                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2007

Medina v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2908




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Recommended Citation
"Medina v. Philadelphia" (2007). 2007 Decisions. Paper 1813.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1813


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2908


                                 CARMEN MEDINA,

                                             Appellant

                                             v.

   CITY OF PHILADELPHIA, U.S. DEPARTMENT OF HOUSING AND URBAN
  DEVELOPMENT (HUD), and SECRETARY U.S. DEPARTMENT OF HOUSING
                  AND URBAN DEVELOPMENT (HUD)




            On Appeal from the Judgments of the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. Civ. 04-5698)
                      District Judge: Honorable Berle M. Schiller


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 12, 2006

       Before: SMITH, ROTH, Circuit Judges, and IRENAS,* Senior District Judge.

                                (Filed: January 5, 2007)




   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                            1
                                        OPINION


IRENAS, Senior United States District Judge.

       On May 9, 2005, the District Court for the Eastern District of Pennsylvania,

pursuant to Fed. R. Civ. P. 12(b)(1), entered an order dismissing Plaintiff Carmen

Medina’s Complaint with prejudice due to lack of subject matter jurisdiction. The finding

was predicated on Medina’s failure to present an administrative tort claim to the U.S.

Department of Housing and Urban Development (“HUD”), as required by the Federal

Tort Claims Act, 28 U.S.C. § 2675(a) (the “FTCA”), and by 28 U.S.C. § 2401(b).

Medina appeals this judgment. We will affirm.

                                             I.

       Medina averred, in her Complaint, that on December 9, 2002, she slipped and fell

on property located at 4057 N. Reese Street, Philadelphia, PA, owned by HUD. On

January 3, 2003, Medina’s attorney allegedly sent a letter notifying HUD of her claims.

(Appellant, 9; J.A., 15). HUD, however, denies having received such letter, and Medina

offers no proof of such receipt. (J.A. 17, 27-8). One year later, Medina’s attorney sent

another letter, dated January 24, 2004, advising HUD of Medina’s claims. (J.A. 16).

HUD purportedly received this letter on March 2, 2004. (J.A. 27). HUD’s Office of

Regional Counsel sent a responsive letter dated March 4, 2004, informing Medina’s




                                             2
attorney that an administrative claim1 (which was provided in the letter) must be

completed and returned to the HUD office for processing. (J.A. 17). The letter also

included a copy of the relevant federal regulations that describe in detail how to initiate a

claim against HUD for personal injuries.2 Medina alleges that she mailed a completed

administrative claim to HUD on March 11, 2004, but has no proof that HUD received it,

and offers only an unsigned letter as proof of its existence. (Appellant, 10; J.A. 18).

HUD denies having ever received the claim. (J.A. 28).

         After hearing no response from HUD within the requisite 6 months of her alleged

filing of an administrative claim,3 Medina filed an action with the District Court on

December 9, 2004 and attached a completed administrative claim to the Complaint.

                                              II.

         This Court has jurisdiction to review the District Court’s order dismissing the

Complaint pursuant to 28 U.S.C. § 1291. We will exercise plenary review over the

question of subject matter jurisdiction. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219

(3d Cir. 2005); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir.

2004).


   1
       The administrative claim sent to Medina was a “Standard Form 95.”
   2
    HUD attached 24 C.F.R. §§ 17.1-17.12 to the letter sent to Medina. These
regulations set forth the requirements and procedures for filing personal injury claims
under the FTCA.
   3
    The six month requirement in which the Government agency must make a
determination after its receipt of a claim is set forth in 28 U.S.C. § 2675(a).
                                               3
                                               III.

         Appellees (hereinafter “the Government”) moved to dismiss the action in the

District Court pursuant to Fed. R. Civ. P. 12(b)(6) for lack of subject matter jurisdiction.

The District Court properly treated the motion as a Fed. R. Civ. P. 12(b)(1) motion

(hereinafter “Rule 12(b)(1)”). 4

         Medina claims that the District Court erred in applying Rule 12(b)(1) and should

have instead treated the motion as falling under Fed. R. Civ. P. 56 (hereinafter “Rule

56"),5 in light of the fact that her failure to file an administrative claim is a statute of

limitations rather than a jurisdictional issue. In support of her contention, Medina cites

Hughes v. United States, 263 F.3d 272 (3d Cir. 2001). Hughes, however, is

distinguishable because the issue before the Court in Hughes was the accrual of a medical

malpractice action under the FTCA, which the Court expressly stated was not a

jurisdictional issue. Id. at 278.

         On the other hand, the question in this case is one of presentment under the FTCA.

Because the FTCA permits suits against the Government by private parties, its

presentment requirement and limitation periods are considered jurisdictional. See Roma

v. United States, 344 F.3d 352, 362 (3d Cir. 2003), cert denied, 543 U.S. 874 (2004);

Livera v. First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3rd Cir. 1989); Bialowas v.


   4
    Rule 12(b)(1) governs motions for lack of subject matter jurisdiction. Rule 12(b)(6)
governs motions for failure to state a claim upon which relief can be granted.
   5
       Rule 56 governs motions for summary judgment.
                                                4
United States, 443 F.2d 1047, 1049 (3d Cir. 1971) (the requirement of presentment is

jurisdictional and cannot be waived); Dark v. United States, 1991 U.S. Dist. LEXIS

10551, *2 (E.D. Pa. 1991), aff’d without opinion, 961 F.2d 1566 (3d Cir. 1992).

