The opinion of the court was delivered by: BIUNNO
BIUNNO, Senior District Judge.
This suit was begun by complaint filed in the Superior Court of New Jersey, Law Division, Essex County, Docket L 000659-83. It seeks damages for personal injuries sustained by Maria Saggese, a pedestrian, who was struck by a U.S. Postal Service truck, No. 6402090, on February 13, 1981, while she was crossing Market Street in Newark, walking north on the westerly crosswalk of the intersection of Raymond Plaza East and Market Street (next to Penn Station in Newark). The truck was driven by defendant Alfred Gonnelli, an employee of the Postal Service then acting within the scope of his employment. A separate count seeks damages per quod by her husband, Vito Saggese.
Although the file in this court does not disclose the details, it was established at oral argument that plaintiffs duly filed an administrative claim with the U.S. Postal Service as a precondition to suit, under the Federal Tort Claims Act, chapter 171 of Title 28, USC, or 28 USC § 2671, et seq.
The claims were considered and, by letter dated July 20, 1981, were denied (this date was provided on oral argument). Under 28 USC § 2401(b), tort claims against the United States are forever barred unless presented in writing within two years after accrual, 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." The ambiguity of this language is obvious, since the statute is silent on whether it means "whichever is less" or "whichever is longer."
If a tort claim accrues on May 31, 1980, the administrative claim must be presented within two years thereafter or, in this example, on or before May 31, 1982. It also says that suit must be begun within six months of the date of mailing of notice of final denial. These provisions, on their face, suggest that the time for filing suit is a variable, depending on when the administrative claim is filed and finally denied.
Thus, in the hypothetical example, if the administrative claim is filed on June 2, 1980, and final denial is mailed on June 3, 1980, suit cannot be filed later than December 3, 1980, and see Yedwab v. U.S.A., 489 F. Supp. 717 (D-N.J.,1980) for a discussion of how to calculate a period marked as "within X months" after a specified date.
On the other hand, the claimant in the hypothetical may file the administrative claim as late as May 31, 1982, and still file suit within 6 months of the mailing of the final denial of the claim.
Yet, such suits are allowed only because the United States has consented to be sued, waiving its sovereign immunity to the extent and under the terms and conditions specified by Act of Congress in making the conditional waiver. Thus, the foregoing discussion is complicated by the provision, in 28 USC § 2674, that:
"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *".
Or, suppose that 28 USC § 2680(h) had not excluded claims for libel or slander from the waiver of immunity; the New Jersey statute, NJS 2A:14-3, sets one year as the statute of limitations for such suits against a private individual; did the Congress intend that the United States be open to suit beyond the time when a private individual would be?
Even more incisive is the question raised when the suit is for wrongful death under New Jersey's version of Lord Campbell's Act, NJS 2A:31-1, et seq. It has been settled law since the original enactment that since the cause of action was unknown to the common law and was created by statute, the requirement that suit be brought within 2 years of death "and not thereafter", NJS 2A:31-3, is not a statute of limitations but is one of the essential elements which the plaintiff must prove as a part of the prima facie case. See the discussion of the subject in Holzsager v. Warburton, 452 F. Supp. 1267 (D-N.J., 1978) and especially the Appendix with excerpts from the venerable HARRIS, "Pleading and Practice in New Jersey." In such a case, if a private individual is not liable when suit for wrongful death is filed more than 2 years after death, may the United States be liable thereafter?
The final complication in this regard arises from language in 28 USC § 2675 which applies when the administrative claim is timely filed, but the agency does not act. The provision is that:
"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 the purpose of this section." (Emphasis added).
Does this mean that if an administrative claim is timely filed on the last day of the 2-year period after the claim accrues, and if the agency does not act at all, the claimant may wait as long as he chooses, and "at any time thereafter" file suit and thereby exercise ...