Vacek v. United States Postal Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTON VACEK, 
Plaintiff-Appellant,
and
GOLDEN EAGLE INSURANCE No. 04-15961
COMPANY,
Plaintiff,  D.C. No.
CV-02-1406-VRW
v. OPINION
UNITED STATES POSTAL SERVICE;
UNITED STATES OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding

Argued and Submitted
February 15, 2006—San Francisco, California

Filed May 24, 2006

Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Wallace;
Concurrence by Judge Thomas

5739
 VACEK v. UNITED STATES POSTAL SERVICE 5741

COUNSEL

Harold J. Truett, III, San Francisco, California, for Appellant
Anton Vacek.

Kevin V. Ryan, United States Attorney; Joann Swanson,
Chief, Civil Division; Abraham A. Simmons, Assistant
United States Attorney, San Francisco, California, for Appel-
lee United States of America.
5742 VACEK v. UNITED STATES POSTAL SERVICE
OPINION

WALLACE, Circuit Judge:

Anton Vacek (Vacek) appeals from the district court’s
judgment of dismissal of his Federal Tort Claims Act (Act)
claim for lack of subject matter jurisdiction. We have jurisdic-
tion over this appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

On March 9, 1999, Vacek was injured when his employer’s
truck, in which he was a passenger, was struck by a United
States Postal Service (USPS) truck. His workers’ compensa-
tion claim was processed by Golden Eagle Insurance Com-
pany, his employer’s insurance company and the co-appellant
in this case.

Vacek retained Harold Truett as his attorney. According to
Truett’s declaration, Truett telephoned the USPS in late July
2000 to determine how to proceed with Vacek’s claim. He
was told to complete a Standard Form 95 and to mail it to
Truedell Griffin in the Customer Service Department in San
Francisco. Truett alleges that he received a Form 95 soon
after his telephone call, and that he mailed a completed copy
of it to Griffin on August 7, 2000.

On August 16, 2000, Truett received a letter from the USPS
containing instructions on how to fill out the Form 95. Truett
responded one week later: “A properly completed claim form
SF95 was mailed to you a couple weeks back, has not been
returned, and I assume has been accepted by the USPS. If this
is incorrect, kindly advise.” Truett declared that he enclosed
another copy of the Form 95 with this letter, although there
is no indication from the letter itself that he did so.

After this letter, Truett did not contact the USPS for over
a year. In the meantime, on March 9, 2001, the statute of limi-
tations expired on Vacek’s claim.
 VACEK v. UNITED STATES POSTAL SERVICE 5743
On September 28, 2001, Truett wrote to Griffin and offered
to settle Vacek’s claim for $75,000. After not receiving a
response, Truett wrote three more letters to USPS. Still not
having received a response, Truett filed suit against the
United States in the district court in April 2002.

On February 5, 2004, the United States moved to dismiss
Vacek’s suit for lack of subject matter jurisdiction. The
United States argued that Vacek had failed to exhaust admin-
istrative remedies, as required by the Act, see 28 U.S.C.
§§ 2401(b), 2675(a), because the USPS had never received
his completed Form 95. In support of the motion to dismiss,
the United States submitted declarations from Griffin and
from Kathleen Arndt, an attorney with the USPS legal depart-
ment. These declarations stated that the USPS had no record
of ever receiving Vacek’s claim.

In opposition, Vacek submitted Truett’s declaration, which
stated that Truett had prepared and mailed the Form 95 on
August 7, 2000. Truett also presented evidence that he had
created a mailing envelope on that day, and that his secretary
had made a notation that the complaint was filed.

The district court dismissed the claim for lack of subject
matter jurisdiction. The court held that Vacek had “not carried
his burden with respect to [proving] receipt” of the form. The
court also held that the September 2001 settlement offer did
not fulfill the administrative exhaustion requirement because
it was sent after the statute of limitations had expired. In
response to Vacek’s argument that the USPS should have
been on notice of the claim, the court stated that “the jurisdic-
tional requirements of the administrative exhaustion provi-
sions are not subject to equitable tolling.”

II

We review the district court’s judgment of dismissal for
lack of subject matter jurisdiction de novo. Bramwell v. U.S.
5744 VACEK v. UNITED STATES POSTAL SERVICE
Bureau of Prisons, 348 F.3d 804, 806 (9th Cir. 2003). We
also review the district court’s interpretation of the Act de
novo. Lehman v. United States, 154 F.3d 1010, 1013 (9th Cir.
1998).

