                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2009

Cedric Lightfoot v. USA
Precedential or Non-Precedential: Precedential

Docket No. 08-2602




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Recommended Citation
"Cedric Lightfoot v. USA" (2009). 2009 Decisions. Paper 1277.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1277


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PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 08-2602


                  CEDRIC LIGHTFOOT,
                           Appellant

                               v.

             UNITED STATES OF AMERICA


       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
             District Court No. 2-08-cv-00170
        District Judge: The Honorable Jan E. Dubois


     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                     April 14, 2009

           Before: McKEE, SMITH, Circuit Judges
               and STEARNS, District Judge *


       *
       The Honorable Richard G. Stearns, District Judge for the
United States District Court for Massachusetts, sitting by
                       (Filed:May 7, 2009)

Frank S. Pollock
Brownstein, Vitale & Weiss
1500 John
John F. Kennedy Boulevard
Suite 1020
Philadelphia, PA 19102
Counsel for Appellant

Paul W. Kaufman
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-0000
Counsel for Appellee




                             OPINION


STEARNS, District Judge.

         This appeal arises out of the District Court’s dismissal of
Cedric Lightfoot’s Federal Tort Claims Act (FTCA) claim
against the United States Postal Service (USPS) for failure to
file his claim within the applicable statute of limitations. For the



designation.
reasons stated, we will affirm the judgment of the District Court.

                                I.

       Lightfoot was driving northbound on Broad Street in
Philadelphia on October 6, 2004, when he claims to have been
sideswiped by a postal van driven by USPS employee Darrell E.
Moore.1 Lightfoot alleges that the accident was caused by
Moore’s inattentiveness as he attempted a lane change. The
contact caused Lightfoot to “violently” collide with a parked
vehicle. Lightfoot alleges that he sustained serious personal
injuries as well as damage to his car.

        On September 19, 2006, Lightfoot submitted an
administrative claim to the USPS. Edward Weiss, Lightfoot’s
attorney, sent the claim by certified mail. Lightfoot demanded
$3,790.74 in compensation for property damage and $75,000 for
his personal injuries. The USPS denied Lightfoot’s claim on or
about November 8, 2006. The letter of denial notified Lightfoot
that he had six months to file a civil action in the District Court
or, alternatively, that he could request reconsideration by the
USPS within six months of the date of the denial.

      Lightfoot alleges that he sought reconsideration three
weeks prior to the deadline by mailing a first class letter to the



       1
        In his initial claim Lightfoot described himself as both
the passenger and driver of the car; however, in his appellate
brief he consistently describes himself as the driver.
USPS on April 16, 2007. Lightfoot claims that the letter was
sent by his attorneys to Richard Teszner, the Tort Claims
Coordinator for the USPS. However, the USPS has no record
of having received the letter.2 Lightfoot filed the instant
complaint in the District Court on January 4, 2008.

       The USPS moved to dismiss Lightfoot’s complaint
pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction. The District Court granted the motion, holding that
the FTCA requires proof of receipt of a request for
reconsideration. For the reasons stated, we will affirm the
judgment of the District Court.

                               II.

       This Court has jurisdiction to review the District Court’s
order pursuant to 28 U.S.C. § 1291. “The standard of review for
subject matter jurisdiction is plenary.” Sikirica v. Nationwide
Ins. Co., 416 F.3d 214, 219 (3d Cir. 2005).

                               III.

       The FTCA precludes suit against the United States unless

       2
        Lightfoot offers the affidavit of attorney Frank Pollock
describing the law firm’s mailing procedure and his recollection
of signing a final copy of the request for reconsideration before
giving it to his secretary to be mailed. Teszner also submitted
an affidavit. In it, he states that he did not receive Lightfoot’s
request for reconsideration.
the claimant has first presented the claim to the relevant Federal
agency and the claim has been finally denied. See 28 U.S.C. §
2675(a).3 The final denial requirement is “jurisdictional and
cannot be waived.” Bialowas v. United States, 443 F.2d 1047,
1049 (3d Cir. 1971). After the denial of an administrative claim,
the claimant has two options: (1) he may file suit in the District
Court within six months of the denial pursuant to 28 U.S.C. §
2401(b);4 or (2) he may file a request for reconsideration directly


       3
           28 U.S.C. § 2675(a) provides that:

       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. 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.
       4
           28 U.S.C. § 2401(b) provides:

       [a] tort claim against the United States shall be
with the agency to which the claim was originally made.
Regulation 39 C.F.R. § 912.9(b)-(c) sets out the filing
requirements for reconsideration of the denial of a claim by the
USPS:

