                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 30 1998
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 KATHY GONZALES, individually, and
 as personal representative of the ESTATE
 OF CHRIS GONZALES, and as parent
 and next friend of RICHARD C.
 GONZALES, PATRISHA K.
 GONZALES, and CHRISTINA M.
 LOPEZ, minors, and ROBERT J.
                                                           No. 96-2167
 CHAVEZ,
                                                    (D.C. No. CIV-95-463 LH)
                                                  (DISTRICT OF NEW MEXICO)
          Plaintiffs-Appellants,
 v.

 UNITED STATES OF AMERICA,

          Defendant-Appellee.




                                   ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, HENRY, Circuit Judge, and MCWILLIAMS, Senior
Circuit Judge.




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
       By a first amended complaint, Kathy Gonzales brought suit in the United States

District Court for the District of New Mexico against the United States of America for the

wrongful death of her husband, Chris Gonzales, which death, she said, was caused by

“medical malpractice” by employees of the Veterans Administration Hospital in

Albuquerque, New Mexico. Kathy Gonzales brought suit individually, as the personal

representative of Chris Gonzales’ estate, and as parent and next friend of Chris Gonzales’

four children. Gonzales’ claims were based on the Federal Tort Claims Act, 28 U.S.C. §

2671, et seq.

       By answer, the United States alleged, inter alia, that the district court lacked

subject matter jurisdiction over Gonzales’ claims which, it said, were time-barred under

the Federal Tort Claims Act. After discovery, the United States filed a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1), or, in the alternative, for summary judgment pursuant

to Fed. R. Civ. P. 56, based on lack of subject matter jurisdiction because of Gonzales’

failure to file this action within the time limitations set forth in 28 U.S.C. § 2401(b). The

district court granted the motion of the United States, treating it as a Rule 56 motion, and

dismissed the action in its entirety. Gonzales appeals. We affirm. Some background

facts are in order.

       Chris Gonzales died on July 16, 1991, allegedly from an untreated and

undiagnosed pulmonary embolism following his visit and release from the emergency

room at the Veterans Administration Hospital in Albuquerque. On April 15, 1993, Kathy


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Gonzales filed a claim based on wrongful death with the Office of District Counsel for

the Department of Veterans Affairs (“VA”) in Albuquerque, which claim admittedly was

received within the two year period for filing such a claim as provided by 28 U.S.C. §

2401(b). After several extensions, the United States, by way of certified mail, return

receipt requested, dated March 18, 1994, notified Kathy Gonzales that her claim for

wrongful death was denied. She signed the return receipt for the March 18 denial letter

on March 21, 1994. In the March 18 letter Kathy Gonzales was advised, inter alia, that

she could request reconsideration of her claim and that such request should be filed with

the VA prior to the expiration of six months from the date of the mailing of the denial

notice.

          About one year after the denial letter of March 18, 1994, counsel for Gonzales

contacted the VA in Washington, D.C., to inquire about the status of her request for

reconsideration of the denial letter. A Douglas Bradshaw, of the VA, informed counsel

that he was not aware of a request for reconsideration ever having been received by the

department. On April 26, 1995, Gonzales filed her initial complaint in the present

proceeding and on August 18, 1995, filed her first amended complaint, with which we are

here concerned.

          As indicated, there was some discovery in the form of depositions and affidavits

before the district court when it granted the United States’ motion for summary judgment.

Included therein was the affidavit of Gonzales’ counsel in which she stated that she


                                              -3-
mailed a request for reconsideration of the denial letter of March 18, 1994, on September

8, 1994, to the address given in the March 18, 1994, denial letter. Various government

employees, by deposition and affidavit, stated that the request for reconsideration referred

to by Gonzales’ counsel in her affidavit was never received by the United States.

       We believe the instant case is governed by Moya v. United States, 35 F.3d 501

(10th Cir. 1994). The plaintiff in Moya filed an administrative claim on October 1, 1991,

with the VA, alleging that employees at the Veterans Administration Medical Center in

Albuquerque, New Mexico, negligently caused the death of her husband. The VA by

letter denied the claim on June 16, 1992. On May 20, 1993, the plaintiff filed a medical

malpractice and wrongful death action against the United States in the United States

District Court for the District of New Mexico. In that complaint, the plaintiff alleged that

she mailed a request for reconsideration to the administrative agency on October 16,

1992. However, the United States denied ever receiving a request for reconsideration. At

a hearing on the United States’ motion for summary judgment, the district court held that,

because the United States had not received plaintiff’s request for reconsideration, the

agency’s denial letter of June 16, 1992, served as a “final denial” by the agency.