A

It is axiomatic that

[f]ederal courts are courts of limited jurisdiction.
They possess only that power authorized by Consti-
tution and statute, which is not to be expanded by
judicial decree. It is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party assert-
ing jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (citations omitted).

[1] Sovereign immunity is an important limitation on the
subject matter jurisdiction of federal courts. The United
States, as sovereign, can only be sued to the extent it has
waived its sovereign immunity. See, e.g., Dep’t of the Army
v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). The Supreme
Court has “frequently held . . . that a waiver of sovereign
immunity is to be strictly construed, in terms of its scope, in
favor of the sovereign.” Id. at 261.

[2] The Act “waives the sovereign immunity of the United
States for certain torts committed by federal employees ‘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.’ ” Smith v.
United States, 507 U.S. 197, 201 (1993) (emphasis omitted),
quoting 28 U.S.C. §1346(b). The Act provides that an “action
shall not be instituted upon a claim against the United States
 VACEK v. UNITED STATES POSTAL SERVICE 5745
for money damages” unless the claimant has first exhausted
administrative remedies. 28 U.S.C. § 2675(a).

[3] We have repeatedly held that the exhaustion require-
ment is jurisdictional in nature and must be interpreted
strictly:

This is particularly so since the [Act] waives sover-
eign immunity. Any such waiver must be strictly
construed in favor of the United States. Section
2675(a) establishes explicit prerequisites to the filing
of suit against the Government in district court. It
admits of no exceptions. Given the clarity of the stat-
utory language, we cannot enlarge that consent to be
sued which the Government, through Congress, has
undertaken so carefully to limit.

Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992)
(internal quotations and citations omitted); see also Cad-
walder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). We
are not allowed to proceed in the absence of fulfillment of the
conditions merely because dismissal would visit a harsh result
upon the plaintiff. See United States v. Kubrick, 444 U.S. 111,
117-18 (1979). With regard to the exhaustion requirement, the
Supreme Court has stated that “in the long run, experience
teaches that strict adherence to the procedural requirements
specified by the legislature is the best guarantee of even-
handed administration of the law.” McNeil v. United States,
508 U.S. 106, 113 (1993), quoting Mohasco Corp. v. Silver,
447 U.S. 807, 826 (1980).

B

[4] Federal regulations appear to control this appeal. 28
C.F.R. § 14.2 governs the question of when an administrative
claim is presented for purposes of the Act. It states: “a claim
shall be deemed to have been presented when a Federal
agency receives from a claimant . . . an executed Standard
5746 VACEK v. UNITED STATES POSTAL SERVICE
Form 95 or other written notification of an incident . . . .” Id.
(emphasis added). Similarly, 39 C.F.R. § 912.5, which gov-
erns damage arising out of the operation of the USPS, main-
tains that “a claim shall be deemed to have been presented
when the U.S. Postal Service receives from a claimant . . . an
executed Standard Form 95 . . . or other written notification
of an incident . . . .” Id.

[5] In spite of the clear language of the regulation, Vacek
relies on Schikore v. BankAmerica Supp. Ret. Plan, 269 F.3d
956, 961 (9th Cir. 2001), to contend that the mailbox rule
should apply to claims under the Act. The common law mail-
box rule provides that the proper and timely mailing of a doc-
ument creates a “rebuttable presumption that the document
has been received by the addressee . . . .” Id. However, Schi-
kore involved ERISA claims and has nothing to do with the
waiver of sovereign immunity; thus, it is inapplicable to this
case.

In any event, Vacek’s argument is foreclosed by Bailey v.
United States, 642 F.2d 344 (9th Cir. 1981). There, the plain-
tiff’s decedent was killed in an explosion on a United States
Air Force field. Two co-workers were also injured in the same
explosion. The same law firm represented the co-workers and
Bailey’s heirs in a suit against the United States for negli-
gence. Id. at 345. The law firm filed the necessary claim
papers for the injured co-workers first, and the claims officer
in charge promptly sent acknowledgments of receipt. Id. In
the meantime several letters passed between the law firm and
the Air Force regarding the Bailey claim, containing detailed
information about the claim that was to be filed, including
Bailey’s funeral bills. Id. at 346. The claims officer replied
that the file would be complete once Bailey’s administrative
claim was received.

