of said records.” January 25 Cover Letter

(Doc. 19-1) at 6.

More than six months later, in August 2022, the USPS

sent a letter to Tucker’s counsel with a check for the

full amount requested on his SF-95. The check was made

payable to Tucker and his attorney. See Check

(Doc. 19-1) at 8. The accompanying letter stated that

the payment was “in full and final settlement of the

claim filed on behalf of the above-referenced claimant.”

Settlement Letter (Doc. 15-2).1 It further stated:

“Pursuant to 28 U.S.C. § 2672 and 39 C.F.R. § 912.14,

acceptance of this check operates as a complete release

and bars recovery of any additional or future claims

against the United States, the U.S. Postal Service, or

any employee whose act or omission gave rise to the claim

by reason of the same subject matter.” Id. (emphasis

added). The letter was sent by certified mail and was

received by Tucker’s counsel on August 30, 2022. See

Certified Mail Receipt (Doc. 15-3). The check was not

cashed or returned.

On January 27, 2023, less than five months after

receiving the check, Tucker filed this lawsuit. He now

seeks $ 3 million in damages.

1. The letter was dated August 9, 2022, but because

the check that accompanied the letter was dated August

10, 2022, it is unclear whether the date on the letter

was the actual mailing date. See Settlement Letter

(Doc. 15-2). In any event, the statute of limitations,

which turns on the mailing date, is not at issue here.

B. The FTCA’s Relevant Structure

As stated, the government contends that this court

lacks subject-matter jurisdiction over Tucker’s lawsuit

because his suit falls outside the waiver of sovereign

immunity in that he cannot recover under the FTCA.

Whether this suit can move forward, therefore, turns on

whether Tucker may recover under the FTCA.

The FTCA permits the government to be sued for the

negligence of its employees under the same circumstances

and to the same extent as a private party. The act has

both an administrative-exhaustion requirement, set forth

in 28 U.S.C. § 2675(a), and a statute of limitations, set

forth in 28 U.S.C. § 2401(b). Combined, § 2675(a) and

§ 2401(b) “act as chronological bookends to an FTCA

claim, marking both a date before which a claim may not

be filed and a date after which any filing is untimely.”

Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir.

2015). Section 2675(a) “bars claimants from bringing

suit in federal court until they have exhausted their

administrative remedies.” McNeil v. United States, 508

U.S. 106, 113 (1993). Plaintiffs may meet this

requirement in two ways: (1) they may “have their

administrative claims finally denied by the relevant

federal agency; or (2) if the agency fails to act on

their administrative claims within six months of

presentment, they may thereafter deem the claims denied,

that is, that they may consider that claim as having been

constructively denied. Barnes, 776 F.3d. at 1139.

As observed above, while “§ 2675(a)’s exhaustion

requirement establishes a date before which a claim

cannot be filed, § 2401(b)’s limitations period

establishes the date after which any claim is barred.”

Id. (emphasis in original). Section 2401(b) provides

that, “A tort claim against the United States shall be

forever barred 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.” Id.

The FTCA authorizes each federal agency to settle

administrative claims, and it prevents the filing of

lawsuits when the claimant has accepted a settlement.

See 28 U.S.C. § 2672. The act provides that, “The

acceptance by the claimant of any such award, compromise,

or settlement shall be final and conclusive on the

claimant, and shall constitute a complete release of any

claim against the United States and against the employee

of the government whose act or omission gave rise to the

claim, by reason of the same subject matter.” Id.

III. DISCUSSION

To rehash some of the critical facts, the record

reflects that, on January 27, 2020, Tucker was hit on his

bike by a USPS box truck; on January 25, 2022, counsel

for Tucker submitted an administrative claim to the USPS;

in August 2022, the USPS sent a letter to Tucker with a

check for the full amount requested in the claim; and on

January 27, 2023, Tucker filed this lawsuit.

As stated, the central question before the court is

whether Tucker may recover under the FTCA. And, as

further stated, the government moves to dismiss for two

reasons. It argues, first, that it ‘settled’ Tucker’s

claim, and the FTCA bars settled claims. Second, it

argues that Tucker may not sue the government because the

USPS has not ‘finally denied’ his claim, as required by

the FTCA. The court will discuss each argument, in turn.

