Edwin J. Blair, Plaintiff-appellant, v. Internal Revenue Service; Department of the Treasury; United States of America; James Freitas; Thomas Whatley, Defendants-appellees, 304 F.3d 861 (9th Cir. 2002)

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U.S. Court of Appeals for the Ninth Circuit - 304 F.3d 861 (9th Cir. 2002)

Argued and Submitted March 15, 2002
Filed September 9, 2002


J. Chauncey Hayes, Sacramento, CA, for the appellant.

Debora G. Luther and David T. Shelledy, Assistant U.S. Attorneys, Sacramento, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV-99-00470-DFL/DAD.

Before HUG, and TASHIMA, Circuit Judges, and SEDWICK, District Judge.* 

OPINION

HUG, Circuit Judge.


This appeal involves a claim brought by Edwin Blair under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, for injuries suffered from an arrest by Internal Revenue Service ("IRS") agents. The district court dismissed the claim for lack of subject matter jurisdiction because Blair had failed to present an adequate claim to the IRS prior to instituting suit as required by 28 U.S.C. § 2675(a). The court held that the claim was deficient because it failed to provide a sum certain in damages. Specifically, Blair's submission made a claim for a sum certain for wage loss resulting from the injury, but also provided that medical expenses were still being incurred and did not provide a sum certain for medical expenses. The issue in this case is the adequacy of the claim form to provide jurisdiction under the FTCA. We hold that the district court had jurisdiction to adjudicate the wage loss claim, for which a sum certain was provided, though it did not have jurisdiction to adjudicate the medical expenses claim for which no sum certain was provided. We affirm in part, reverse in part, and remand for further proceedings consistent with our opinion.

Factual & Procedural History

Edwin Blair was arrested by IRS agents on April 15, 1996 for interfering with the seizure of his property. Following his arrest, Blair was handcuffed and transported by car to the United States Courthouse in downtown Sacramento. Blair alleges that he suffered significant injuries during the 45 minute car trip, primarily due to the tightness of the handcuffs on his wrists. As a result of these injuries, Blair claims that he has had to endure multiple surgeries to regain the normal use of his hands, and that he is no longer able to perform his work as a self-employed tree harvester.

Exactly two years after his arrest, Blair filed a claim with the IRS seeking compensation for his injuries. Blair filed his claim on a Standard Form 95 ("Form 95"), to which he attached several pages setting forth the details of his claim. This submission was uncontroversial in all respects but one. The Form 95 gives a claimant the opportunity to provide, among other things, various dollar amounts related to the claim. Specifically, the Form 95 lists four boxes in which a claimant may enter a dollar amount—one each for property damage, personal injury, wrongful death, and the total value of the claim. A copy of the Form 95 as submitted by Blair is attached as Appendix A. In completing his Form 95, Blair did not list any dollar amounts on the actual form. See id. Rather, Blair left the boxes blank, with the exception of the personal injury box, in which he wrote "please see attached." See id. In the documents attached to his Form 95, Blair provided the following information as to the amount of compensation he was seeking:

(1) Medical expenses are still being incurred, with no end presently in sight. Best estimates could perhaps be obtained by the IRS from the treating physicians listed in Item No. 11 above.

(2) Consequent lost income from claimant's self-employment is calculated from April, 1996 through April, 2018 (@ claimant's age 65 years). This figure is reached using the $200,000.00 net income figure for fiscal year 1995 and using a 10% annual increase factor, yielding a 20 year total loss of $17,499,436.00.

Thus, Blair provided a definite monetary figure for lost wages and no monetary figure for medical expenses.

Shortly after Blair filed his claim, the IRS informed him that it could not act on his request as long as the amount sought for medical expenses remained undetermined. Blair responded by providing the IRS with copies of existing medical records and bills. Subsequently, on September 11, 1998, the IRS denied Blair's request for relief.

Following the IRS' denial, Blair brought suit against the United States, the IRS, the Treasury Department, and the two IRS agents involved in his arrest. As part of this suit Blair sought relief under the FTCA, which, once a party meets certain jurisdictional requirements, generally provides a cause of action against the United States for torts committed by federal employees within the scope of their employment. See 28 U.S.C. § 1346(b). On motion of defendants, the district court dismissed the entire action. On appeal Blair challenges only dismissal of the FTCA claim.