       (b) Prior to the commencement of suit and prior to
       the expiration of the 6 month period provided in
       28 U.S.C. § 2401(b), a claimant, his duly
       authorized agent, or legal representative, may file
       a written request with the postal official who
       issued the final denial or with the Chief Counsel,
       National Tort Center, U.S. Postal Service, P.O.
       Box 66640, St. Louis, MO 63141-0640, for a
       reconsideration of a final denial of a claim under
       paragraph (a) of this section. Upon the timely
       filing of a request for reconsideration, the Postal
       Service shall have 6 months from the date of
       filing in which to make a disposition of the claim
       and the claimant’s option under 28 U.S.C.
       2675(a) shall not accrue until 6 months after the
       filing of a request for reconsideration. Final Postal
       Service action on a request for reconsideration



       forever barred unless it is presented in writing to
       the appropriate Federal agency within two years
       after such claim accrues or unless action is begun
       within six months after the date of mailing, by
       certified or registered mail, of notice of final
       denial of the claim by the agency to which it was
       presented.
       shall be effected in accordance with this part.

       (c) For purposes of this section, a request for
       reconsideration of a final denial of a claim shall be
       deemed to have been filed when received in the office of
       the official who issued the final denial or in the office of
       the Chief Counsel, National Tort Center, U.S. Postal
       Service . . . .5

       Lightfoot bears the burden of demonstrating subject
matter jurisdiction. See Carpet Group Int’l v. Oriental Rug
Importers Ass’n, 227 F.3d 62, 69 (3d Cir. 2000). Lightfoot
alleges that he filed his request for reconsideration on April 16,
2007, and that the District Court erred in refusing to apply the
“mailbox rule” to his claim for reconsideration. We disagree.

        The plain language of 39 C.F.R. § 912.9(c) is fatal to
Lightfoot’s contention. The regulation provides that a request
for reconsideration is “deemed to have been filed when received
in the office of the official who issued the final denial . . . .”
(emphasis added). “It is elementary that ‘[t]he United States, as
sovereign, is immune from suit save as it consents to be sued.’”
United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)). In
enacting the FTCA, Congress waived immunity for tort claims
against the United States and its agencies, including the USPS.
See Dolan v. United States Postal Serv., 546 U.S. 481, 484
(2006). However, the waiver is limited, see Miller v. Phila.
Geriatric Ctr., 463 F.3d 266, 270 -271(3d Cir. 2006), and is
strictly construed in favor of the sovereign. See Orff v. United
States, 545 U.S. 596, 601-602 (2005).




       5
        If the USPS denies the request for reconsideration (or
allows the request but denies the claim), the claimant may file
in District Court six months after the request was filed. See 39
C.F.R. § 912.9.
        Courts in other jurisdictions have almost uniformly
concluded that the term “presented” in the filing of an
administrative claim means more than merely mailing the claim.
See Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994)
(rejecting any presumption that a claim was received where an
attorney by affidavit swore that she had sent a request for
reconsideration by certified mail); Drazan v. United States, 762
F.2d 56, 58 (7th Cir. 1985) (“[M]ailing is not presenting; there
must be receipt.”); Bailey v. United States, 642 F.2d 344, 347
(9th Cir. 1981) (refusing to “accept appellants’ invitation to
rewrite the [FTCA] and in effect repeal the regulation by
holding that mailing alone is sufficient to meet the requirement
that a claim be ‘presented.’”). The Ninth Circuit recently noted
that since Bailey, “virtually every circuit to have ruled on the
issue has held that the mailbox rule does not apply to [FTCA]
claims, regardless of whether it might apply to other federal
common law claims.” Vacek v. United States Postal Serv., 447
F.3d 1248, 1252 (9th Cir. 2006). We now join these sister
Courts in rejecting the mailbox rule and holding that a plaintiff
must demonstrate that the Federal agency was in actual receipt
of the claim, whether on initial presentment or on a request for
reconsideration.6

       For the foregoing reasons, we will affirm the judgment
of the District Court.




       6
         Lightfoot relies heavily on Glover v. United States for
the proposition that courts should distinguish between the
requirements for initial presentation and a request for
reconsideration of a denial of a properly presented claim. See
111 F. Supp. 2d 190, 194-195 (E.D.N.Y. 2000). Glover is not
persuasive. As the Tenth Circuit has noted “[n]owhere is there
any indication that what constitutes presentment of a request for
reconsideration is different from presentment of the claim
itself.” Anderberg v. United States, 718 F.2d 976, 977 (10th
Cir. 1983); see also Moya, 35 F.3d at 504.
