FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTON VACEK, 

Plaintiff-Appellant,

and

No. 04-15961 GOLDEN EAGLE INSURANCE

COMPANY, D.C. No.  Plaintiff, CV-02-1406-VRW

v. OPINION

UNITED STATES POSTAL SERVICE;

UNITED STATES OF AMERICA,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, District Judge, Presiding

Argued and Submitted

February 15, 2006—San Francisco, California

Filed May 24, 2006

Before: J. Clifford Wallace, Michael Daly Hawkins, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Wallace;

Concurrence by Judge Thomas

5739
COUNSEL

Harold J. Truett, III, San Francisco, California, for Appellant

Anton Vacek. 

Kevin V. Ryan, United States Attorney; Joann Swanson,

Chief, Civil Division; Abraham A. Simmons, Assistant

United States Attorney, San Francisco, California, for Appellee United States of America. 

VACEK v. UNITED STATES POSTAL SERVICE 5741
OPINION

WALLACE, Circuit Judge: 

Anton Vacek (Vacek) appeals from the district court’s

judgment of dismissal of his Federal Tort Claims Act (Act)

claim for lack of subject matter jurisdiction. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

On March 9, 1999, Vacek was injured when his employer’s

truck, in which he was a passenger, was struck by a United

States Postal Service (USPS) truck. His workers’ compensation claim was processed by Golden Eagle Insurance Company, his employer’s insurance company and the co-appellant

in this case. 

Vacek retained Harold Truett as his attorney. According to

Truett’s declaration, Truett telephoned the USPS in late July

2000 to determine how to proceed with Vacek’s claim. He

was told to complete a Standard Form 95 and to mail it to

Truedell Griffin in the Customer Service Department in San

Francisco. Truett alleges that he received a Form 95 soon

after his telephone call, and that he mailed a completed copy

of it to Griffin on August 7, 2000. 

On August 16, 2000, Truett received a letter from the USPS

containing instructions on how to fill out the Form 95. Truett

responded one week later: “A properly completed claim form

SF95 was mailed to you a couple weeks back, has not been

returned, and I assume has been accepted by the USPS. If this

is incorrect, kindly advise.” Truett declared that he enclosed

another copy of the Form 95 with this letter, although there

is no indication from the letter itself that he did so. 

After this letter, Truett did not contact the USPS for over

a year. In the meantime, on March 9, 2001, the statute of limitations expired on Vacek’s claim. 

5742 VACEK v. UNITED STATES POSTAL SERVICE
On September 28, 2001, Truett wrote to Griffin and offered

to settle Vacek’s claim for $75,000. After not receiving a

response, Truett wrote three more letters to USPS. Still not

having received a response, Truett filed suit against the

United States in the district court in April 2002. 

On February 5, 2004, the United States moved to dismiss

Vacek’s suit for lack of subject matter jurisdiction. The

United States argued that Vacek had failed to exhaust administrative remedies, as required by the Act, see 28 U.S.C.

§§ 2401(b), 2675(a), because the USPS had never received

his completed Form 95. In support of the motion to dismiss,

the United States submitted declarations from Griffin and

from Kathleen Arndt, an attorney with the USPS legal department. These declarations stated that the USPS had no record

of ever receiving Vacek’s claim. 

In opposition, Vacek submitted Truett’s declaration, which

stated that Truett had prepared and mailed the Form 95 on

August 7, 2000. Truett also presented evidence that he had

created a mailing envelope on that day, and that his secretary

had made a notation that the complaint was filed. 

The district court dismissed the claim for lack of subject

matter jurisdiction. The court held that Vacek had “not carried

his burden with respect to [proving] receipt” of the form. The

court also held that the September 2001 settlement offer did

not fulfill the administrative exhaustion requirement because

it was sent after the statute of limitations had expired. In

response to Vacek’s argument that the USPS should have

been on notice of the claim, the court stated that “the jurisdictional requirements of the administrative exhaustion provisions are not subject to equitable tolling.”

II

We review the district court’s judgment of dismissal for

lack of subject matter jurisdiction de novo. Bramwell v. U.S.

