IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60614

Summary Calendar

PETER J. BARBER, 

 Plaintiff–Appellant,

v.

UNITED STATES OF AMERICA, 

 Defendant–Appellee.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:14-CV-470

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

This appeal concerns Peter Barber’s suit against the United States under 

the Federal Tort Claims Act (“FTCA”). The district court granted the United 

States’ motion to dismiss for lack of subject-matter jurisdiction on the ground 

that Barber failed to exhaust his administrative remedies. We affirm.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 30, 2016

Lyle W. Cayce

Clerk

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I. BACKGROUND

In December 2014, Plaintiff–Appellant Peter Barber sued Defendant–

Appellee United States under the FTCA, asserting negligence and professional 

malpractice by the Department of Veteran Affairs (“VA”) in connection to its 

medical care of Barber at its Gulf Coast Health Care System (“Gulf Coast”) in 

Biloxi, Mississippi. In his complaint, Barber alleged compliance with 28 U.S.C.

§ 2675, which requires a FTCA claimant to “present[]” his claim to the relevant

federal agency before filing suit. 28 U.S.C. § 2675(a). He also attached to his 

complaint a copy of his claim—an executed Standard Form 95 (“SF 95”).

The Government moved to dismiss for lack of subject-matter jurisdiction 

under Federal Rule of Civil Procedure 12(b)(1). It argued that Barber did not

satisfy the FTCA’s presentment requirement because he failed to show the VA

actually received his claim. In support, it submitted sworn declarations from 

four VA employees, including the mailroom supervisor at the Biloxi office, 

describing the VA’s procedure for logging mail and stating that they were 

unable to find any evidence that the VA had received Barber’s SF 95 despite

searching several offices. Barber opposed the motion to dismiss with evidence 

indicating that he gave his SF 95 to his lawyer’s receptionist and that the 

receptionist sent the claim via first-class mail to an address for a VA office in 

Biloxi, Mississippi, that she had found through an internet search. The district 

court granted the motion and dismissed the case without prejudice, explaining

that “[n]o evidence of actual receipt of [Barber’s] claim by the VA has been 

submitted to the Court.” It also denied Barber’s motion to conduct

jurisdictional discovery. Barber timely appealed. 

II. DISCUSSION

We review de novo the district court’s dismissal for lack of subject-matter 

jurisdiction under Rule 12(b)(1). Ramming v. United States, 281 F.3d 158, 161 

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(5th Cir. 2001). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on 

the party asserting jurisdiction.” Id.

Before filing suit under the FTCA, the plaintiff must “first present[] the 

claim to the appropriate Federal agency.” 28 U.S.C. § 2675(a). We have 

recognized that presentment is a jurisdictional prerequisite. Cook v. United 

States, 978 F.2d 164, 165–66 (5th Cir. 1992). “Its purpose is ‘to ease court 

congestion and avoid unnecessary litigation, while making it possible for the 

Government to expedite the fair settlement of tort claims asserted against the 

United States.’” Life Partners Inc. v. United States, 650 F.3d 1026, 1030 (5th 

Cir. 2011) (quoting Frantz v. United States, 29 F.3d 222, 224 (5th Cir. 1994)). 

Further, because presentment is a “condition[] upon which the government 

consents to be sued” under the FTCA’s waiver of sovereign immunity, it “must 

be strictly construed in favor of the United States.” Atorie Air, Inc. v. Fed.

Aviation Admin., 942 F.2d 954, 958 (5th Cir. 1991).

The applicable federal regulations provide that presentment requires 

actual receipt of the claim. Under 38 C.F.R. § 14.604(b), a claim “shall be 

deemed to have been presented when the [VA] receives from a claimant . . . an 

executed SF 95, or other written notification of an incident, together with a 

claim for money damages, in a sum certain, for . . . personal injury.” 38 C.F.R. 

§ 14.604(b) (emphasis added); see also 28 C.F.R. § 14.2(a) (“[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 . . . .”).

Barber contends that evidence that his SF 95 was mailed to the VA is 

sufficient to prove presentment. In support, he cites Barnett v. Okeechobee 

Hospital, 283 F.3d 1232 (11th Cir. 2002), which held that properly mailing an

SF 95 creates a presumption of receipt. Id. Our case law, however, requires us 

to reject Barber’s argument and conclude that he has not carried his burden of 

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proof. In Bailes v. United States, 988 F.2d 1209, 1993 WL 82030 (5th Cir. 

March 11, 1993) (per curiam) (unpublished),1 we found that the plaintiff had 

not carried his burden to demonstrate presentment. In that case, the plaintiff 

had provided “some evidence that the claim had been mailed” to the 

appropriate federal agency. Id. at *1. “Evidence of mailing,” we explained, 

“does not show presentment” under the FTCA. Id. Rather, “[a] claim is not 

presented until received” and the plaintiff had failed to proffer “evidence of 

receipt.” Id. We also emphasized in Bailes that the United States had

submitted affidavits from three agency employees “attesting that they found 

no administrative claim related to the subject matter of the instant suit after 

a search of the pertinent files and records.” Id. 

