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VECCHIO v. U.S.

United States District Court, S.D. New York


November 3, 2005.

LOUIE VECCHIO, Plaintiff,
v.
THE UNITED STATES OF AMERICA. Defendant.

The opinion of the court was delivered by: PAUL CROTTY, District Judge

DECISION & ORDER

On January 14, 2005, plaintiff Louie Vecchio filed this action against defendant The United States of America (the "Government") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, seeking damages for an injury that occurred on January 16, 2003 while plaintiff was working at West Point Military Academy ("West Point"), a facility owned by the U.S. Government. The Government now moves, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1), to dismiss plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff cannot prove that his notice of claim was received by the Claims Department at West Point, as required under the FTCA, see 28 U.S.C. § 2675(a), and so the Government argues that the Court Iacks subject matter jurisdiction. The Court holds that plaintiff did not "present" his claim as required by 28 U.S.C. § 2675(a), and accordingly grants the Government's motion to dismiss the complaint.

BACKGROUND

  Plaintiff Louie Vecchio ("Vecchio") was previously employed by Crown Waterproofing. (Pl.'s Memorandum of Law in Opp'n to Def.'s Mot'n to Dismiss ("Pl's Memo of Law"), p. 5.) On January 16, 2003, Crown Waterproof was performing repair work on the roof of the football stadium at the U.S. Military Academy at West Point ("West Point"). (Id.) While working on the roof, plaintiff fell off a ladder on the rooftop due to a previous ice and snow condition that had no been cleared. (Id.) As a result of the fall, plaintiff suffered severe damage to his face, collar bone and shoulder, and was forced to undergo surgery. (Id.)

  On May 29, 2003, plaintiff's attorney prepared a claim notification letter to West Point. (Id.) The letter was addressed to "United States Military Academy at West Point Military Academy, West Point, New York 10996, Attention: Legal Department/Claim Department," and mailed the same day, via regular mail, by Michelle Forte, a paralegal employed by plaintiff's attorney. (Id.; Forte Aff. ¶ 7.) While the Claim Department has no record that Mr. Vecchio's claim was ever received, (Id. ¶ 6), the letter was never returned by the U.S. Postal Service as undelivered. (Forte Aff. ¶ 10.) After May 29, 2003, plaintiff made no further attempts to contact the West Point Claims Department or to pursue the claim in any fashion. The matter remained dormant for almost twenty months, until plaintiff filed his complaint on January 14, 2005.

  The Government claims that it never received plaintiff's May 29, 2003 claim notification letter. To support this assertion, the Government submits two employee affidavits. In the first declaration, Ms. Allisa Minchillo, a Claims Examiner in the Claims Division at West Point, testifies that it is ordinary practice and procedure at her office to prepare a potential claim file and log in all pertinent information immediately upon receipt of any writing concerning a potential tort claim. (Minchillo Decl. ¶ 4.) She further testifies that she personally searched all of the open, closed, and potential tort claims against West Point since 1996, but was unable to locate any records of a claim from or on behalf of Mr. Vecchio. (Id. ¶¶ 1, 6.) This creates an inference that no claim was ever received from Mr. Vecchio. Ms. Minchillo also states that the May 29, 2003 claim notification letter did not use the full and correct address of the West Point Claims Department, which should have included the street address of 646 Swift Road, West Point, New York 10996. (Id. ¶ 5.)

  The Government's second declaration is from Mr. Joseph H. Rouse, the Deputy Chief of the Tort Claims Division, U.S. Army Claims Service, the national headquarters for the processing of all tort claims against the U.S. Army. (Rouse Decl. ¶¶ 1-2.) This declaration contains similar statements: It is the ordinary practice and procedure of the U.S. Army Claims Service to enter all tort claims against the U.S. Army into a central electronic database, dating as far back as 1988, to which Mr. Rouse has access. (Id. ¶ 2.) Mr. Rouse personally searched the database, but found no record of an administrative tort claim filed by, or on behalf of, Mr. Vecchio. (Id. ¶ 3.)

