Appeals under 28 U.S.C. § 1292(b), from an order of the District Court for the Western District of New York, John T. Elfvin, Judge, denying the Government's motion to dismiss three actions under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., on the ground that the actions, although begun within two years after the claims accrued, had not been begun within six months after notice of final denial of the claims by the appropriate federal agency, as the Government contends is required by 28 U.S.C. § 2401(b). Reversed, with instructions to dismiss the complaints.
Feinberg, Chief Judge, Friendly and Newman, Circuit Judges.
Section 2401(b) of 28 U.S.C. states:
A tort claim against the United States shall be 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.
The accident giving rise to the claims of plaintiffs in these three actions under the Federal Tort Claims Act occurred on December 13, 1979. The plaintiffs filed claims with the United States Postal Service on or about February 20, 1980. Final notice of denials was mailed to their attorney and received by him on July 7, 1980. For reasons which are unexplained in the record and we were unable to elicit at argument the actions were not brought until April 13, 1981, some nine months after the denial but only sixteen months after the accident. If the statute had used the word "and" to connect the two "unless" clauses, it would be too plain for discussion that the Government was entitled to have the actions dismissed as untimely. The issue is whether the result should be different because the statute uses the word "or".
To state the case in somewhat more detail, the plaintiffs alleged that they were injured on December 13, 1979, when a former postal jeep that had been purchased from the United States Postal Service in 1975 "flipped or fell over due to defect in [the jeep] among other things." Claims aggregating more than $8,000,000 were promptly filed with the Postal Service on or about February 20, 1980.*fn1 On July 3, 1980, in accordance with 39 C.F.R. § 912.9(a), an official in the Claims Division of the Law Department of the Postal Service sent a notice to the attorney for the claimants by certified mail finally denying the claims; on July 7 the attorney signed a form acknowledging receipt of the notice. The notice first took the position that any claim would have accrued in 1975 and was thus time-barred. It stated in the alternative that no evidence had been submitted to show any negligent or wrongful conduct on the part of postal employes; it claimed, on the contrary, that "from the reports by the investigating police officer and witness to the accident it appears that the accident resulted from the operation of the vehicle at an imprudent speed." The notice concluded:
Regulaions require us to inform you that if your clients are dissatisfied with the final action on their claims, they may file suit against the United States in an appropriate United States District Court not later than six months from the date of this letter. [See 39 C.F.R. § 912.9.]
Actions against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., were filed in the District Court for the Western District of New York on April 13, 1981. The United States moved to dismiss the actions as untimely since they had not been filed within six months after receipt of the final notices of denial. Plaintiffs answered by substantially taking the position that they ought not to be worse off than claimants who take full advantage of the two year period for filing claims with the agency and then file actions after receiving final notices of denial from the agency. Plaintiffs also cross-moved for leave to file new claims or to have second claims which had been filed on September 10, 1981 regarded as timely served and proper. The Postal Service had promptly denied these latter claims and plaintiffs instituted three new actions, which the United States moved to dismiss as duplicative of the initial actions.
Judge Elfvin denied the Government's motion to dismiss the initial actions in an opinion filed on February 25, 1983. Recognizing that the Government's position had been sustained in Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9 Cir. 1969) and Childers v. United States, 442 F.2d 1299 (5 th Cir. 1971), cert. denied, 404 U.S. 857, 30 L. Ed. 2d 99, 92 S. Ct. 104 (1971), he noted the absence of Second Circuit authority on the issue and thought a more liberal attitude toward claimants had been indicated by Kelley v. United States, 568 F.2d 259 (2 Cir.), cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124, 99 S. Ct. 106 (1978). Essentially he upheld claimants' contention that it would be inequitable to enforce the six months provision of § 2401(b) when suit had been brought within two years after the claim had accrued. In light of this decision he dismissed the new actions filed in September 1981 as duplicative. Finding that there was substantial ground for differences of opinion upon the controlling question of law he had decided, he certified his ruling for interlocutory appeal under 28 U.S.C. § 1292(b); this court accepted the certification and the Government appealed.
Plaintiff's argument proceeds from the premise that since "or" is a disjunctive, a person can prevail if he satisfies either condition specified in 28 U.S.C. § 2401(b). It is beyond dispute that "or" generally is a disjunctive. E.g., The Random House Dictionary of the English Language 1011 (1973); Webster's Twentieth Century Dictionary 1257 (2d ed. 1968); Webster's Third New International Dictionary 1585 (1961). However, as stated in Schuler v. United States, 202 U.S. App. D.C. 199, 628 F.2d 199, 201 (D.C. Cir. 1980) (en banc):
Were we to read the "or" in the section as really intending the disjunctive, a claimant who filed a claim with the agency within two years would then be able to bring it to a District Court at any remote future time after the agency denied him relief.
It could also be said that such a reading would mean that there would be no time limitation on the filing of claims with ...