Flory v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________________________

No. 97-60081
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MARY FRANCES FLORY,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

_____________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
_____________________________________________
March 30, 1998

Before HIGGINBOTHAM and STEWART, Circuit Judges, and WALTER,*
District Judge.

DONALD E. WALTER, District Judge:

Plaintiff-appellant Mary Francis Flory (“Flory”) appeals the

district court’s dismissal of her case. The district court

granted summary judgment in favor of the United States, finding

that Flory had received actual notice of her denied tort claim,

therefore she was time-barred from proceeding under the Federal

Tort Claims Act (“FTCA”). For the following reasons, we REVERSE

and REMAND for further proceedings.

I. BACKGROUND

On December 19, 1991, Flory entered a United States Post

Office (“Post Office”) to pick up mail for her employer.

*
District Judge of the Western District of Louisiana,
sitting by designation.
Carrying a large cardboard box filled with mail, Flory tripped

over a dolly holding a metal garbage can when leaving the Post

Office. A United States Postal Service (“Postal Service”)

employee had allegedly parked the dolly in the lobby of the Post

Office without warning customers. Flory alleges that she

suffered injuries as a result of her fall.

Flory filed a timely administrative claim with the Postal

Service. By letter dated December 20, 1993, the Postal Service

offered to settle Flory’s claim in the amount of incurred medical

expenses. Alternatively, if Flory did not accept the settlement,

the letter denied her claim.2 The letter was sent by regular

mail.

Nearly five months later, Flory filed suit (“Flory I”)

against the United States pursuant to the FTCA alleging

negligence by the Post Office in maintaining its premises. The

United States moved to dismiss the suit for lack of jurisdiction,

as Flory failed to serve the Attorney General of the United

States as required by FED. R. CIV. P. 4(I)(1)(B).3 In June 1995,

the district court dismissed Flory I due to this procedural

defect. Although the court dismissed suit without prejudice, the

court noted that the statute of limitations had run and “the

2
The letter states, “In the event this offer is not
acceptable then the claim is denied. Your client will then have
six (6) months from the date of the mailing of this letter to
institute suit in the proper Federal District Court to seek
recovery for her damages.” Record on Appeal, vol. 1, p. 56.
3
Flory served the United States Attorney’s office for
the Southern District of Mississippi, but failed to serve the
Attorney General of the United States.

2
practical effect of this dismissal is that it is done with

prejudice.”4 We affirmed the district court’s judgment of

dismissal in Flory v. United States, 79 F.3d 24 (5th Cir. 1996).

In June 1996, Flory filed a second complaint (“Flory II”)

renewing the allegations in Flory I.5 In Flory II, Flory further

asserts:

A timely request for a resolution of this claim was filed
with the United States Postal Service on May 25, 1993
(Exhibit “A”). Settlement negotiations failed, which
resulted in a denial of the claim, but which denial has not
been furnished the Plaintiff herein under the provisions of
28 USCS Section 2401(b), requiring certified or registered
mailing.6

The United States filed a motion to dismiss, or in the

alternative, for summary judgment, asserting that Flory II was

untimely. The district court treated the motion as one for

summary judgment. The court granted summary judgment in favor of

the United States, holding that Flory received actual notice of

the denial of her claim and that the applicable statute of

limitations barred her claim.

II. ANALYSIS

We review the district court’s grant of summary judgment de

novo. Melton v. Teachers Ins. & Annuity Ass’n of America, 114

F.3d 557, 559 (5th Cir. 1997). Summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to

4
Record on Appeal, vol. 1, p. 38.
5
Flory properly served the Attorney General of the
United States in Flory II.
6
Record on Appeal, vol. 1, p. 1.

3
interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(c). Evidence is viewed

in the light most favorable to the party opposing the motion.

River Prod. Co. Inc. v. Baker Hughes Prod. Tools, Inc., 98 F.3d

857, 859 (5th Cir. 1996).

Presentment of a claim to the appropriate agency and denial

of that claim by the agency in writing, sent by registered or

certified mail, are prerequisites to a tort suit brought against

the United States. 28 U.S.C. § 2675(a).7 If the agency fails to

dispose of the claim within six months of filing, the claimant

has the option, any time thereafter, to deem a final denial of

the claim for purposes of § 2675(a). Id.

The statute of limitations for a tort claim against the

United States provides:

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 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.

28 U.S.C. § 2401(b). It is well-settled that these limitation

7
“Final denial of an administrative claim shall be in
writing and sent to the claimant, his attorney, or legal
representative by certified or registered mail. The notification
of final denial may include a statement of the reasons for the
denial and shall include a statement that, if the claimant is
dissatisfied with the agency action, he may file suit in an
appropriate U.S. District Court not later than 6 months after the
date of mailing of the notification.” 28 C.F.R. § 14.9(a). The
Postal Service’s letter denying Flory’s claim meets all of these
requirements except for mailing by certified or registered mail.