  The Government's position is that since West Point never received plaintiff's claim notification letter, plaintiff's administrative claim was not "presented" to the proper federal agency, as required under the FTCA. Therefore, plaintiff failed to exhaust his administrative remedies and so may not institute this action. Plaintiff counters that the Court has subject matter jurisdiction because the Court must presume, based on plaintiff's proof of mailing, that West Point received notice of the claim. Since the Claims Department failed to adjust the claim within six months after it was filed, as required by the FTCA, 28 U.S.C. § 2675(a), plaintiff may initiate this action.

  DISCUSSION A. Legal Standard on a Motion to Dismiss the Complaint

  The Court must dismiss an action for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) when it "lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When deciding a motion to dismiss for lack of subject matter jurisdiction, the Court "may also consider evidence outside of the pleadings, such as affidavits and other documents that are relevant to the issue of subject matter jurisdiction." Rodriguez v. United States, No. 02 Civ. 6947 (SHS), 2003 WL 21961121, at *1 (S.D.N.Y. Aug. 14, 2003) (citing Makarova, 201 F.3d at 113, for this proposition). Ultimately, plaintiff bears the burden of establishing, by a preponderance of the evidence, that the Court has subject matter jurisdiction over his complaint. Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).

  B. Jurisdictional Requirements for Waiving Sovereign Immunity Under the FTCA

  Section 2675(a) of the FTCA provides that:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury caused by the negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied. . . .
28 U.S.C. § 2675(a) (emphasis added). "[A] claim shall have been deemed to have been presented when a Federal agency receives from a claimant . . . written notification of an incident, accompanied by a claim for money damages in a sum certain. . . ." 28 C.F.R. § 14.2(a) (emphasis added). The claimant has two years from the date of the incident to file a claim with the proper Federal agency. 28 U.S.C. § 2401(b). These procedural requirements are "jurisdictional and cannot be waived." Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864 (1983). The Court may not proceed in the absence of these conditions merely because dismissing the case would visit a harsh result upon the plaintiff.*fn1 United States v. Kubrick, 444 U.S. 111, 117-18 (1979) (stating that since the FTCA waives the immunity of the Government, the courts `should not take it upon ourselves to extend the waiver beyond that which Congress intended"); Keene Corp., 700 F.2d at 841 (2d Cir.) ("[B]ecause the FTCA constitutes a waiver of sovereign immunity, the procedures set forth in Section 2675 must be adhered to strictly."); see also Bell v. United States, No. 86 Civ. 1759, 1986 WL 13401, at *1 (D. Mass. Nov. 20, 1986) (declining to permit a claim presented to the Government one day late, even though the Court was "cognizant of the harsh result visited upon the plaintiff . . . [because] the FTCA waives the immunity of the United States").

  Since Plaintiff seeks to invoke the jurisdiction of this court pursuant to the FTCA, plaintiff had the burden of proving by a preponderance of the evidence that he "presented" his claim to West Point within two years of his accident. As the language of the statute makes clear, to meet this burden, plaintiff had to establish not only that he mailed his claim, but that the West Point Claims Department received his claim. In an effort to prove receipt, plaintiff presents evidence that his attorney mailed a claim notification letter, via regular mail, on May 29, 2003, only four months after his accident. The letter was not certified, nor was a return receipt card included. Plaintiff presents no evidence affirmatively establishing that his claim letter was received by the Claims Department at West Point. There is no acknowledgment letter from the West Point Claims Department, as is the normal practice. Instead, plaintiff's attorney urges the Court to find that the mere mailing of the letter on May 29, 2003 establishes a presumption that the letter was received, and therefore "presented." The Government, on the other hand, urges that mere mailing is not sufficient to establish a presumption of receipt under the FTCA; or, in the alternative, that if presumption of receipt were established, it is rebutted by affidavits attesting to the fact that the letter was not received by the Government.

  Thus, the question before the Court, on the facts of this case, is whether proof that a letter was deposited in the postal mail is sufficient to meet the definition of "presentment" as contemplated by § 2675(a) of the FTCA, where plaintiff cannot prove actual receipt of the claim by the appropriate federal agency and where the agency provides affidavits attesting to the fact that the claim was never received.