As to Blair's FTCA claim, the Government argued that, on the basis of the claim presentation rule, the district court lacked subject matter jurisdiction. Under the claim presentation rule, a district court cannot exercise subject matter jurisdiction over an action brought pursuant to the FTCA unless the plaintiff "shall have first presented the claim to the appropriate Federal agency...." 28 U.S.C. § 2675(a). A claim is deemed presented for purposes of § 2675(a) when a party files "(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 Mgmt., 724 F.2d 776, 780(9th Cir. 1984) (en banc).

The Government contended that Blair failed to comply with the claim presentation rule by failing to state a sum certain for his entire claim, and thus, that there was no adequate presentation of the claim and no subject matter jurisdiction. The district court granted the Government's motion to dismiss the FTCA claim for lack of subject matter jurisdiction because of the failure to present an adequate claim to the federal agency. Following the district court's decision, Blair filed this appeal, in which he challenges the dismissal of his FTCA claim.

Jurisdiction & Standard of Review

The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1346(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. A district court's dismissal for lack of subject jurisdiction is reviewed de novo. See Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001).

Statutory Requirements

In 1946 Congress passed the FTCA. Under the FTCA, as enacted in 1946, government agencies had no authority to settle claims over $2500. In 1966 the FTCA was amended to revise this procedure and provide greater opportunity for settlement before suit is filed. Our en banc decision in Warren traced the legislative history and the reasons for the change.

Difficulties presented by the former claims process prompted Congress to amend [the FTCA]. Claimants formerly were required to first bring an action in district court against the government if their claims exceeded $2500. Only after filing could settlement be negotiated. The result was clogging of the courts with many claims that claimants and the government wanted to settle. Government agencies were forced to respond to court filings before engaging in settlement negotiations. Claimants, the courts and the agencies were forced to waste time and money because federal agencies lacked authority to consider settlement prior to court action. S.Rep. at 5-6, USCCAN at 2518.

Under the amended versions of sections 2672 and 2675, all claims must be filed with the appropriate agencies before claimants can bring action in federal court. Congress articulated two purposes for amending the statutes. The first was "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." S.Rep. at 2, USCCAN at 2516. Second, the amendments were thought to provide "for more fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government." S.Rep. at 2, USCCAN at 2515-16.

Id. at 778-79 (selected internal citations omitted).

Section 2672 authorizes the Attorney General to adopt regulations under which federal agencies could settle any claim for money damages. Id. at 778. These regulations are frequently referred to as the settlement regulations, and are found at 28 C.F.R. §§ 14.1-14.11. We held in Warren that these regulations are not a jurisdictional requirement and failure to comply with them does not pose a jurisdictional bar. Thus, though 28 C.F.R. § 14.2 is instructive as to the presentation of a claim, it is not jurisdictional in its requirement that a claim state a sum certain.1  However, there is a jurisdictional requirement of a "sum certain" that comes from 28 U.S.C. § 2675.2  The provision of § 2675(b) that requires that an action cannot be instituted for any sum in excess of the amount of the claim presented makes it apparent that the claim must state a sum certain. It is the statute itself that forms the basis for the jurisdictional requirement as we held in Warren.

We stated in Warren, "Thus, we hold that section 2675(a) requires the claimant or his legal representative to file (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Id. at 780.

Claim for Lost Wages

Blair submitted his claim on a Form 95 as suggested in the regulations. In completing item number 10, which pertains to a claim for personal injuries, he referenced an attachment that provided the requisite description of the nature and extent of his injuries. In item number 11, he also referred to the attachment as providing the names of witnesses. Item number 12 is for the amount of the claim and provides four separate blocks, 12a for property damage, 12b for personal injury, 12c for wrongful death, and 12d for the total. Blair filled in only 12b for personal injury, referring again to his attachment. There was no need to fill in blocks for property damage or wrongful death since no claim was being made for them, and there was no need to fill in the total in 12d since the amount in 12b was obviously the total.

In the attachment Blair provided a sum certain for loss of wages, past and future, in the amount of $17,499,436, along with the details of how the amount was calculated. He also stated that medical expenses were still being incurred and did not specify a sum certain for his claim for past and future medical expenses.