A. Settlement as Bar to Suit

The government argues that Tucker “accepted the

settlement by retaining the check for a year with no

notice that he would not accept the check.” Govt’s Mot.

to Dis. (Doc. 15) at 4. And the cover letter accompanying

the check stated: “Pursuant to 28 U.S.C. § 2672 and 39

C.F.R. § 912.14, acceptance of this check operates as a

complete release and bars recovery of any additional or

future claims against the United States.” Settlement

Letter (Doc. 15-2).

As support for its contention, the government points

to a variety of federal cases in which FTCA lawsuits were

dismissed because the plaintiffs were found to have

accepted the government’s settlement offer. See Mot. to

Dismiss (Doc. 15) at 5-6 (citing, e.g., Schwarder v.

United States, 974 F.2d 1118, 1124 (9th Cir. 1992)).2

The court finds these cases distinguishable because, in

each such case, the plaintiff cashed the check from the

government and, thereby, provided a clear indication of

accepting the settlement offer.3 Here, in contrast,

2. The government further cites Ziler v. USA, No.

6:21-CV-01697, 2022 WL 2390045, at *1 (W.D. La. July 1,

2022) (Summerhays, J.); Contreras v. United States, No.

1:19-CV-12870, 2022 WL 970192, at *2 (D.N.J. Mar. 31,

2022) (O’Hearn, J.); Circelli v. United States, No.

17-CV-5269, 2018 WL 3000334, at *1 (D.N.J. June 15, 2018)

(Wigenton, J.); and Murphree v. United States, No.

10-CV-4122, 2011 WL 1980371, at *1 (D. Kan. May 20, 2011)

(Brown, J.).

3. The cashing of a check is of particular

significance in contract law. See, e.g., Ala. Code

§ 7-3-311 (2025) (defining accord and satisfaction by use

of a negotiable instrument, and requiring that “the

Tucker did not cash the government’s check and therefore

did not clearly “accept” the settlement offer.

Anticipating this issue, the government argues that

it does not matter to the analysis of acceptance that

Tucker did not cash the check. Before analyzing this

argument, the court must determine the law that applies

to the question. The government contends that Alabama

law controls.

As an initial matter, the FTCA requires that the

government’s tendering of the check be viewed as a

settlement offer to Tucker. See Wiseman v. United

States, 976 F.2d 604, 606 (9th Cir. 1992) (“Because

§ 2672 requires ‘acceptance by the claimant,’ filing an

administrative claim is not a settlement offer by the

claimant, but an invitation to negotiate.”). The FTCA

“explicitly vests the power of acceptance in the

claimant, and not in the agency. ... [S]ince the statute

claimant obtained payment of the instrument” for the

provision to apply); U.C.C. § 3-311(a) (2002) (same).

gives the claimant the power of acceptance, an agency’s

decision to grant the claim is not an acceptance, but an

offer.” Odin v. United States, 656 F.2d 798, 804 (D.C.

Cir. 1981). Thus, regardless of which substantive body

of law controls this inquiry, the court’s analysis must

start from this statutory premise.

Claims brought under the FTCA are governed by the

substantive law of the State where the injury occurred.

See 28 U.S.C. § 1346.4 “[A] reading of the statute as a

whole, with due regard to its purpose, requires

application of the whole law of the State where the act

or omission occurred.” Richards v. United States, 369

U.S. 1, 11 (1962). That said, it is not entirely clear

4. Section 1346 gives district courts jurisdiction

“of civil actions on claims against the United States,

for money damages ... for injury or loss of property, or

personal injury or death caused by the negligent or

wrongful act or omission of any employee of the

Government while acting within the scope of his office

or employment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place where

the act or omission occurred.” (Emphasis added.)

whether the statute’s reference to substantive law refers

to only the state law relevant to the cause of action or

also refers to state law regarding whether a settlement

offer has been accepted.

The Eleventh Circuit Court of Appeals has not decided

whether state or federal law applies in an FTCA case to

whether a plaintiff accepted a settlement by retention

of a check. However, the appellate court has expressed

a general reluctance to rely on federal common law except

in limited settings. See Resnick v. Uccello Immobilien

GMBH, Inc., 227 F.3d 1347, 1350 n. 4 (11th Cir. 2000).5

Moreover, several courts have applied state law in

the FTCA context to decide related issues. See, e.g.,

Reo v. U.S. Postal Serv., 98 F.3d 73, 76 (3d Cir. 1996)

(“The basic purpose of the FTCA is to subject the United

5. In Resnick, the court stated: “We generally

disfavor federal common law and apply it in only rare

instances concerning rights and obligation of the United

States, interstate and international disputes

implicating the conflicting rights of States or our

relations with foreign nations, and admiralty cases.” 227

F.3d at 1350 n. 4 (quotation and citation omitted).

