                                             Filed:   August 10, 2000

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 99-2237
                            (CA-99-728-S)



Evelyn Mae Kokotis,

                                                Plaintiff - Appellant,

          versus


United States Postal Service,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed August 3, 2000, as follows:

     On page 4, first paragraph, lines 2-3 -- the text is corrected

as follows:   “after such claim accrues ....”).         Moreover, “the

requirement ....”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EVELYN MAE KOKOTIS,
Plaintiff-Appellant,

v.                                                                    No. 99-2237

UNITED STATES POSTAL SERVICE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-728-S)

Argued: May 4, 2000

Decided: August 3, 2000

Before WILKINSON, Chief Judge, and NIEMEYER
and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Marc Henry Nachman, HANDLER & NACHMAN,
Towson, Maryland, for Appellant. Andrea Margaretta Leahy-
Fucheck, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Robert B. Handler, HANDLER & NACH-
MAN, Towson, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
OPINION

WILKINSON, Chief Judge:

Evelyn Mae Kokotis alleges injury due to the negligence of a
United States Postal Service employee. Kokotis filed an administra-
tive claim with the Postal Service within months of the accident, but
failed to demand a sum certain until four months after the two-year
statute of limitations had expired. The district court granted the Postal
Service's motion to dismiss, holding that Kokotis' failure to provide
a timely demand for a sum certain deprived the court of jurisdiction
under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (1994).
In so doing, the district court also found that Kokotis' demand for a
sum certain after the limitations period had expired was not an
amendment of a prior claim. Finding no error, we affirm.

I.

On October 29, 1995, Evelyn Kokotis was injured in an auto acci-
dent. The collision was allegedly due to the negligence of a Postal
Service employee. Two days later, Kokotis was sent a Standard Form
95 (SF 95) to facilitate the filing of an administrative claim pursuant
to the Federal Tort Claims Act (FTCA). A letter from the Postal Ser-
vice accompanied the SF 95. The letter explained in multiple places,
and in boldface and capitalized text, that Kokotis had two years to file
a complete claim. The letter also stated, in boldface text, that for a
claim to be considered complete an exact sum certain dollar amount
must be included. Moreover, the SF 95 itself included numerous simi-
lar warnings. The form even indicated in italics above the entry for
the total amount of the claim that "[f]ailure to specify may cause for-
feiture of your rights." The box above the space for the claimant's sig-
nature on the SF 95 contained the following language in boldface
capitals: "I certify that the amount of claim covers only damages and
injuries caused by the accident above and agree to accept said
amount in full satisfaction and final settlement of this claim."

In December 1995, approximately one month after the accident,
Kokotis filed an SF 95 with the Postal Service without including a
sum certain. Instead, the cover letter accompanying the form stated
that Kokotis was still undergoing medical treatment and included an

                     2
itemization of Kokotis' medical bills to date. Kokotis submitted sup-
plemental letters to the Postal Service on February 27, 1996, March
25, 1996, December 12, 1996, August 21, 1997, and January 22,
1998. As of the August 21, 1997 letter (the last letter sent before the
statute of limitations expired), the total damages claimed were
$4,546.79. Kokotis finished the medical treatment for her accident on
September 25, 1997, approximately one month before the statute of
limitations expired.

On March 3, 1998, four months after the statute of limitations had
expired but prior to final agency action, Kokotis submitted a revised
SF 95 requesting a sum certain in the amount of $19,000. The Postal
Service denied Kokotis' claim. The Postal Service explained that
since the claim was not completed within the FTCA's two-year limi-
tations period, it could not be considered. Kokotis' request for recon-
sideration of this decision was denied.

Kokotis filed suit for damages against the Postal Service on March
12, 1999. The Postal Service moved to dismiss the complaint for lack
of subject matter jurisdiction. The district court granted the motion,
holding that Kokotis' failure to identify a sum certain within the two-
year statute of limitations deprived it of jurisdiction over her suit. The
district court also declined to toll the statute of limitations on the
grounds that there was no misleading conduct by the United States.
Kokotis now appeals.

II.