It was conceded at oral argument that had Blair simply filled in block 12b with $17,499,436, without any further explanation, this would have fulfilled the jurisdictional requirement of providing a sum certain for his claim. The fact that the sum was stated in an attachment does not violate any statutory requirement, nor is it contrary to the regulation. Title 28 C.F.R. § 14.2 provides that the notification can be on a Form 95 "or other written notification."

Thus, the sole basis for contending that jurisdiction is lacking is because of the added material concerning his claim for medical expenses. We held in Warren that one of the two requirements of § 2675(a) was a prior submission to the federal agency of "a sum certain damage claim." Blair did submit to the IRS a sum certain damage claim for wage loss due to his injury. Having made a valid claim with a sum certain for wage loss, did the inclusion of material concerning medical expenses for which no sum certain was provided deprive the district court of jurisdiction to consider Blair's wage loss claim? We hold it did not.

Looking first at § 2675, it provides that a claim may not be instituted "unless the claimant shall have first presented the claim to the appropriate federal agency" and that an " [a]ction under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency." § 2675(a)-(b). Thus, from the language of the statute, it is apparent that the requirements are that the claim be first presented to the federal agency and that the amount sought in court cannot exceed the amount of that claim. The objective of the statute is met by the claim for wage loss of $17,499,436. This would be the limit of the amount that could be sought in the federal action. In the action brought by Blair, he seeks compensatory damage "according to proof." He would, of course, be limited in his proof to the $17 million figure for wage loss.3 

In this case, Blair has stated a definite amount for wage loss, which does qualify as a "sum certain" for the wage loss, but has also included a statement about medical expenses that does not qualify as a claim for a sum certain. We conclude that the purpose of the statute is best met by considering the latter as surplusage. This is the most in line with the spirit of the statute. We have previously noted that in enacting the claim presentation rule, "Congress wanted to provide for more fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government." Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir. 1985) (internal quotation marks omitted). It is fair and equitable to permit Blair to proceed with his claim for a sum certain in wage loss rather than mandating outright dismissal of a potentially meritorious claim because of an attachment that discusses medical expenses that do not qualify. This is best placed in focus when we consider that the claim would have qualified had Blair simply put the $17 million figure in box 12(b) with no explanation at all.

The Government contends that the requirement to state a sum certain in filing a claim with a federal agency has several important purposes. It notes that one of the purposes in enacting § 2675(a) was "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." Shipek, 752 F.2d at 1354(internal quotation marks omitted). The Government contends that the requirement of a sum certain contributes to a realistic assessment of settlement possibilities. Frankly, it is difficult to see how placing a figure in block 12(b), which can be any figure, can contribute much to settlement without knowing the basis for the figure (as Blair sought to provide in his attachment). However, even assuming that is true, Blair did provide a sum certain for lost wages, which would be the limit of his claim in federal court. The Government also notes that the dollar amount offered pursuant to the sum certain requirement dictates (1) whether the claim may be settled by the agency without involving the Attorney General, see 28 U.S.C. § 2672 (providing that "any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee"); (2) whether any payment on the claim will come from the agency's budget, see id. (stating that amounts of $2,500 or less shall be paid out of the agency's budget, while amounts in excess of $2,500 are satisfied out of separate funds); and (3) the total amount that a plaintiff may sue for if the claim is denied by the agency, see 28 U.S.C. § 2675(b).

All of these objectives are met by our ruling in this case. The claim for wage loss exceeds the $25,000 requirement for Attorney General involvement and the $2,500 cap on awards from agency budgets. Blair is limited in his federal suit to the sum certain specified for his wage loss.

The Government also contends that to allow jurisdiction in this case would conflict with our Ninth Circuit precedent. On four previous occasions we have held that a plaintiff did not satisfy the sum certain requirement when he did not state a specific dollar amount for his claim. See Bailey v. United States, 642 F.2d 344 (9th Cir. 1981); Caidin v. United States, 564 F.2d 284 (9th Cir. 1977); Caton v. United States, 495 F.2d 635 (9th Cir. 1974); Avril v. United States, 461 F.2d 1090 (9th Cir. 1972). However, none of these cases involved a claimant who stated a sum certain for a claim that was applicable to that claimant. In Caton and Avril, the claimants did not provide any dollar amount for their claims. See Caton, 495 F.2d at 636; Avril, 461 F.2d at 1091. In Caidin, the claimant stated a specific dollar amount, but the dollar amount applied to a class of claimants, not the claimant himself. See Caidin, 564 F.2d at 286. Thus, the claimant in Caidin essentially omitted any statement of his own damages. See id. at 287. Finally, in Bailey the claimant submitted bills and wage statements in lieu of a sum certain. See Bailey, 642 F.2d at 345-47. Avril, Caton, Caidin, and Bailey are readily distinguishable from this case in which Blair did present a sum certain for his claim for wage loss.

