FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 25, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 00-13222

 

D. C. Docket No. 99-14363 CV-KMM

CHARLES BARNETT, 

Plaintiff-Appellant,

versus

OKEECHOBEE HOSPITAL

d.b.a. Raulerson Hospital, 

Defendant-Appellee,

BERNARD KRUSZEL, M.D.,

DEPARTMENT OF VETERANS AFFAIRS,

an agency of the United States of America,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(February 25, 2002)

Before TJOFLAT and WILSON, Circuit Judges, and RESTANI*, Judge.

_______________________

*Honorable Jane A. Restani, Judge, U.S. court of International Trade, sitting by

designation.
1

 In his complaint, Barnett also sued Okeechobee Hospital d/b/a Raulerson

Hospital (“Okeechobee”) and Dr. Bernard Kruskel. In suing these defendants,

Barnett invoked the district court’s supplemental jurisdiction under 28 U.S.C. §

1367 (1994). 

2

TJOFLAT, Circuit Judge:

In this case, Charles Barnett sued the U.S. Department of Veterans Affairs

(the “VA”) for medical malpractice under the Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§ 2671-2680 (1994).1

 The district court dismissed Barnett’s complaint,

concluding that Barnett failed to comply with the notice requirements of 28 U.S.C.

§ 2675(a). In this appeal, he challenges the court’s conclusion. We reverse. 

I.
2

 Barnett alleges that on July 23, 1997, he went to Okeechobee Hospital, where

he was treated by Dr. Bernard Kruskel. Diagnostic tests indicated that Barnett,

who complained of overall weakness, had a grossly elevated BUN/Creatinine ratio,

and Dr. Kruskel ordered that Barnett receive one liter of intravenous fluid. 

According to Barnett, the treatment was inadequate, and he suffered from

diminished mental status and cognitive function due to dehydration and renal

impairment when he was released from Okeechobee on July 27. Soon after his

release and allegedly due to his diminished mental status, Barnett was struck by a

truck. He was treated at the VA’s Veteran Administration Medical Center

(VAMC) in Miami for his injuries, including a fracture in his left leg. Barnett

alleges that the VAMC’s doctors failed to diagnose or appreciate the significance

of an infection that developed due to the fracture, and as a result, his leg needed to

be amputated.

3

On August 28, 1998, Scott Leeds, counsel for Charles Barnett, sent a letter

by certified mail to “Department of Veterans Affairs, Office of Regional Counsel,”

expressing Barnett’s intent “to initiate negligence litigation against [the] Veterans

Administration Medical Center of Miami” for allegedly negligent treatment in July

1997 that led to the amputation of Barnett’s lower right leg.2

 Leeds indicated in his

letter that it was being sent “pursuant to the requirements of Florida Statute

§ 766.106 and Rule 1.650 of the Florida Rules of Civil Procedure.” In a response

letter dated September 1, 1998, Steve McCormack, a staff attorney with the Office

of Regional Counsel, informed Leeds, however, that “any and all claims of

negligence involving medical care or treatment provided by employees of the

Department of Veterans Affairs (VA), part of the executive branch of the United
4

States government, are governed by the Federal Tort Claims Act (FTCA) rather

than state law.” Consequently, with his letter, McCormack enclosed a Standard

Form 95 (“SF95") – which he described as “the appropriate method of filing an

administrative tort claim against the VA” – with his letter.

Barnett filled out the SF95 and mailed it, along with a cover letter from

Leeds dated September 8, 1998, to “Department of Veteran Affairs, VA Medical

Center” using a postage-paid “business reply mail” envelope that McCormack had

mailed to Leeds along with the SF95. Then, in October 1999 – over a year after

the SF95 was mailed – Barnett filed a complaint in the Circuit Court of

Okeechobee County, Florida against Okeechobee Hospital, Dr. Bernard Kruskel,

and the VA, in which he certified that he had “complied fully with all of the

requirements of the Federal Tort Claims Act vis-a-vis Defendant VA prior to filing

this action.” The case was removed to the district court on November 19, 1999.