States to tort liability under state law to the same

extent as private individuals. State law thus governs

both the creation of liability and the effect of a

purported release of liability.”).6 For these reasons,

the court will apply Alabama law to decide whether Tucker

accepted the settlement offer by retaining the check

without cashing it.

6. See also Schwarder v. United States, 974 F.2d

1118, 1124 (9th Cir. 1992) (applying state law to

determine the impact of an FTCA settlement on a

non-settling party, but “conclud[ing], as a matter of

federal law, that an administrative settlement reached

pursuant to section 2672 bars further claims by the

settling party, without regard to the effect it would

have as a matter of state law ... [because] [s]uch a

construction gives meaning to all of section 2672, and

effectuates the apparent Congressional intent to provide

a uniform procedure, independent of underlying state law,

by which the government can settle tort claims against

it”); Green v. United States, 709 F.2d 1158, 1165 (7th

Cir. 1983) (“[T]he effect of a release from liability

must be determined according to that state’s law.”)

(citation omitted); Rushford v. United States, 204 F.2d

831, 832 (2d Cir. 1953) (“[I]t is plain that Congress

meant to make the proper state law in all respects the

model for the liabilities it consented to accept; and

that the ‘circumstances’ included as much those facts

that would release a liability once arisen, as those on

which its creation depended.”).

The government cites one Alabama case dealing with

the doctrine of accord and satisfaction to argue that

Tucker held onto the check for an unreasonable amount of

time and thus treated it as a full settlement: Craft v.

Standard Accident Ins. Co., 123 So. 265, 270 (Ala. Ct.

App. 1928), rev’d and remanded by Craft, 123 So. 271, 274

(Ala. 1929). Under Alabama law, “[a] valid accord and

satisfaction is premised upon there being an express or

implied contract between the parties.” Bank Indep. v.

Byars, 538 So. 2d 432, 435 (Ala. 1988). “[I]n order for

there to be a valid accord and satisfaction, there must

be (1) proper subject matter; (2) competent parties; (3)

assent or meeting of the minds; and (4) consideration.”

Id. (citations omitted).

“[A meeting of the minds] is not a determination of

law, but one of fact, based upon the evidence presented.”

Ray v. Alabama Cent. Credit Union, 472 So. 2d 1012, 1014

(Ala. 1985). “Generally speaking an offeree has a right

to make no reply to offers, and his silence and inaction

cannot be construed as an assent to the offer.” Brunswick

Corp. v. Sittason, 277 Ala. 45 (Ala. 1964) (quotations

omitted). There are exceptions to this general contract

rule. Previous dealings between the parties, the

offeree’s conduct, or an extended retention of goods or

services without objection can indicate acceptance. See

id. at 47. The Sittason court stated that “silence gives

consent in these cases only when there is a duty to

speak.” Id. (quotation omitted).

In Craft, the case cited by the government, an

Alabama appeals court found that a party had accepted a

check in full accord and satisfaction of a claim,

reasoning that, under certain circumstances, retaining a

settlement check “for an unreasonable time will amount

to an election to treat the payment as a full settlement.”

Craft, 123 So. at 270.7 Notably, on appeal, the Alabama

7. In citing the Alabama Court of Appeals’ Craft

decision in its motion, the government described the

Alabama Supreme Court’s subsequent decision as a reversal

“on other grounds.” See Mot. to Dismiss (Doc. 15-1) at

7. The court is not sure whether this description is

Supreme Court reversed the court of appeals, including

on its finding of accord and satisfaction, explaining

that, “[t]he mere retention of an uncertified personal

check purporting to be issued in full satisfaction of a

disputed demand, where notice is given on its receipt

that it will not be received in full satisfaction of the

demand, in the absence of the subsequent indorsement and

collection, does not, as a matter of law, constitute an

acceptance of the check as accord and satisfaction.”

Craft, 123 So. at 274.

These cases guide the court insofar as one sets out

a general unreasonable-time standard for acceptance by

silence, and the other provides a set of facts in which

retention of a check definitely does not amount to accord

and satisfaction. However, neither Craft opinion makes

accurate. The Alabama Supreme Court expressly disagreed

with the court below as to its resolution of the accord

and satisfaction issue and reversed and remanded the

case. However, it did not expressly reject the idea that

retaining a settlement check for an unreasonable time can

amount to an election to treat the check as a full

settlement.

clear how long the checks were retained and therefore

they offer little guidance as to what counts as an

unreasonable time.