VACEK v. UNITED STATES POSTAL SERVICE 5743
Bureau of Prisons, 348 F.3d 804, 806 (9th Cir. 2003). We

also review the district court’s interpretation of the Act de

novo. Lehman v. United States, 154 F.3d 1010, 1013 (9th Cir.

1998).

A

It is axiomatic that 

[f]ederal courts are courts of limited jurisdiction.

They possess only that power authorized by Constitution and statute, which is not to be expanded by

judicial decree. It is to be presumed that a cause lies

outside this limited jurisdiction, and the burden of

establishing the contrary rests upon the party asserting jurisdiction. 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994) (citations omitted). 

[1] Sovereign immunity is an important limitation on the

subject matter jurisdiction of federal courts. The United

States, as sovereign, can only be sued to the extent it has

waived its sovereign immunity. See, e.g., Dep’t of the Army

v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). The Supreme

Court has “frequently held . . . that a waiver of sovereign

immunity is to be strictly construed, in terms of its scope, in

favor of the sovereign.” Id. at 261. 

[2] The Act “waives the sovereign immunity of the United

States for certain torts committed by federal employees ‘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.’ ” Smith v.

United States, 507 U.S. 197, 201 (1993) (emphasis omitted),

quoting 28 U.S.C. §1346(b). The Act provides that an “action

shall not be instituted upon a claim against the United States

5744 VACEK v. UNITED STATES POSTAL SERVICE
for money damages” unless the claimant has first exhausted

administrative remedies. 28 U.S.C. § 2675(a). 

[3] We have repeatedly held that the exhaustion requirement is jurisdictional in nature and must be interpreted

strictly: 

This is particularly so since the [Act] waives sovereign immunity. Any such waiver must be strictly

construed in favor of the United States. Section

2675(a) establishes explicit prerequisites to the filing

of suit against the Government in district court. It

admits of no exceptions. Given the clarity of the statutory language, we cannot enlarge that consent to be

sued which the Government, through Congress, has

undertaken so carefully to limit. 

Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992)

(internal quotations and citations omitted); see also Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). We

are not allowed to proceed in the absence of fulfillment of the

conditions merely because dismissal would visit a harsh result

upon the plaintiff. See United States v. Kubrick, 444 U.S. 111,

117-18 (1979). With regard to the exhaustion requirement, the

Supreme Court has stated that “in the long run, experience

teaches that strict adherence to the procedural requirements

specified by the legislature is the best guarantee of evenhanded administration of the law.” McNeil v. United States,

508 U.S. 106, 113 (1993), quoting Mohasco Corp. v. Silver,

447 U.S. 807, 826 (1980).

B

[4] Federal regulations appear to control this appeal. 28

C.F.R. § 14.2 governs the question of when an administrative

claim is presented for purposes of the Act. It states: “a claim

shall be deemed to have been presented when a Federal

agency receives from a claimant . . . an executed Standard

VACEK v. UNITED STATES POSTAL SERVICE 5745
Form 95 or other written notification of an incident . . . .” Id.

(emphasis added). Similarly, 39 C.F.R. § 912.5, which governs damage arising out of the operation of the USPS, maintains that “a claim shall be deemed to have been presented

when the U.S. Postal Service receives from a claimant . . . an

executed Standard Form 95 . . . or other written notification

of an incident . . . .” Id.

[5] In spite of the clear language of the regulation, Vacek

relies on Schikore v. BankAmerica Supp. Ret. Plan, 269 F.3d

956, 961 (9th Cir. 2001), to contend that the mailbox rule

should apply to claims under the Act. The common law mailbox rule provides that the proper and timely mailing of a document creates a “rebuttable presumption that the document

has been received by the addressee . . . .” Id. However, Schikore involved ERISA claims and has nothing to do with the

waiver of sovereign immunity; thus, it is inapplicable to this

case. 

In any event, Vacek’s argument is foreclosed by Bailey v.

United States, 642 F.2d 344 (9th Cir. 1981). There, the plaintiff’s decedent was killed in an explosion on a United States

Air Force field. Two co-workers were also injured in the same

explosion. The same law firm represented the co-workers and

Bailey’s heirs in a suit against the United States for negligence. Id. at 345. The law firm filed the necessary claim

papers for the injured co-workers first, and the claims officer

in charge promptly sent acknowledgments of receipt. Id. In

the meantime several letters passed between the law firm and

the Air Force regarding the Bailey claim, containing detailed

information about the claim that was to be filed, including

Bailey’s funeral bills. Id. at 346. The claims officer replied

that the file would be complete once Bailey’s administrative

claim was received. 

