# Anna Mae R. Henderson v. United States of America, Anne Marie Henderson, by Her Guardian Ad Litem, Anna Marie R. Henderson v. United States

> Court of Appeals for the Fourth Circuit · February 27, 1986 · 785 F.2d 121

URL: https://www.frixlaw.com/law-library/cases/9474591

## Case

- **Full name:** Anna Mae R. HENDERSON, Appellant, v. UNITED STATES of America, Appellee; Anne Marie HENDERSON, by Her Guardian Ad Litem, Anna Marie R. HENDERSON, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** February 27, 1986
- **Citations:** 785 F.2d 121; 1986 U.S. App. LEXIS 22913
- **Precedential status:** Published
- **Opinion:** Dissent by Widener
- **Judges:** Widener, Ervin, Sneeden
- **Cited by:** 167 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/9474591

## How later opinions describe it (automated extraction)

- holding a plaintiff, prior to filing an action under the FTCA in federal court, must “first present[] the claim to the appropriate Federal agency,” noting “[i]t is well-settled that the requirement of filing an administrative claim is jurisdictional and may not be waived.”
- finding dismissal mandatory when plaintiff fails to file a claim with the proper administrative agency in case where plaintiff- appellants filed a state court suit against an individual employee
- finding that filing a state court action does not provide sufficient notice to the federal agency under the FTCA
- stating that “the requirement of filing an administrative claim is jurisdictional and may not be waived”
- holding similarly that filing of state court suit does not escape the exhaustion requirement