On January 14, 2000, the VA filed a motion to dismiss, in which it asserted

first, that “[a] tort claim against the United States is barred unless an administrative

claim, in writing, was presented to the appropriate agency within two years of the

date the claim accrued,” and second, that Barnett failed to file such a claim. As

support for the latter assertion, the VA submitted affidavits from K. Sue Meyer, the

VA’s Regional Counsel in Bay Pines, Florida, and McCormack and Margaret
3

 Once the court dismissed the claims against the VA, it was free to decline

jurisdiction over the remaining state claims. See 28 U.S.C. § 1367(c)(3).

5

Adams, two members of her staff. All three claimed that, other than the initial

letter Leeds mailed to the Office of Regional Counsel on August 28, 1998, their

office never received any other written communication from Barnett regarding an

FTCA administrative claim – including the SF95 he purportedly mailed in

September 1998. Consequently, the VA asked the district court to dismiss

Barnett’s suit for lack of subject matter jurisdiction.

On April 18, 2000, the district court granted the VA’s motion and dismissed

Barnett’s complaint without prejudice.3

 The court “granted [Barnett] ten (10) days

in which to file an Amended Complaint together with documentation sufficient to

support a finding that the appropriate notification of claim and sum certain was

mailed to and received by the appropriate federal agency within the two year

statute of limitations as required by 28 U.S.C. § 2675(a).” Barnett filed an

amended complaint on April 28, 2000, in which he once again contended that he

“complied with all of the conditions precedent and notice requirements set forth in

the Federal Tort Claims Act necessary to bring this cause of action against

Defendant VA.” He posited two separate theories for this conclusion: first, that

Leeds’ August 28, 1998 Notice of Intent letter to the VA sufficed as administrative
4

 Barnett also attached to the amended complaint the August 28, 1998 Notice

of Intent letter; his certified mail and return service receipts for the August 28

letter; and McCormack’s September 1 response to the August 28 letter.

6

notice of his claim under 28 U.S.C. § 2675(a), and second, that Barnett “did send

to Defendant VA a completed form 95 prior to the expiration of the two year

limitation.” To support this second contention, Barnett attached to his amended

complaint the completed SF95 that he mailed, dated September 14, 1998; a cover

letter that Leeds included with the SF95, dated September 8, 1998; and a copy of

the postage-paid “business reply mail” envelope that Barnett used to mail the

SF95.4

On May 19, 2000, the VA moved to dismiss the amended complaint for lack

of subject matter jurisdiction. The VA argued that Barnett, in his amended

complaint, “merely rel[ied] on the same arguments [for subject matter jurisdiction]

previously stated in his Memorandum of Law in opposition to [its] original Motion

to Dismiss the Complaint.” The district court agreed. It found that Barnett “failed

in his August 31, 1998 ‘Notice of Intent to Initiate Litigation’ to place a value on

his claim and to provide sufficient information from which the VA could establish

the value of his claim” and “failed to attach any new documentation to his

Amended Complaint to verify that a SF95 was ever actually mailed to and received

by the [VA].” Consequently, on June 6, 2000, the district court dismissed
7

Barnett’s FTCA claim against the VA and remanded his remaining state law claims

against Okeechobee Hospital and Dr. Kruszel to the state circuit court.

II.

As we have noted elsewhere, “[t]he FTCA is a specific, congressional

exception to the general rule of sovereign immunity [that] allows the government

to be sued by certain parties under certain circumstances for particular tortious acts

committed by employees of the government.” Suarez v. United States, 22 F.3d

1064, 1065 (11th Cir. 1994). As a result, courts must be careful to observe

scrupulously the circumstances and conditions of this waiver. See id. One such

condition, set forth in 28 U.S.C. § 2675(a), requires that the administrative agency

being sued receive notice and an opportunity to resolve the dispute without

litigation:

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 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.
5

 The United States Attorney General is empowered by 28 U.S.C. § 2672 to

prescribe regulations for the administration of the FTCA. See 28 U.S.C. § 2672

(“The head of each Federal agency or his designee, in accordance with regulations

prescribed by the Attorney General, may consider, ascertain, adjust, determine,

compromise, and settle any claim for money damages against the United States 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 agency 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).

8

28 U.S.C. § 2675(a). If the claim is not presented in writing to the agency within

two years after it accrues, it is forever barred. 28 U.S.C. § 2401(b).

