
USCA1 Opinion

	




          January 27, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1143                              LYNETTE SANTIAGO-RAMIREZ,                                Plaintiff, Appellant,                                          v.                   SECRETARY OF THE DEPARTMENT OF DEFENSE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               Fuste,* District Judge.                                       ______________                                 ____________________            John Ward Llambias was on brief for appellant.            __________________            Isabel Munoz Acosta,  Assistant United States Attorney, with  whom            ___________________        Daniel  F.  Lopez  Romo, United  States  Attorney,  was  on brief  for        _______________________        appellees.                                 ____________________                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                    FUSTE, District Judge.   The main question presented in                           ______________          this appeal is whether appellant properly notified the agency for          which she  worked,  the  Army  and Air  Force  Exchange  Service,          (AAFES), of her potential federal tort claim.  The district court          found  the  letter  sent  to  the  agency by  appellant's  lawyer          deficient for purposes of  the statutory notice provision of  the          Federal Tort Claims Act, 28 U.S.C.   2675(a).  We find that under          this circuit's  flexible rule  regarding notice  requirements for          federal tort claims, the letter was sufficient as to part  of the          claim.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                    Appellant, Lynette Santiago-Ram rez,  was removed  from          her  post at  the  cash register  of  Fort Buchanan's  Army  Post          Exchange  store on June 29, 1990, under suspicion of having taken          part in an  employee theft ring.  She was  interrogated for about          forty-five  minutes in  her supervisor's  office.   She  was then          taken to the office of Mr. Jacques Zayde, the Safety and Security          Manager  of  the Exchange,  where she  was  again subjected  to a          forty-five-minute  interrogation.  Appellant  alleges that, among          other  things, she was threatened with  investigation by the FBI.          After what  she alleges  was considerable harassment  in complete          disregard  for her  pregnant condition,  she eventually  signed a          typewritten  statement.  She was  then returned to  the office of          her supervisor, who  informed her  that she  had been  terminated          from her job.  Upon concluding the investigation, no charges were          pressed against plaintiff.                    On  September  25, 1990,  appellant's  attorney  sent a          letter to the  Director of Administration  of the AAFES,  stating          that  appellant  was filing  an  administrative  complaint.   The          letter  specifically mentioned  that appellant was  mistreated by          officers and agents of the  agency in a manner which  resulted in          "emotional distress  and mental  suffering."  The  letter further          stated the exact  remedy which appellant was  requesting from the          agency:  "reinstallation of  Mrs. Santiago  to her  position, the          payment of any salaries and benefits and the reinstatement of any          rights she would have earned if not improperly discharged and the          amount of $50,000.00."   The  agency replied with  a letter  that          indicated it was treating  the case as a routine  dismissal under          military  regulations.   The letter  stated that  "Ms. Santiago's          rights to reinstatement were  governed by the provisions  of Army          Regulation (AR) 60-21/Air Force  Regulation (AFR) 147-15."  These          regulations  require  that an  appeal  of  an adverse  action  be          brought  within twenty-one  days.   Since appellant's  letter had          been sent  after the twenty-one-day period,  the agency indicated          that  it could  take no  action because  she lacked  a regulatory          basis for a  review of her complaint.   The agency letter,  while          addressing the reinstatement and  back-pay claim, did not respond          to the claim for damages for emotional distress.                      After   receiving  this  letter,  appellant  filed  the          present  suit in the United  States District Court.   She brought                                         -3-                                          3          suit  against her  employer,  AAFES,  as  well as  her  immediate          supervisor, Mayra Moore, and the security manager, Jacques Zayde,          under the Tucker  Act, 28  U.S.C.   1346(a)(2),  and the  Federal          Tort  Claims Act,  28 U.S.C.     1346, 2671-2680.    The district          court dismissed the suit after substituting the  United States as          the proper  party.   The district  court  found that  appellant's          letter did not give  the agency sufficient notice  of appellant's          claim and that appellant's complaint stated a cause of action for          false imprisonment, a cause of action excepted under the statute.          28 U.S.C.   2680(h).  Appellant now appeals the dismissal  of the          claims under the Federal Tort Claims Act.                                          II.                                         II.                               FEDERAL TORT CLAIMS ACT                               FEDERAL TORT CLAIMS ACT                               _______________________          A.  