       Thus, the District Court properly analyzed the arguments under Rule 12(b)(1).

Furthermore, the Government’s challenge to the District Court’s subject matter

jurisdiction was factual in nature. Accordingly, the Court was permitted to look beyond

the pleadings in deciding the 12(b)(1) motion. See Cestonaro v. United States, 211 F.3d

749 (3d Cir. 2000).

                                           IV.

       Pursuant to the FTCA, a claimant seeking money damages may not file a tort claim

for injury caused by the negligence, wrongful acts, or omission of any Government

employee in the scope of his employment 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 by the agency .” 28 U.S.C. § 2675(a) (emphasis added). The

filing of an administrative claim with the appropriate agency is referred to as

“presentment.”

       There is a two year limit on presentment. “A tort claim against the United States

shall be forever barred unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues . . . or unless [court] action is begun with six

months . . . .” 28 U.S.C. § 2401(b). These time bars are strictly construed. Livera , 879


                                              5
F.2d at 1195; Dunn v. United States, 775 F.2d 99 (3d Cir. 1985).

       Plaintiff carries the burden of proof to establish presentment of her claim to HUD.

See Livera , 879 F.2d at 1195; Acheampong v. United States, 2002 U.S. Dist. LEXIS

26530 (E.D. Pa. 2002), aff’d without opinion, 2004 U.S. App. LEXIS 4424 (3d Cir.

2004); Dark, 1991 U.S. Dist. LEXIS at *9; Murray v. United States, 604 F. Supp. 444,

445 (E.D. Pa. 1985); Bailey v. United States, 642 F.2d 344 (9th Cir. 1981). Medina has

not carried this burden.

       None of the letters sent by Medina’s attorney to HUD requested monetary

damages in a “sum certain,” as required by 24 C.F.R. § 17.2. See also Livera, 879 F.2d

at 1195 (finding the complaint inadequate, in part, because it failed to state damages in a

sum certain).

       Medina has offered no proof of receipt of the administrative claim allegedly sent to

HUD by her attorney on March 11, 2004. In order to satisfy the presentment requirement,

a plaintiff must demonstrate that the appropriate federal agency actually received the

claim. 28 C.F.R. § 14.2(a). See also Dark, 1991 U.S. Dist. LEXIS at *10 (finding that an

unsigned letter by plaintiff’s counsel was insufficient to prove receipt of plaintiff’s

claim); Bailey, 642 F.2d at 347 (9th Cir. 1981); Anderson v. United States, 744 F. Supp.

641, 644 (E.D. Pa. 1990); Crack v. United States, 694 F. Supp. 1244, 1246 (E.D. Va.

1988). This is not an onerous requirement, as proof of receipt can easily be obtained by

sending a claim by certified mail or by registered mail, or by obtaining acknowledgment


                                              6
 of receipt from the agency itself.6

        Even if the March 11, 2004, letter was actually mailed within two years of her

 alleged injury, Medina must offer proof of actual receipt of the claim (or strong evidence

 from which receipt can be inferred) to satisfy the two year limitation in § 2401(b).

 Medina offers no proof, other than an unsigned letter and her attorney’s affidavit,

 indicating that her attorney sent the claim on that date. Two HUD employees, however,

 submitted declarations stating that HUD has no record of receipt of Plaintiff’s

 administrative claim. In most cases, as in this one, an attorney’s affidavit, standing alone,

 indicating that she mailed an administrative claim, is insufficient to prove presentment of

 such claim to the appropriate federal agency.

        Plaintiff argues that attaching an administrative claim to a Complaint filed with the

 District Court is sufficient to satisfy the FTCA’s presentment requirement. The FTCA

 expressly states:

           An action shall not be instituted upon a claim against the United States
           for money damages for ... personal injury ... unless the claimant shall
           have first presented the claim to the appropriate Federal agency [.]

28 U.S.C. § 2675(a)(emphasis added). See also Bogl v. United States Postal Service, 1993



    6
     Although Dark stated that Plaintiff could have established proof of receipt by
 obtaining a certificate of mailing, such certificate only evidences delivery to the Post
 Office for mailing. See http://pe.usps.com/Archive/PDF/DMMArchive0810/S914.pdf.
 We note that this Court is not holding that direct evidence of receipt is the sole method of
 establishing presentment, but only that the proof offered by plaintiff in this case is
 inadequate.
                                              7
U.S. Dist LEXIS 9314, *12 (E.D.Pa. 1993). Because Medina did not present her claim to

HUD prior to filing an action in the District Court,7 this attempt at presentment fails as

well.

                                             IV.

         For the reasons set forth above, the judgment of the Eastern District of Pennsylvania

will be affirmed.




     7
     Because Medina filed her Complaint in the District Court on the last day of the two
 year statute of limitations set forth by 28 U.S.C. § 2401(b), any attempt to present her
 administrative claim to HUD after that date would have been untimely.
                                               8