## Opinion text

WIDENER, Circuit Judge,
dissenting:
I respectfully dissent.
I agree with the majority that the FTCA, 28 U.S.C. § 2401 (b), bars a tort claim against the United States unless the appropriate federal agency has written notice of it within two years of its accrual; in this case, the time of the injury. In the present case, the negligence and alleged injuries occurred and were apparent, if at all, on March 14, 1980, the date of the collision. As a result, if plaintiff is required to rely on her administrative claim of July 6, 1982, filed more than two years after the date of the injury, then she is barred from pursuing any claim arising from the accident.
However, I do not believe that the timeliness of the present action is determined by the July 6, 1982 filing. Rather, I find persuasive Mrs. Henderson's second argu *127 ment, that the filing of the state court actions satisfied the requirements for bringing an administrative claim within the two-year limitations period.
In order to bring an FTCA action in a district court, a claimant must first fulfill the requirements of 28 U.S.C. § 2675 (a), which states in pertinent part:
An action shall not be instituted upon a claim 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, unless the claimant shall 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. The failure of an agency to make final disposition within six months after it is filed shall, at the option of the claimant at any time thereafter, be deemed a final denial for purposes of this section____
This section requires, first, that a claim be presented to the appropriate federal agency. The definition of an administrative claim sufficient for this purpose is set forth in 28 C.F.R. § 14.2 (a):
For purposes of the provisions of 28 U.S.C. §§ 2401 (b) and 2672, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. (Emphasis added)
It is clear from the explicit language of the regulation that the satisfaction of the requirements for an administrative claim demands neither a Form 95 nor any other particular form of claim. Crow v. United States, 631 F.2d 28, 30 (5th Cir.1980). In Williams v. United States, 693 F.2d 555, 557 (5th Cir.1982), the Fifth Circuit stated the rule:
[A]n individual with a claim against the government satisfies the notice requirements of § 2675 if he or she: “(1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim.” ____ Moreover, we have held that no particular form or manner of giving such notice is required as long as the agency is somehow informed of the fact of and amount of the claim within the two-year period prescribed by § 2401(b); ....
We have before us a state court action filed on December 9, 1980, nine months after the date the cause of action accrued and well within the two-year requirement of § 2401(b). The state complaints well set out the facts surrounding the accident, and request damages for injuries suffered in sums certain. In addition, summons was issued for Beverly Cummings. Three weeks later, on December 30th, the government took notice of the state action and certified Cummings as a federal employee acting within the scope of her employment. This awareness of the accident arid Cummings’ involvement was acknowledged by both the Postal Service and the U.S. Attorney on two subsequent occasions. The government’s knowledge of the substance and extent of Mrs. Henderson’s claim is further confirmed by the decision to remove the state action to federal court on September 2, 1981.
All this makes it clear that Mrs. Henderson commenced her action in a timely fashion and that the government issued its certificate of employment well within the two-year period of limitations. The additional acknowledgment of Cummings’ federal employment status and the subsequent removal of the state court action to federal court all establish that the government had prompt and complete notice of the claim. I believe these circumstances satisfy the policy underlying the requirement of filing an administrative claim, that is, the prompt *128 presentation of the claim to officers of the government for their consideration.
Indeed, upon removal to federal court, a state action is “deemed a tort action brought against the United States____” 28 U.S.C. § 2679 (d). Once Cummings, the driver of the postal truck, was certified as a federal employee acting within the scope of her employment, the only cause of action that existed was against the government. In these circumstances, the government became, as a matter of law, a party to the action filed in state court. Henderson v. United States, 429 F.2d 588, 590 (10th Cir.1970). Since the events surrounding the state action transpired within 18 months of the date of the injury, it is my belief that the Postal Service received timely notice of the incident and the claim arising from it in accordance with the requirements of 28 U.S.C. §§ 2401 (b) and 2675(a) and 28 C.F.R. § 14.2 (a). Accord Kelly v. United States, 568 F.2d 259, 268 (2d Cir.1978) (dictum) (action started in state court against a federal employee is “prompt and complete notice of the claim” to the government).
Moreover, I am persuaded that Mrs. Henderson’s pleadings filed in the state court action comply with 28 C.F.R. § 14 .-2(a), requiring “written notification of an incident, accompanied by a claim for money damages in a sum certain for [injuries] ... alleged to have occurred by reason of the incident.”
The government relies principally on the Eighth Circuit’s decision in Meeker v. United States, 435 F.2d 1219 (8th Cir.1970), in arguing that the filing of a state court action cannot satisfy the written notification requirement for an administrative claim. It is my belief that this assertion does not correctly construe the holding of Meeker . In Meeker , the plaintiff brought a state court action against an individual government employee. The employee was subsequently certified as a federal employee acting within the scope of his employment, and the action was removed to federal court and dismissed for failure to file an administrative claim. The Meeker plaintiff did not file a new suit in the district court, as here, but instead appealed the district court’s dismissal of the removed state court action, contending that the state court action was brought against the employee in his individual capacity, and not against the United States, and therefore the requirements of 28 U.S.C. § 2675 (a) did not apply. The court of appeals properly held that once certified as a federal employee acting within the scope of his employment, the only remedy the plaintiff had was against the United States. In affirming the dismissal of the action, the court properly concluded that the plaintiff could not circumvent the administrative claims process by maintaining a state court action against the individual employee.
While Meeker was obviously decided correctly, see also Rogers v. United States, 675 F.2d 123 (6th Cir.1982), and cf. Wilkinson, supra, the issue in Meeker and Rogers was not the same as that presented here. In each of those cases, FTCA plaintiffs, having filed suits in state court against individual government employees, attempted to proceed to judgment in those cases after removal to the federal district courts. No administrative action at all was taken. To have permitted Meeker and Rogers to proceed to judgment would have amounted to little less than judicial repeal of the administrative exhaustion requirements of 28 U.S.C. § 2675 . Our case is quite different, however. Here, the plaintiff asked merely that her pleadings in the prior state court action be considered sufficient notice under the applicable statutes and regulations to set the administrative machinery in motion, and I think they were sufficient. The plaintiff here, as the plaintiffs in Meeker and Rogers did not do, filed her suit in the district court and relied on her prior state pleadings only for administrative notice, rather than relying upon them as a vehicle upon which to seek judgment.
Since I am of opinion that the state court action satisfied the requirements for a written notification of a claim, I now inquire into the existence of the second predicate to bringing an FTCA tort action: the final denial of the claim by the federal agency in *129 writing and sent by certified or registered mail, or, in the alternative, the failure of the agency to make such a final disposition within six months of the time the claim was filed. 28 U.S.C. § 2675 (a).
On August 25, 1982, the Postal Service informed Mrs. Henderson by certified mail that her claim was being denied and would receive no further consideration. She filed the present action on April 5, 1983, more than seven months after the letter of denial. The government contends that this lapse in time bars her from further pursuing her claim under the FTCA. I agree with Mrs. Henderson, however, that the government’s letter of August 25th did not constitute a final denial.
The pertinent administrative regulation provides:
Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification. 28 C.F.R. § 14.9 (a) (Emphasis provided)
The Postal Service’s letter of August 25th did not satisfy the italicized mandatory language of § 14.9(a). The letter, by its own terms, failed to inform Mrs. Henderson that she was required to file suit in a federal district court within six months in order to maintain her claim against the government. As a result, the letter did not comply with the government’s own regulation, which was designed to avoid uncertainty as to the date of a “notice of final denial” for the purpose of commencing the six-month period within which to bring suit. Accordingly, the letter of August 28th was not a sufficient “notice of final denial” under 28 U.S.C. § 2401 (b). Martinez v. United States, 728 F.2d 694, 698 (5th Cir.1984), so holds on the same facts presented here. Since the letter did not constitute a final denial, Mrs. Henderson was free to act at any time, under 28 U.S.C. § 2675 (a), to deem such a failure to be a final agency denial, and to then proceed with her tort claim.
To sum it up, a claimant against the United States may present his claim by “other [than Form 95] written notice of an incident accompanied by a claim for money damages in a sum certain.” 28 C.F.R. § 14.2 (a). The cases are uniform that the notice need be in no particular form. But we now hold that the suit papers in a case filed in a state court and in the hands of the United States, and even of the particular agency, are not a sufficient compliance with § 2401(b) and § 14.2(a) upon which to base a later filed suit in the federal district court.
With respect to all, I cannot agree with such a result. I think the majority mistakes a case in which a plaintiff attempts to proceed in a federal district court with an action removed from a state court, which this case is not, with a plaintiff’s reliance on state court pleadings merely for notice under § 14.2(a), which this case is.
I suggest that our holding is contrary to the reasoning of three courts of appeals which have spoken to the subject. Not only have Crowe and Williams, supra, so spoken, the Fifth Circuit rule has been explicitly followed in Avery v. United States, 680 F.2d 608 (9th Cir.1982) and in Douglas v. United States, 658 F.2d 445 (6th Cir.1981). See also Kelly, supra, 568 F.2d at 268 .
I would reverse.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474591. Public record. Not legal advice.