Bailey’s attorneys mailed the claim forms on September
13, 1976. Upon learning in June 1977 that one of the co-
worker’s claims was denied, the lawyers inquired about Bai-
 VACEK v. UNITED STATES POSTAL SERVICE 5747
ley’s claim and were told that there was no record that the Air
Force had ever received it. The attorneys immediately sent
copies of the claim, but the Air Force refused to consider it
because it was not filed within two years of the accident. Id.
For the purposes of the appeal, the government accepted that
the claim form had been mailed. Id. In the district court, the
government presented the affidavits of four claims officers
stating that they had never received the claim. The district
court dismissed the action for lack of subject matter jurisdic-
tion. Id.

[6] We affirmed. “[T]he claim was not ‘presented,’ i.e.,
‘received’ by the agency, as the statute and the regulation
require, within two years. Yet Bailey . . . would have us read
an exception into the statute and the regulations because of
the particular circumstances in this case.” Id. at 346-47. We
continued: “[W]e reject appellant’s claim for relief from the
requirements of the Act. . . . Nor do we accept appellants’
invitation to rewrite the Act and in effect repeal the regulation
by holding that mailing alone is sufficient to meet the require-
ment that a claim be ‘presented.’ ” Id. at 347.

Our opinion then continued to a specific discussion of the
mailbox rule. “Finally, we reject appellants’ claim that a pre-
sumption of receipt arises in this case. Assuming, without
deciding, that such a presumption may arise under federal
law, it was amply rebutted by the affidavits presented to the
district court by the government.” Id.

[7] Bailey presents virtually identical facts to the case at
hand. As in Bailey, Vacek’s counsel did not send the form by
certified mail. As in Bailey, there was a long series of com-
munications between plaintiff’s counsel and the administra-
tive agency. As in Bailey, Vacek’s counsel did nothing to
verify that the claim had been received. As in Bailey, the gov-
ernment provided affidavits attesting that the claim was never
received. There is no principled distinction that can be drawn.
Bailey controls this appeal.
5748 VACEK v. UNITED STATES POSTAL SERVICE
C

[8] In light of the Supreme Court’s repeated admonition
that waivers of sovereign immunity must be interpreted
strictly, we conclude that Bailey sets out the correct rule of
law. Since Bailey, virtually every circuit to have ruled on the
issue has held that the mailbox rule does not apply to Act
claims, regardless of whether it might apply to other federal
common law claims. See, e.g., Moya v. United States, 35 F.3d
501, 504 (10th Cir. 1994) (“It is the plaintiff’s burden to
establish the proper agency’s receipt of the request for recon-
sideration”); Bellecourt v. United States, 994 F.2d 427, 430
(8th Cir. 1993) (upholding dismissal where “the ‘request for
administrative remedy’ was not mailed by certified mail [and]
the ‘request for administrative remedy’ was not received by
the Federal Bureau of Prisons”); Drazan v. United States, 762
F.2d 56, 58 (7th Cir. 1985) (“[T]he district court was quite
right to hold that mailing is not presenting; there must be
receipt”). Put simply, it cannot be strict construction of the
waiver to read the word “received” as actually meaning
“mailed.”

There is only one circuit case to have interpreted the Act
to allow the mailbox rule. Barnett v. Okeechobee Hosp., 283
F.3d 1232, 1238-39 (11th Cir. 2002). There, Barnett asserted
that he had mailed a completed Form 95 and included in his
amended complaint a copy of the form, the accompanying
cover letter, and a copy of the envelope in which he mailed
it. Id. at 1238. The court found that this evidence “raise[d] an
inference” that he had mailed the documents. Id. The court
then detailed the acceptance of the mailbox rule and stated
that the government had a financial stake in the outcome of
this litigation. Id. at 1240. The court then concluded: “[W]e
simply believe that the VA should not be accorded any special
presumption of believability because it is a branch of the
United States government and should be treated no differently
than a private defendant . . . .” Id.
 VACEK v. UNITED STATES POSTAL SERVICE 5749
Unlike the court in Barnett, we can think of at least one
reason why the federal government should be treated differ-
ently from a private defendant in this situation: the federal
government must waive sovereign immunity. “In analyzing
whether Congress has waived the immunity of the United
States, [courts] must construe waivers strictly in favor of the
sovereign, and not enlarge the waiver beyond what the lan-
guage requires.” Library of Congress v. Shaw, 478 U.S. 310,
318 (1986) (internal quotation marks and citations omitted).
Because Barnett is contrary to the law of the Supreme Court,
to our circuit, and to that of three other circuits, we will not
follow it.

