Unpublished Disposition, 919 F.2d 144 (9th Cir. 1989)

No. 89-55644.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and WILLIAM A. NORRIS, Circuit Judges, and CALLISTER,^*  District Judge.

MEMORANDUM^** 

The appellant, Margaret Beeney, appeals from the dismissal of her action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 to 2680 (1988). Beeney was allegedly injured when she slipped and fell in a United States Post Office branch in Newark, Ohio. On April 13, 1988, she filed an administrative tort claim against the United States Postal Service (USPS). That claim was denied by letter dated July 12, 1988.

Under the FTCA, Beeney had six months from July 12, 1988, to bring an action. 28 U.S.C. § 2401(b). She filed her complaint within the six-month period on January 6, 1989, but did not name the United States itself as a defendant. Instead, the complaint named the "United States Postal Service" as the defendant.

The summons and complaint were served on the United States Attorney on January 13, 1989, one day after the six-month limitation period expired. On March 13, 1989, the United States filed an answer asserting as its first affirmative defense that the court lacked subject matter jurisdiction to hear the action. Shortly thereafter, the United States filed a motion for judgment on the pleadings and/or summary judgment. Beeney responded to that motion and filed a motion to amend complaint to name the United States as the sole party defendant.

In ruling upon the United States' motion, the district court dismissed the USPS on the ground that the United States was the sole party which may be sued for personal injuries under the FTCA. In addition, the district court denied Beeney's motion to amend the complaint to add the United States as a party defendant. The court found that service on the United States occurred after the limitations period had expired and that the amendment could not relate back under Fed. R. Civ. P. 15(c).

In so ruling, the district court found persuasive the case of Allen v. Veterans Admin., 749 F.2d 1386 (9th Cir. 1984). There, the plaintiff filed an FTCA action and named the Veterans Administration as defendant. The plaintiff served the district counsel for the Veterans Administration within the limitations period, but did not serve the United States in a timely fashion.

The district court dismissed the complaint on the ground that the United States was the proper defendant and had never been named or served within the limitations period. On appeal, that decision was affirmed. In a decision written by now-Justice Kennedy, this Circuit held first that the United States rather than the Veterans Administration was the proper defendant. Id. at 1388. The Circuit then denied plaintiff's request to amend the complaint, holding that the amendment would only relate back under Rule 15(c) if the United States had received notice of the institution of the action within the limitations period, and would not be prejudiced in maintaining its defense on the merits. The United States Attorney's Office had received a copy of the complaint, but not until three days after the limitations period had expired. Id. at 1388. Even though the Veterans Administration itself had been served within the limitations period, this Circuit refused to recognize that service of the complaint upon an agency is enough to impute notice to the United States. Id. at 1389.

The district court in the present case felt that Allen was harsh but binding. The court then considered whether the claim rejection letter sent by the USPS was so misleading as to warrant estopping the United States from dismissing the action. The district court found that the letter contained ambiguities that might have confused Beeney's counsel into believing that he should sue the USPS. But the court concluded that these ambiguities were not sufficient to warrant estoppel. The court therefore dismissed the action.

We find that the district court properly dismissed the action against the USPS. Allen holds that individual agencies of the United States may not be sued under the FTCA. Id. at 1388. The FTCA itself provides that suits are not authorized against the agency itself. 28 U.S.C. § 2679(a) (1988).

The district court also correctly refused to allow Beeney's proposed amended complaint to relate back under Rule 15(c). That rule permits relation back whenever the claim arose out of the conduct, transaction, or occurrence set forth in the original pleading, and

within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

The single issue here is whether the United States received notice of the "institution of the action" "within the period provided by law for commencing the action." The United States need not receive formal notice; informal notice is sufficient. Miles v. Dept. of Army, 881 F.2d 777 (9th Cir. 1989).

The complaint in this case was filed January 12, 1989. Service on the United States occurred January 13, 1989. There is no evidence in the record that the United States had any earlier informal notice of the complaint. Notice to the agency through the administrative claims procedure does not constitute notice to the United States. Allen v. Veterans Admin., supra at 1389. Thus, notice to the United States occurred one day after the six-month limitations period had expired.

Under Allen, this untimely notice is fatal to Beeney's attempt to have her proposed amendment relate back to the filing of the original complaint. Allen read Rule 15(c) literally and held that the Government must have notice within the limitations period. Id. at 1389-90. Beeney urges us to accept the Second Circuit's holding that notice must be within the period of the statute of limitations or within a reasonable time for the service of process thereafter. Ingram v. Kumar, 585 F.2d 566 (2nd Cir. 1978), cert. denied, 440 U.S. 940 (1979); Murray v. United States Postal Service, 569 F. Supp. 794 (N.D.N.Y.1983). But the United States Supreme Court rejected this interpretation of Rule 15(c) in Schiavone v. Fortune, 477 U.S. 21, 30 (1986) ("We are not inclined, either, to temper the plain meaning of the language [of Rule 15(c) ] by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint."). Because the Government did not have formal or informal notice of this case within the limitations period, Beeney's proposed amendment cannot relate back under Rule 15(c).

Finally, we agree with the district court that the USPS claim denial letter did not constitute such affirmative misconduct as to warrant estopping the Government from dismissing this action. Wagner v. Director, Federal Emergency Mgmt. Agency, 847 F.2d 515, 519 (9th Cir. 1988).

The judgment of the district court is AFFIRMED.