2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-27-2010

Monica White-Squire v. US Postal Ser

Precedential or Non-Precedential: Precedential

Docket No. 09-1577

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1577

 

MONICA WHITE-SQUIRE; JOHN SQUIRE, 

 Appellants

v.

UNITED STATES POSTAL SERVICE

 

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 3-08-cv-03486

District Judge: The Honorable Mary L. Cooper

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 15, 2010

Before: SCIRICA, Chief Judge, BARRY, and SMITH,

Circuit Judges

(Filed: January 27, 2010)
2

John G. Mennie

Richard Schibell

Schibell Mennie & Kentos

1806 Hwy 35 South

P.O. Box 2237

Ocean, NJ 07712

Counsel for Appellants

Mark C. Orlowski

Office of United States Attorney

Room 430

402 East State Street

Trenton, NJ 08608

Counsel for Appellee

 

OPINION

 

SMITH, Circuit Judge.

This appeal requires us to determine whether a claimant

under the Federal Tort Claims Act, whose damages continue to

accrue, must nevertheless submit a claim to the appropriate

agency containing a “sum certain” for damages prior to filing

suit. Because the sum certain requirement is jurisdictional, we

answer this question in the affirmative.
 The letter stated that it was to serve as “formal notice 1

under the Tort Claims Act pursuant to N.J.S.A. 59:8-4.” It did

not reference the Federal Tort Claims Act. The Complaint later

filed to institute this action referenced only the Federal Tort

Claims Act and not New Jersey law.

3

I.

On July 17, 2006, a United States Postal Service

(“USPS”) vehicle driven by a USPS employee acting within the

scope of his employment allegedly collided with a car driven by

Plaintiff Monica White-Squire, causing her serious personal

injury. On August 15, 2006, White-Squire’s attorney sent a

letter to the USPS purporting to provide formal notice that

White-Squire was pursuing a personal injury claim against it.1

This letter did not include a sum certain claim for damages.

The USPS responded by letter on August 18, 2006, and

provided White-Squire’s attorney with two copies of the

Standard Form 95 claim form. The August 18 letter outlined the

administrative presentment requirements under the Federal Tort

Claims Act (“FTCA”), including the requirement, written in

bold typeface, that “[a] claim must be for a specific amount.”

The USPS sent White-Squire’s attorney a second letter, dated

August 22, 2006, explaining that White-Squire’s August 15

letter “does not constitute a valid claim.” The August 22 letter

also directed White-Squire to the statutes and regulations

governing the procedures for submitting a claim under the
4

FTCA. The USPS again informed White-Squire that to satisfy

the administrative presentment requirements, a claim must be

accompanied by “a ‘sum certain’ amount for injuries or losses

alleged to have occurred by reason of the incident.”

In a letter to the USPS dated October 6, 2006, WhiteSquire’s attorney acknowledged receipt of the August 22, 2006,

letter. He also advised the USPS that he would be submitting

White-Squire’s medical records and a “‘sum certain’ demand to

resolve the claim” once White-Squire was discharged from her

doctors’ care. White-Squire never submitted a completed

Standard Form 95, supporting medical records, or a sum certain

demand for damages to the USPS.

On July 14, 2008, White-Squire filed this action in the

United States District Court for the District of New Jersey

against the USPS seeking damages for personal injury arising

from the collision. Pursuant to Federal Rule of Civil Procedure

12(b)(1), the USPS moved to dismiss the action for lack of

subject matter jurisdiction because White-Squire failed to

provide the USPS with a sum certain request for damages as

required by the FTCA. 28 U.S.C. § 2675(a), (b); 28 C.F.R. §

14.2(a). The District Court granted the USPS’s motion and

dismissed the case, concluding that White-Squire’s failure to

submit a sum certain claim deprived it of subject matter
 White-Squire’s husband was a party to this case before 2

the District Court, and his claim was also dismissed for lack of

subject matter jurisdiction. Although he is listed in the caption

as an appellant, he raises no issue in this appeal. Thus, any

possible issues regarding the dismissal of his claim are waived.

Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26

F.3d 375, 398 (3d Cir. 1994) (citations omitted).

5

jurisdiction. White-Squire timely filed this appeal.2

II.

