Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1988)

MEMORANDUM^* 

Carmen Cervantes filed suit against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging personal injuries resulting from the negligent operation of a postal truck. The district court ruled that a sufficient administrative claim had not been filed in accordance with 28 U.S.C. § 2675, depriving the court of subject matter jurisdiction, and dismissed the action. Cervantes appeals the district court's judgment.

BACKGROUND

On May 17, 1985, Carmen Cervantes was injured when a United States Postal Service (USPS) truck collided with a bus operated by the Southern California Rapid Transit District. Cervantes, a passenger on the bus, fractured her right arm and sustained other soft tissue injuries. Cervantes continues to require medical treatment for the injuries she suffered.

Twelve days after the accident, Cervantes, through her first attorney, signed and submitted a standard government form entitled "Statement of Witness," sent for her completion by "MGR. Fleet Operations, Accident & Claims Investigation." On the form, Cervantes described both the accident and the injuries she suffered. Although Cervantes referred to herself as "claimant" three times on the form, Cervantes did not state that she was making a claim or specify the amount of damages she was seeking.

Two attorneys and more than two years later, Cervantes was informed by postal authorities in July of 1987 that the two-year statutory period within which to file a claim arising from the collision had lapsed and that no proper claim had been filed.¹  Subsequently, Cervantes' third attorney completed Standard Form 95, "Claim for Damage, Injury or Death." On this form, Cervantes stated she would seek $21,894.00 for " [p]artial amount of [m]edical bills," for a total " [a]pproximate amount of $250,000.00." This was the first communication from Cervantes to the USPS which specified the dollar amount of her claim. The postal authorities rejected this claim as untimely and because Cervantes' third attorney had named himself, rather than Cervantes, as "claimant" on the form.

Cervantes filed a complaint in district court on October 29, 1987 seeking recovery for personal injuries under the FTCA. The United States submitted a motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b) (1) and 12(b) (6), asserting that Cervantes had not complied with the claim presentation requirement of 28 U.S.C. § 2675 by failing to file a timely claim specifying the "sum certain" amount of the recovery sought. Treating the government's motion as a motion for summary judgment, the district court found that Cervantes' failure to request a sum certain deprived the court of subject matter jurisdiction. The court also rejected Cervantes' "estoppel-like argument" that the government was barred from asserting jurisdictional requirements by its misleading behavior. Judgment was entered for the United States on February 5, 1988.

DISCUSSION

Federal court jurisdiction to entertain actions for damages against the United States is prescribed by Section 2675(a) of the FTCA. Section 2675(a) requires claimants to present their claims to the appropriate federal agency before suing the United States by filing " '(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.' " Warren v. United States Dep't of Interior Bureau of Land Management, 724 F.2d 776, 780 (9th Cir. 1984) (quoted in Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985)).²  The claim presentation requirement is jurisdictional in nature and may not be waived. Burns, 764 F.2d at 724. The statute of limitations period for bringing claims pursuant to the FTCA is two years from the date the claim accrues. 28 U.S.C. § 2401(b). Because none of Cervantes' correspondence with postal authorities within the two-year limitations period contained the requisite "sum certain" damages claim, Cervantes "failed to satisfy section 2675, and ... [her] action was correctly dismissed by the court below." Id.³ 

Moreover, because the sum certain requirement is jurisdictional, the government may not be equitably barred from asserting the insufficiency of Cervantes' administrative claim. Id. Cervantes attempts to distinguish the Burns case by relying on dicta in GAF Corp. v. United States, 818 F.2d 901, 915-16 n. 86 (D.C. Cir. 1987). GAF Corp. raised the possibility that the government's failure to respond to a claimant's correspondence or to give timely notice of the deficiencies in a claim within six months of the filing date might serve as a "denial" of the claim as a matter of law for purposes of 28 U.S.C. § 2675. Id. Rephrasing this argument, Cervantes contends that the government's inaction in her case "triggered" jurisdiction "predicated not upon waiver, nor estoppel, but upon a fair reading of the jurisdictional statute itself," as a matter of statutory construction.

The issue raised by Cervantes below and addressed by the district court was different, however. There, Cervantes presented an estoppel argument based on a letter from postal authorities, dated November 15, 1985, referring to "the claim you [Cervantes] filed under the provisions of the [FTCA]." The general rule in this Circuit is that an issue will not be reviewed for the first time on appeal, "unless necessary to present manifest injustice." International Union of Bricklayers & Allied Craftsman, Local 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). Before this court will consider such an issue, "the proponent 'must show exceptional circumstances why the issue was not raised below.' " Id. (quoting Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655-56 (9th Cir. 1984) (per curiam)). Cervantes has made no showing of exceptional circumstances and is not permitted to raise her statutory construction argument before this court.⁴ 

Finally, Cervantes contends that she was not given adequate notice of the district court's decision to treat the government's motion to dismiss as a motion for summary judgment. See Fed. R. Civ. P. 56(c). However, Cervantes was plainly aware that the United States had attached a declaration to its motion to dismiss and she herself attached two declarations and thirteen documentary exhibits to her reply.

A represented party who submits matters outside the pleadings to the judge and invites consideration of them has notice that the judge may use them to decide a motion originally noted as a motion to dismiss, requiring its transformation to a motion for summary judgment.

Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1533 (9th Cir.), cert. denied, 474 U.S. 826 (1985) (citing Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir. 1982)). Cervantes clearly had advance notice that the district court might rely on documents extrinsic to the pleadings in entering its judgment on the motion to dismiss.

In addition, Cervantes was not prejudiced by the district court's failure either to conduct a hearing or to provide a ten day period to file supplemental material prior to entering summary judgment for the government. Cervantes has never claimed that she was precluded from presenting any material evidence that a "sum certain" claim had been received by to the USPS before the statute of limitations ran on her claim.⁵ 

The judgment of the district court is AFFIRMED.