Tucker retained the check without cashing it for less

than five months before filing suit.8 In an effort to

elucidate the meaning of “unreasonable time,” the

government cites several non-Alabama cases in support of

its argument. While none of these cases is binding, the

court can consider them as persuasive authority.

However, in none of the cited cases did any court find

that retaining a check for less than five months amounts

to acceptance. In one case, a federal court found that

an FTCA claimant accepted a USPS settlement offer where

the claimant retained the check for more than two years.

Arnold v. United States, No. 1:21-CV-399-WJ-JFR, 2022 WL

7008294, at *3 (D.N.M. Oct. 12, 2022) (Johnson, C.J.).

8. As the government notes, Tucker put the government

on notice that he deemed his claim denied in January

2023, when he “filed” the complaint. Govt. Reply Br.

(Doc. 20) at 2.

Two years is substantially longer than five months, which

alone makes Arnold distinguishable from the instant

case.9

In a footnote, the government also cited cases from

other States holding that acceptance occurred when a

check was retained for (a) eight years, (b) 18 months,

and (c) seven months. See Mot. to Dismiss (Doc. 15) at

7 n. 3.10 Hoffman v. Ralston Purina Co., 273 N.W.2d 214

(Wis. 1979), the seven-month case (the only one close

9. In Arnold, the claimant also failed to return the

check despite being told by the USPS that “she must return

the check in order to demand an updated settlement

offer,” an added fact that made retention more akin to

assent. Id. at 3. Here, the USPS did not tell Tucker

to return the check.

10. The government cites Rosenberg v. Townsend,

Rosenberg & Young, Inc., 376 N.W.2d 434 (Minn. Ct. App.

1985) (acceptance of settlement offer where check was

retained for 18 months without notifying other party that

check would not be accepted as payment in full); Bestor

v. Am. Nat'l Stores, 691 S.W.2d 384 (Mo. Ct. App. 1985)

(acceptance where initial check was retained for eight

years and subsequent checks were cashed); and Hoffman v.

Ralston Purina Co., 273 N.W.2d 214 (Wis. 1979)

(acceptance where check was retained for seven months,

with silence).

enough to the time period in this case to warrant closer

examination), is distinguishable: the court based its

finding of accord and satisfaction on not only the

offeree’s retention of a check for that period of time

but also the offeree’s retention of an accompanying

credit memorandum and acceptance “without objection [of]

the fruits of that credit memorandum[--]the cancellation

of his existing indebtedness.” Id. at 218-19. Tucker,

in contrast, accepted no additional benefit from the

government that would support a finding that he accepted

the government’s offer. And the government concedes that

he gave notice that he would not accept the check when

he filed suit. See Govt. Reply Br. (Doc. 20) at 2 (“Mr.

Tucker did not put the United States on notice that he

deemed his claim to be denied until he filed the complaint

in January 2023.”).

The court concludes that retaining the government’s

settlement offer for less than five months before filing

suit--thereby putting the government on notice that the

check would not be accepted--does not, by itself, amount

to Tucker’s accepting of the check as an accord and

satisfaction of his tort claim under Alabama law.

Further, while Tucker did not supplement his claim with

additional medical bills before the government sent the

check, his attorney did put the government on notice from

the outset that the amount Tucker requested on his SF-95

did not encompass the full amount of his damages--in

particular, bills. Thus, the government knew at the time

it sent the check that the amount was likely insufficient

from plaintiff’s perspective. Under these circumstances,

the court cannot conclude that the government obtained

Tucker’s acceptance of its settlement offer through

accord and satisfaction.

Finally, at the end of its acceptance argument, the

government briefly argues that the court lacks

jurisdiction because the case was settled for the maximum

amount Tucker could receive in court. It contends that

28 U.S.C. § 2675(b)--which states, in part, that, “Action

under this section shall not be instituted for any sum

in excess of the amount of the claim presented to the

federal agency”--robs the court of jurisdiction because

Tucker sued for $ 3 million while his administrative

claim listed his damages as $ 16,460.58.