A claim is deemed to be 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 accident.” 28 C.F.R. § 14.2

(2001).5

 Accordingly, Barnett must show either that his Notice of Intent letter met

these two requirements – written notification and a claim for a sum certain – or that

the VA received the SF95 he filled out. As we shall discuss, we find that Barnett

fulfilled the prerequisites of 28 U.S.C. § 2675 via the latter approach – specifically,
6

 For this reason, we find it unnecessary to discuss whether the Notice of

Intent letter Leeds mailed to the VA on August 28, 1998, sufficed to meet the

requirements of 28 C.F.R. § 14.2.

9

by creating a presumption, which the VA has failed to rebut, that the agency

received his completed SF95.6

III.

A.

We cannot review the actions taken by Barnett to satisfy 28 U.S.C. § 2675

with a tabula rasa: We must first consider what deference, if any, we must give the

order issued by the district court. As an initial step towards determining the

order’s weight, it is important to note that the district court must have dismissed

Barnett’s amended complaint pursuant to Rule 12(b)(1) of the Federal Rules of

Civil Procedure, and not pursuant to Rule 12(b)(6), because the administrative

notice requirement of 28 U.S.C. § 2765 “is jurisdictional and cannot be waived.” 

Lykins v. Pointer Inc., 725 F.2d 645, 646 (11th Cir. 1984); Employees Welfare

Comm. v. Daws, 599 F.2d 1375, 1378 (5th Cir. 1979). This distinction is

important. When a defendant moves under 12(b)(6) to dismiss a complaint for
10

failure to state a claim, the plaintiff is safeguarded by a presumption that the

allegations in his complaint are true. A plaintiff does not necessarily have this

same protection from a 12(b)(1) motion.

 If the 12(b)(1) motion represents a facial attack on jurisdiction – that is, the

facts as stated supposedly do not provide cause for federal jurisdiction – then the

facts alleged by the plaintiff are given the same presumption of truthfulness as they

would receive under a 12(b)(6) motion. See Williamson v. Tucker, 645 F.2d 404,

412 (5th Cir. 1981). If, however, the 12(b)(1) motion raises a factual attack on

jurisdiction – the very facts providing cause for jurisdiction are themselves

challenged – then no such presumption exists and the district court is allowed to

consider the facts as it sees fit. In essence, the district court conducts a bench trial

on the facts that give rise to its subject matter jurisdiction. Consequently, “no

presumptive truthfulness attaches to plaintiff’s allegations, and the existence of

disputed material facts will not preclude the trial court from evaluating for itself

the merits of jurisdictional claims.” Id. at 413 (quoting Mortensen v. First Fed.

Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

In the present case, the VA challenged the district court’s jurisdiction from

both a facial and a factual standpoint. It claimed that Barnett could not facially

“present” his claim by simply asserting that he mailed a completed SF95 to its
11

Office of Regional Counsel; according to the VA, only actual receipt of the SF95

by that office legally sufficed as presentation of the claim. Moreover, the VA also

disputed key underlying facts, specifically whether Barnett actually mailed a

completed SF95 to the VA and whether the VA received it.

Because of the mixed nature of the VA’s jurisdictional attack, we must use

two different standards to review the district court’s order on subject matter

jurisdiction. When the court confronted the VA’s facial jurisdictional challenge

and decided that “a claim is ‘presented’ when it is received by a federal agency . . .

[so] there must be evidence of actual receipt,” it was merely construing law, so we

review the court’s decision de novo. On the other hand, when the court held that

Barnett “failed to . . . verify that a SF 95 was ever actually mailed to and received

by the [VA],” it was issuing a factual finding, which we can only overturn if it is

“clearly erroneous.” See Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir.

1990).

B.

1.
12

As we have just noted, we can only overturn the district court’s factual

finding that Barnett did not mail a completed SF95 to the VA if it is clearly

erroneous. In other words, we should only reverse if “we are left with a definite

and firm conviction that a mistake has been committed.” United States v. Hogan,

986 F.2d 1364, 1372 (11th Cir. 1993) (quoting United States v. Roy, 869 F.2d

1427, 1429 (11th Cir. 1989), cert. denied, 493 U.S. 818, 110 S. Ct. 72, 107 L. Ed.

2d 38 (1989)). Here, however, we believe that such a mistake has occurred.