Bailey’s attorneys mailed the claim forms on September

13, 1976. Upon learning in June 1977 that one of the coworker’s claims was denied, the lawyers inquired about Bai5746 VACEK v. UNITED STATES POSTAL SERVICE
ley’s claim and were told that there was no record that the Air

Force had ever received it. The attorneys immediately sent

copies of the claim, but the Air Force refused to consider it

because it was not filed within two years of the accident. Id.

For the purposes of the appeal, the government accepted that

the claim form had been mailed. Id. In the district court, the

government presented the affidavits of four claims officers

stating that they had never received the claim. The district

court dismissed the action for lack of subject matter jurisdiction. Id.

[6] We affirmed. “[T]he claim was not ‘presented,’ i.e.,

‘received’ by the agency, as the statute and the regulation

require, within two years. Yet Bailey . . . would have us read

an exception into the statute and the regulations because of

the particular circumstances in this case.” Id. at 346-47. We

continued: “[W]e reject appellant’s claim for relief from the

requirements of the Act. . . . Nor do we accept appellants’

invitation to rewrite the Act and in effect repeal the regulation

by holding that mailing alone is sufficient to meet the requirement that a claim be ‘presented.’ ” Id. at 347. 

Our opinion then continued to a specific discussion of the

mailbox rule. “Finally, we reject appellants’ claim that a presumption of receipt arises in this case. Assuming, without

deciding, that such a presumption may arise under federal

law, it was amply rebutted by the affidavits presented to the

district court by the government.” Id.

[7] Bailey presents virtually identical facts to the case at

hand. As in Bailey, Vacek’s counsel did not send the form by

certified mail. As in Bailey, there was a long series of communications between plaintiff’s counsel and the administrative agency. As in Bailey, Vacek’s counsel did nothing to

verify that the claim had been received. As in Bailey, the government provided affidavits attesting that the claim was never

received. There is no principled distinction that can be drawn.

Bailey controls this appeal.

VACEK v. UNITED STATES POSTAL SERVICE 5747
C

[8] In light of the Supreme Court’s repeated admonition

that waivers of sovereign immunity must be interpreted

strictly, we conclude that Bailey sets out the correct rule of

law. Since Bailey, virtually every circuit to have ruled on the

issue has held that the mailbox rule does not apply to Act

claims, regardless of whether it might apply to other federal

common law claims. See, e.g., Moya v. United States, 35 F.3d

501, 504 (10th Cir. 1994) (“It is the plaintiff’s burden to

establish the proper agency’s receipt of the request for reconsideration”); Bellecourt v. United States, 994 F.2d 427, 430

(8th Cir. 1993) (upholding dismissal where “the ‘request for

administrative remedy’ was not mailed by certified mail [and]

the ‘request for administrative remedy’ was not received by

the Federal Bureau of Prisons”); Drazan v. United States, 762

F.2d 56, 58 (7th Cir. 1985) (“[T]he district court was quite

right to hold that mailing is not presenting; there must be

receipt”). Put simply, it cannot be strict construction of the

waiver to read the word “received” as actually meaning

“mailed.” 

There is only one circuit case to have interpreted the Act

to allow the mailbox rule. Barnett v. Okeechobee Hosp., 283

F.3d 1232, 1238-39 (11th Cir. 2002). There, Barnett asserted

that he had mailed a completed Form 95 and included in his

amended complaint a copy of the form, the accompanying

cover letter, and a copy of the envelope in which he mailed

it. Id. at 1238. The court found that this evidence “raise[d] an

inference” that he had mailed the documents. Id. The court

then detailed the acceptance of the mailbox rule and stated

that the government had a financial stake in the outcome of

this litigation. Id. at 1240. The court then concluded: “[W]e

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 . . . .” Id.