The government’s argument depends in large part on

ignoring the language that follows the quoted part of

§ 2675(b). The full provision allows FTCA cases to be

brought for more than the amount requested in the

administrative claim “where the increased amount is based

upon newly discovered evidence not reasonably

discoverable at the time of presenting the claim to the

federal agency, or upon allegation and proof of

intervening facts, relating to the amount of the claim.”

28 U.S.C. § 2675(b). The applicability of this provision

cannot be resolved at this early stage of the case. See

Rudd v. United States, 233 F. Supp. 730, 734 (M.D. Ala.

1964) (Johnson, J.) (“The application of this rule of

‘limitation of liability’ does not require the dismissal

of plaintiffs’ claims. In such instances, the courts have

held that the limitation is merely upon the amount

recoverable.”) (collecting cases). The government may

reassert this defense on summary judgment or thereafter.

See generally Frazier v. United States, 766 F.2d 478

(llth Cir. 1985) (applying § 2675(b) after trial). That

said, the amount Tucker may recover in this case appears

likely to be significantly limited by § 2675(b).

Having found that Tucker did not accept’ the

government’s settlement offer, the court turns to the

government’s second argument--that Tucker has not met the

prerequisites laid out in 28 U.S.C. § 2675(a).

B. Exhaustion as a Bar to Suit

“The FTCA bars claimants from bringing suit in

federal court until they have exhausted their

administrative remedies.” McNeil v. United States, 508

U.S. 106, 113 (1993). As stated, there are two ways for

a claimant to exhaust his administrative remedies:

concretely or constructively. 28 U.S.C. § 2675(a)

provides that the plaintiff must have “first presented

the claim to the appropriate Federal agency and his claim

shall have been finally denied by the agency in writing

and sent by certified or registered mail.” (Emphasis

added.) But a formal written denial is not the only way

a claim can be denied: § 2675(a) further provides that,

“The failure of an agency to make final disposition of a

claim within six months after it is filed shall, at the

option of the claimant any time thereafter, be deemed a

final denial of the claim for purposes of this section.”

Id. (emphasis added). In other words, “to meet the

threshold requirement of administrative exhaustion,

plaintiffs must either (1) have their administrative

claims finally denied by the relevant federal agency; or

(2) if the agency fails to act on their administrative

claims within six months of presentment, they may

thereafter deem the claims (constructively) denied.”

Dotson v. U.S., 30 F.4th 1259, 1266 (11th Cir. 2022)

(quotation omitted).

To rehash some of the critical facts, the record

reflects that, on January 27, 2020, Tucker was hit on his

bike by a USPS box truck; on January 25, 2022, counsel

for Tucker submitted an administrative claim to the USPS;

in August 2022, the USPS sent a letter to Tucker with a

check for the full amount requested in the claim; and,

on January 27, 2023, Tucker filed this lawsuit.

The specific issue here is whether an agency’s

issuance and offer of a check for the full amount claimed

on the SF-95--after six months without a final

disposition--eliminates his statutory right to deem his

claim denied and file suit. Or to put it another way,

does an unaccepted offer do so? For the reasons below,

the answer to this question is no.

While § 2675(a) mandates that a claimant who has

submitted an administrative claim wait either to receive

a denial from the agency or until six months have passed

from filing the claim before filing suit, there is

nothing in the FTCA to require the claimant to engage in

the administrative process beyond these baseline

presentment requirements. See Adams v. United States,

615 F.2d 284, 291-92 (5th Cir. 1980) (“A claimant’s

refusal to settle his or her claim will not deprive the

federal court of jurisdiction, if the claimant has

provided the statutorily required notice. Although many

claimants will rationally elect to settle their claims,

Congress clearly did not deem settlement mandatory.”)

(footnotes omitted), decision clarified on denial of

reh’g, 622 F.2d 197 (5th Cir. 1980).11 “A federal court’s

power to adjudicate a tort claim brought against the

United States depends solely on whether the claimant has

previously complied with the minimal requirements of the

statute. Federal court power does not depend on whether

11. In Bonner v. City of Prichard, 661 F.2d 1206,

1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

Court of Appeals adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior

to the close of business on September 30, 1981.

a claimant has successfully navigated his or her way

through the gauntlet of the administrative settlement

process ... .” Id. at 292 (citing 28 U.S.C. § 2675(a)).

The government argues that this suit must be

dismissed because the USPS did not finally deny Tucker’s

claim. In response, Tucker argues that, because the

agency did not finally dispose of his claim within six

months after filing, he had the option “at any time

thereafter” to deem the claim finally denied, 28 U.S.C.