4
periods are jurisdictional. Price v. United States, 69 F.3d 46,

54 (5th Cir. 1995), cert. denied, ---U.S.---, 117 S.Ct. 295

(1996); Houston v. United States Postal Service, 823 F.2d 896,

902 (5th Cir. 1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1470

(1988).

Flory’s argument at both the district court level and on

appeal is simply that her denial letter sent by regular mail does

not trigger the six-month period of limitation under 28 U.S.C. §

2401(b), as § 2401(b) requires a final denial sent by certified

or registered mail. See Johnson v. United States, 652 F.Supp. 407

(E.D. Va. 1987)(plaintiff’s suit was timely although filed over

six months after actual receipt of denial letter by regular

mail).8 The district court, finding no Fifth Circuit law on this

issue, held that because Flory received actual notice of the

denial of her claim and relied upon such denial in filing her

Flory I complaint, the statute of limitations had run.9

The district court and the United States rely upon a Tenth

Circuit case, Pipkin v. United States Postal Service, 951 F.2d

272 (10th Cir. 1991), whose factual background is similar to

Flory’s case. In Pipkin, an arbitration panel denied the

8
Flory also cites Parker v. United States, 935 F.2d 176
(9th Cir. 1991), and Raddatz v. United States, 750 F.2d 791 (9th
Cir. 1984), for this proposition; these cases are distinguishable
on their facts.
9
The district court found that Flory relied upon the
denial letter in filing her Flory I complaint based on language
in the complaint: “This suit is brought within the six month
limitation period following the rejection of the present claim as
provided by the Federal Tort Claims Act 28 U.S.C. Section
2675(a).” Record on Appeal, vol. 1, p. 41.

5
plaintiff’s grievance; the plaintiff received actual notice of

the denial, although not by certified or registered mail. The

plaintiff filed suit within six months of the arbitration

decision, but suit was subsequently dismissed without prejudice

for failure to prosecute. The plaintiff filed a second complaint

that was dismissed as untimely. On appeal, the Tenth Circuit

affirmed the dismissal, holding that the six-month period of

limitations applied, although denial had not been sent by

certified or registered mail. Id. at 274. The Pipkin court found

that the plaintiff was not prejudiced by the agency’s failure to

send notice of denial by certified or registered mail, as the

plaintiff filed his first complaint within six months of the

arbitration decision. Id. In Flory II, the district court

likewise concluded that Flory was not prejudiced.10

The purpose of § 2401(b) is to encourage prompt presentation

of claims. See United States v. Kubrick, 444 U.S. 111, 117, 100

S.Ct. 352, 357 (1979). Notice by certified or registered mail

provides certainty that the claimant receives notice. The United

States asserts that Flory’s actual notice and acknowledgment of

receiving the denial letter satisfies these purposes.

Also, the United States notes that the language of §§

2401(b) and 2675(a) requires that a final denial be “mailed” or

“sent”—— actual notice and receipt is not addressed by the

10
The district court supported its decision that Flory
was not prejudiced by the fact that Flory never argued the flawed
denial letter in Flory I, either to the district court or the
Fifth Circuit on appeal.

6
statutes. Because waivers of sovereign immunity are strictly

construed and ambiguities in statutory language are construed in

favor of immunity, Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092,

2096 (1996), the United States contends that Flory’s actual

notice and reliance on that notice is sufficient to start the

running of the six-month statute of limitations from the date of

the letter.

We decline to reach the merits of the United States’

arguments. In Flory I, the United States received actual notice

of Flory’s FTCA suit through Flory’s service upon the United

States Attorney for the Southern District of Mississippi.

However, the United States was granted its motion to dismiss

Flory I because Flory did not follow the letter of the law in

serving the Attorney General of the United States. The United

States now asks us to look beyond the letter of the law, that

plainly requires notice of denial sent by certified or registered

mail, because Flory received actual notice of denial. On the one

hand, actual notice is insufficient for the United States, and on

the other, it is sufficient. We decline to extend the reading of

§§ 2401(b) and 2675(a) to include an actual notice exception in

this case because “he who comes into equity must come with clean

hands.” See Precision Instrument Mfg. Co. v. Automotive

Maintenance Mach. Co., 324 U.S. 806, 814-15, 65 S.Ct. 993, 997-98

(1945).11

11
Upon so concluding, we decline to reach the merits of
the United States’ alternative argument that Flory deemed her
complaint constructively denied in Flory I, thus, the six-month

7
III. CONCLUSION

For the foregoing reasons, we hold that Flory is not time-

barred from asserting her cause of action against the United

States. Accordingly, we REVERSE the district court’s grant of

summary judgment in favor of the United States, and REMAND for

further proceedings.

period of limitations should run from the date of constructive
denial.

8