The opinion of the court was delivered by: PETER K. LEISURE
Defendant seeks an order pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure dismissing the complaint in this action for lack of subject matter jurisdiction or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion to dismiss the action is denied.
The essential facts relevant to this motion are undisputed. This action arises under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Plaintiff George Byrne alleges that personnel at the Veterans Administration Medical Center in Castle Point, New York, were negligent in their medical treatment of Thomas Byrne, who is now deceased. Plaintiff is the sole surviving heir of Thomas Byrne and sues individually and in his capacity as administrator of the estate of Thomas Byrne.
Thomas Byrne was a patient at the Veterans Administration Medical Center at Castle Point, New York, when he died of pneumonia on February 6, 1989. On September 13, 1990, plaintiff filed an administrative claim with the Veterans Administration, demanding recovery of 1.2 million dollars on the grounds that medical malpractice had caused the decedent's death. On the claim form, plaintiff described himself as "sole survivor and petitioner for letters of administration."
By letter dated September 18, 1990, the Veterans Administration advised plaintiff that his claim was defective because he lacked legal authority to make a claim on behalf of the decedent's estate. The letter advised plaintiff of the applicable two year statute of limitations and advised him that he should petition the New York State Surrogate's Court for letters of administration.
Plaintiff's attorney, Martin Kramer, responded to the Veterans Administration by letter dated September 27, 1990, explaining that plaintiff was in the process of filing a petition for letters of administration and that the defective claim form was "merely a precautionary effort" designed to "notify [the Veterans Administration] at the earliest possible time concerning the matter." He also indicated that a valid claim would be filed once plaintiff received letters of administration.
Plaintiff failed to file a claim form with proof of his designation as the decedent's personal representative prior to the lapse of the statute of limitations on February 6, 1991. On February 11, 1991, the Veterans Administration received a new claim form, dated December 25, 1990. This claim also failed to provide proof of plaintiff's status as representative of the decedent. The Veterans Administration informed plaintiff's lawyer that proof of plaintiff's capacity was a requirement for a validly presented claim. The Veterans Administration finally received plaintiff's letters of administration on March 25, 1991. Oddly, the Letters of Administration show that they were issued to plaintiff on November 15, 1990. Plaintiff commenced the instant action by serving the United States with a summons and complaint on January 15, 1992.
The FTCA effects a partial waiver of sovereign immunity by the United States with respect to the negligent acts of federal employees. 28 U.S.C. §§ 1346(b), 2671 et seq. Tort claims against the United States must be "presented in writing to the appropriate Federal agency within two years after such claim accrues" or be "forever barred." 28 U.S.C. § 2401(b). Similarly, the FTCA specifically requires that "an action shall not be instituted upon a claim against the United States [under the FTCA . . . unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675. If a plaintiff fails to comply with this procedure, the federal courts are without jurisdiction to entertain the case. Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983); Group Health, Inc. v. United States, 662 F. Supp. 753, 763 (S.D.N.Y. 1987). Because the FTCA effects a waiver of sovereign immunity, its terms must be strictly construed. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983). Moreover, the notice procedures cannot be waived by consent or operation of law. Id., 700 F.2d at 841. Thus, the notice provisions of the FTCA are jurisdictional in nature and cannot be satisfied by nonconforming procedures, even if the federal agency is in possession of all the information that would otherwise be provided in the claims process.
The FTCA does not define what shall be considered sufficient notice under section 2675. Regulations promulgated by the Attorney General, pursuant to the authority granted in 28 U.S.C. § 2672, purport to specify those parties that may validly present an administrative claim for wrongful death under section 2675:
A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim ...