
USCA1 Opinion

	




          July 19, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1061                                          GERARD A. CORMIER, ET AL.,                               Plaintiffs, Appellants,                                          v.                          U.S. DEPARTMENT OF LABOR, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Gerard A. Cormier on brief pro se.               _________________               Donald  K. Stern,  United  States Attorney,  and Roberta  T.               ________________                                 ___________          Brown, Assistant U.S. Attorney, on brief for appellees.          _____                                  __________________                                  __________________                      Per Curiam.  This is a pro se appeal from a summary                      __________             ___ __            judgment  entered  by the  district  court  in  favor of  the            government  and  against  plaintiffs-appellants,   Gerard  A.            Cormier ("Cormier"), his wife and children.  We affirm.                                      Background                                      __________                 In October,  1992, Cormier filed  a complaint pro  se in                                                               ___  __            the  United  States  District   Court  for  the  District  of            Massachusetts on  behalf of himself and  his family, claiming            violation  of  the  Federal   Tort  Claims  Act  ("FTCA").1              Essentially,  Cormier claims  that  his former  employer, the            United  States Department  of the Treasury,  Internal Revenue            Service ("IRS"),  and the United States  Department of Labor,            Office of Workers Compensation  Programs ("OWCP") caused pain            and suffering to Cormier and his  family as a result of their            mishandling of his worker's compensation claim.                 Cormier  had  filed  a  worker's  compensation claim  in            February,  1979, claiming  a "disabling  emotional condition"            resulting  from harassment  by  an irate  taxpayer and  other            work-related   stresses.2     The   OWCP   originally  denied                                            ____________________            1.   Cormier, acting pro se,  is representing himself and his                                 ___ __            wife  and children  in  this appeal.    This court  generally            prohibits non-lawyers from representing litigants  other than            themselves.  See Amann  v. Stow School System, 982  F.2d 644,                         ___ _____     __________________            648 n.2 (1st Cir.  1992).  "However, because we affirm on the            merits, we  need not determine whether  [Cormier's wife's and            children's appeals] are properly before us."  Id.                                                          ___            2.  This   procedural   history    of   Cormier's    worker's            compensation claim is taken from his complaint.                                         -2-            Cormier's claim on the ground that  his emotional illness was            not caused by the  conditions of his employment.   On appeal,            the  case  was remanded  to  resolve  a conflict  in  medical            opinions.                   The OWCP granted Cormier an award in July, 1984, only to            rescind  the award in October,  1984.  Cormier  appealed to a            hearing officer and eventually  to the Employees Compensation            Appeals Board ("ECAB").   After a hearing, the ECAB  ruled in            Cormier's favor  and,in an opinion dated  September 18, 1986,            remanded to the OWCP for referral to a medical specialist for            an  impartial  medical  evaluation  to  be  followed  by  the            issuance of a de novo decision.  In February,  1988, the OWCP                          __ ____            awarded benefits to  Cormier.  His  request for interest  and            attorneys' fees was denied.                    In  his   complaint,  Cormier  requests   the  following            compensation for the alleged  violation of the FTCA: interest            on the worker's compensation award, attorneys' fees and costs            for the worker's compensation case, three days' pay allegedly            still due, and $500,000  for each of the five  plaintiffs for            emotional distress, pain and  suffering.  In September, 1993,            the government moved for summary judgment on the grounds that            Cormier's failure to  file an  administrative claim  deprived            the district  court of jurisdiction  over the tort  claim and            that the  OWCP's denial of  interest and attorneys'  fees was            not reviewable by a court of law.                                         -3-                 Judge  William G.  Young of  the United  States District            Court for the District of Massachusetts held a motion hearing            on November  23, 1993.   Cormier was represented  by counsel.            The hearing was  held at  the Boston College  School of  Law,            apparently before a group of law students.  At the conclusion            of the  hearing, the district  court granted  the motion  for            summary judgment  for lack of subject  matter jurisdiction on            the  ground of  Cormier's failure  to file  an administrative            claim.  The district court did not issue a written opinion.                                      Discussion                                      __________                 We review  a district court's grant  of summary judgment            de novo.  See  Calenti v. Boto, et al., No. 93-1759, slip op.            __ ____   ___  _______    ____  _____            at 6 (1st Cir. May 23, 1994).  "We read  the record indulging            all inferences  in favor  of the  non-moving party.   Summary            judgment  is appropriate only if there is no genuine issue of            material fact and the moving party is entitled to judgment as            a matter of law."   Id. (citations omitted).                                __                 Cormier raises two issues  on appeal.  First, he  argues            that the motion hearing conducted by  Judge Young amounted to            a denial of due process because he was  not given an adequate            opportunity  to address  the court,  the court  discriminated            against  his  out-of-state  attorney,  the  classroom  format            imposed unreasonable time restrictions on the hearing and the            court was  unfamiliar with the  contents of the  case record.            Second, Cormier  contests the court's finding  that he failed                                         -4-            to  file the  required administrative tort claim in  a timely            fashion.                 There is simply  no support in the  record for Cormier's            claim  that he  was  denied a  fair  hearing on  the  summary            judgment motion.    