In his amended complaint, Barnett asserted that he mailed a completed SF95

to the VA and attached copies of it, the accompanying cover letter, and a copy of

the postage-paid “business reply mail” envelope in which he allegedly mailed it. 

While Barnett’s statement and supporting documentation does not provide

conclusive proof that he mailed a completed SF95 to the VA – as, perhaps, a

certified mail receipt would provide – it does raise an inference that he did so. 

Admittedly, the district court was under no obligation to assume that Barnett’s

claims were presumptively true. There is, however, no evidence before the court

that suggests that they are false and thus that the inference drawn from them – that

he mailed a completed SF95 to the VA – is inaccurate.

To rebut Barnett’s claim that he mailed a SF95 to its Office of Regional

Counsel, the VA submitted statements by Meyer, McCormack, and Adams that the
7

 As we discuss in Part III.A.3, infra, the statements made by Meyer and

McCormack are actually hearsay and provide no proof as to whether or not the VA

received Barnett’s SF95.

13

VA never received an SF95 from Barnett. Assuming that they are reliable, these

comments, at most, indicate that the SF95 did not reach the VA’s Office of

Regional Counsel.7

 They provide no proof whatsoever that Barnett did not deposit

the completed SF95 in the mail. Consequently, there was no reason for the district

court to conclude that Barnett did not mail the completed SF95 to the VA, and we

therefore find this conclusion to be “clearly erroneous.”

2.

Whether Barnett actually mailed the completed SF95 to the VA may seem

irrelevant in light of the district court’s conclusion that actual receipt of the SF95

by the VA was the only fact that was material. Specifically, the district court’s

ruling on the matter – which, as aforementioned, we review de novo – was that 

“a claim is ‘presented’ when it is received by a federal agency.” Therefore, in the

view of the district court, “[m]ailing alone is not enough; there must be evidence of

actual receipt.” While we agree with the fundamental premise that a claim is
8

 49 C.F.R. § 1005.2(a) (2001) provides:

A claim for loss or damage to baggage or for loss, damage, injury, or

delay to cargo, shall not be voluntarily paid by a carrier unless filed . .

. with the receiving or delivering carrier, or carrier issuing the bill of

lading, receipt, ticket, or baggage check, or carrier on whose line the

alleged loss, damage, injury, or delay occurred, within the specified

time limits applicable thereto and as otherwise may be required by

law, the terms of the bill of lading or other contract of carriage, and all

tariff provisions applicable thereto.

14

presented upon its receipt, we cannot go so far as to say that affirmative evidence

of such receipt is required.

As we noted in a previous case, Konst v. Florida E. Coast Ry. Co., 71 F.3d

850 (11th Cir. 1996), “[t]he common law has long recognized a rebuttable

presumption that an item properly mailed was received by the addressee.” Id. at

857. In Konst, we extended this common law principle to claims filed against a

common carrier pursuant to 49 C.F.R. § 1005;8

 that is, we held that Konst, who

allegedly mailed such a claim to Florida East Coast Railway Company, was

entitled to a presumption that the railway company had received the claim. Id. at

855. We see no reason why we should not act similarly in the case at hand and

allow Barnett the benefit of this “traditional means of weighing evidence in order

to determine whether receipt occurred.” Id. at 853.
15

Admittedly, unlike the instant case, Konst did not involve the filing of

documents with a government agency. This distinction was noted in Konst: in

dicta, it was mentioned that “[t]here is a presumption that officers of the

government perform their duties,” and we cited cases like Chrysler Motors

Corporation v. Schneiderman, 940 F.2d 911(3d Cir. 1991), and Smith v. Fidelty &

Casualty Co., 261 F.2d 460 (5th Cir. 1958), where the rebuttable presumption of

receipt was not applied to filing requirements. Knost, 71 F.3d at 854-55. There is

a crucial difference between those cases and the one currently before the court. In

Chrysler Motor Corporation and Smith, the plaintiffs filed claims with courts or

third-party governmental agencies, who were not otherwise involved in the

litigation. See Chrysler Motor Corp., 940 F.2d at 912-13 (reviewing whether the

clerk of the bankruptcy court received a claim Chrysler allegedly filed against

Scheniderman); Smith, 261 F.2d at 461 (considering whether Smith filed a claim

with the Texas Industrial Accident Board, as required by state law.) Consequently,

