## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TONYA HART,

Plaintiff-Appellant,

v. DEPARTMENT OF LABOR, ex rel. United States of America; MANAGEMENT AND TRAINING CORP., sued as: Tulsa Job Corp.,

Defendants-Appellees. No. 96-5152

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 95-CV-882-H)

Submitted on the briefs: Carol Seacat of Seacat, Seacat & Seacat, Okmulgee, Oklahoma, for PlaintiffAppellant. Stephen C. Lewis, United States Attorney, Wyn Dee B aker, Assistant United States Attorney, Tulsa, Oklahoma, for Defendant-App ellee Department of Labor. Jo Anne Deaton of Rhodes, Hieronymus, Jones, Tucker& Gable, Tulsa, Oklahoma, for Defendant-Appellee Tulsa Job Corps Ce nter.
Before EBEL, HENRY, and MURPHY, Circuit Judges.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- EBEL, Circuit Judge.

I. Background Plaintiff Tonya Hart filed this action under the Fe deral Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, for personal injuri es allegedly sustained when she was caught in an altercation at the Tulsa Job C orps Center. 1 Plaintiff claimed that her injuries were the result of defendants’ ne gligent failure to provide adequate security at the center, and as a result of an assault and battery allegedly perpetrated by one of the center’s security guards. Management and Training Corporation, improperly named in the complaint as “ Tulsa Job Corp,” filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief could be granted. The governmentfiled a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of su bject matter jurisdiction, claiming that plaintiff had not filed a timely clai m with the proper agency in accordance with the requirements of the FTCA. The district court granted defendants’ dismissal motions; plaintiff appeals, and we affirm.-3-

On appeal plaintiff contends that (1) the district court erred in determining that plaintiff’s claim was barred by the intentiona l tort exception of the FTCA; and (2) the district court erred in holding that itlacked subject matter jurisdiction because the plaintiff’s claim was barred by the statute of limitations. Due to our decision on plaintiff’s second claim, that the dist rict court correctly dismissed her claims for lack of subject matter jurisdiction, it is not necessary for this court to reach her contention that the district court erred in determining her claim barred under the intentional tort exception of the FTCA. The United States is immune from suit unless it has consented to be sued “‘and the terms of its consent to be sued in any co urt define that court’s jurisdiction to entertain the suit.’” United State s v. Mitchell , 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood , 312 U.S. 584, 586 (1941)). The FTCA represents a waiver of the United States’ immu nity and must, therefore, be strictly construed. See Pipkin v. United States Postal Serv. , 951 F.2d 272, 275 (10th Cir. 1991). Proper presentation of the admi nistrative claim is a jurisdictional prerequisite to suit, one which the courts have no authority to waive. See Industrial Constructors Corp. v. United States Bur eau of Reclamation , 15 F.3d 963, 967 (10th Cir. 1994). “The determinat ion of the district court’s subject matter jurisdiction is a question of law wh ich we review de novo.”-4-

Bradley v. United States ex rel. Veterans Admin. , 951 F.2d 268, 270 (10th Cir. 1991). A claim against the United States under the FTCA is barred unless it is presented to the proper agency within two years of its accrual. See 28 U.S.C. § 2401(b). Claims for damages against the governme nt under the FTCA must be presented to the appropriate federal agency by fili ng “an executed Standard Form 95 or other written notification of an incident, ac companied by a claim for money damages in sum certain for injury to or loss of pro perty, personal injury, or death alleged to have occurred by reason of the incident. ” 28 C.F.R. § 14.2(a). Plaintiff alleges that she sustained injuries durin g a disturbance which occurred while she was visiting the Tulsa Job Corps Center on November 28, 1992. In January 1994, plaintiff mailed a claim fo rm to the United States Department of Justice (DOJ). See Appellant’s App. at 32. The DOJ forwarded the claim to the Department of Labor (DOL), the pro per agency to process plaintiff’s claim. By letter dated March 9, 1994, the DOL informed plaintiff that it had received the transferred claim and that the claim was deficient in that it failed to state a sum certain. See id. at 64-65. The letter enumerated the information it needed in order to properly investig ate plaintiff’s claim, and specifically requested that a new claim with the pr oper information be sent to the
DOL. See id.2 The tort claim transfer regulation, 28 C.F.R. § 14. 2(b)(1), provides:

A claim shall be presented to the Federal agency wh ose activities gave rise to the claim. When a claim is presented to any other Federal agency, that agency shall transfer it forth with to the appropriate agency if the proper agency can be iden tified from the claim, and advise the claimant of the transfer. If transfer is not feasible the claim shall be returned to the claiman t. The fact of transfer shall not, in itself, preclude further tra nsfer, return of the claim to the claimant or other appropriate disposit ion of the claim. A claim shall be presented as required by 28 U.S.C. § 2401(b) as of the date it is received by the appropriate agency. -5- Plaintiff did not file a new claim until November 2 8, 1994, the last day of the two-year limitations period. Although this sec ond claim form correctly stated that the appropriate federal agency was the DOL, id

. at 55, it was incorrectly mailed to the United States Attorney General, id. at 54. Plaintiff argues that her filing with the United States Attorney General shou ld constitute constructive filing with the DOL, and therefore, be considered t imely. We disagree. II. Discussion This court has not previously addressed the questio n of whether the tort claim transfer regulation, 28 C.F.R. § 14.2(b)(1), 2 allows a district court to consider a claim delivered to an improper federal a gency timely filed, even though it is transferred to the appropriate agency after the FTCA’s two-year statute of limitations has run. In Bukala v. Unite d States , 854 F.2d 201 (7th Cir. 1988), the Seventh Circuit considered the question. In Bukala , the claimant filed-6-

a claim eight months before the limitations period expired. Although the claim form was properly addressed to the Veterans Adminis tration, it was mistakenly delivered to the EEOC. The EEOC failed to transferthe claim within the limitations period, and the district court dismisse d the claimant’s suit for lack of subject matter jurisdiction. On appeal, the Bukalacourt concluded that when the agency fails in its duty to promptly transfer or return the misdirectedclaim, the plaintiff is not necessarily bound by the last sentence of 28 C.F.R. § 14.2(b)(1), deeming a claim properly filed “as of the date it is received by th e appropriate agency.” Bukala , 854 F.2d at 204. The court held that under these c ircumstances, the claim can be considered constructively filed as of the date rece ived by the transferring agency. Id. ; accordGreene v. United States , 872 F.2d 236, 237 (8th Cir. 1989). The court further held, however, that where the agency attemp ts in a diligent and dutiful manner to transfer the misdirected claim, and despi te its diligence, the claim fails to reach the appropriate agency before the limitati ons time expires, the claim will be barred. Id. We determine that this reasoning is applicable here . The DOJ, in a timely and diligent fashion, transferred plaintiff’s claim to the DOL, the appropriate federal agency. The DOL, also in a timely and dili gent fashion, determined the claim to be deficient and notified plaintiff of the deficiencies and the need to file-7-

another claim with the DOL. See Bradley , 951 F.2d at 271 (“Failure to comply with the sum certain requirement results in the cas e being treated ‘as if no administrative claim had ever been filed.’”) (quoti ng Caidin v. United States , 564 F.2d 284, 287 (9th Cir. 1977)). Plaintiff then wai ted almost nine months, in fact until the last possible day, before refiling, and a gain filed with the wrong agency. It is clear that plaintiff’s failure to refile in atimely manner with the proper agency cannot be attributed to any dilatory conducton the part of a federal agency. Therefore, adopting the Seventh Circuit’s position, we hold that if the agency fails promptly to comply with the transfer r egulation and, as a result, a timely filed, but misdirected claim does not reach the proper agency within the limitations period, the claim may be considered tim ely filed. See Bukala , 854 F.2d at 204. If, however, as here, a claimant wait s until the eleventh hour to file and, despite notification of the appropriate agency , the filing is misdirected, there is no compelling reason for allowing constructive f iling. See id. at 204 and n.4; see also Lotrionte v. United States , 560 F. Supp. 41 (S.D.N.Y), aff’d742 F.2d 1436 (2d Cir. 1983) (constructive filing not allowe d where claimant filed at the last minute thereby allowing insufficient time for the claim to be transferred to the appropriate agency within the limitations perio d). Accordingly, we agree with the decision of the district court that, under the circumstances presented here, plaintiff’s claims ar e jurisdictionally barred. We-8-

believe this holding preserves and promotes the pre mise that “[c]ourts are not free to construe section 2401(b) so as to defeat that se ction’s purpose of encouraging prompt presentation of claims against the federal g overnment.” Pipkin , 951 F.2d at 275. The judgment of the United States DistrictCourt for the Northern District of Oklahoma is AFFIRMED.