White-Squire sought to invoke the District Court’s

subject matter jurisdiction under 28 U.S.C. § 1346(b). For

reasons that we will explain infra, the District Court was correct

in concluding that it lacked subject matter jurisdiction over

White-Squire’s claim; however, “it is familiar law that a federal

court always has jurisdiction to determine its own jurisdiction.”

United States v. Ruiz, 536 U.S. 622, 628 (2002) (citation

omitted). Appellate jurisdiction is proper under 28 U.S.C. §

1291. When reviewing an order dismissing a claim for lack of

subject matter jurisdiction, we exercise plenary review over

legal conclusions and review findings of fact for clear error.

CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008)

(citations omitted).
The claim must be presented to the appropriate agency 3

within two years after it accrues. 28 U.S.C. § 2401(b); see also

6

III.

The District Court concluded that it lacked jurisdiction

over White-Squire’s claim because she failed to provide the

USPS with a sum certain claim for damages prior to filing suit.

White-Squire argues that she was not required to submit a sum

certain request because her medical treatment arising from the

collision was ongoing, and thus her damages could not be

liquidated.

As a sovereign, the United States is immune from suit

unless it consents to be sued. United States v. Mitchell, 445 U.S.

535, 538 (1980) (quoting United States v. Sherwood, 312 U.S.

584, 586 (1941)). Its consent to be sued must be “unequivocally

expressed,” and the terms of such consent define the court’s

subject matter jurisdiction. Id. (quotations omitted). The FTCA

operates as a limited waiver of the United States’s sovereign

immunity. See Roma v. United States, 344 F.3d 352, 362 (3d

Cir. 2003). “Because the Federal Tort Claims Act constitutes a

waiver of sovereign immunity, the Act’s established procedures

have been strictly construed.” Livera v. First Nat’l State Bank

of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989). “[W]e should not

take it upon ourselves to extend the waiver beyond that which

Congress intended.” United States v. Kubrick, 444 U.S. 111,

117-18 (1979).3
Kubrick, 444 U.S. at 117-18 (noting that the two year statute of

limitations “is a condition of th[e] waiver” of sovereign

immunity”).

7

The FTCA is codified in scattered sections of Title 28 of

the United States Code. One section is § 1346, which is

contained in chapter 85 of the Federal Judicial Code, pertaining

to the jurisdiction of the district courts. Subsection 1346(b)(1)

provides:

Subject to the provisions of chapter 171 of this

title, the district courts . . . shall have exclusive

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.

28 U.S.C. § 1346(b)(1). Chapter 171 of Title 28 pertains to the

tort claims procedure for FTCA claims. 28 U.S.C. §§ 2671-

2680. Section 2675 mandates that an FTCA action “shall not

be instituted upon a claim against the United States for money

damages . . . unless the claimant shall have first presented the

claim to the appropriate Federal agency . . . .” 28 U.S.C. §
 The Department of Justice has also promulgated the 4

following regulation, specifying the mechanics of presenting a

claim:

“[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 for injury to or loss of property,

personal injury, or death alleged to have occurred

by reason of the incident . . . .”

28 C.F.R. § 14.2(a) (emphasis added).

8

2675(a). Subsection (b) further specifies that an FTCA action

“shall not be instituted for any sum in excess of the amount of

the claim presented to the federal agency . . . .” Id. § 2675(b)

(emphasis added). This provision “anticipates that the claim

will be for a definite amount.” Adams v. United States, 615 F.2d

284, 292 n.17 (5th Cir. 1980). Because the requirements of 4

presentation and a demand for a sum certain are among the

terms defining the United States’s consent to be sued, they are

jurisdictional. Sherwood, 312 U.S. at 586; Bialowas v. United

States, 443 F.2d 1047, 1049 (3d Cir. 1971) (noting that the

requirement to present a claim to the agency “is jurisdictional

and cannot be waived”) (citation omitted).