Administrative Requirements of the FTCA          A.  Administrative Requirements of the FTCA              _______________________________________                    The Federal  Tort Claims Act (FTCA), 28 U.S.C.    1346,          2671-2680, waives the sovereign immunity of  the United States to          suits in tort.  The prerequisite for liability under the Act is a          "negligent or wrongful  act or  omission of any  employee of  the          Government  while  acting  within  the  scope  of  his  office or          employment,  under circumstances  where the  United States,  if a          private person,  would be liable  to the  claimant in  accordance          with the law  of the place where  the act or omission  occurred."          28 U.S.C.   1346(b).   However, unlike  a suit against a  private          person, the Congress has created an administrative procedure that          claimants must follow  and exhaust.   This  procedure allows  the          agency  involved to  receive  a claim,  investigate, and  perhaps                                         -4-                                          4          settle the dispute  before a suit  is filed.   28 U.S.C.    2675.          Section 2675 provides  that "[a]n action shall  not be instituted          upon a claim 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."  The stated          legislative  purpose of  this administrative prerequisite  was to          balance the  goal of  efficiently encouraging settlement  between          the agency and the claimant with  the desire to provide "fair and          equitable  treatment of  private individuals  and claimants  when          they  deal with the Government or are involved in litigation with          their  Government."   S.Rep. No.  1327, 89th  Cong., 2d  Sess. 2,          reprinted in 1966 USCCAN 2515, 2516.          ____________                    Section 2675 requires that the potential plaintiff give          notice to  the  government of  the nature  of the  claim and  the          damages  requested.   28 U.S.C.    2675(a).1   Failure  to timely                                              ____________________             1Section 2675(a) states:                       (a)  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 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.      The                       provisions of this subsection  shall not                       apply to such claims  as may be asserted                                         -5-                                          5          file an administrative claim  with the appropriate federal agency          results in dismissal  of the plaintiff's claim,  since the filing          of  an  administrative  claim  is a  non-waivable  jurisdictional          requirement. United States  v. Kubrick, 444 U.S. 111, 113 (1979);                       _________________________          Attallah v. United  States, 955  F.2d 776, 779  (1st Cir.  1992);          __________________________          Corte-Real v. United States,  949 F.2d 484, 485 (1st  Cir. 1991);          ___________________________          Gonz lez-Bernal v. United  States, 907  F.2d 246,  248 (1st  Cir.          _________________________________          1990); Richman v. United States, 709 F.2d 122 (1st Cir. 1983).                   ________________________                    The  Justice  Department  has  promulgated  regulations          which  flesh  out  the   requirements  for  the  presentation  of          administrative claims  for settlement.  28  C.F.R.    14.1-14.11.          The statutory  notice requirement of section  2675 coincides with          the presentment requirement  in 28 C.F.R.   14.2(a): "an executed          Standard  Form 95 or  other written notification  of an incident,          accompanied by a claim  for money damages in a sum certain  . . .          ."  The difficulty created by the overlap between the presentment          requirements  of the regulation and the notice requirement of the          statement  is  that  the  regulations  also   require  additional          information  which  is  only  relevant  for  settlement purposes.          Acknowledging that the additional information is not relevant for          notice  purposes, this  circuit  has followed  the general  shift          among  all  circuits  toward  a recognition  of  the  distinction          between  presenting  a  claim  in  a  section  2675  context  and          presenting a claim for  settlement.  L pez v. United  States, 758                                               _______________________                                              ____________________                       under   the   Federal  Rules   of  Civil                       Procedure  by   third  party  complaint,                       cross-claim, or counterclaim.                                         -6-                                          6          F.2d 806 (1st Cir.  1985); see also  GAF Corp. v. United  States,                                     ________  ___________________________          818  F.2d 901, 919 (D.C.Cir. 1987); Johnson v. Unites States, 788                                              ________________________          F.2d  845, 848  (2d. Cir.),  cert. denied,  479 U.S.  914 (1986);                                       ____________          Tucker  v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir.          _____________________________________          1982); Adams v.  United States,  615 F.2d 284,  288-89 (5th  Cir.                 _______________________          1980);  Douglas v.  United States,  658 F.2d  445, 447  (6th Cir.                  _________________________          1981); Charlton v.  United States,  743 F.2d 557,  561 (7th  Cir.                 __________________________          1984); Farmers State Sav.  Bank v. Farmers Home Admin.,  866 F.2d                 _______________________________________________          276 (8th Cir. 1989);  Warren v. United States Dep't.  of Interior                                ___________________________________________          Bureau of Land  Management, 724  F.2d 776, 780  (9th Cir.  1984);          __________________________          Bush v.  United States, 703 F.2d 491, 494 (11th Cir. 1983).  Only          ______________________          after  the process  of  settlement has  been  initiated does  the          additional  information  required   by  the  regulations   become          relevant.   All that  is needed  for notice  is what  the statute          specifies.                    We understand a plaintiff  to have satisfied the notice          requirement of section 2675 if he or she provides a claim form or          "other  written  notification"   which  includes  (1)  sufficient          information for the agency to investigate the claims, and (2) the          amount of damages sought.  L pez, 758 F.2d at 809-10  (citing the                                     _____          standard  in Adams,  615 F.2d  at 289,  with approval);  see also                       _____                                       ________          Corte-Real, 949 F.2d at  485 (claim should not be thrown  out for          __________          failure to  specify  sum certain  with absolute  clarity).   This          circuit approaches the notice requirement leniently, "recognizing          that individuals wishing to  sue the government must  comply with          the details of the law, but also keeping in mind that the law was                                         -7-                                          7          not  intended to  put up  a barrier  of technicalities  to defeat          their claims."  L pez, 758  F.2d at 809.  A flexible  approach to                          _____          the notice  requirement is in  keeping with the  original purpose          behind the filing  of an administrative  claim: that of  allowing          the efficient  investigation  of a  claim by  the agency  without          sacrificing the entitlement of a claimant to his or  her cause of          action  against  the government.    This approach  to  the notice          requirement  recognizes  that  Congress  intended  to  leave  the          ultimate choice between settlement  and suit in the hands  of the          claimant.  GAF Corp., 818 F.2d at 918.  In the context of section                     _________          2675,  the emphasis is on the agency's receipt of information: it          must  have enough  information  that it  may reasonably  begin an          investigation  of  the  claim.2    "Our  decision  in  Corte-Real                                                                 __________          supports  saving a claim  that is  flawed, when  the government's          investigatory needs  are satisfied."   Kokaras v.  United States,                                                 _________________________          No. 92-1616, slip op. (1st Cir. Nov. 23, 1992).                    The  district  court   found  that   the  letter   from          appellant's  counsel to  the  Director of  Administration of  the          AAFES failed  to fulfill the requirements of  the statute because          it did not  mention either the  FTCA, negligence or  tort.   This          failure  to mention the basis  of any potential  claim, the court          found,  meant that the agency  did not have  sufficient notice of          the  nature  of the  appellant's  complaint  against the  agency.          However,  it  is  clear  that  appellant's  letter  fulfills  the                                              ____________________             2In Corte-Real,  we emphasized  that it was  the information                 __________             available  in the notice supplied to the agency, and not the             form in which it was presented, that was crucial.                                         -8-                                          8          statutory   requirement.     The   letter   provides   sufficient          information  to allow the agency  to investigate:   it states the          identity  of appellant, the date of the incident, the location of          the incident,  the government  agents involved,  and the type  of          injury alleged.   It also  states the  amount of the  damages the          appellant is  requesting.   The letter adequately  indicated that          appellant's complaint was premised  on her emotional distress and          mental suffering.  The language put  the agency on notice that it          should investigate the possibility of potential tortious behavior          on  the  part  of  its  agents.     The  fact  that  the   agency          misunderstood appellant's letter, choosing to interpret it solely          as  a  belated  appeal  of an  adverse  administrative  personnel          action,  should not  prejudice appellant's  suit.   The appellant          satisfied the statutory requirements  and under the current state          of the law  is not  required to give  any additional  information          unless it is requested.3                      The  court  has subject  matter  jurisdiction  over the          appellant's claims under the FTCA.  However, appellant's claim is          limited to the information she included  in the letter.  