  C. "Presentment" Under the FTCA

  The Second Circuit has not yet decided the question of whether mere mailing of a notice of claim to the appropriate federal agency, or actual receipt, is required to satisfy the "presentment" requirement contained in § 2675(a) of the FTCA. The district courts in this Circuit are split on this issue. In Cordaro v. Lusardi, this Court held that "proof of mailing creates a rebuttable presumption of receipt." 354 F. Supp. 1147, 1149 (S.D.N.Y. 1973), aff'd without opinion, 513 F.2d 624 (2d Cir. 1975) (Table). But Cordaro is more than thirty years old, and in the intervening years the Supreme Court has repeatedly cautioned that the FTCA filing requirements are to be strictly construed and applied in favor of the Government, to protect the sovereign immunity of the United States from waiver in circumstances not contemplated by Congress. Ardestani v. INS, 502 US 129, 129 (1991) (noting that statutes that waive the immunity of the United States must be "strictly construed in the United States' favor"); Library of Congress v. Shaw, 478 U.S. 310, 318 (1986) ("In analyzing whether Congress has waived the immunity of the United States, [courts] must construe waivers strictly in favor of the sovereign, and not enlarge the waiver beyond what the language requires." (internal citations and quotation marks omitted)); United States v. Kubrick, 444 U.S. 111, 118 (1979) ("[The Courts] should also have in mind that the Act waives the immunity of the United States and that in construing . . . condition[s] of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended.").

  This Circuit has heeded the Supreme Court's teachings in other FTCA cases. See Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983) (acknowledging that "because the FTCA constitutes a waiver of immunity, the procedures set forth in Section 2675 must be adhered to strictly"). Consistent with this policy, the recent cases in this Circuit addressing the question of what constitutes "receipt" and "presentment" under § 2675(a) of the FTCA have held that "mailing alone is not enough; there must be evidence of actual receipt." Payne v. United States, 10 F. Supp. 2d 203, 205 (N.D.N.Y. 1998) (internal citations and quotation marks omitted) (finding that photocopies of letter and notice of claim that were allegedly mailed were not sufficient to establish receipt by the appropriate federal agency); see Rodriguez v. United States, No. 02 Civ. 6947 (SHS), 2003 WL 21961121, at *2-4 (S.D.N.Y. Aug. 14, 2003) (finding that plaintiff's assertions that she filed an administrative claim with the proper agency were not sufficient to constitute "presentment," where the government proffered sworn affidavits that the claim was never received); Bakowski v. Kurimai, 98 Civ. 2287, 2000 WL 565230, at * 3 (D. Conn. Mar. 20, 2000) (stating that plaintiff must demonstrate timely receipt by the appropriate agency). The cases explain that "proof of receipt [may be] established by sending the claim by certified or registered mail," but that proof of mailing by regular mail is not sufficient. Payne, 10 F. Supp. 2d at 205; see Bakowski, 2000 WL 565230, at *4 (finding that Federal Express proof of delivery form was sufficient to establish receipt by agency, as would be a certified or registered mail receipt).

  The Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have all confronted this question and held, consistent with the policy considerations expressed by the Supreme Court, that proof of mailing alone is not sufficient to establish timely receipt by the appropriate federal agency, particularly where the agency submits affirmative affidavits attesting that the agency did not receive the claim. See e.g., Moya v. United States, 35 F.3d 501, 502 (10th Cir. 1994); Rhodes v. United States, 995 F.2d 1063, 1993 WL 212495, at *2 (4th Cir. June 15, 1993); Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993); Willis v. United States, 972 F.2d 350 (Table), 1992 WL 180181, at **2 (6th Cir. June 29, 1992); Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985); Bailey v. United States, 642 F.2d 344, 347 (9th Cir. 1981).

  Plaintiff asserts that his claim was sent via regular mail to the West Point Claims Department and provides a photocopy of the claim notification letter as proof. He also presents an affidavit from the paralegal in his attorney's office stating that the letter was generated on May 29, 2003. While this evidence supports plaintiff's assertion that a claim notification letter was created and mailed, there is no proof of actual receipt. Plaintiff does not produce a certificate of mailing, a return receipt, or any other acknowledgment from the defendant stating that his claim notification letter was received. The Government, on the other hand, presents sworn declarations stating plaintiff's claim was never received at West Point. If proof of actual receipt is required, as these cases hold, plaintiff fails because that proof is concededly absent. Even if plaintiff were entitled to a presumption of receipt, based solely upon Ms. Forte's affidavit that she mailed the letter, this presumption was firmly rebutted by defendant's evidence of non-receipt.

