2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-7-2009

Cedric Lightfoot v. USA

Precedential or Non-Precedential: Precedential

Docket No. 08-2602

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Recommended Citation

"Cedric Lightfoot v. USA" (2009). 2009 Decisions. Paper 1277.

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The Honorable Richard G. Stearns, District Judge for the *

United States District Court for Massachusetts, sitting by

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2602

 

CEDRIC LIGHTFOOT, 

 Appellant

 v.

UNITED STATES OF AMERICA

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-08-cv-00170

District Judge: The Honorable Jan E. Dubois

 

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

April 14, 2009

Before: McKEE, SMITH, Circuit Judges

and STEARNS, District Judge*
designation.

(Filed:May 7, 2009)

Frank S. Pollock

Brownstein, Vitale & Weiss

1500 John 

John F. Kennedy Boulevard

Suite 1020

Philadelphia, PA 19102

Counsel for Appellant

Paul W. Kaufman

Office of United States Attorney 

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106-0000

Counsel for Appellee

 

 OPINION

 

STEARNS, District Judge.

This appeal arises out of the District Court’s dismissal of

Cedric Lightfoot’s Federal Tort Claims Act (FTCA) claim

against the United States Postal Service (USPS) for failure to

file his claim within the applicable statute of limitations. For the
In his initial claim Lightfoot described himself as both 1

the passenger and driver of the car; however, in his appellate

brief he consistently describes himself as the driver. 

reasons stated, we will affirm the judgment of the District Court.

I.

Lightfoot was driving northbound on Broad Street in

Philadelphia on October 6, 2004, when he claims to have been

sideswiped by a postal van driven by USPS employee Darrell E.

Moore. Lightfoot alleges that the accident was caused by 1

Moore’s inattentiveness as he attempted a lane change. The

contact caused Lightfoot to “violently” collide with a parked

vehicle. Lightfoot alleges that he sustained serious personal

injuries as well as damage to his car. 

On September 19, 2006, Lightfoot submitted an

administrative claim to the USPS. Edward Weiss, Lightfoot’s

attorney, sent the claim by certified mail. Lightfoot demanded

$3,790.74 in compensation for property damage and $75,000 for

his personal injuries. The USPS denied Lightfoot’s claim on or

about November 8, 2006. The letter of denial notified Lightfoot

that he had six months to file a civil action in the District Court

or, alternatively, that he could request reconsideration by the

USPS within six months of the date of the denial. 

Lightfoot alleges that he sought reconsideration three

weeks prior to the deadline by mailing a first class letter to the
Lightfoot offers the affidavit of attorney Frank Pollock 2

describing the law firm’s mailing procedure and his recollection

of signing a final copy of the request for reconsideration before

giving it to his secretary to be mailed. Teszner also submitted

an affidavit. In it, he states that he did not receive Lightfoot’s

request for reconsideration. 

USPS on April 16, 2007. Lightfoot claims that the letter was

sent by his attorneys to Richard Teszner, the Tort Claims

Coordinator for the USPS. However, the USPS has no record

of having received the letter. Lightfoot filed the instant 2

complaint in the District Court on January 4, 2008. 

The USPS moved to dismiss Lightfoot’s complaint

pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction. The District Court granted the motion, holding that

the FTCA requires proof of receipt of a request for

reconsideration. For the reasons stated, we will affirm the

judgment of the District Court. 

II.

This Court has jurisdiction to review the District Court’s

order pursuant to 28 U.S.C. § 1291. “The standard of review for

subject matter jurisdiction is plenary.” Sikirica v. Nationwide

Ins. Co., 416 F.3d 214, 219 (3d Cir. 2005). 

III.

The FTCA precludes suit against the United States unless
28 U.S.C. § 2675(a) provides that: 3

An action shall not be instituted upon a claim

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, unless the claimant shall have first

presented the claim to the appropriate Federal

agency and his claim shall have been finally

denied by the agency in writing and sent by

certified or registered mail. The failure of an

agency to make final disposition of a claim within

six months after it is filed shall, at the option of

the claimant any time thereafter, be deemed a

final denial of the claim for purposes of this

section.

28 U.S.C. § 2401(b) provides: 4

[a] tort claim against the United States shall be

the claimant has first presented the claim to the relevant Federal

agency and the claim has been finally denied. See 28 U.S.C. §

2675(a). The final denial requirement is “jurisdictional and 3

cannot be waived.” Bialowas v. United States, 443 F.2d 1047,

1049 (3d Cir. 1971). After the denial of an administrative claim,

the claimant has two options: (1) he may file suit in the District

Court within six months of the denial pursuant to 28 U.S.C. §

2401(b); or (2) he may file a request for reconsideration directly 4
forever barred unless it is presented in writing to

the appropriate Federal agency within two years

after such claim accrues or unless action is begun

within six months after the date of mailing, by

certified or registered mail, of notice of final

denial of the claim by the agency to which it was

presented.

with the agency to which the claim was originally made.

Regulation 39 C.F.R. § 912.9(b)-(c) sets out the filing

requirements for reconsideration of the denial of a claim by the

USPS: 

(b) Prior to the commencement of suit and prior to

the expiration of the 6 month period provided in

28 U.S.C. § 2401(b), a claimant, his duly

authorized agent, or legal representative, may file

a written request with the postal official who

issued the final denial or with the Chief Counsel,

National Tort Center, U.S. Postal Service, P.O.

Box 66640, St. Louis, MO 63141-0640, for a

reconsideration of a final denial of a claim under

paragraph (a) of this section. Upon the timely

filing of a request for reconsideration, the Postal

Service shall have 6 months from the date of

filing in which to make a disposition of the claim

and the claimant’s option under 28 U.S.C.

2675(a) shall not accrue until 6 months after the

filing of a request for reconsideration. Final Postal

Service action on a request for reconsideration
If the USPS denies the request for reconsideration (or 5

allows the request but denies the claim), the claimant may file

in District Court six months after the request was filed. See 39

C.F.R. § 912.9.

shall be effected in accordance with this part.

(c) For purposes of this section, a request for

reconsideration of a final denial of a claim shall be

deemed to have been filed when received in the office of

the official who issued the final denial or in the office of

the Chief Counsel, National Tort Center, U.S. Postal

Service . . . . 

5

Lightfoot bears the burden of demonstrating subject

matter jurisdiction. See Carpet Group Int’l v. Oriental Rug

Importers Ass’n, 227 F.3d 62, 69 (3d Cir. 2000). Lightfoot

alleges that he filed his request for reconsideration on April 16,

2007, and that the District Court erred in refusing to apply the

“mailbox rule” to his claim for reconsideration. We disagree. 

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 (1980) (quoting

United States v. Sherwood, 312 U.S. 584, 586 (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

(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 (2005). 
Lightfoot relies heavily on Glover v. United States for 6

the proposition that courts should distinguish between the

requirements for initial presentation and a request for

reconsideration of a denial of a properly presented claim. See

111 F. Supp. 2d 190, 194-195 (E.D.N.Y. 2000). Glover is not

persuasive. As the Tenth Circuit has noted “[n]owhere is there

any indication that what constitutes presentment of a request for

reconsideration is different from presentment of the claim

itself.” Anderberg v. United States, 718 F.2d 976, 977 (10th

Cir. 1983); see also Moya, 35 F.3d at 504. 

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.6

For the foregoing reasons, we will affirm the judgment

of the District Court.