It would have taken minimal effort on the part of Vacek’s
attorney to verify that the claim had been received: sending it
by certified mail. Furthermore, the administrative exhaustion
requirement is satisfied if the administrative agency fails to
make final disposition of a claim within six months. 28
U.S.C. § 2675(a). If Vacek’s attorney had contacted the USPS
six months after he first mailed the form rather than waiting
for over a year, he still would have been within the statute of
limitations and could have filed the claim anew. “We do not
think that we should now stretch and distort the statute and
the regulation to rescue counsel from their own carelessness.”
Bailey, 642 F.2d at 347.

Although neither party cited Bailey in the briefs, Vacek’s
counsel conceded Bailey’s controlling effect at oral argument,
calling it “a killer case for the government.” He continued, “I
recall sitting and reading the dissent and hoping that would
become the rule of the circuit.” As a three-judge panel of the
circuit, we have no such power. See Barapind v. Enomoto,
400 F.3d 744, 751 n.8 (9th Cir. 2005) (en banc) (per curiam).
Nor do we think Bailey was wrongly decided. Bailey directly
controls.

D

Vacek further argues that mail carriers are representatives
and mailboxes are extensions of the USPS, such that deposit-
5750 VACEK v. UNITED STATES POSTAL SERVICE
ing a letter with either one satisfies the presentment require-
ment. Vacek did not raise this argument in the district court
and, therefore, we will not address it. See Singleton v. Wulff,
428 U.S. 106, 120 (1976).

E

Finally, Vacek argues that the USPS should be estopped
from arguing that it never received Vacek’s Form 95, because
it does not deny receiving multiple letters explicitly mention-
ing the form.

Vacek’s argument is foreclosed by our caselaw. The United
States may assert “the insufficiency of [an] administrative
claim under section 2675(a)” at any time because “[t]he gov-
ernment may not be equitably barred from asserting jurisdic-
tional requirements.” Burns v. United States, 764 F.2d 722,
724 (9th Cir. 1985); see also Claremont Aircraft, Inc. v.
United States, 420 F.2d 896, 898 (9th Cir. 1969) (“[O]rdinary
principles of estoppel or waiver are not applied against the
Government”). Furthermore, the requirements of the Act are
“jurisdictional in nature and may not be waived.” Blain v.
United States, 552 F.2d 289, 291 (9th Cir. 1977).

AFFIRMED.

THOMAS, joined by HAWKINS, Circuit Judges, concurring:

This case provides fresh meaning to James M. Cain’s “The
Postman Always Rings Twice.”1 Anton Vacek was first struck
1
JAMES M. CAIN, THE POSTMAN ALWAYS RINGS TWICE (KNOPF, 1934); See
also THE POSTMAN ALWAYS RINGS TWICE (WARNER, 1981); THE POSTMAN
ALWAYS RINGS TWICE (MGM, 1946); LE DERNIER TOURNANT (LUX PRODUC-
TIONS, 1939). The title is ironic because there is no reference to a postman
either in Cain’s book or in the subsequent film adaptations. When asked
 VACEK v. UNITED STATES POSTAL SERVICE 5751
by a Post Office truck, and then had his damage claim
stamped out because the Post Office lost it in the mail.2

The legal question presented by this case is whether the
United States Post Office is entitled to immunity from suit
when its employees lose a plaintiff’s claim in the mail? The
answer, based on the letter of the law as expressed in Bailey
v. United States, 642 F.2d 344 (9th Cir. 1981), appears to be
“yes.” However, because subsequent case law has under-
mined Bailey, and because I believe Bailey was incorrectly
decided, I write separately to urge re-examination of the Bai-
ley rule.

