Sharon R. Miller, Plaintiff-appellant, v. United States of America, Defendant-appellee, 741 F.2d 148 (7th Cir. 1984)

Plaintiff Sharon R. Miller brought this action against the United States pursuant to the Federal Tort Claims Act (the "Act"), 28 U.S.C. §§ 1346(b), 2671 et seq. The district court dismissed for failure to timely file her claim. We reverse.

The facts of this case are not disputed. On May 16, 1980, a vehicle driven by Peter Avenatti collided with plaintiff's truck. At the time of the accident, Avenatti was engaged in his duties as a postman with the United States Postal Service (the "Postal Service"). On August 19, 1981, plaintiff sent the Postal Service a demand letter, signed by her attorney, for $40,000 in damages. The Postal Service responded on December 22, 1981, neither accepting nor rejecting the claim; it merely expressed an opinion that a private insurance policy on the vehicle operated by Avenatti covered liabilities of the United States.¹  On March 8, 1982, after more than six months had passed from the mailing of the demand letter, plaintiff filed an action against Avenatti and the Postal Service in federal court under the Act. She voluntarily dismissed this case on May 14, 1982, but on the same date filed another action under the Act in state court, naming only Avenatti as defendant. On June 7, 1982, the United States Attorney certified that Avenatti was acting within the scope of his employment as an employee of the United States and, pursuant to 28 U.S.C. § 2679(d),²  the case was removed to federal court. The United States was added as a party defendant on November 24, 1982. Defendants then separately moved for dismissal on December 17, 1982. The district court granted Avenatti's motion on August 8, 1983, finding that the United States became the only proper party to the suit upon certification by the United States Attorney that Avenatti was acting within the scope of his employment.³  On August 16, 1983, the court granted the Government's motion to dismiss, reasoning that it lacked subject matter jurisdiction because plaintiff failed to timely add the United States as a defendant. It is from this order that plaintiff appeals.

The Act's statute of limitations imposes two time constraints on the filing of tort claims against the United States. First, a claimant must present a claim to the appropriate federal agency within two years of the date of its accrual. Second, a plaintiff must file a legal action, if at all, no more than six months after the federal agency mails its notice of final denial of the claim. See 28 U.S.C. § 2401(b).⁴  Plaintiff satisfied the first of these requirements when she sent her demand letter to the Postal Service on August 19, 1981--well within two years of the May 16, 1980 accident. This filing tolled the statute of limitations until plaintiff's claim was finally denied. Whether she satisfied the second requirement is less obvious.

The threshold question, which neither party addresses, is whether the Postal Service's letter of December 22, 1981 constitutes a notice of final denial. We conclude that it does not. The letter, on its face, never denies the claim; it merely recommends that plaintiff pursue her grievance with Avenatti's private insurance carrier. Nor does the record indicate that the Postal Service sent the communication by certified or registered mail, as required by the Act. See, e.g., 28 U.S.C. §§ 2401(b), 2675(a). Cf. Claremont Aircraft, Inc. v. United States, 420 F.2d 896, 898 (9th Cir. 1969). Finally, the letter failed to include a "statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court ...", as required by the Postal Service's own administrative rules and regulations governing the issuance of final denials. 39 C.F.R. 912.9(a).

But if a federal agency fails to finally dispose of a properly made claim within six months of its presentation, the claimant has the option to treat the inaction as a constructive final denial. 28 U.S.C. § 2675(a). Since the Postal Service never finally denied plaintiff's August 19, 1981 demand letter, she could exercise this option at any reasonable time after February 19, 1982. Cf. Boyd v. United States, 482 F. Supp. 1126 (W.D. Pa. 1980); Mack v. United States Postal Service, 414 F. Supp. 504 (E.D. Mich. 1976). This she did on March 8, 1982, when she filed her original complaint in federal court. Plaintiff then had six months to bring a lawsuit against the United States. 28 U.S.C. § 2401(b). Yet neither the original complaint, which plaintiff dismissed voluntarily, nor the subsequent state court complaint, filed on May 14, 1982, named the United States as a defendant. The Government argues that these omissions are fatal because plaintiff did not formally add the United States as a party defendant until November 24, 1982, more than six months after the March 8, 1982 filing. We disagree. Section 2679(d) of the Act specifically provides that a state court action against a government employee shall be "deemed a tort action brought against the United States under the provision of this title" upon certification and removal by the Attorney General. 28 U.S.C. § 2679(d). See McGowan v. Williams, 623 F.2d 1239, 1242 (7th Cir. 1980); Henderson v. United States, 429 F.2d 588, 590 (10th Cir. 1970). Since removal occurred on June 7, 1982, the United States became a proper party to the action long before the statute of limitations expired.⁵ 

Because plaintiff timely filed her complaint, the decision of the district court dismissing her tort claim against the United States is reversed and this cause is remanded for further proceedings consistent with this opinion.

IT IS SO ORDERED.