  Plaintiff's memorandum of law in opposition to the Government's motion does not distinguish any of these adverse holdings. Instead, plaintiff urges that the Court apply the long-held common-law presumption that "an item properly mailed was received by the addressee" to this FTCA case, and cites a number of non-FTCA cases to support this proposition. (Pl.'s Memo of Law, p. 9.) Since the FTCA waives the sovereign immunity of the United States, however, the Supreme Court instructs that it must be strictly interpreted. The Court holds that the "mailbox rule," as the common-law presumption is often called, does not apply to the FTCA.

  Plaintiff also relies heavily on Cordaro v. Lusardi, 354 F. Supp. 1147, 1149 (S.D.N.Y. 1973) and Barnett v. Okeechobee Hospital, 283 F.3d 1232 (11th Cir. 2002), the only two cases to hold that a plaintiff had "presented" his administrative claim to the proper federal agency, despite a failure by the plaintiff to establish receipt by the agency. But, as the court explains above, Cordaro has not withstood the passage of time, and subsequent Supreme Court cases — as well as more recent cases from trial courts of the same Circuit — urge a stricter interpretation of the procedural requirements set forth in the FTCA.

  Plaintiff's reliance on Barnett is equally misplaced. On the unique facts of that case,*fn2 the Eleventh Circuit held that proof of mailing created a rebuttable presumption of receipt of plaintiff's claim, which was mailed in an envelope supplied by the Government after plaintiff mailed, and the Government received, an earlier, but inadequate, notice of claim. Contrary to plaintiff's suggestion, Barnett does not hold that the presumption of receipt created by proof of mailing is irrebuttable. The Barnett court itself explains that:

the presumption of receipt is "not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty and the usual course of business; and when it is opposed by evidence that the letters never were received, must be weighed with all the other circumstances of the case . . . in determining the question whether the letters were actually received or not."
Id. at 1240 (quoting Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884)).

  Under Barnett, the presumption of receipt merely shifts the burden of proof to the Government to establish, through affidavits, that the plaintiff's claim was not, in fact, received. Id. It was only on the unique facts of Barnett that the Eleventh Circuit held that the Government had not rebutted the presumption of receipt to which plaintiff was entitled. See id. at 1240-41. In Barnett, the Government submitted three employee affidavits, but none testified about the agency's practice and procedure for reviewing and filing incoming mail. Id. at 1241-42. This lack of specificity appears to have been determinative. See id. ("If [plaintiff's affiants] relied on personal knowledge . . . of office procedures for processing received mail, they gave no indication or explanation so the district court could evaluate their thinking."). The two affidavits submitted by the Government in this case are much more detailed. Each affidavit sets forth, from the affiant's personal knowledge, the ordinary practice and procedure of the office, and details the efforts taken by the individual affiant to locate plaintiff's claim, before asserting that no such claim exists. Unlike the Government's affidavits in Barnett, these declarations are sufficient to rebut any presumption of receipt to which plaintiff may be entitled.

  In sum, no matter what approach the Court takes to the question of what evidence is sufficient to establish presentment under § 2675(a) of the FTCA, plaintiff's evidence is insufficient. The Court holds that actual receipt by the agency is required, and finds that plaintiff provided no evidence of actual receipt by the agency. If arguendo the Court were to hold that proof of mailing creates a presumption of receipt, the Court holds that the Government's two affidavits are more than adequate to rebut such a presumption.

  CONCLUSION

  In light of the foregoing, the Court finds that plaintiff's claim was not "presented" to the West Point Claims Department, as required by § 2675(a) of the FTCA. Therefore, plaintiff failed to exhaust his administrative remedies, and the Court does not have subject matter jurisdiction to entertain this action. The Court grants the Government's motion to dismiss the complaint pursuant to FRCP 12(b)(1) and the Clerk of the Court is directed to close out this file.

  SO ORDERED.

20051103

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