A  review  of  the  transcript  from  the            motion hearing  indicates that the district  court gave ample            opportunity  to  Cormier  and  his  attorney  to  make  their            arguments,  treated  both parties  and  their  attorneys with            respect,  demonstrated   a  complete  understanding   of  the            relevant  facts and  law  and decided  the motion  correctly.            Although the forum  for the hearing was somewhat  unusual, it            did  not deprive Cormier of a  fair hearing.  Nor did Cormier            object  to the forum, although he had advance notice that the            hearing would be held at Boston College Law School.                   The  district  court   correctly  ruled  that  Cormier's            failure  to  file  an  administrative claim  deprived  it  of            jurisdiction  over   Cormier's   tort  claims   against   the            government.   The  timely filing  of an  administrative claim            with  the appropriate  federal  agency  is  a  jurisdictional            prerequisite to the  prosecution of  an FTCA claim.   See  28                                                                  ___            U.S.C.   2675(a); see  also Cotto v. United States,  993 F.2d                              ___  ____ _____    _____________            274,  280 (1st  Cir. 1993).   The  district court  found that            plaintiffs had failed to file an administrative claim on time            and, therefore, dismissed the  case for lack of jurisdiction.            Cormier argues on appeal  that his letter to the  ECAB, dated                                         -5-            October  1,  1990,   constituted  an  administrative   claim.            Alternatively,  he argues that the  Form 95s that  he and the            other  plaintiffs  filed  in  November,  1993  satisfied  the            administrative claim requirement.                   "This   circuit   approaches   the  notice   requirement            leniently,"  Santiago-Ramirez   v.  Secretary  of   Dep't  of                         ________________       _________________________            Defense, 984 F.2d 16, 19 (1st Cir. 1993). Cormier's letter to            _______            the  ECAB,   however,  failed   to  meet  even   the  minimal            requirements imposed  by  this court:  that the  notification            include  "1)   sufficient  information  for   the  agency  to            investigate the claims, and 2) the amount of damages sought."            Id.              ___                 The  letter requested  that the  ECAB review  the OWCP's            award to Cormier, specifically  its failure to award interest            and attorneys' fees.   In  the last sentence  of his  letter,            Cormier states his  belief that "this  is being filed  within            one year of  the decision as I  thought the check of  10/2/89            would include the interest for the 10 years," indicating that            the  letter was intended as an appeal from the OWCP's failure            to   award  interest  and  attorneys'  fees.    There  is  no            suggestion  in the  letter that  Cormier was  also requesting            damages  for himself  and his family  for emotional  pain and            suffering.  By failing to state the most basic information --            the  type  of  injury  alleged  and  the  amount  of  damages            requested  as  compensation for  that  injury  -- the  letter                                         -6-            clearly  fails  to  fulfill  the statutory  requirement.  See                                                                      ___            Santiago-Ramirez, 984 F.2d at 20 (letter  fulfilled statutory            ________________            requirement where  it stated the  type of injury  alleged and            the amount  of damages  requested  and "adequately  indicated            that  appellant's  complaint  was premised  on  her emotional            distress and mental suffering.")                 At best, Cormier's letter  gave notice to the government            of  his  claims  for  interest and  attorneys'  fees.   Those            claims, however, amount to a request for review of the OWCP's            award under the Federal  Employee's Compensation Act.   It is            well  established that we have no jurisdiction to review such            awards.   "The Secretary  [of Labor's]  action in  denying or            granting compensation is final and conclusive and may not  be            reviewed by a court of law. 5 U.S.C.   8128(b)(1) and (2) and              8145." Bruni  v. United States,  964 F.2d 76, 79  (1st Cir.                     _____     _____________            1992) (footnote omitted).                 The  administrative  claim  forms  (Form  95s)  filed by            Cormier  and his  family  in November,  1993  also failed  to            fulfill  the statutory  requirement.   The  forms were  filed            after  Cormier commenced  the FTCA  action in  federal court.            The Supreme Court recently held  that a district court lacked            jurisdiction over  an FTCA action where  "the claimant failed            to exhaust his administrative  remedies prior to filing suit,            but did  so  before  substantial  progress was  made  in  the            litigation."  McNeil v. United States,  113 S. Ct. 1980, 1981                          ______    _____________                                         -7-            (1993).  The Court specifically held that a litigant's pro se                                                                   ___ __            status  does  not  excuse  his  failure  timely  to  file  an            administrative claim. Id. at 1984.3                                  ___                 For the foregoing reasons, the district court's entry of            summary judgment in favor of the government is affirmed.                                            ____________________            3.  The  Form 95s are also insufficient in that they were not            filed within  the two-year statute of  limitations period for            FTCA  claims.  See 28  U.S.C.   2401(b).   Cormier's argument                           ___            that   his  children's   minority  tolled   the   statute  of            limitations  is  without merit.    See  Vega-Velez v.  United                                               ___  __________     ______            States, 800 F.2d 288,  290 (1st Cir. 1986) (holding  that "it            ______            is  well established  that  state (and  commonwealth) tolling            rules  do  not affect  the  two-year  statute of  limitations            applicable to  federal  claims."  and  citing  Jastremski  v.                                                           __________            United States,  737 F.2d 666  (7th Cir. 1984)  (minority does            _____________            not toll federal statute  of limitations)); see also Landreth                                                        ___ ____ ________            By and Through Ore v.  United States, 850 F.2d 532, 534  (9th            __________________     _____________            Cir. 1988) ("The fact  of minority does not toll  the statute            [of limitations established by 28 U.S.C.   2401(b)]."), cert.                                                                    ____            denied,, 488 U.S. 1042 (1989).            _______                                         -8-
