January 27, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-1143

                    LYNETTE SANTIAGO-RAMIREZ,

                      Plaintiff, Appellant,

                                v.

         SECRETARY OF THE DEPARTMENT OF DEFENSE, ET AL.,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                                        

                                           

                              Before

                        Cyr, Circuit Judge,
                                          
                  Bownes, Senior Circuit Judge,
                                              
                     Fuste,* District Judge.
                                           

                                           

  John Ward Llambias was on brief for appellant.
                    
  Isabel Munoz Acosta,  Assistant United States Attorney, with  whom
                     
Daniel  F.  Lopez  Romo, United  States  Attorney,  was  on brief  for
                     
appellees.

                                           

                                           

                   

*Of the District of Puerto Rico, sitting by designation.

          FUSTE, District Judge.   The main question presented in
                               

this appeal is whether appellant properly notified the agency for

which she  worked,  the  Army  and Air  Force  Exchange  Service,

(AAFES), of her potential federal tort claim.  The district court

found  the  letter  sent  to  the  agency by  appellant's  lawyer

deficient for purposes of  the statutory notice provision of  the

Federal Tort Claims Act, 28 U.S.C.   2675(a).  We find that under

this circuit's  flexible rule  regarding notice  requirements for

federal tort claims, the letter was sufficient as to part  of the

claim.

                                I.

                            BACKGROUND
                                      

          Appellant, Lynette Santiago-Ram rez,  was removed  from

her  post at  the  cash register  of  Fort Buchanan's  Army  Post

Exchange  store on June 29, 1990, under suspicion of having taken

part in an  employee theft ring.  She was  interrogated for about

forty-five  minutes in  her supervisor's  office.   She  was then

taken to the office of Mr. Jacques Zayde, the Safety and Security

Manager  of  the Exchange,  where she  was  again subjected  to a

forty-five-minute  interrogation.  Appellant  alleges that, among

other  things, she was threatened with  investigation by the FBI.

After what  she alleges  was considerable harassment  in complete

disregard  for her  pregnant condition,  she eventually  signed a

typewritten  statement.  She was  then returned to  the office of

her supervisor, who  informed her  that she  had been  terminated

from her job.  Upon concluding the investigation, no charges were

pressed against plaintiff.

          On  September  25, 1990,  appellant's  attorney  sent a

letter to the  Director of Administration  of the AAFES,  stating

that  appellant  was filing  an  administrative  complaint.   The

letter  specifically mentioned  that appellant was  mistreated by

officers and agents of the  agency in a manner which  resulted in

"emotional distress  and mental  suffering."  The  letter further

stated the exact  remedy which appellant was  requesting from the

agency:  "reinstallation of  Mrs. Santiago  to her  position, the

payment of any salaries and benefits and the reinstatement of any

rights she would have earned if not improperly discharged and the

amount of $50,000.00."   The  agency replied with  a letter  that

indicated it was treating  the case as a routine  dismissal under

military  regulations.   The letter  stated that  "Ms. Santiago's

rights to reinstatement were  governed by the provisions  of Army

Regulation (AR) 60-21/Air Force  Regulation (AFR) 147-15."  These

regulations  require  that an  appeal  of  an adverse  action  be

brought  within twenty-one  days.   Since appellant's  letter had

been sent  after the twenty-one-day period,  the agency indicated

that  it could  take no  action because  she lacked  a regulatory

basis for a  review of her complaint.   The agency letter,  while

addressing the reinstatement and  back-pay claim, did not respond

to the claim for damages for emotional distress.  

          After   receiving  this  letter,  appellant  filed  the

present  suit in the United  States District Court.   She brought

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suit  against her  employer,  AAFES,  as  well as  her  immediate

supervisor, Mayra Moore, and the security manager, Jacques Zayde,

under the Tucker  Act, 28  U.S.C.   1346(a)(2),  and the  Federal

Tort  Claims Act,  28 U.S.C.     1346, 2671-2680.    The district

court dismissed the suit after substituting the  United States as

the proper  party.   The district  court  found that  appellant's

letter did not give  the agency sufficient notice  of appellant's

claim and that appellant's complaint stated a cause of action for

false imprisonment, a cause of action excepted under the statute.

