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


6-10-2009

Ahmed v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4669




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Recommended Citation
"Ahmed v. USA" (2009). 2009 Decisions. Paper 1208.
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NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                          No. 07-4669




                                   MALISSA A. AHMED,
                                                Appellant,

                                                v.

                             UNITED STATES OF AMERICA




                      On Appeal from the United States District Court
                                for the District of New Jersey
                                      (D.C. No. 05-1929)
                      District Judge: Honorable Dennis M. Cavanaugh




                        Submitted Under Third Circuit LAR 34.1(a)
                                    January 13, 2009

     Before: SLOVITER and BARRY, Circuit Judges, and POLLAK,* District Judge


                                     (Filed: June 10, 2009)
                                              _____

                                           OPINION
                                            ______




       *
         Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern District
of Pennsylvania, sitting by designation.
POLLAK, District Judge.

       Appellant Malissa A. Ahmed appeals the District Court’s dismissal of her

complaint under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”) for

failure to comply with the jurisdictional time requirements of that statute. As discussed

below, the District Court correctly dismissed appellant’s complaint.

                                             I.

       Appellant was involved in an accident on June 4, 2003 with a vehicle driven by an

agent of the Department of Homeland Security, Bureau of Immigration and Customs

Enforcement (“ICE”). However, at the time of the accident, all appellant knew was that

vehicle was owned by the federal government; she could not identify what agency of the

government owned the vehicle or employed the driver. On July 28, 2003, she filed a

claim under the FTCA with the Department of Justice (“DOJ”), Civil Division, Torts

Branch. On August 14, 2003, the DOJ sent her claim back, acknowledging receipt of her

claim but returning it to her because she had not identified the proper agency to which the

claim should be directed. Over a year later, but still within the FTCA’s two-year statute

of limitations, see 28 U.S.C. § 2401(b), appellant again sent her claim to the DOJ Torts

Branch, mailing it on September 28, 2004. She indicated that she could still not identify

the appropriate agency and requested that DOJ figure it out and transfer her claim, citing

authority that a federal agency has an affirmative duty to transfer claims it wrongly

receives to the correct agency. On October 26, 2004, DOJ sent a letter to ICE. This letter



                                             2
informed ICE that DOJ had received Ahmed’s claim on October 4 and then learned that

ICE was in fact the proper agency. DOJ noted in the letter that it was transferring the

claim to ICE. Appellant’s counsel was copied on this October 26, 2004 letter. Appellant

filed suit in the District Court on April 12, 2005. Subsequently, ICE denied the

administrative claim on July 28, 2005.

       In response to appellant’s complaint in court, ICE moved for dismissal, arguing

that appellant had failed to comply with the time requirements of the FTCA. The District

Court agreed and dismissed the complaint, and appellant timely appealed.

                                              II.

       This case revolves around the determination of the date on which the claim was

presented to the agency. The date matters because the FTCA and its implementing

regulations set a strict timeline for the filing of tort claims against the federal government.

The statute provides:

       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.

28 U.S.C.A. § 2675(a).

       The statute requires “complete exhaustion” of administrative remedies before a

                                               3
claimant can seek relief in court; a complaint filed in court before the conclusion of the

six-month period in which the agency reviews the claim will be deemed premature.

McNeil v. United States, 508 U.S. 106, 112 (1993). The start date of the six-month period

is further defined by 28 C.F.R. § 14.2(b)(1), which provides that a “claim shall be

presented . . . as of the date it is received by the appropriate agency.” This regulation also

instructs agencies that when they receive claims which ought to be presented to a

different agency, the receiving agency “shall transfer it forthwith to the appropriate

agency, if the proper agency can be identified from the claim, and advise the claimant of

the transfer.” Id.

        There are four possible dates in contention for the date on which appellant’s claim

was presented to the agency. Appellant argued before the District Court, and argues

before this court on appeal, that her claim was presented to the agency by, at the latest,

October 4, 2004, the date on which it was received for the second time by DOJ. She also

argues that her claim could have been filed as early as July 28, 2003 (the date of her

original filing with the DOJ Torts Branch) or September 28, 2004 (the date of her second

letter to the DOJ Torts Branch). ICE argues that the claim was not actually presented to

the agency until October 26, 2004, the date on which it was transferred from DOJ to ICE.

Appellant filed her complaint in the District Court on April 12, 2005. If the claim is to be

regarded as having been presented on October 26, 2004, the April 12, 2005 filing would

have been premature, as the six-month agency review period would not have been



                                              4
completed. However, if appellant’s proposed date of October 4, 2004–or one of the

earlier dates–is the date on which the claim is deemed to have been presented to the

agency, then the April 12, 2005 complaint was not premature and should not have been

dismissed.

       In arguing for a date earlier than October 26, 2004, Ahmed urges the court to use

the doctrine of constructive filing and adopt one of the three dates she proposes (July 28,

2003; September 28, 2004; or October 4, 2004). Courts permitting constructive filing in

the FTCA context have largely been resolving situations where the government’s failure

to transfer the claim led to the claimant’s failure to comply with the FTCA’s statute of

limitations. See, e.g., Bukala v. United States, 854 F.2d 201, 204 (7th Cir. 1988)

(permitting constructive filing of complaint with wrong agency where agency did not

transfer claim to appropriate agency within the two-year statute of limitations). That is

not the situation here, where the government did not act negligently in its treatment of

appellant’s claim and instead promptly transferred the claim to the appropriate agency.

Though the letter of September 28, 2004 (a letter written by appellant’s counsel’s “legal

assistant”) asserted that it constituted a claim and opened the six-month agency review

period, this assertion ignored appellant’s duty to present the claim to the proper agency.

        Moreover, the government did respond to the September 28, 2004 letter. In a

letter dated October 26, 2004 and sent to appellant’s counsel, the DOJ Torts Branch

advised that appellant’s claim was being transferred to ICE as of that date; thus, as of



                                              5
October 26, 2004 it should have been apparent to counsel that appellant’s claim had not

been presented to the appropriate agency before that date. Therefore, the six-month

period had not yet closed when appellant’s complaint was filed on April 12, 2005. As a

result, the complaint was premature, contravening the requirements of 28 U.S.C. §

2675(a). The District Court properly dismissed the complaint.

                                           III.

      For the foregoing reasons, the judgment of the District Court will be affirmed.




                                            6
