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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DERRICK ROYSTER, )

)

Plaintiff, )

v. ) Civil Action No. 07-228 Erie

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

MEMORANDUM JUDGMENT ORDER

Plaintiff’s civil rights complaint was received by the Clerk of Court on 

August 23, 2007 and was referred to United States Magistrate Judge Susan Paradise

Baxter for report and recommendation in accordance with the Magistrates Act, 28

U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. 

The Magistrate Judge's Report and Recommendation [66], filed on February 15,

2010, recommends that the motion for summary judgment filed by Defendant, the

United States, [53] be granted. The parties were allowed ten (10) days from the date of

service in which to file objections. Plaintiff’s objections [67] were filed on March 1,

2010.

AND NOW, this 11 day of March, 2010, upon de novo consideration of the th

Magistrate Judge’s Report and Recommendation [66] and the Plaintiff’s objections

thereto, 

IT IS ORDERED that the Defendant’s motion for summary judgment [53] be, and

hereby is, GRANTED. JUDGMENT is hereby entered in favor of the Defendant, the

United States of America, and against Plaintiff Derrick Royster.

Case 1:07-cv-00228-SJM-SPB Document 68 Filed 03/11/10 Page 1 of 3
 Further support for the Magistrate Judge’s conclusion that the Plaintiff’s claim is 1

time-barred is found in Lightfoot v. United States, 564 F.3d 625 (3d Cir. 2009), where

the Court stated:

The plain language of 39 C.F.R. § 912.9(c) is fatal to Lightfoot's

contention. The regulation provides that a request for reconsideration is

“deemed to have been filed when received in the office of the official who issued

the final denial ....” (emphasis added). “It is elementary that ‘[t]he United States,

as sovereign, is immune from suit save as it consents to be sued.’” United

States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980)

(quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed.

1058 (1941)). In enacting the FTCA, Congress waived immunity for tort claims

against the United States and its agencies, including the USPS. See Dolan v.

United States Postal Serv., 546 U.S. 481, 484, 126 S. Ct. 1252, 163 L. Ed. 2d

1079 (2006). However, the waiver is limited, see Miller v. Phila. Geriatric Ctr.,

463 F.3d 266, 270 -271(3d Cir.2006), and is strictly construed in favor of the

sovereign. See Orff v. United States, 545 U.S. 596, 601-602, 125 S. Ct. 2606,

162 L. Ed.2d 544 (2005).

Courts in other jurisdictions have almost uniformly concluded that the term

“presented” in the filing of an administrative claim means more than merely

mailing the claim. See Moya v. United States, 35 F.3d 501, 504 (10th Cir.1994)

(rejecting any presumption that a claim was received where an attorney by

affidavit swore that she had sent a request for reconsideration by certified mail);

Drazan v. United States, 762 F.2d 56, 58 (7th Cir.1985) ( “[M]ailing is not

presenting; there must be receipt.”); Bailey v. United States, 642 F.2d 344, 347

(9th Cir.1981) (refusing to “accept appellants' invitation to rewrite the [FTCA] and

in effect repeal the regulation by holding that mailing alone is sufficient to meet

the requirement that a claim be ‘presented.’ ”). The Ninth Circuit recently noted

that since Bailey, “virtually every circuit to have ruled on the issue has held that

the mailbox rule does not apply to [FTCA] claims, regardless of whether it might

apply to other federal common law claims.” Vacek v. United States Postal Serv.,

447 F.3d 1248, 1252 (9th Cir.2006). We now join these sister Courts in rejecting

the mailbox rule and holding that a plaintiff must demonstrate that the Federal

agency was in actual receipt of the claim, whether on initial presentment or on a

request for reconsideration.[ ]

564 F.3d at 627-28 (footnote omitted). 

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The Report and Recommendation filed by Magistrate Judge Baxter on February

15, 2010 [66] is adopted as the opinion of this Court.1

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IT IS SO ORDERED.

s/ SEAN J. McLAUGHLIN 

Sean J. McLaughlin

United States District Judge

cm: All parties of record.

U.S. Magistrate Judge Baxter

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