O'NEILL BY O'NEILL v. U.S.

The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

Plaintiffs brought this action on May 22, 1989 in New York Supreme Court against Brian McFadden, a United States park police officer, alleging that due to his negligence a dog owned, possessed, and controlled by him bit plaintiff Beth Ann O'Neill, an infant, on June 19, 1986. Plaintiff Richard O'Neill sues on behalf of his daughter and himself.

On August 21, 1989 the Assistant United States Attorney, pursuant to 28 U.S.C. § 2679, certified that McFadden was acting at the time of the incident within the scope of his employment as a Federal employee, removed the case to this court, and caused the substitution of the United States as the sole defendant.

The United States moves to dismiss for lack of subject matter jurisdiction. The plaintiffs move to remand to the State court.

This case concerns the application of Public Law 100-694, 102 Stat. 4563 (1988), the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Act) reprinted in 1988 U.S.Code Cong. & Admin. News, (102 Stat.) 4563, enacted November 18, 1988, which made amendments to the Federal Tort Claims Act (the Tort Claims Act). This court considered the Act in Egan v. United States, 732 F. Supp. 1248 (E.D.N.Y. 1990). Familiarity with that decision is assumed.

The dog that allegedly bit Beth Ann O'Neill is the: same dog that bit young Egan, and McFadden here was the original defendant in the Egan case. Here, as in the Egan case, the father sues on behalf of his child as well as himself. The only significant difference between the two cases is that the Egans never filed an administrative claim against the United States whereas Richard O'Neill did file on July 15, 1987 such a claim on behalf of his daughter against the United States with the Park Police, and the claim was denied on December 31, 1987, almost a year before enactment of the Act. Plaintiffs instituted no action against the United States after this denial. Richard O'Neill has to date never presented a claim against the United States on his own behalf.

Insofar as the present action concerns Richard O'Neill's claim on his own behalf this court's holding in the Egan case applies. The question here is whether the court must dismiss with prejudice the action on behalf of Beth Ann O'Neill because she instituted no action against the United States within six months of the denial of the administrative claim.

The United States relies on 28 U.S.C. § 2401(b), which provides that "[a] tort claim against the United States shall be forever barred unless it is presented in writing 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 is presented."

The United States' argument is that O'Neill in fact "presented" a "claim" within the meaning of § 2401(b) to the agency and brought no action within six months of the denial of the "claim," and that therefore Beth Ann O'Neill's action is barred.

The government's argument ignores 28 U.S.C. § 2679(d)(5) and § 8(d) of the Act, both of which modify the limitations period of § 2401(b). Section 2679(d)(5) provides that "[w]henever an action" in which "the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a)," the "claim" shall be "deemed to be timely presented under section 2401(b)" if certain conditions have been met.

These conditions for timely presentation of a claim such as Beth Ann O'Neill's that accrued before November 18, 1988 are defined in section 8(d) of the Act. As discussed in the Egan case, this section provides that "the period during which the claim shall be deemed to be timely presented" under section 2679(d)(5) "shall be that period within which the claim could have been timely filed under applicable State law, but in no event shall such period exceed two years from the date of the enactment of this Act."

The "claim" referred to in section 8(d) as being "deemed to be timely presented" is, of course, a claim against the United States. However, the "claim" mentioned in the clause "within which the claim could have been timely filed under the applicable State" law must refer to the filing of a state law claim against an employee, here McFadden, because the United States may not be sued in state court.

Thus, under § 2679(d)(5) Beth Ann O'Neill's present claim against the United States would have been timely filed because she filed her state claim against McFadden within the applicable New York limitations period. Under that section she then will have 60 days from the date of this court's dismissal to present her claim against the United States to the National Park Service.

The sole remaining question is whether the court should dismiss her present action against the United States for failure to present an administrative claim pursuant to § 2675(a). Section 2675(a) provides in pertinent part that an "action shall not be instituted upon a claim against the United States" for damages for injury caused by negligence of a government employee acting within the scope of employment "unless the claimant shall have first ...