Kathryn Lorraine Gerwig, Plaintiff-appellant, v. United States Department of Education, Defendant-appellee, 116 F.3d 484 (9th Cir. 1997)Annotate this Case
Appeal from the United States District Court for the Eastern District of California, CV 95-00922-LKK (GGH); Lawrence K. Karlton, Chief Judge, Presiding.
Before: GOODWIN, SCHROEDER and TASHIMA, Circuit Judges.
Kathryn Lorraine Gerwig appeals pro se the district court's denial of her motion to reconsider the dismissal of her tort action against the United States Department of Education. The district court concluded that it lacked subject matter jurisdiction under the Federal Tort Claims Act [FTCA] because Gerwig had not filed a sufficient administrative tort claim with the Department of Education. We affirm.
Under the FTCA, a suit for damages may not be instituted against the United States unless an administrative claim is made, and the claim is denied or six months have passed without a final resolution of the claim. See 28 U.S.C. § 2675(a). The claim must contain "(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) (en banc). The claim requirement is jurisdictional and may not be waived. Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985) (citation omitted).
We agree with the district court that Gerwig's February 24, 1992, letter to the Department of Education and its enclosures did not satisfy the claim requirement. Gerwig offered no evidence in her motion for reconsideration suggesting that she had filed a proper administrative tort claim. Accordingly, we affirm the district court's denial of Gerwig's motion for reconsideration.