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.
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
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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.
FEDERAL TORT CLAIMS ACT
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
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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
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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.
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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
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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.
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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.
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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
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
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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.
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
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opportunity of addressing the issues consistently with this
opinion.
Reversed and Remanded.
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