Indeed, in CNA v. United States, we considered whether
9

jurisdiction over an FTCA claim was lacking if the claimant was

unable to demonstrate that a government employee had been

acting within the scope of his employment, as § 1346(b)(1)

requires. We stated that “[t]o evaluate whether Congress

‘clearly stated’ that a requirement should ‘count as

jurisdictional,’ we ask whether the requirement appears in or

receives mention in the jurisdictional provision of a given

statute.” 535 F.3d at 142 (internal citation omitted) (citing

Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 & 515 n.11

(2006)). We noted that the scope of employment requirement

“appear[ed] in the same sentence as Congress’s grant of

jurisdiction.” Id. We reiterated that under § 1346(b)(1),“each

clause of that provision represents a limitation on Congress’s

waiver of sovereign immunity and thus a limitation on federal

courts’ jurisdiction.” Id. Because the scope of employment

requirement was “tether[ed]” to the grant of jurisdiction, we

concluded that the requirement was jurisdictional. Id. at 143.

IV.

CNA is instructive. Here, although the sum certain

requirement is not set forth in the text of § 1346, the sum certain

requirement is nevertheless tethered to the grant of jurisdiction

because § 1346 specifies at the outset that a district court’s

jurisdiction over an FTCA claim is “[s]ubject to the provisions

of chapter 171.” 28 U.S.C. § 1346(b)(1). Chapter 171 contains

§ 2675, which sets forth the sum certain requirement. Id. §

2675(b). Accordingly, to remove any doubt on this point, we
10

hold that the sum certain requirement contained in § 2675(b) is

jurisdictional. Thus, a claimant’s failure to present her FTCA

claim to the appropriate agency with a sum certain, as required

by § 2675(b), compels the conclusion that a district court lacks

subject matter jurisdiction over the claim.

We are mindful of White-Squire’s contention that her

damages continued to accrue and precluded her from stating a

sum certain. However, neither the FTCA nor the regulations

promulgated thereunder contain an exception to this sum certain

requirement when a claimant’s damages continue to accrue

through the two years following accrual of a claim. As stated

above, sovereign immunity can only be waived by the sovereign,

and the “conditions upon which the Government consents to be

sued must be strictly observed and exceptions thereto are not to

be implied.” Soriano v. United States, 352 U.S. 270, 276 (1957)

(citation omitted). Creating an exception to the sum certain

requirement would constitute a judicial expansion of the waiver

of sovereign immunity embodied in the FTCA, something which

only Congress can effectuate. Kubrick, 444 U.S. at 117-18.

This is not the first time we have rejected a proposed

exception to the FTCA’s administrative presentment

requirements. In Bialowas, 443 F.2d at 1050, we refused to

excuse the failure to file an administrative claim because of

“exceptional circumstances.” We noted that “[t]hough

sovereign, the Government considerately provided [the

claimant] with convenient and expeditious machinery for
11

settlement of his alleged damages and injuries. Unfortunately

for him, he repeatedly disregarded written and oral instructions

and eventually became the architect of his own misfortune.” Id.

Moreover, several of our sister courts of appeals have declined

to create the very exception White-Squire urges. For example,

in Suarez v. United States, 22 F.3d 1064, 1065-66 (11th Cir.

1994) (per curiam), the Eleventh Circuit refused to create an

exception to the sum certain requirement where the claimant’s

damages were unliquidated. In Kokotis v. United States Postal

Serv., 223 F.3d 275, 279-80 (4th Cir. 2000), the Fourth Circuit

declined to create an exception to the sum certain requirement

because of the claimant’s ongoing treatment and uncertainty

regarding the extent of her damages. It noted that “courts

cannot insert into the FTCA administrative process special

provisions that the statute does not contain.” Id. at 279. The

Ninth Circuit followed suit in Blair v. I.R.S., 304 F.3d 861, 868-

69 (9th Cir. 2002). There, the claimant set forth a sum certain

for lost wages, but stated that his medical expenses were still

being incurred. The Court concluded that the claimant satisfied

the sum certain requirement for his wage loss claim, but held

that the district court lacked jurisdiction over the claim for

medical expenses as the sum certain requirement had not been

met. Id. at 866-69. We join our sister circuits in holding that a

claimant’s ongoing medical treatment does not exempt her from

the jurisdictional obligation to present a claim for a sum certain

to the appropriate agency as required by 28 U.S.C. §§ 1346(b)

and 2675(a) & (b), and 28 C.F.R. § 14.2(a).
12

V.