I

The Federal Tort Claims Act (“FTCA”) “waives the United
States’ sovereign immunity for actions in tort” and permits
claimants to sue the United States in district court after com-
plying with administrative requirements. Cadwalder v. United
States, 45 F.3d 297, 300 (9th Cir. 1995). Before filing a law-
suit, a claimant must “have first presented the claim to the
appropriate Federal agency,” 28 U.S.C. § 2675(a), “within
two years after such claim accrues,” 28 U.S.C. § 2401. Sec-
tion 2675(a) “admits of no exceptions. Given the clarity of the
statutory language, we cannot enlarge that consent to be sued
which the Government, through Congress, has undertaken so
carefully to limit.” Jerves v. United States, 966 F.2d 517, 521
(9th Cir. 1992) (internal quotations omitted).

for an explanation, Cain purportedly explained that his manuscript had
been rejected by 13 publishers prior to being accepted for publication on
his 14th attempt, so that when the publisher asked him what he wanted the
work to be entitled he drew on this experience and suggested The Postman
Always Rings Twice. Like Vacek, Cain apparently had come to associate
the postal service with dark disappointment.
2
The Postal Service disputes this, but in reviewing a dismissal for lack
of subject matter jurisdiction, we construe the facts in the light most favor-
able to the plaintiff. Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th
Cir. 1999).
5752 VACEK v. UNITED STATES POSTAL SERVICE
The presentation requirements of §§ 2401 and 2675 are sat-
isfied when a federal agency receives “an executed Standard
Form 95 or other written notification of an incident, accompa-
nied by a claim for money damages in a sum certain.” 28
C.F.R. § 14.2 (administrative claims under the FTCA). See
also 39 C.F.R. § 912.5 (procedures for adjudicating claims
against the USPS); Burns v. United States, 764 F.2d 722, 724
(9th Cir. 1985) (“the view held by the Ninth Circuit is that the
jurisdictional requirement of minimum notice is satisfied by
(1) a written statement sufficiently describing the injury to
enable the agency to begin its own investigation, and (2) a
sum certain damages claim.”) (internal quotations omitted).

We have refused to hold that mailing a letter “alone is suf-
ficient to meet the requirement that a claim be ‘presented.’ ”
Bailey, 642 F.2d at 347. However, we have assumed, without
deciding, that the mailbox rule applies to FTCA cases. Id.3
3
It is worth noting that since we assumed that the mailbox rule applies
to FTCA cases in Bailey, we have consistently held that the mailbox rule
applies to cases against the United States. See, e.g., Lewis v. United States,
144 F.3d 1220, 1222 (9th Cir. 1998) (“The law of this circuit is clear. We
go by the ‘mail box rule.’ Proper and timely mailing of a document raises
a rebuttable presumption that the document has been timely received by
the addressee. The rule applies to mailings by taxpayers to the Service.”)
(internal citations omitted).
Moreover, our assumption in Bailey that the mailbox rule applies to
FTCA claims is in accord with other circuits. See Barnett v. Okeechobee
Hosp., 283 F.3d 1232, 1238-39 (11th Cir. 2002). The majority opinion’s
statements to the contrary are not supported. In Moya v. United States, 35
F.3d 501, 504 (10th Cir. 1994), the Tenth Circuit considered the applica-
tion of the mailbox rule to FTCA cases. It did not hold, as the majority
suggests, that the mailbox rule does not apply. Rather, it held: “While the
law presumes delivery of a properly addressed piece of mail, no such pre-
sumption exists for certified mail where the return receipt is not received
by the sender.” Id. at 504 (citations omitted and emphasis added). Simi-
larly, in Bellecourt v. United States, 994 F.2d 427 (8th Cir. 1993), the
Eighth Circuit held that a plaintiff had failed to meet the presentment
requirements of the FTCA. However, it is not clear at all that the Eighth
Circuit based its opinion on the inapplicability of the mailbox rule to
 VACEK v. UNITED STATES POSTAL SERVICE 5753
Our assumption that the mailbox rule applies to FTCA cases
makes sense. As we have previously recognized, the mailbox
rule is “a settled feature of federal common law,” and may be
applied to so long as its application is consistent with Con-
gress’s statutory scheme. Schikore v. BankAmerica Supple-
mental Ret. Plan, 269 F.3d 956, 961, 963 (9th Cir. 2001).