“the governmental entities in the . . . cases had no apparent pecuniary interest in

denying that they received the documents allegedly filed with them.” Konst, 71

F.3d at 855. Here, however, the government agency with which Barnett filed his

claim – the VA – is the defendant. As a result, it has a strong interest in denying

that it received Barnett’s SF95 and having his suit dismissed.
16

 All that we have said should not imply that we think that the VA lied to the

district court as to whether it received Barnett’s SF95. Rather, we simply believe

that the VA should not be accorded any special presumption of believability

because it is a branch of the United States government and should be treated no

differently than a private defendant like the one in Konst. In Konst, after we 

determined that 49 C.F.R. § 1005 “contemplate[d] receipt as the trigger for

processing a claim,” we ultimately held that the presumption of receipt should

apply to claims filed under that federal regulation. Id. at 853. Likewise, we hold

today that the same presumption should apply to administrative claims made

pursuant to 28 C.F.R. § 14.2, which promulgates that an FTCA claim is only

“presented” in accordance with 28 U.S.C. § 2675 when the appropriate Federal

agency “receives” it from the claimant.

In the instant case, Barnett only needed to demonstrate three facts to create a

presumption that the VA received his completed SF95: “(1) the document was

properly addressed; (2) the document was stamped; and (3) the document was

mailed.” Gonzales Packing Co. v. East Coast Brokers and Packers, Inc. (In re East

Coast Brokers and Packers, Inc.), 961 F.2d 1543, 1545 (11th Cir. 1992). As we

discussed in Part III.B.1, Barnett has provided uncontradicted evidence that he

mailed the SF95. Moreover, he allegedly used the “business reply mail” envelope
17

that McCormack sent to him, so we can assume that it was properly addressed. 

The envelope did not need to be stamped, because, as was clearly marked on it, the

“postage [would] be paid by [the] Department of Veteran Affairs.” In sum, Barnett

established the three elements necessary to create a presumption of receipt, and we

therefore must presume that the VA received his completed SF95.

3.

Having determined both that Barnett mailed a completed SF95 to the VA

and that this fact raises a presumption that the VA received the SF95, we now must

consider whether the VA has rebutted this presumption. Even though Barnett’s

assertions that he mailed the SF95 to the VA have not been controverted, the VA

can still put forth evidence to overcome the presumption that it was received. See

Bailey v. United States, 642 F.2d 344, 347 n.1 (9th Cir. 1981) (“[T]he presumption

[that the plaintiff’s FTCA claim was received], assuming that it exists, [was]

rebutted by proof of non-receipt”). After all, the presumption of receipt is “not a

conclusive presumption of law, but a mere inference of fact, founded on the

probability that the officers of the government will do their duty and the usual

course of business; and, when it is opposed by evidence that the letters never were
18

received, must be weighed with all the other circumstances of the case . . . in

determining the question whether the letters were actually received or not.” 

Rosenthal v. Walker, 111 U.S. 185, 193-94, 4 S. Ct. 382, 386, 28 L. Ed. 395

(1884) (citation omitted).

The VA contends that it submitted such evidence through the declarations of

Regional Counsel K. Sue Meyer and Steve McCormack and Margaret Adams, staff 

attorneys in her office. Meyer, in her declaration, averred that

A review of the Regional Counsel records indicates the Office of

Regional Counsel, Bay Pines, Florida, received a “Notice of Intent to

Initiate Litigation” letter on August 31, 1998. . . . The Office of

Regional Counsel has not received any other written communication

from plaintiff or plaintiff’s attorney regarding an FTCA administrative

tort claim.

Adams also conducted a review of the files for the Medical Care Cost Recovery

Program (MCCR), which covers cases referred to the Office of Regional Counsel

from medical centers in Florida such as the VAMC, and asserts that Barnett’s SF95

was not found in the file. McCormack did not indicate that he performed any

similar review, but nevertheless asserted that “[t]he Miami division of the office of

Regional Counsel never received the completed Standard Form 95 [from Barnett],

as requested in the September 1, 1998 letter.” The VA argued and the district court

accepted that these statements were conclusive proof that the VA never received
19

Barnett’s completed SF95. We disagree and find the district court’s decision to be

clear error.