§ 2675(a), which he did. To resolve the issue in this

case, the court must first determine what this statutory

language means.

1. Statutory Interpretation

When interpreting a statute, “the first step is to

determine whether the statutory language has a plain and

unambiguous meaning by referring to ‘the language itself,

the specific context in which that language is used, and

the broader context of the statute as a whole.’” Bautista

v. Star Cruises, 396 F.3d 1289, 1295 (11th Cir. 2005)

(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997)). The Supreme Court has repeatedly emphasized,

in its current jurisprudence, that courts interpreting

statutes should rely on a statute’s plain language when

the meaning of such language is clear, rather than

turning to legislative history, speculation about what

Congress might have intended, or policy arguments. See

Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys.,

603 U.S. 799, 815 (2024). “The statutory-interpretation

inquiry ceases if the language is clear and ‘the

statutory scheme is coherent and consistent.’” Bautista,

396 F.3d at 1295 (quoting Robinson, 519 U.S. at 340).

Starting with the statutory language, 28 U.S.C.

§ 2675(a) provides that, “The failure of an agency to

make final disposition of a claim within six months after

it is filed shall, at the option of the claimant any time

thereafter, be deemed a final denial of the claim for

purposes of this section.” (Emphasis added.) The

Supreme Court has “repeatedly explained that the word

‘any’ has an expansive meaning. ... The standard

dictionary definition of ‘any’ is [s]ome, regardless of

quantity or number.” Babb v. Wilkie, 589 U.S. 399, 405

n.2 (2020) (citations and quotations omitted). The most

natural reading of the plain language is that, once six

months pass without agency action, a claimant has the

option to deem his claim denied whenever he

chooses--unless some other provision cabins the time.12

Moving to the context of the language, the phrase at

issue sits in 28 U.S.C. § 2675, which addresses the

impact of the administrative process on subsequent

litigation. The statute (1) sets the

administrative-exhaustion requirement (§ 2675(a)), (2)

constrains the damages that can be awarded in a lawsuit

12. “Section 2675(a) expressly states that a claim

may be deemed denied only ‘for purposes of this section.’

Thus, a ‘deemed’ final denial under section 2675(a) has

no effect beyond what is stated in that section.” Lehman

v. United States, 154 F.3d 1010, 1014 (9th Cir. 1998)

(emphasis in original).

to the amount requested in the administrative process,

with limited exceptions, (§ 2675(b)), and (3) restricts

the use, in a lawsuit, of any disposition in the

administrative process by the Attorney General or an

agency as evidence of liability or amount of damages

(§ 2675(c)).

Subsection (a) of § 2675, thus, acts as an initial

hurdle that, once overcome, allows a claimant to bring

suit. See McNeil v. United States, 508 U.S. 106, 112

(“The most natural reading of [§ 2675(a)] indicates that

Congress intended to require complete exhaustion of

Executive remedies before invocation of the judicial

process.”). It is narrowly concerned with exiting the

administrative arena and moving to the judicial arena.

When drafting the 1966 amendments to the FTCA, Congress

had to decide how long it wanted claims to remain with

an agency, and it decided on six months. And in doing

so, it did not further constrain the deemed-denial option

by eliminating it if the agency acted after six months

but before suit.

Third and finally, the court looks to the broader

context of the FTCA as a whole. One tool of statutory

interpretation involves looking at other uses of

contested language in a statute. The phrase at issue

here--“at the option of the claimant any time

thereafter”--does not arise elsewhere in the statutory

scheme, and thus other instances are unavailable to aid

in the interpretation of this phrase in § 2675(a).

Moreover, “[s]ection 2675(a) expressly states that a

claim may be deemed denied only ‘for purposes of this

section.’ Thus, a ‘deemed’ final denial under section

2675(a) has no effect beyond what is stated in that

section.” Lehman v. United States, 154 F.3d 1010, 1014

(9th Cir. 1998) (emphasis in original).

The court’s interpretation of the phrase is coherent

with the rest of the statutory scheme. It creates no

inconsistency or conflict with the other provisions of

the statute.

Further, multiple courts have determined that the

time to invoke the deemed-denial provision is limited by

only a final denial by the agency. See, e.g., Barnes v.