28 U.S.C.   2680(h).  Appellant now appeals the dismissal  of the

claims under the Federal Tort Claims Act. 

                               II.

                     FEDERAL TORT CLAIMS ACT
                                            

A.  Administrative Requirements of the FTCA
                                           

          The Federal  Tort Claims Act (FTCA), 28 U.S.C.    1346,

2671-2680, waives the sovereign immunity of  the United States to

suits in tort.  The prerequisite for liability under the Act is a

"negligent or wrongful  act or  omission of any  employee of  the

Government  while  acting  within  the  scope  of  his  office or

employment,  under circumstances  where the  United States,  if a

private person,  would be liable  to the  claimant in  accordance

with the law  of the place where  the act or omission  occurred."

28 U.S.C.   1346(b).   However, unlike  a suit against a  private

person, the Congress has created an administrative procedure that

claimants must follow  and exhaust.   This  procedure allows  the

agency  involved to  receive  a claim,  investigate, and  perhaps

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settle the dispute  before a suit  is filed.   28 U.S.C.    2675.

Section 2675 provides  that "[a]n action shall  not be instituted

upon a claim against the United  States . . . unless the claimant

shall  have first presented the  claim to the appropriate Federal

agency and his claim shall have been finally denied."  The stated

legislative  purpose of  this administrative prerequisite  was to

balance the  goal of  efficiently encouraging settlement  between

the agency and the claimant with  the desire to provide "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. No.  1327, 89th  Cong., 2d  Sess. 2,

reprinted in 1966 USCCAN 2515, 2516.
            

          Section 2675 requires that the potential plaintiff give

notice to  the  government of  the nature  of the  claim and  the

damages  requested.   28 U.S.C.    2675(a).1   Failure  to timely

                       

   1Section 2675(a) states:

             (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 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

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                                5

file an administrative claim  with the appropriate federal agency

results in dismissal  of the plaintiff's claim,  since the filing

of  an  administrative  claim  is a  non-waivable  jurisdictional

requirement. United States  v. Kubrick, 444 U.S. 111, 113 (1979);
                                      

Attallah v. United  States, 955  F.2d 776, 779  (1st Cir.  1992);
                          

Corte-Real v. United States,  949 F.2d 484, 485 (1st  Cir. 1991);
                           

Gonz lez-Bernal v. United  States, 907  F.2d 246,  248 (1st  Cir.
                                 

1990); Richman v. United States, 709 F.2d 122 (1st Cir. 1983).  
                               

          The  Justice  Department  has  promulgated  regulations

which  flesh  out  the   requirements  for  the  presentation  of

administrative claims  for settlement.  28  C.F.R.    14.1-14.11.

The statutory  notice requirement of section  2675 coincides with

the presentment requirement  in 28 C.F.R.   14.2(a): "an executed

Standard  Form 95 or  other written notification  of an incident,

accompanied by a claim  for money damages in a sum certain  . . .

."  The difficulty created by the overlap between the presentment

requirements  of the regulation and the notice requirement of the

statement  is  that  the  regulations  also   require  additional

information  which  is  only  relevant  for  settlement purposes.

Acknowledging that the additional information is not relevant for

notice  purposes, this  circuit  has followed  the general  shift

among  all  circuits  toward  a recognition  of  the  distinction

between  presenting  a  claim  in  a  section  2675  context  and

presenting a claim for  settlement.  L pez v. United  States, 758
                                                            

                       

             under   the   Federal  Rules   of  Civil
             Procedure  by   third  party  complaint,
             cross-claim, or counterclaim.

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                                6

F.2d 806 (1st Cir.  1985); see also  GAF Corp. v. United  States,
                                                                

818  F.2d 901, 919 (D.C.Cir. 1987); Johnson v. Unites States, 788
                                                            

F.2d  845, 848  (2d. Cir.),  cert. denied,  479 U.S.  914 (1986);
                                         

Tucker  v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir.
                                     

1982); Adams v.  United States,  615 F.2d 284,  288-89 (5th  Cir.
                              

