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