Pursuant to 28 C.F.R. § 14.2, a federal agency must receive an SF95 or other

written notification from a claimant before the claimant can proceed against that

agency. To comply with this regulation, Barnett mailed a completed SF95 to

“Department of Veterans Affairs, VA Medical Center” in an envelope, which

McCormack sent to him and a copy of which Barnett attached to his amended

complaint. In other words, the SF95 was mailed – in compliance with the

pertinent federal regulations – to an administrative office – specifically, the VA’s

Office of Regional Counsel – and not to a person. This distinction is crucial. If a

court needed to resolve whether an individual person received an item mailed to

him or her, then it need only seek testimony from that person as to whether he or

she had received the item. Determining whether an office receives an item mailed

to it is another, more complicated matter altogether. A court could not rely on the

bare assertion of one member of the office that the mail was not received, since the

mail might have been received by another. The court would need testimony about

the office’s practice and procedure for receiving and filing incoming mail – that is,

circumstantial evidence – in order to draw an inference that the mail was or was

not received.
20

For this reason, the declarations of Meyer, McCormack, and Adams are

deficient in showing that Barnett’s SF95 was not received by the VA. Meyer and

Adams based their assertions that their office had not received Barnett’s SF95 on

“reviews” of office records. Just because the SF95 was not among those records,

however, does not mean that it was not received by the office. It could have

simply been misplaced after receipt or even misfiled. As other courts have noted, a

party’s failure to uncover an item, which it was presumed to have received, does

not mean that it never received the item and does not rebut the presumption of

delivery. See In re Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir. 1974) (holding,

in a case where petitioners alleged that they mailed wage claims to the clerk of the

district court, that “the fact that the clerk’s files did not contain the proof of claims”

was “by itself insufficient to rebut the presumption of receipt”); Jones v. United

States, 226 F.2d 24, 27 (9th Cir. 1955) (“The showing that a search of the pertinent

files in the [Tax Collector’s] office revealed no record of the claims having been

filed is a purely negative circumstance, insufficient, in our opinion, to rebut the

presumption of delivery. It is notorious that returns and other papers have in the

past been mislaid or lost in the offices of many collectors.”) Accordingly, the

testimony of Meyer and Adams does not rebut the presumption that the VA

received the completed SF95 Barnett mailed to its regional office.
9

 In her declaration, Adams said that she had “primary responsibility for the

Medical Care Cost Recovery Progam (MCCR) involving cases referred to the

Office of Regional Counsel from all Medical centers in Florida including the

[VAMC Miami].” McCormack, in his declaration, noted that he had “primary

responsibility for the processing and investigation of all administrative tort claims

filed pursuant to the [FTCA] involving the VAMC Miami.” Neither of these roles

necessarily indicates that either Adams or McCormack would have implicit

knowledge of whether the Office of Regional Counsel received Barnett’s SF95;

they only show that they might have eventually reviewed the form, if it was not

misplaced after receipt.

21

Of course, Meyer and Adams could each claim that they are relying on some

other source of information for their assertions that the office never received

Barnett’s SF95. Then, however, their statements would suffer from the same

deficiencies as that of McCormack, who asserted that the office “never received the

completed Standard Form 95" without citing any basis for such knowledge. If

Meyer, Adams, or McCormack relied on personal knowledge, for example, of

office procedures for processing received mail, they gave no indication or

explanation so the district court could evaluate their thinking.9

 On the other hand,

if they relied on statements from others in their office, then their comments were

merely hearsay and should not have been considered by the district court. In either

case, their declarations do nothing to rebut the presumption that the VA received

Barnett’s SF95. Furthermore, since their statements were the only rebuttal

evidence the VA provided, we find that the presumption holds.
22

IV.

In sum, Barnett has presented an uncontradicted claim that he mailed a

completed SF95 to the VA. The SF95, mailed in a properly addressed and

postage-paid envelope, is presumed to have been received by the VA’s Office of

Regional Counsel in Miami. The VA has provided no evidence that rebuts that

presumption. Consequently, we must assume that the VA received the SF95 and

that Barnett has conformed to the jurisdictional requirements contained within 28

U.S.C. § 2675 and 28 C.F.R. § 14.2 for bringing an action under the FTCA. The

order of the district court is therefore REVERSED and the case is REMANDED

for further action consistent with this opinion.

SO ORDERED.