5748 VACEK v. UNITED STATES POSTAL SERVICE
Unlike the court in Barnett, we can think of at least one

reason why the federal government should be treated differently from a private defendant in this situation: the federal

government must waive sovereign immunity. “In analyzing

whether Congress has waived the immunity of the United

States, [courts] must construe waivers strictly in favor of the

sovereign, and not enlarge the waiver beyond what the language requires.” Library of Congress v. Shaw, 478 U.S. 310,

318 (1986) (internal quotation marks and citations omitted).

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. 

It would have taken minimal effort on the part of Vacek’s

attorney to verify that the claim had been received: sending it

by certified mail. Furthermore, the administrative exhaustion

requirement is satisfied if the administrative agency fails to

make final disposition of a claim within six months. 28

U.S.C. § 2675(a). If Vacek’s attorney had contacted the USPS

six months after he first mailed the form rather than waiting

for over a year, he still would have been within the statute of

limitations and could have filed the claim anew. “We do not

think that we should now stretch and distort the statute and

the regulation to rescue counsel from their own carelessness.”

Bailey, 642 F.2d at 347. 

Although neither party cited Bailey in the briefs, Vacek’s

counsel conceded Bailey’s controlling effect at oral argument,

calling it “a killer case for the government.” He continued, “I

recall sitting and reading the dissent and hoping that would

become the rule of the circuit.” As a three-judge panel of the

circuit, we have no such power. See Barapind v. Enomoto,

400 F.3d 744, 751 n.8 (9th Cir. 2005) (en banc) (per curiam).

Nor do we think Bailey was wrongly decided. Bailey directly

controls.

D

Vacek further argues that mail carriers are representatives

and mailboxes are extensions of the USPS, such that depositVACEK v. UNITED STATES POSTAL SERVICE 5749
ing a letter with either one satisfies the presentment requirement. Vacek did not raise this argument in the district court

and, therefore, we will not address it. See Singleton v. Wulff,

428 U.S. 106, 120 (1976).

E

Finally, Vacek argues that the USPS should be estopped

from arguing that it never received Vacek’s Form 95, because

it does not deny receiving multiple letters explicitly mentioning the form. 

Vacek’s argument is foreclosed by our caselaw. The United

States may assert “the insufficiency of [an] administrative

claim under section 2675(a)” at any time because “[t]he government may not be equitably barred from asserting jurisdictional requirements.” Burns v. United States, 764 F.2d 722,

724 (9th Cir. 1985); see also Claremont Aircraft, Inc. v.

United States, 420 F.2d 896, 898 (9th Cir. 1969) (“[O]rdinary

principles of estoppel or waiver are not applied against the

Government”). Furthermore, the requirements of the Act are

“jurisdictional in nature and may not be waived.” Blain v.

United States, 552 F.2d 289, 291 (9th Cir. 1977). 

AFFIRMED.

THOMAS, joined by HAWKINS, Circuit Judges, concurring:

This case provides fresh meaning to James M. Cain’s “The

Postman Always Rings Twice.”

1

 Anton Vacek was first struck

1

JAMES M. CAIN, THE POSTMAN ALWAYS RINGS TWICE (KNOPF, 1934); See

also THE POSTMAN ALWAYS RINGS TWICE (WARNER, 1981); THE POSTMAN

ALWAYS RINGS TWICE (MGM, 1946); LE DERNIER TOURNANT (LUX PRODUCTIONS, 1939). The title is ironic because there is no reference to a postman

either in Cain’s book or in the subsequent film adaptations. When asked

5750 VACEK v. UNITED STATES POSTAL SERVICE
by a Post Office truck, and then had his damage claim

stamped out because the Post Office lost it in the mail.2

The legal question presented by this case is whether the

United States Post Office is entitled to immunity from suit

when its employees lose a plaintiff’s claim in the mail? The

answer, based on the letter of the law as expressed in Bailey

v. United States, 642 F.2d 344 (9th Cir. 1981), appears to be

“yes.” However, because subsequent case law has undermined Bailey, and because I believe Bailey was incorrectly

decided, I write separately to urge re-examination of the Bailey rule. 

