Unpublished Disposition, 921 F.2d 279 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1989)

Keelah DAVIS, a minor, By and Through her natural mother andguardian ad litem, Felicia DAVIS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 89-56156.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 3, 1990.* Decided Dec. 19, 1990.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Felicia Davis, on behalf of her minor child, Keelah Davis, filed suit in the district court under the Federal Tort Claims Act seeking damages for injuries the child sustained when she fell from a slide on a military housing complex in San Diego, California. The district court dismissed for lack of subject matter jurisdiction, because the suit had not been filed within six months of denial of the administrative claim as required by section 2401(b) of the Act. We have jurisdiction under 28 U.S.C. § 1291.1  We affirm.

DISCUSSION

The limitations period for bringing a tort claim against the United States is set forth in 28 U.S.C. § 2401(b):

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (1988).

Section 2401(b) establishes two jurisdictional requirements: (1) a claim must be filed with the agency within two years of the claim's accrual, and (2) a suit must be instituted within six months of administrative denial of the claim. Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). If either requirement is not met, the suit will be time barred. Id. at 485.

Section 2401(b) is "the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims." United States v. Kubrick, 444 U.S. 111, 117 (1979).

It is undisputed that the administrative claim was timely presented to the Department of the Navy. The question is whether Davis was given effective notice of the final denial of her claim so as to commence the running of the six-month limitation period.

The procedure for notifying a claimant of the final administrative denial of a claim is found in 28 C.F.R. Sec. 14.9. Section 14.9 provides that:

Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court no later than 6 months after the date of mailing of the notification.

28 C.F.R. Sec. 14.9 (1989).

On June 15, 1988, the Navy responded to Davis' administrative claim by a certified letter mailed to Davis' attorney. The letter was written by Captain Geer, Deputy Assistant Judge Advocate General. Captain Geer stated:

I have carefully reviewed the circumstances underlying this claim. From the information available to me, I have concluded that an administrative settlement is in the best interest of everyone involved....

Based on the above analysis, I believe that $5,000 represents a fair and equitable settlement of this claim. If your clients agree to accept this amount in full and final settlement, please have Mr. and Mrs. Davis ... sign the enclosed agreement.

This offer of settlement will remain open until July 31, 1988. If it has not been accepted it [sic] by that date, you should consider these claims to have been denied for the purpose of 28 U.S.C. § 2401(b). Your clients would then have 6 months from that date in which to file suit in the appropriate Federal district court.

(emphasis added).

Davis filed suit on February 17, 1989, six months and seventeen days after July 31, 1988. The district court concluded that the suit was time-barred under section 2401(b).

Davis contends that the six-month limitation period was not triggered by the June 15, 1988 letter because the letter was "confusing" and "ambiguous." She points out that the letter did not state her claim was no longer under consideration. On the contrary, the letter acknowledged some degree of responsibility by the Navy for the accident and conveyed a settlement offer, statements which, according to Davis, are incompatible with a final denial of her claim.

We understand Davis' argument, but we reject it. No "specific verbal formulation" is required to effectuate the denial of an administrative claim. Hatchell v. United States, 776 F.2d 244, 245 (9th Cir. 1985). We look to the plain meaning of the letter to determine whether the administrative agency has reviewed the claim, denied it, and given effective notice to the claimant that she has six months within which to file suit. Id. at 245-46. See also Claremont Aircraft, Inc. v. United States, 420 F.2d 896, 897-98 (9th Cir. 1970).

Here, Captain Geer's letter of June 15, 1988 gave Davis two choices: to accept the settlement offer by July 31, 1988 or to treat the letter as a denial of the claim and file suit within six months from July 31, 1988. There was nothing ambiguous about this language. It effectively gave notice to Davis that her claim was finally denied and the six-month limitation period would begin on July 31, 1988, unless she accepted the settlement offer by that date. See Dilg v. United States Postal Service, 635 F. Supp. 406, 408 (D.N.J. 1986); Heimila v. United States, 548 F. Supp. 350, 351 (E.D.N.Y. 1982).

We also reject Davis' argument that an agency is "unauthorized" to send, as a final notice of rejection of a claim, a letter which combines with the rejection an alternative for acceptance of a settlement offer within a specified time. Nothing in the Federal Tort Claims Act or the regulations precludes such a notice. The purpose of the Act is to achieve the expeditious resolution of claims by administrative settlement. See Anderson By and Through Anderson v. United States, 803 F.2d 1520, 1523 (9th Cir. 1986). The Navy's June 15, 1988 letter facilitated the accomplishment of this dual purpose.

Finally, Davis' contention that she is entitled to raise "all doctrines, equitable or otherwise, against the Government in cases arising under the Federal Tort Claims Act" is without merit. The requirement in Sec. 2401(b) for the time of filing an action is "jurisdictional and subject neither to estoppel principles nor to equitable considerations." Berti v. V.A. Hospital, 860 F.2d 338, 340 (9th Cir. 1988); See also Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985); Cooper v. Bell, 628 F.2d 1208, 1212 (9th Cir. 1980); Claremont Aircraft, 420 F.2d at 898; United States v. Glenn, 231 F.2d 884, 886 (9th Cir.), cert. denied, 352 U.S. 926 (1956).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The judgment appealed from was entered July 19, 1989. Davis filed her notice of appeal September 18, 1989. Although this was the 61st day after the entry of judgment, the appeal was timely. Under Fed. R. App. P. 26(a), when the 60th day of the period is a Sunday, the appellant has until the end of the 61st day to timely file. Fed. R. App. P. 26(a) (1988). September 17, 1989 was a Sunday