In other          words,  she   alone,  and  not   her  husband  or   the  conjugal          partnership, may bring  a claim for damages  up to $50,000.   Nor          are appellant's claims for  reinstatement and back pay cognizable                                              ____________________             3The  court  in L pez  distinguishes  between  the situation                             _____             where the agency is simply being given notice of a claim and             the situation embodied in  an earlier case, Swift  v. United                                                         ________________             States, 614 F.2d 812  (1st Cir. 1980), where the  agency, in             ______             an attempt to further settlement, requested more information             which the claimant ignored.  L pez, 758 F.2d at 810.                                          _____                                         -9-                                          9          under   the  FTCA,   which  provides   only  for   tort  monetary          compensation.     The  appellant's   claim  is  limited   to  the          information  included in the letter which  gave the agency notice          of her claim.          B.  The Intentional Tort Exception to the FTCA          B.  The Intentional Tort Exception to the FTCA              __________________________________________                    The Federal Tort Claims Act excepts certain intentional          torts from its general  waiver of sovereign immunity.   28 U.S.C.            2680.   One of these  exceptions is  "any claim arising  out of          assault,  battery, false  imprisonment,  false arrest,  malicious          prosecution, abuse of process, libel, slander, misrepresentation,          deceit  or  interference with  contract  rights."   28  U.S.C.             2680(h).    The  district  court correctly  determined  that  the          exceptions  in  28 U.S.C.     2680 are  interpreted  according to          federal law in order  to avoid any dependence of  federal subject          matter jurisdiction upon state law.  Hydrogen Technology Corp. v.                                               ____________________________          U.S.,  831  F.2d 1155,  1161 (1st  Cir.  1987); United  States v.          ____                                            _________________          Neustadt,  366 U.S. 696 (1961).   However, while  this might mean          ________          that  the district court could  properly decide that  a claim for          false  imprisonment  or  false  arrest is  precluded  by  section          2680(h), this does  not mean that appellant's  complaint does not          give rise to another cause of action which is available under the          FTCA.                      The  appellant's complaint  might  be read  to plead  a          cause  of  action  for  intentional or  negligent  infliction  of          emotional  distress.  There is no exception in section 2680 which          disallows a  claim for  the infliction of  emotional distress  by                                         -10-                                          10          government agents.  Claims against the government for intentional          infliction of emotional distress are  not excepted from the FTCA.          Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990).  Nor has          ________________________          such  an exception been read into the statute.  The Supreme Court          has taken a very strict approach  to the reading of section 2680.          It  has held that "[t]here is  no justification for this Court to          read exemptions into the Act beyond  those provided by Congress."          Rayonier, Inc. v.  United States, 352 U.S. 315, 321  (1957).  And          ________________________________          even in the case where the facts of the complaint might give rise          to similar  torts, "the  partial overlap between  . . .  two tort          actions does not support  the conclusion that if one  is excepted          under the Tort Claims Act the other  must be as well."  Block  v.                                                                  _________          Neal, 460 U.S.  289, 298 (1983).  Therefore, although appellant's          ____          claim  for  intentional  infliction  of  emotional  distress  may          overlap with a claim  for false imprisonment, which is  excepted,          it does not follow that the first claim is also excepted.                                           III.                                         III.                                      CONCLUSION                                      CONCLUSION                                      __________                    Appellant  has adequately  informed  the agency  of her          intention to file  suit for her alleged  harassment by government          agents.   The  dismissal  of appellant's  suit as  excepted under          section 2680 was premature.  Because the complaint can be read as          stating  a  claim  for  intentional or  negligent  infliction  of          emotional distress, the plaintiff may go forward on that theory.           The present  disposition is  without prejudice of  further motion          disposition under Fed. R. Civ. P. 56 once the parties have had an                                         -11-                                          11          opportunity  of  addressing  the issues  consistently  with  this          opinion.                    Reversed and Remanded.                    _____________________                                         -12-                                          12