I

The Federal Tort Claims Act (“FTCA”) “waives the United

States’ sovereign immunity for actions in tort” and permits

claimants to sue the United States in district court after complying with administrative requirements. Cadwalder v. United

States, 45 F.3d 297, 300 (9th Cir. 1995). Before filing a lawsuit, a claimant must “have first presented the claim to the

appropriate Federal agency,” 28 U.S.C. § 2675(a), “within

two years after such claim accrues,” 28 U.S.C. § 2401. Section 2675(a) “admits of no exceptions. Given the clarity of the

statutory language, we cannot enlarge that consent to be sued

which the Government, through Congress, has undertaken so

carefully to limit.” Jerves v. United States, 966 F.2d 517, 521

(9th Cir. 1992) (internal quotations omitted). 

for an explanation, Cain purportedly explained that his manuscript had

been rejected by 13 publishers prior to being accepted for publication on

his 14th attempt, so that when the publisher asked him what he wanted the

work to be entitled he drew on this experience and suggested The Postman

Always Rings Twice. Like Vacek, Cain apparently had come to associate

the postal service with dark disappointment. 

2The Postal Service disputes this, but in reviewing a dismissal for lack

of subject matter jurisdiction, we construe the facts in the light most favorable to the plaintiff. Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th

Cir. 1999). 

VACEK v. UNITED STATES POSTAL SERVICE 5751
The presentation requirements of §§ 2401 and 2675 are satisfied when a federal agency receives “an executed Standard

Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain.” 28

C.F.R. § 14.2 (administrative claims under the FTCA). See

also 39 C.F.R. § 912.5 (procedures for adjudicating claims

against the USPS); Burns v. United States, 764 F.2d 722, 724

(9th Cir. 1985) (“the view held by the Ninth Circuit is that the

jurisdictional requirement of minimum notice is satisfied by

(1) a written statement sufficiently describing the injury to

enable the agency to begin its own investigation, and (2) a

sum certain damages claim.”) (internal quotations omitted). 

We have refused to hold that mailing a letter “alone is sufficient to meet the requirement that a claim be ‘presented.’ ”

Bailey, 642 F.2d at 347. However, we have assumed, without

deciding, that the mailbox rule applies to FTCA cases. Id.3

3

It is worth noting that since we assumed that the mailbox rule applies

to FTCA cases in Bailey, we have consistently held that the mailbox rule

applies to cases against the United States. See, e.g., Lewis v. United States,

144 F.3d 1220, 1222 (9th Cir. 1998) (“The law of this circuit is clear. We

go by the ‘mail box rule.’ Proper and timely mailing of a document raises

a rebuttable presumption that the document has been timely received by

the addressee. The rule applies to mailings by taxpayers to the Service.”)

(internal citations omitted). 

Moreover, our assumption in Bailey that the mailbox rule applies to

FTCA claims is in accord with other circuits. See Barnett v. Okeechobee

Hosp., 283 F.3d 1232, 1238-39 (11th Cir. 2002). The majority opinion’s

statements to the contrary are not supported. In Moya v. United States, 35

F.3d 501, 504 (10th Cir. 1994), the Tenth Circuit considered the application of the mailbox rule to FTCA cases. It did not hold, as the majority

suggests, that the mailbox rule does not apply. Rather, it held: “While the

law presumes delivery of a properly addressed piece of mail, no such presumption exists for certified mail where the return receipt is not received

by the sender.” Id. at 504 (citations omitted and emphasis added). Similarly, in Bellecourt v. United States, 994 F.2d 427 (8th Cir. 1993), the

Eighth Circuit held that a plaintiff had failed to meet the presentment

requirements of the FTCA. However, it is not clear at all that the Eighth

Circuit based its opinion on the inapplicability of the mailbox rule to

5752 VACEK v. UNITED STATES POSTAL SERVICE
Our assumption that the mailbox rule applies to FTCA cases

makes sense. As we have previously recognized, the mailbox

rule is “a settled feature of federal common law,” and may be

applied to so long as its application is consistent with Congress’s statutory scheme. Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961, 963 (9th Cir. 2001). 