Kokotis seeks to recover against the government under the limited
waiver of sovereign immunity embodied in the FTCA. Sovereign
immunity can be waived only by the sovereign; the circumstances of
its waiver must be scrupulously observed and not expanded by the
courts. See United States v. Kubrick, 444 U.S. 111, 117-18 (1979).
Precisely because the FTCA constitutes a waiver of sovereign immu-
nity, plaintiffs like Kokotis must file an FTCA action in careful com-
pliance with its terms. See College v. United States, 411 F. Supp. 738
(D. Md. 1976), aff'd, 572 F.2d 453 (4th Cir. 1978). A key jurisdic-
tional prerequisite to filing suit under the FTCA involves the presen-
tation of an administrative claim to the government within two years
of the incident. See 28 U.S.C. § 2401(b) (1994) (a tort claim "shall be

                     3
forever barred unless it is presented in writing to the appropriate Fed-
eral agency within two years after such claim accrues . . . ."). Moreover,
"the requirement of filing an administrative claim is jurisdictional and
may not be waived." Henderson v. United States, 785 F.2d 121, 123
(4th Cir. 1986).

An administrative claim must be properly presented. The FTCA's
implementing regulations consider a claim to be properly presented
when the government receives a completed SF 95 (or other written
notification of an incident), and "a claim for money damages in a sum
certain . . . ." 28 C.F.R. § 14.2(a) (1999) (emphasis added); see also
39 C.F.R. § 912.5(a) (1999). Requesting a sum certain is a necessary
element of any FTCA administrative claim. Failure to request a sum
certain within the statute of limitations deprives a district court of
jurisdiction over any subsequently filed FTCA suit. See Ahmed v.
United States, 30 F.3d 514 (4th Cir. 1994); Kokaras v. United States,
980 F.2d 20, 22 (1st Cir. 1992); Adkins v. United States, 896 F.2d
1324, 1326 (11th Cir. 1990).

The sum certain requirement is not a trap for the unwary. Rather,
this requirement allows an agency to assess a claim's settlement
value. See College, 411 F. Supp. at 741. Since the FTCA links both
the authority to settle a claim and the source of settlement funds to
the amount of the underlying claim, the Act's purpose is frustrated if
the administrative claim does not indicate a specific amount of
money. See Ahmed, 30 F.3d at 517. For example, claims of $2,500 or
less can be settled on the authority of "[t]he head of each Federal
agency or his designee" and are paid "out of appropriations available
to that agency." 28 U.S.C. § 2672 (1994). Claims of between $2,500
and $25,000 can be settled on the same authority, but are paid out of
a separate appropriation. See id. Finally, claims in excess of $25,000
can only be settled "with the prior written approval of the Attorney
General or his designee." Id.

If FTCA plaintiffs were allowed to pursue Kokotis' preferred route
of not submitting a sum certain, the government's ability to determine
a claim's value would be impaired. This, in turn, might push the gov-
ernment toward several unsatisfactory options: (1) channel all deci-
sions to the highest levels in order to assure the decision to settle was
made by someone authorized to do so; or (2) resist or postpone settle-

                     4
ment so long as the amount of the claim could not be ascertained.
Either way, the burden on the government would increase and the
FTCA's goal of efficiently handling claims against the government
would be undermined.

III.

A.

Notwithstanding the government's general interest in the sum cer-
tain requirement, Kokotis asserts that the requirement should not
strictly be applied against her. She first contends she provided enough
information to the Postal Service, in the form of periodic supplemen-
tal letters, for the agency to estimate the value of her claim. We dis-
agree. Kokotis provides no explanation for how the Postal Service
could have predicted a 418% increase in the size of her claim. Koko-
tis' last pre-statute of limitations supplemental letter of August 21,
1997 indicated total damages of $4,546.79; her post-statute of limita-
tions request sought $19,000.* Moreover, even if Kokotis were cor-
rect that the Postal Service could somehow have estimated the value
of her claim, she cannot escape the FTCA's unwavering requirement
of submission of a sum certain within two years of the incident. See
Ahmed, 30 F.3d at 517. No exception exists for cases where the
agency might have been able to estimate the value of a claim, and
courts cannot insert into the FTCA administrative process special pro-
visions that the statute does not contain. See Kubrick, 444 U.S. at 117-
18.