United States, 776 F.3d 1134, 1140 (10th Cir. 2015)

(“[C]ourts are virtually of one mind in ruling that (at

least until there has been a final denial by the relevant

agency) there is no limit on when a plaintiff may file a

lawsuit predicated on a deemed denial.” (collecting

cases)).13 With the filing of his lawsuit after his claim

13. The FTCA’s statute-of-limitations provision, 28

U.S.C. § 2401(b), requires that lawsuits be filed “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.” Courts have

determined that, when an agency does not act within six

months but later sends a final denial pursuant to

§ 2401(b), this statute of limitations supersedes the

deemed-denial provision. See, e.g., Barnes v. United

States, 776 F.3d 1134, 1139 (10th Cir. 2015) (“[T]he

six-month limitations period in § 2401(b) is triggered

by an agency’s formal denial of a potential plaintiff’s

administrative claims—regardless of whether that

plaintiff has filed a claim pursuant to § 2675(a)’s

‘deemed denial’ provision.”).

had been pending for six months, Tucker gave notice that

he deemed his claim denied and the filing of his lawsuit

is proper.

The government argues, nonetheless, that an agency’s

issuance of a check as an offer (without acceptance, as

explained in detail in an earlier section of this

opinion) for the full amount claimed on the initial claim

form eliminates the statutory right to deem the claim

denied and file suit. The government’s argument would

require the court to ignore Congress’s direction--in the

plain language of the statute--that a claimant may deem

his claim denied “at any time” after six months has passed

without final disposition by the agency. 28 U.S.C

§ 2675(a). Here, as explained above, the deemed-denied

provision’s operational timeframe--for purposes of

administrative exhaustion--is limited by only a final

denial by the agency.14

To be sure, the government may not like the fact that

the deemed-denied provision is limited by only a final

14. While the Eleventh Circuit Court of Appeals has

not been presented with the issue in this case (a suit

filed under the deemed-denial provision after six months

have passed and after the agency has offered the entire

amount written on the SF-95) its predecessor, the former

Fifth Circuit Court of Appeals, has laid out in binding

law, see supra note 12, the minimal requirements of

§ 2675(a) and has never said that the deemed denial under

§ 2675(a) is limited by subsequent agency action. See

Adams v. United States, 615 F.2d 284, 289–90 (5th Cir.

1980) (holding that proper presentment of a claim “alone

allows the claimant to maintain a subsequent action in

the district court following the denial of his or her

claim by the agency or the passage of six

months”), decision clarified on denial of reh'g, 622 F.2d

197 (5th Cir. 1980); see also Free v. United States, 885

F.2d 840, 842 (11th Cir. 1989) (stating, in the context

of a dispute regarding presentment of a claim, that

“[o]nce the claim has been denied or six months after the

claim has been filed, a plaintiff may bring a lawsuit in

federal court”); Turner ex rel. Turner v. United States,

514 F.3d 1194, 1200 (11th Cir. 2008) (stating, in

circumstances where multiple administrative claims had

been filed and only one of them had been pending for

longer than six months, that “[b]efore instituting a

federal suit, the claimant must wait either until the

administrative agency finally denies the claim or until

at least six months have passed after the claim was

filed”).

denial by the agency. However, “even the most formidable

policy arguments cannot overcome a clear statutory

directive.” BP P.L.C., 593 U.S. at 245 (quotation

omitted). A court’s “task is to discern and apply the

law’s plain meaning as faithfully as [it] can, not to

assess the consequences of each approach and adopt the

one that produces the least mischief.” Id. (quotation

omitted). Applying that approach here, the court finds

that the plain meaning of the statute allows Tucker’s

claim to move forward, because he properly exercised his

option to deem his claim denied pursuant to § 2675(a) at

a time after six months of USPS inaction.15 The

15. Two courts, Lehman v. United States, 154 F.3d

1010, 1015 (9th Cir. 1998), and Conn v. United States,

867 F.2d 916, 920 (6th Cir. 1989), characterized Miller

v. United States, 741 F.2d 148, 150 (7th Cir. 1984), as

holding that an FTCA action must be filed within a

“reasonable time” after the six-month review period

expires. However, Miller mentioned “reasonable time”

only in passing; there was not basis, in a stature or

case law, given for it; and the phrase was not critical

to the holding. But, in any event, Tucker filed his

lawsuit within a “reasonable time” after the six-month

review period expired.

government’s unaccepted offer did not eliminate this

option.

***

Accordingly, it is ORDERED that defendant United

States of America’s motion to dismiss (Doc. 15) is

denied.

DONE, this the 28th day of July, 2026.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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