The Government also argues that waivers of immunity are to be strictly construed in favor of the government. See United States v. Williams, 514 U.S. 527, 531, 115 S. Ct. 1611, 131 L. Ed. 2d 608 (1995). However, it is also "well established that when the federal government waives its immunity, the scope of the waiver is construed to achieve its remedial purpose." In re Town & Country Home Nursing Servs., Inc., 963 F.2d 1146, 1151 (9th Cir. 1991). As the Supreme Court has previously noted, " [t]he exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced." Block v. Neal, 460 U.S. 289, 298, 103 S. Ct. 1089, 75 L. Ed. 2d 67 (1983) (internal quotation marks omitted).4 

The recognized purpose of the FTCA is to provide compensation to those injured by the government's torts. See Richards v. United States, 369 U.S. 1, 6, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962). The claim presentation requirement of the FTCA is designed to ensure that compensation is provided in a fair and equitable manner, "not to provide a basis for a regulatory checklist which, when not fully observed, permits the termination of claims regardless of their merits." Erxleben v. United States, 668 F.2d 268, 273 (7th Cir. 1981) (quoting Koziol v. United States, 507 F. Supp. 87, 91 (N.D. Ill. 1981)) (internal quotation marks omitted). In light of these statutory purposes and our duty to construe waivers of immunity in a way that meets their remedial goals, the Government "cannot carry the day by invoking general maxims of judicial policy." Town & Country, 963 F.2d at 1152. Thus, we reject the Government's argument that the principles of sovereign immunity require district courts to dismiss suits in which an agency was presented with a specific amount for a specific claim.

Blair's Claim for Medical Expenses

Blair argues that he should be permitted to sue on his entire claim, including both his definite lost wages and his indefinite medical expenses. Blair suggests that, despite the indeterminate description of his medical expenses, he did state a specific amount for the total value of his claim. In support of this contention, Blair points to the medical bills and records he submitted to the IRS. In Blair's view, these records made the total claim certain because the cumulative amounts on the bills represent a definite sum in medical expenses, and one need only add this figure to the specific amount requested for lost wages to arrive at a concrete figure for the total value of the claim.

As we stated in Warren, "Thus, we hold that section 2675(a) requires the claimant or his legal representative to file (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Id. at 780. Blair's Form 95 stated with regard to the medical expenses, "Medical expenses are still being incurred, with no end presently in sight." Even the medical bills later provided did not designate a total sum claimed. That claim did not meet the statutory requirement and is properly excluded as surplusage.

Conclusion

We hold that the district court has jurisdiction to consider Blair's wage loss claim, but his claim for medical expenses was not properly exhausted before the federal agency, and thus, is not properly before the district court. Each party to bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

APPENDIX A

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

 *

Honorable John Sedwick, United States District Judge for the District of Alaska, sitting by designation

 1

28 C.F.R. § 14.2 provides in relevant part:

(a) For purposes of the provisions of 28 U.S.C. §§ 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident....

 2

Section 2675 states in full:

(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.

(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.

(c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages.

 3

Blair's action also included a claim for civil rights violation. The prayer, which asks for general and punitive damages, would pertain to that claim, which was dismissed and was not appealed

 4

The rules of construction announced in Town & Country and Block remain valid in the context of the FTCA, despite recent decisions from the Supreme Court emphasizing that strict, pro-government construction should be given to waivers of immunity. See Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996); Williams, 514 U.S. at 531, 115 S. Ct. 1611; United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992). This is so because the Supreme Court has also recently reaffirmed that exceptions to the waiver of sovereign immunity in the FTCA, like the claim presentation requirement, are to be narrowly construed, thereby leaving in tact, at least as to the exceptions of the FTCA, the principle that waivers of immunity should be read in a way that achieves the waiver's remedial purpose. See Nordic Village, 503 U.S. at 34, 112 S. Ct. 1011.