Here, Barber’s only evidence is that his lawyer’s receptionist sent his SF 

95 by first-class mail, and it was addressed to the VA’s Biloxi office. He has not 

provided any affirmative evidence of actual receipt. Further, the United States 

has submitted declarations detailing the VA’s procedure for tracking incoming 

mail and attesting that its employees were unable to find any indication that 

the VA received Barber’s claim. Given the record, Barber’s evidence of mailing 

is insufficient to prove actual receipt. See id. at *1. Indeed, even assuming 

arguendo that Barnett’s presumption of receipt applied here,2 we agree with 

the district court that the United States rebutted this presumption through its 

declarations.

 

1 5th Cir. R. 47.5.3 (“Unpublished opinions issued before January 1, 1996, are 

precedent.”).

2 Other circuits have declined to follow Barnett. See, e.g., Vacek v. U.S. Postal Serv., 

447 F.3d 1248, 1252 (9th Cir. 2006) (“Because Barnett is contrary to the law of the Supreme 

Court, to our circuit, and to that of three other circuits, we will not follow it”); see generally 

Lightfoot v. United States, 564 F.3d 625, 628 (3d Cir. 2009) (collecting cases and noting that 

“[c]ourts 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”).

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Barber alternatively argues that he satisfied the presentment 

requirement because the VA had actual knowledge of the negligent medical 

treatment that formed the basis of his FTCA claim. In particular, he contends

that the VA received sufficient notice when he applied for and received serviceconnected disability benefits under 38 U.S.C. § 1151 that compensated him for

the VA’s inadequate medical care. We find this argument unavailing. To give 

notice under 28 U.S.C. § 2675(a), Barber must submit “a monetary claim in a 

sum-certain.” Montoya v. United States, 841 F.2d 102, 104 (5th Cir. 1988)

(citing 28 C.F.R. § 14.2(a)); accord Martinez v. United States, 728 F.2d 694, 697 

(5th Cir. 1984) (“[P]resentation of a claim including ‘a sum certain’ is a 

jurisdictional requirement . . . .”). Even assuming we could construe Barber’s

unsigned 38 U.S.C. § 1151 claim as a notice of claim under the FTCA, it does

not state any dollar amount and therefore is not “a claim for money damages, 

in a sum certain.” 38 C.F.R. § 14.604(b); see also Montoya, 841 F.2d at 104.3

Lastly, Barber argues that the district court committed reversible error 

when it denied his motion to conduct jurisdictional discovery. We review the 

district court’s ruling for abuse of discretion. Davila v. United States, 713 F.3d 

248, 263–64 (5th Cir. 2013). The plaintiff is “not entitled to jurisdictional 

discovery if the record shows that the requested discovery is not likely to 

produce the facts needed to withstand a Rule 12(b)(1) motion.” Id. at 264 

(quoting Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009)). 

“Moreover, the burden is greater where, as in the present case, ‘the party 

 

3 We also find no error in the district court’s denial of Barber’s motion to amend 

judgment pursuant to Federal Rule of Civil Procedure 59 on the basis of the Supreme Court’s 

decision in United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). Wong held that the 

FTCA’s statute of limitations was “non-jurisdictional and subject to equitable tolling.” 135 S. 

Ct. at 1638. We find that Wong’s holding regarding the FTCA’s time limits has no bearing on 

our analysis of the jurisdictional limitation provided by 28 U.S.C. § 2675(a)’s presentment 

requirement.

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seeking discovery is attempting to disprove the applicability of an immunityderived bar to suit because immunity is intended to shield the defendant from 

the burdens of defending the suit, including the burdens of discovery.’” Id. 

(quoting Freeman, 556 F.3d at 342). 

Barber posits that discovery would allow him to demonstrate receipt of 

his SF 95. He specifically seeks to depose two of the United States’ declarants

that worked in the Biloxi office, as well as the VA Gulf Coast’s Director, about 

“the mail handling processes at the VA Gulf Coast, the names of persons who 

may have knowledge of Barber’s SF[ ]95,” and “the details of the search made 

by the VA Gulf Coast,” among other things. The district court denied his 

request, reasoning that Barber is “speculat[ing] without any factual basis” that 

he may discover some proof of actual receipt. This ruling is not an abuse its 

discretion. The United States has presented declarations from employees in 

multiple VA offices indicating that they were unable to locate the SF 95. Barber

has not provided any concrete evidence that explains how deposing some of

these individuals is likely to uncover proof that the VA received an SF 95 from 

Barber. Davila, 713 F.3d at 264.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment.

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