Appeal from a judgment of the Eastern District of New York, Eugene H. Nickerson, Judge, dismissing plaintiffs' claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., for lack of subject matter jurisdiction due to inadequate presentation of the claims to the appropriate agency, as required by 28 U.S.C. § 2675. Affirmed. Judge Pratt dissents in a separate opinion.
Before: MANSFIELD, KEARSE and PRATT, Circuit Judges.
MANSFIELD, Circuit Judge:
Barbara and Melissa Johnson, mother and daughter respectively, appeal from a judgment of the Eastern District of New York, Eugene H. Nickerson, Judge, dismissing their claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. The Johnsons seek damages stemming from the United States Postal Service's alleged negligence in the employment and supervision of a letter carrier who sexually assaulted the infant Melissa. Judge Nickerson ruled that the court lacked subject matter jurisdiction because the plaintiffs failed to comply with 28 U.S.C. § 2675(a),*fn1 which requires that claims against the United States be presented to the appropriate agency before an action may be maintained. We hold that the Johnsons' claim met the requirements of the statute and that the district court erred in this respect. However, we conclude that the district court lacked subject matter jurisdiction over the suit because it "aris[es] out of" an assault and battery and is therefore barred by 28 U.S.C. § 2680(h).*fn2 Accordingly, we affirm.
On October 3, 1983, Barbara Johnson submitted a claim to the Postal Service for injury and damages, utilizing the appropriate one page standard form prepared by the federal government. See 28 C.F.R. § 14.2 (1985). In response to question 11, which requires the applicant to "state below, in detail, all known facts and circumstances attending the damage, injury, or death, identifying persons and property involved and the cause thereof" she stated that on June 3, 1982 "and various dates prior thereto"
"Melissa Johnson was sexually molested assaulted and, on information and belief, sodomized and threatened by Postman Luis Ojeda.
"Barbara Johnson sustained damage for medical and psychological treatment and loss of services."
The claim further stated that Melissa Johnson suffered "vaginal and genital injuries, psychiatric and emotional injuries [of which the] full nature and extent [are] unknown at present." It stated that Barbara Johnson incurred "expenses for medical and psychological treatment" and suffered "loss of services". The Johnson's sought $6,000,000.
By letter dated January 6, 1984, the Postal Service denied the claim. First, the agency maintained that Ojeda acted outside the scope of his employment in assaulting Melissa Johnson. Second, the letter stated:
"The incident you describe as the basis of your claim is an assault and battery. While Congress has generally waived the Government's immunity for certain wrongful acts of its employees committed [sic] within the scope of their employment, Congress has specifically provided, in 28 U.S.C. § 2680(h), that the Government's immunity from suit and from considering claims for personal injury has not been waived for any claim arising out of an assault and battery." (Emphasis in original).
On April 4, 1984, plaintiffs filed the complaint in this action, alleging that the sexual assault on Melissa was "caused by the carelessness, recklessness and negligence of the defendant, its agents, servants and/or employees" in their "employment, supervision and assignment of Ojeda". Although plaintiffs alleged generally that the defendant and its agents acted "with notice or knowledge of Ojeda's criminal and perverted propensities and tendencies" no facts supporting these assertions or further specification were provided in the complaint.
Defendant moved to dismiss the complaint for lack of subject matter jurisdiction, contending that the United States had not waived it sovereign immunity in this case because it was one "arising out of" assault or battery. 28 U.S.C. § 2680(h) provides a number of exceptions to the broad waiver of sovereign immunity embodied in the FTCA, including a bar on suits "arising out of assault [and] battery." Judge Nickerson granted the motion but did not address the grounds proffered by defendant. Instead, the district court ruled that the claim raised by the complaint had not been submitted to the Postal Service as required by 28 U.S.C. § 2675(a). The court noted that, although the complaint alleged negligent supervision, the administrative claim made no mention of such a legal theory or of facts suggesting that "anyone other than Ojeda might be culpable for the injuries".
Sufficiency of the Administrative Claim
Appellants contend that the administrative claim filed with the Postal Service, alleging only sexual assault and injuries stemming from it, was sufficient to enable them to maintain a court action against the United States for negligent supervision. 28 U.S.C. § 2675(a) makes the filing of a claim with the ...