Accordingly, the district court held that plaintiff’s complaint was filed outside the time

limitation contained in 28 U.S.C. § 2401(b). On appeal, we affirmed the district court.

       In Moya, we noted that a plaintiff may not assert a federal tort claim unless he, or

she, has prior thereto filed a claim with the appropriate federal agency within two years


                                            -4-
after the claim accrues. Further, we stated that, if the claim be denied, an action must

then be brought within six months after the date of mailing “of notice of final denial of

the claim.” 28 U.S.C. § 2401(b). More specifically, in Moya we said that within six

months following the notice of final denial, a claimant may either file suit in district court

or file a request for reconsideration, citing 28 C.F.R. § 14.9(b). We also observed, in

Moya, that the agency had denied plaintiff’s claim on June 16, 1992, and that suit was not

brought until May 20, 1993, some eleven months later, and not within the six months

provided for by 28 U.S.C. § 2401(b).

       The “evidentiary” matter before the district court in Moya was summarized by us

as follows:

                      Plaintiff supports her claim that she filed an
              appropriate request for reconsideration with an affidavit from
              her attorney stating that the request was sent via certified
              mail. Plaintiff does not produce a certificate of mailing, a
              return receipt, a certified mail number or any
              acknowledgment by the defendant of having received the
              request. Defendant denies ever receiving a request for
              reconsideration from plaintiff. In support, defendant presents
              affidavits stating that the VA searched its files in Washington
              and New Mexico and found no record of the plaintiff’s
              request. There is no independent evidence in the record
              indicating that plaintiff’s request was ever sent, let alone
              received by defendant.

Moya, 35 F.3d at 503.

       We further noted in Moya that, under C.F.R. § 14.2(a), a “claim” is not presented

to a federal administrative agency until the claim is “received” by the agency. And we


                                             -5-
went on to state in Moya that a request for reconsideration is also not presented to an

agency “until it is received by the agency,” and that a “[m]ailing of a request for

reconsideration is insufficient to satisfy the presentment requirement.” Moya, 35 F.3d at

504.1 In this latter connection, we further stated that it is “the plaintiff’s burden to

establish the proper agency’s receipt of the request for reconsideration.” Id. Under the

facts of Moya, we also rejected the concept of any “presumed delivery” of a properly

addressed piece of mail, and then held that the plaintiff’s complaint having been filed

“out of time,” the district court did not err in granting summary judgment for the United

States.

          We recognize that in Moya the request for reconsideration was allegedly mailed by

certified mail, return receipt requested, some two months before expiration of the six

months time limitation provided by 28 U.S.C. § 2401(b), whereas, in the instant case, the

request for reconsideration, according to counsel’s affidavit, was simply “mailed” some

ten days before the expiration of the six month time limitation. However, such, in our

view, does not mean that in the instant case there is “presumed delivery” of any request

for reconsideration. As indicated, in Moya we rejected the concept of “presumed



         In Anderberg v. United States, 718 F.2d 977 (10th Cir. 1983), we held that a
          1

request for reconsideration must be received by the federal agency within six months of
the latter’s denial order, and that a request, though mailed within the six month limitation
period but not received until one day beyond the six month period, was not timely filed.
Similarly, in Industrial Construction Corp. v. United States, 15 F.3d 963, 967 (10th Cir.
1994), we held that an administrative claim is not “presented” until it is actually received
by the federal agency involved.

                                              -6-
delivery” in an action brought under the Federal Tort Claims Act, and we do so in the

present case. In this regard, prior to the Federal Tort Claims Act, the United States was

immune from tort liability under the doctrine of sovereign immunity. The exception

provided for in the Federal Tort Claims Act is to be construed and applied as written, and

neither extended nor narrowed. See Barnson v. United States, 816 F.2d 549 (1987), cert.

denied, 484 U.S. 896 (1987); Arvayo v. United States, 766 F.2d 1416 (1985). And under

Moya, “mailing” is simply not proof of “receipt.”2

       Judgment affirmed.

                                          ENTERED FOR THE COURT

                                          Robert H. McWilliams
                                          Senior Circuit Judge




       2
        In count 10 of the first amended complaint, Gonzales alleged a “spoliation” of
evidence claim, alleging that the United States received her request for reconsideration,
and thereafter negligently or intentionally destroyed it. Assuming that such a claim is
otherwise allowable, the claim must fail in view of our holding that there is no showing
that the United States ever “received” any request for reconsideration from Gonzales.

                                           -7-