Prior to 1966, administrative agencies could only settle

FTCA claims of less than $2,500, and litigants claiming more

were required to file suit in federal court. The limitation on

agencies’ ability to settle meant that a large number of suits

were filed in federal court. In 1966, Congress amended 28

U.S.C. § 2675 to its current form, which requires all potential

litigants to file their claims with the appropriate administrative agency before going to court. With the amendment, Congress intended to provide “for more fair and equitable

treatment of private individuals and claimants when they deal

with the Government or are involved in litigation with their

Government” and 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.” S. REP. NO. 89-1327, 1966 U.S.C.C.A.N.

2515, 2516 (1966). We have interpreted the legislative history

of the 1966 amendments to mean that Congress intended

§ 2675 to require only “minimal notice” of a claim against

government agencies. Shipek v. United States, 752 F.2d 1352,

1354 (9th Cir. 1985). 

The mailbox rule, which creates a rebuttable presumption

that a properly addressed and mailed letter will arrive at its

destination within a reasonable amount of time, is consistent

FTCA claims. Rather, the Eighth Circuit appears to have based its decision on the fact that the plaintiff used the wrong form for his FTCA claim

and failed to comply with the “sum certain” requirement. Finally, in Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985), the Seventh Circuit

makes no mention of the mailbox rule’s presumption of receipt, and we

cannot infer that the Seventh Circuit considered it. 

VACEK v. UNITED STATES POSTAL SERVICE 5753
with this “minimal notice” requirement and Congress’s intent

to make the FTCA claim procedure more fair to litigants,

especially when applied to the USPS. As we have recognized,

“[i]n the absence of the use of registered or certified mail, on

the one hand, and a returned envelope or other indication of

failed delivery, on the other, both receipt and non-receipt are

difficult to prove conclusively.” Schikore, 269 F.3d at 963

(internal quotations omitted). The mailbox rule fills that gap,

enabling the claimant to prove his or her case. To require the

litigant — who has no access to the annals of a government

agency — to present concrete evidence of receipt in the

absence of certified or registered mail would impose an insurmountable obstacle. 

Furthermore, application of the mailbox rule does not

impose an unreasonable burden on government agencies, nor

does it impermissibly broaden the scope of Congress’s waiver

of the United States’ immunity, because it does not, as the

majority opinion suggests, alter the receipt requirement of

§ 2675 and enlarge Congress’s waiver of sovereign immunity.

See United States v. Kubrick, 444 U.S. 111, 118 (1979) (noting that the courts should neither extend nor narrow the congressional waiver of the United States’ immunity). Following

our lead in Bailey, a plaintiff must still prove receipt as the

statute requires, but he may rely on the mailbox rule’s rebuttable presumption to do so. 

II

Although I agree with our assumption in Bailey that the

mailbox rule applies to FTCA cases, I believe that our decisions in more recent mailbox rule cases have undermined substantially our interpretation of the mailbox rule in that case.

There, the plaintiff’s counsel mailed an FTCA claim to the

Air Force and argued, based on the common law mailbox

rule, that his having mailed the claim created a presumption

of receipt by the Air Force. The Air Force presented affidavits

of several officers who stated that the claim had never been

5754 VACEK v. UNITED STATES POSTAL SERVICE
received. We assumed that the mailbox rule applied, but held

that the presumption of receipt “was amply rebutted by the

affidavits presented to the district court by the government.”

Bailey, 642 F.2d at 347. 

The majority opinion correctly points out that the facts of

this case are close, if not indistinguishable, from Bailey. Both

plaintiffs sent FTCA claims to government agencies by regular mail, both plaintiffs had lengthy discussions with the relevant government agency, and both agencies provided

affidavits stating that the FTCA claim was never received.

Because we held in Bailey that the agency’s affidavits rebutted the presumption of receipt in Bailey, so too, says the

majority opinion, the USPS affidavits in this case rebut the

presumption of receipt. I do not disagree with this conclusion;

however, application of the Bailey rule here fails to account

for more recent developments in our interpretation of the

mailbox rule. 

Since Bailey, we have required more than an affidavit

claiming non-receipt to rebut the mailbox rule’s presumption

of receipt. In deciding Schikore in 2001, we rejected an argument identical to the one we had accepted 20 years earlier in

Bailey. We conducted a detailed analysis of “mailbox rule”

claims and held that a receiving party must do more than

swear that it did not receive a claim to rebut a presumption of

receipt. The receiving party must

describe in detail its procedures for receiving, sorting, and distributing mail, to show that these procedures were properly followed at the time when the

document in question might conceivably have been

delivered by the postal service, to provide evidence

that it has conducted a thorough search for the document at the addressee’s physical facility, and to

establish that had the document been received

around the time the claimant asserted it was mailed,

VACEK v. UNITED STATES POSTAL SERVICE 5755
it would presently be at the location searched by the

[receiving party]. 