Kokotis next argues that she could not submit a sum certain before
her treatment was complete and the extent of her injuries were known.
While the record indicates that Kokotis' last medical treatment
occurred one month before the filing period expired, that fact is
beside the point. Every limitations period embodies the possibility
that a complaint must be filed before the claimant's knowledge is
complete. That possibility, however, affords no basis for disregarding
the interest of finality embodied in a statute of limitations that a legis-
_________________________________________________________________

* Kokotis does not claim that this letter was a submission of a sum cer-
tain. And the district court correctly noted that submitting information in
"dribs and drabs" does not satisfy the sum certain requirement.

                    5
lative body has chosen to enact. See Holmberg v. Armbrecht, 327 U.S.
392, 395 (1946) ("If Congress explicitly puts a limit upon the time for
enforcing a right which it created, there is an end of the matter. The
Congressional statute of limitation is definitive.").

Kokotis advances one further argument for why she should be
excused from the sum certain requirement. She claims that she did not
estimate her damages for fear that a low figure would be settled
quickly and that a high figure would discourage settlement altogether.
Such strategic calculations on the part of a claimant cannot be
allowed to set aside the conditions attached to a sovereign immunity
waiver. See Munro v. United States, 303 U.S. 36, 41 (1938) ("Suits
against the United States can be maintained only by permission, in the
manner prescribed and subject to the restrictions imposed.") (empha-
sis added). Standardized requirements promote the efficient resolution
of large volumes of claims. The assessment of individual claimants
of their own settlement prospects cannot be permitted to supersede the
regulatory requirements to which all other claimants are expected to
adhere.

B.

Kokotis next argues that because she presented a sum certain
before final action on her claim, it is an amendment that relates back
to her December 1995 filing. We disagree. An amendment of a claim
can only occur if a complete claim, including a sum certain, is filed
before the statute of limitations expires. See 39 C.F.R. §§ 912.3 &
912.5 (1999). The regulation states that "a claim shall be deemed to
have been presented when the U.S. Postal Service receives . . . a
claim for money damages in a sum certain . . . ." 39 C.F.R. § 912.5(a)
(emphasis added). Since Kokotis' December 1995 filing did not
include a sum certain, it was not "presented" within the meaning of
§ 912.5(a). The regulation further states that only a "claim presented
in compliance with [§ 912.5(a)]" can be amended before final agency
action. 39 C.F.R. § 912.5(b) (emphasis added). Since Kokotis' origi-
nal filing did not include a sum certain, it was not presented in com-
pliance with § 912.5(a) and therefore not subject to amendment under
§ 912.5(b).

Moreover, the fact that there had been no final agency action is
irrelevant given the absence of a sum certain in Kokotis' initial filing.

                     6
The Postal Service took no action on Kokotis' claim before March 3,
1998 because effectively there was no claim filed. Only when Kokotis
finally submitted a sum certain could the Postal Service take action,
and by that time Kokotis' claim was untimely. A rule allowing
amendments to incomplete claims after the statute of limitations had
expired would undermine Congress' intent to have FTCA claims
presented within two years of the relevant incident.

C.

Kokotis' final argument is that even if she failed to satisfy the sum
certain requirement before the limitations period expired, the statute
of limitations should be equitably tolled. Equitable tolling is not
appropriate where, as was the case here, "the claimant failed to exer-
cise due diligence in preserving his legal rights." Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96 (1990). The SF 95 Kokotis signed
contained several warnings on the consequences of failing to state a
sum certain. The warnings appeared in multiple locations and in bold-
face. The same warnings also appeared separately in the letter that
accompanied the SF 95. Kokotis' failure to heed these clear and repet-
itive warnings makes equitable tolling inappropriate.

Moreover, because of the importance of respecting limitations peri-
ods, equitable tolling is appropriate only "where the defendant has
wrongfully deceived or misled the plaintiff in order to conceal the
existence of a cause of action." English v. Pabst Brewing Co., 828
F.2d 1047, 1049 (4th Cir. 1987). See also Muth v. United States, 1
F.3d 246, 251 (4th Cir. 1993). Indeed, the doctrine of equitable tolling
is based on the view that a defendant should not be encouraged to
engage in "misconduct that prevents the plaintiff from filing his or her
claim on time." English, 828 F.2d at 1049. In this case no evidence
or allegation of misconduct by the Postal Service exists. The absence
of a Postal Service objection to Kokotis' failure to submit a sum cer-
tain does not resemble the kind of misconduct required to equitably
toll a limitations period.

                    7
IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                    8