1980);  Douglas v.  United States,  658 F.2d  445, 447  (6th Cir.
                                 

1981); Charlton v.  United States,  743 F.2d 557,  561 (7th  Cir.
                                 

1984); Farmers State Sav.  Bank v. Farmers Home Admin.,  866 F.2d
                                                      

276 (8th Cir. 1989);  Warren v. United States Dep't.  of Interior
                                                                 

Bureau of Land  Management, 724  F.2d 776, 780  (9th Cir.  1984);
                          

Bush v.  United States, 703 F.2d 491, 494 (11th Cir. 1983).  Only
                      

after  the process  of  settlement has  been  initiated does  the

additional  information  required   by  the  regulations   become

relevant.   All that  is needed  for notice  is what  the statute

specifies.

          We understand a plaintiff  to have satisfied the notice

requirement of section 2675 if he or she provides a claim form or

"other  written  notification"   which  includes  (1)  sufficient

information for the agency to investigate the claims, and (2) the

amount of damages sought.  L pez, 758 F.2d at 809-10  (citing the
                                

standard  in Adams,  615 F.2d  at 289,  with approval);  see also
                                                                 

Corte-Real, 949 F.2d at  485 (claim should not be thrown  out for
          

failure to  specify  sum certain  with absolute  clarity).   This

circuit approaches the notice requirement leniently, "recognizing

that individuals wishing to  sue the government must  comply with

the details of the law, but also keeping in mind that the law was

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                                7

not  intended to  put up  a barrier  of technicalities  to defeat

their claims."  L pez, 758  F.2d at 809.  A flexible  approach to
                     

the notice  requirement is in  keeping with the  original purpose

behind the filing  of an administrative  claim: that of  allowing

the efficient  investigation  of a  claim by  the agency  without

sacrificing the entitlement of a claimant to his or  her cause of

action  against  the government.    This approach  to  the notice

requirement  recognizes  that  Congress  intended  to  leave  the

ultimate choice between settlement  and suit in the hands  of the

claimant.  GAF Corp., 818 F.2d at 918.  In the context of section
                    

2675,  the emphasis is on the agency's receipt of information: it

must  have enough  information  that it  may reasonably  begin an

investigation  of  the  claim.2    "Our  decision  in  Corte-Real
                                                                 

supports  saving a claim  that is  flawed, when  the government's

investigatory needs  are satisfied."   Kokaras v.  United States,
                                                                

No. 92-1616, slip op. (1st Cir. Nov. 23, 1992).

          The  district  court   found  that   the  letter   from

appellant's  counsel to  the  Director of  Administration of  the

AAFES failed  to fulfill the requirements of  the statute because

it did not  mention either the  FTCA, negligence or  tort.   This

failure  to mention the basis  of any potential  claim, the court

found,  meant that the agency  did not have  sufficient notice of

the  nature  of the  appellant's  complaint  against the  agency.

However,  it  is  clear  that  appellant's  letter  fulfills  the

                       

   2In Corte-Real,  we emphasized  that it was  the information
                 
   available  in the notice supplied to the agency, and not the
   form in which it was presented, that was crucial.

                               -8-
                                8

statutory   requirement.     The   letter   provides   sufficient

information  to allow the agency  to investigate:   it states the

identity  of appellant, the date of the incident, the location of

the incident,  the government  agents involved,  and the type  of

injury alleged.   It also  states the  amount of the  damages the

appellant is  requesting.   The letter adequately  indicated that

appellant's complaint was premised  on her emotional distress and

mental suffering.  The language put  the agency on notice that it

should investigate the possibility of potential tortious behavior

on  the  part  of  its  agents.     The  fact  that  the   agency

misunderstood appellant's letter, choosing to interpret it solely

as  a  belated  appeal  of an  adverse  administrative  personnel

action,  should not  prejudice appellant's  suit.   The appellant

satisfied the statutory requirements  and under the current state

of the law  is not  required to give  any additional  information

unless it is requested.3  

          The  court  has subject  matter  jurisdiction  over the

appellant's claims under the FTCA.  However, appellant's claim is

limited to the information she included  in the letter.  In other

words,  she   alone,  and  not   her  husband  or   the  conjugal

partnership, may bring  a claim for damages  up to $50,000.   Nor

are appellant's claims for  reinstatement and back pay cognizable

                       