269 F.3d at 964. Applying Schikore in the FTCA context,

affidavits from the government stating that it did not receive

a plaintiff’s FTCA claim, like those produced in Bailey and

in this case, are insufficient to rebut the presumption of

receipt created by the mailbox rule. Thus, Bailey and Schikore

command opposite results. 

The majority implies that there is no tension between Schikore and Bailey by noting that “Schikore involved ERISA

claims and has nothing to do with the waiver of sovereign

immunity; thus, it is inapplicable to this case.” However, I do

not find this distinction persuasive. The mailbox rule is an

evidentiary presumption that has been applied consistently to

settle disputes about whether a properly mailed claim was

received. If, as Bailey assumed, the mailbox rule applies to

FTCA cases, it should apply with full force, even when the

defendant is the USPS. We do not change the standards for

admission of hearsay evidence when the government is the

defendant. Nor should we alter the operation of the mailbox

rule when the government is the defendant. 

Moreover, if, as the majority opinion reasons, the Bailey

rule, and not that set forth in Schikore, applies to FTCA cases,

the mailbox rule would serve no purpose. The government

could rebut a presumption of receipt simply by claiming “we

never received it,” without showing that it had made a reasonable effort to search for the missing document. Under the Bailey construction of the mailbox rule, a litigant remains in the

precise position that the mailbox rule seeks to avoid: the litigant — who has no access to the vast machinery of a government agency — would have to present concrete evidence that

his claim was received. Such a result is inconsistent with Congress’s intent to provide “for more fair and equitable treatment of private individuals . . . [who] are involved in

5756 VACEK v. UNITED STATES POSTAL SERVICE
litigation with their Government,” and our interpretation of

§ 2675 as requiring only “minimal notice.” 

Thus, as Judge Jameson observed in his dissent in Bailey:

Merely because the administrative claim requirement is a “jurisdictional prerequisite” should not

foreclose our consideration of these equitable factors. In House v. Mine Safety Appliance Co., 573 609

(9th Cir. 1978), a case relied on by the majority, this

court recognized that where “unusual and compelling circumstances” exist, literal compliance with the

administrative claim requirements may be excused.

Id. at 618. This court “softened the vigor” of [the

regulation] because certain claimants presented

problems not previously considered by this court and

their failure to strictly comply with the regulations

did not prejudice the government. 

642 F.2d at 349. 

Judge Jameson examined other statutes in which “jurisdictional” time limits applied, and noted that a number of exceptions had been forged in order “to give effect to the broad

remedial purposes” of the acts. Id. He concluded: “I see no

reason why the FTCA time limitation should not likewise be

construed to give effect to the remedial purposes of the Act.”

Id.

The rule proposed by Judge Jameson in his dissent would

not render the FTCA time limits any less meaningful. Rather,

it would allow presentation of evidence to establish that a

claim had, in fact, been timely filed — as opposed to closing

the federal courthouse doors based on a contested government

affidavit alone. 

In Bailey, as in this case, the plaintiffs vigorously denied

that they had slept on their rights. In Bailey, as in this case,

VACEK v. UNITED STATES POSTAL SERVICE 5757
the plaintiffs tendered evidence showing repeated attempts to

contact the government, and specific evidence that the claim

had, in fact, been mailed. Under such circumstances, the government ought not to be allowed to escape a valid cause of

action simply by tendering an affidavit that a government

official had examined his own files and had not found the

claim. 

III

In sum, I would expressly apply the mailbox rule to FTCA

claims. I would overrule Bailey, and adopt the cogent and persuasive reasoning of Judge Jameson’s dissent. Bailey, 642

F.2d at 348-50. However, because I agree that Bailey controls

this case, I concur in the majority opinion.

5758 VACEK v. UNITED STATES POSTAL SERVICE