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Pascale v. United States Joseph M. Pascale

argued: May 6, 1993.


On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 92-00695). (D.C. Civil No. 92-01351).

Before: Sloviter, Chief Judge, Cowen and Lewis, Circuit Judges.

Author: Sloviter


SLOVITER, Chief Judge.

This case requires us to consider the interaction of the two statutory provisions governing timely filing of claims under the Federal Tort Claims Act: 28 U.S.C. § 2401(b) (1988), which requires a claimant to file suit within six months of the agency's final denial of the claim, and 28 U.S.C. § 2675(a) (1988), which authorizes a claimant to treat inaction by the agency for six months as a final denial. We conclude that the district court erred by collapsing the two provisions, and we will vacate the dismissal of plaintiff's suit as time-barred and remand.


Facts and Procedural History

Plaintiff, Joseph M. Pascale, who was injured on March 12, 1990 when his motor vehicle was involved in a collision with a vehicle driven by a Secret Service Agent employed by the United States Department of the Treasury, filed an administrative claim (Standard Form 95) with the United States Secret Service on April 18, 1990. The Secret Service did not act on his claim and thus, on July 15, 1991, fifteen months after filing the claim, plaintiff filed a federal complaint deeming the agency's inaction a final denial of the claim under 28 U.S.C. § 2675(a) (1988). He named the driver, the United States, the Department of the Treasury, the Secret Service, and a John Doe defendant, alleging that the negligence of the driver caused him severe and painful permanent injuries.

Plaintiff served the United States Attorney and the Attorney General of the United States with the summons and complaint on November 21 and November 29, 1991, respectively. On January 31, 1992, six and a half months after the complaint was filed, the government moved to dismiss the complaint because plaintiff had failed to effect service of process within 120 days of filing as required by Fed. R. Civ. P. 4(j). Conceding the inadequacy of the service,*fn1 plaintiff consented to a dismissal without prejudice on February 26, 1992. In the interim, plaintiff refiled this federal action on February 18, 1992, naming the United States as sole defendant. Plaintiff had also filed a state court action on February 11, 1992 against the driver, which was removed and consolidated with the federal action after the government certified that the driver was acting within the scope of his employment at the time of the accident.

The government moved to dismiss the consolidated cases under Fed. R. Civ. P. 12(b) on the ground that plaintiff's action was time-barred under 28 U.S.C. § 2401(b) (1988), which requires a claimant to file a federal action within six months of a "final denial" by the federal agency considering the administrative claim. The district court granted the government's motion on the ground that plaintiff filed his second complaint more than six months after he deemed the agency's inaction a "final denial" by filing his first complaint.

The district court held that plaintiff "triggered" the six-month period when he filed his first lawsuit, and that his second suit was therefore time-barred. The court acknowledged the split of authority in the case law, but concluded that the legislative history and statutory purposes of the two provisions favored the government's position. The court also relied on a decision by another court in the same district, McKenith v. United States, 771 F. Supp. 670 (D.N.J. 1991), which dismissed as time-barred a second-filed action in an identical situation.

Plaintiff filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291 (1988), and we exercise plenary review over the district court's dismissal of a complaint. Lampe v. Xouth, Inc., 952 F.2d 697, 700 (3d Cir. 1991).


Statutory Provisions

The Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1988 & Supp. III 1991), enacted in 1946, permits the government to be sued for the negligence of its employees under the same circumstances and to the same extent as a private party. The Supreme Court has described the Act as "marking the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit." Feres v. United States, 340 U.S. 135, 139, 95 L. Ed. 152, 71 S. Ct. 153 (1950).

In 1966, the Act was amended to require all injured persons to present their claims to the federal agency that employed the alleged tortfeasor before filing suit. Federal Tort Claims Act, Pub. L. No. 89-506, 80 Stat. 306 (1966). The new procedures were intended to ensure that "meritorious [claims] can be settled more quickly without the need for filing suit and possible expensive and time-consuming litigation." S. Rep. No. 1327, 89th Cong., 2d Sess. 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2517 [hereinafter 1966 Senate Report ].

One of the amended provisions sets out the exhaustion requirement:

(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. . . .

28 U.S.C. § 2675(a) (1988).

Most important to the present case, section 2675(a) also contains a "deeming" provision, which gives a claimant the option to treat the agency's failure to act as a final denial of the claim:

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. . . .

Id. (emphasis added).

The other amended provision relevant here contains the applicable statute of ...

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