   3The  court  in L pez  distinguishes  between  the situation
                        
   where the agency is simply being given notice of a claim and
   the situation embodied in  an earlier case, Swift  v. United
                                                               
   States, 614 F.2d 812  (1st Cir. 1980), where the  agency, in
         
   an attempt to further settlement, requested more information
   which the claimant ignored.  L pez, 758 F.2d at 810.
                                     

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                                9

under   the  FTCA,   which  provides   only  for   tort  monetary

compensation.     The  appellant's   claim  is  limited   to  the

information  included in the letter which  gave the agency notice

of her claim.

B.  The Intentional Tort Exception to the FTCA
                                              

          The Federal Tort Claims Act excepts certain intentional

torts from its general  waiver of sovereign immunity.   28 U.S.C.

  2680.   One of these  exceptions is  "any claim arising  out of

assault,  battery, false  imprisonment,  false arrest,  malicious

prosecution, abuse of process, libel, slander, misrepresentation,

deceit  or  interference with  contract  rights."   28  U.S.C.   

2680(h).    The  district  court correctly  determined  that  the

exceptions  in  28 U.S.C.     2680 are  interpreted  according to

federal law in order  to avoid any dependence of  federal subject

matter jurisdiction upon state law.  Hydrogen Technology Corp. v.
                                                                 

U.S.,  831  F.2d 1155,  1161 (1st  Cir.  1987); United  States v.
                                                                 

Neustadt,  366 U.S. 696 (1961).   However, while  this might mean
        

that  the district court could  properly decide that  a claim for

false  imprisonment  or  false  arrest is  precluded  by  section

2680(h), this does  not mean that appellant's  complaint does not

give rise to another cause of action which is available under the

FTCA.  

          The  appellant's complaint  might  be read  to plead  a

cause  of  action  for  intentional or  negligent  infliction  of

emotional  distress.  There is no exception in section 2680 which

disallows a  claim for  the infliction of  emotional distress  by

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                                10

government agents.  Claims against the government for intentional

infliction of emotional distress are  not excepted from the FTCA.

Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990).  Nor has
                        

such  an exception been read into the statute.  The Supreme Court

has taken a very strict approach  to the reading of section 2680.

It  has held that "[t]here is  no justification for this Court to

read exemptions into the Act beyond  those provided by Congress."

Rayonier, Inc. v.  United States, 352 U.S. 315, 321  (1957).  And
                                

even in the case where the facts of the complaint might give rise

to similar  torts, "the  partial overlap between  . . .  two tort

actions does not support  the conclusion that if one  is excepted

under the Tort Claims Act the other  must be as well."  Block  v.
                                                                 

Neal, 460 U.S.  289, 298 (1983).  Therefore, although appellant's
    

claim  for  intentional  infliction  of  emotional  distress  may

overlap with a claim  for false imprisonment, which is  excepted,

it does not follow that the first claim is also excepted.  

                               III.

                            CONCLUSION
                                      

          Appellant  has adequately  informed  the agency  of her

intention to file  suit for her alleged  harassment by government

agents.   The  dismissal  of appellant's  suit as  excepted under

section 2680 was premature.  Because the complaint can be read as

stating  a  claim  for  intentional or  negligent  infliction  of

emotional distress, the plaintiff may go forward on that theory. 

The present  disposition is  without prejudice of  further motion

disposition under Fed. R. Civ. P. 56 once the parties have had an

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                                11

opportunity  of  addressing  the issues  consistently  with  this

opinion.

          Reversed and Remanded.
                               

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