Requiring parties to submit a sum certain claim before all

losses have accrued is unremarkable. Both settlements of claims

and damages awards commonly contemplate costs that will

accrue in the future. See, e.g., Camiolo v. State Farm Fire &

Cas. Co., 334 F.3d 345, 360-62 (3d Cir. 2003); Domeracki v.

Humble Oil & Ref. Co., 443 F.2d 1245, 1249-50 (3d Cir. 1971)

(noting the “elementary rule of damages” that a personal injury

plaintiff should be compensated for future losses). “Every

limitations period embodies the possibility that a complaint must

be filed before the claimant’s knowledge is complete. That

possibility, however, affords no basis for disregarding the

interest of finality embodied in a statute of limitation that a

legislative body has chosen to enact.” Kokotis, 223 F.3d at 279

(citation omitted); see also Suarez, 22 F.3d at 1065-66

(“Although Suarez claims that he has not yet reached full mental

health since his encounter with the government, this will

necessarily be the case in a number of situations where a tortious

act occurs. It is quite normal for full recovery, both physical and

mental, to require more than the two years allowed for the filing

of an administrative claim.”).

Furthermore, we note that White-Squire was not in the

predicament she claims she was. She argues that she was unable

to present a sum certain claim because a doctor recommended

that she undergo additional procedures. To the contrary, this

prescription enabled her to comply with the sum certain
13

requirement: she could simply have asked the doctor to estimate

the cost of the procedures and then have included that estimate

on her Standard Form 95. Cf., Bialowas, 443 F.2d at 1049-50

(noting claimant failed even to “attach the doctors’ reports or

medical bills as directed by the instructions on the back of Form

95”). If the actual cost of treatment proved higher than this

initial estimate, White-Squire could have amended her claim to

account for the disparity by taking advantage of the means

provided to do so. See 28 C.F.R. § 14.2(c); 28 U.S.C. §

2675(b). A claimant’s failure to take advantage of these

available procedures cannot justify judicial tinkering with the

United States’s waiver of its sovereign immunity and the subject

matter jurisdiction of the federal courts.

Finally, requiring all claimants to present a sum certain

claim for damages advances Congress’s purpose in requiring

administrative presentment, which is to encourage the settlement

of meritorious claims. Tucker v. United States Postal Serv., 676

F.2d 954, 958 (3d Cir. 1982). The Government has

“considerately provided [claimants] with convenient and

expeditious machinery for settlement of [their] alleged damages

and injuries” through the administrative presentment

requirements. Bialowas, 443 F.2d at 1050. Prompt settlement

of claims provides considerable benefits to both the courts and

the parties by avoiding costly litigation and compensating the

injured party in a timely manner. Tucker, 676 F.2d at 958; see

also McNeil v. United States, 508 U.S. 106, 112 (1993) (noting

that Congress’s “interest in [the] orderly administration of” the
14

“vast multitude of [FTCA] claims” is “best served by adherence

to the straightforward statutory command”). Providing a sum

certain claim for damages is central to this policy of requiring

presentment of claims to the appropriate federal agency because

it enables the agency head to determine whether the claim can

legally be settled by the agency and, if so, from where the

payment should come. See 28 U.S.C. § 2672; Bialowas, 443

F.2d at 1050. Moreover, it goes without saying that an agency

cannot consider settling a claim if it cannot ascertain the claim’s

value.

VI.

White-Squire was aware of the requirement that she

present a sum certain claim for damages. In addition to the text

of the statute, 28 U.S.C. §§ 1346(b), 2675(b), the regulation, 28

C.F.R. § 14.2(a), and our prior case law confirming the

requirement of submitting a sum certain, see, e.g., Bialowas, 443

F.2d at 1049-50, the USPS informed White-Squire’s counsel on

two separate occasions, the August 18 and August 22 letters,

that she was required to submit a sum certain amount for injuries

or losses arising from the accident. The USPS directed her to

the relevant statutory and regulatory provisions and also sent

two Standard Form 95 claim forms with instructions in bold

typeface that “[a] claim must be for a specific amount.”

Nevertheless, White-Squire failed to comply with the

administrative presentment requirement. In the absence of a

demand for a sum certain jurisdiction is lacking, and the District
15

Court properly dismissed her claim. We will affirm the

judgment of the District Court.