Prior to 1966, administrative agencies could only settle
FTCA claims of less than $2,500, and litigants claiming more
were required to file suit in federal court. The limitation on
agencies’ ability to settle meant that a large number of suits
were filed in federal court. In 1966, Congress amended 28
U.S.C. § 2675 to its current form, which requires all potential
litigants to file their claims with the appropriate administra-
tive agency before going to court. With the amendment, Con-
gress intended to provide “for more fair and equitable
treatment of private individuals and claimants when they deal
with the Government or are involved in litigation with their
Government” and to “ease court congestion and avoid unnec-
essary litigation, while making it possible for the Government
to expedite the fair settlement of tort claims asserted against
the United States.” S. REP. NO. 89-1327, 1966 U.S.C.C.A.N.
2515, 2516 (1966). We have interpreted the legislative history
of the 1966 amendments to mean that Congress intended
§ 2675 to require only “minimal notice” of a claim against
government agencies. Shipek v. United States, 752 F.2d 1352,
1354 (9th Cir. 1985).

The mailbox rule, which creates a rebuttable presumption
that a properly addressed and mailed letter will arrive at its
destination within a reasonable amount of time, is consistent

FTCA claims. Rather, the Eighth Circuit appears to have based its deci-
sion on the fact that the plaintiff used the wrong form for his FTCA claim
and failed to comply with the “sum certain” requirement. Finally, in Dra-
zan v. United States, 762 F.2d 56, 58 (7th Cir. 1985), the Seventh Circuit
makes no mention of the mailbox rule’s presumption of receipt, and we
cannot infer that the Seventh Circuit considered it.
5754 VACEK v. UNITED STATES POSTAL SERVICE
with this “minimal notice” requirement and Congress’s intent
to make the FTCA claim procedure more fair to litigants,
especially when applied to the USPS. As we have recognized,
“[i]n the absence of the use of registered or certified mail, on
the one hand, and a returned envelope or other indication of
failed delivery, on the other, both receipt and non-receipt are
difficult to prove conclusively.” Schikore, 269 F.3d at 963
(internal quotations omitted). The mailbox rule fills that gap,
enabling the claimant to prove his or her case. To require the
litigant — who has no access to the annals of a government
agency — to present concrete evidence of receipt in the
absence of certified or registered mail would impose an insur-
mountable obstacle.

Furthermore, application of the mailbox rule does not
impose an unreasonable burden on government agencies, nor
does it impermissibly broaden the scope of Congress’s waiver
of the United States’ immunity, because it does not, as the
majority opinion suggests, alter the receipt requirement of
§ 2675 and enlarge Congress’s waiver of sovereign immunity.
See United States v. Kubrick, 444 U.S. 111, 118 (1979) (not-
ing that the courts should neither extend nor narrow the con-
gressional waiver of the United States’ immunity). Following
our lead in Bailey, a plaintiff must still prove receipt as the
statute requires, but he may rely on the mailbox rule’s rebut-
table presumption to do so.

II

Although I agree with our assumption in Bailey that the
mailbox rule applies to FTCA cases, I believe that our deci-
sions in more recent mailbox rule cases have undermined sub-
stantially our interpretation of the mailbox rule in that case.
There, the plaintiff’s counsel mailed an FTCA claim to the
Air Force and argued, based on the common law mailbox
rule, that his having mailed the claim created a presumption
of receipt by the Air Force. The Air Force presented affidavits
of several officers who stated that the claim had never been
 VACEK v. UNITED STATES POSTAL SERVICE 5755
received. We assumed that the mailbox rule applied, but held
that the presumption of receipt “was amply rebutted by the
affidavits presented to the district court by the government.”
Bailey, 642 F.2d at 347.

The majority opinion correctly points out that the facts of
this case are close, if not indistinguishable, from Bailey. Both
plaintiffs sent FTCA claims to government agencies by regu-
lar mail, both plaintiffs had lengthy discussions with the rele-
vant government agency, and both agencies provided
affidavits stating that the FTCA claim was never received.
Because we held in Bailey that the agency’s affidavits rebut-
ted the presumption of receipt in Bailey, so too, says the
majority opinion, the USPS affidavits in this case rebut the
presumption of receipt. I do not disagree with this conclusion;
however, application of the Bailey rule here fails to account
for more recent developments in our interpretation of the
mailbox rule.

Since Bailey, we have required more than an affidavit
claiming non-receipt to rebut the mailbox rule’s presumption
of receipt. In deciding Schikore in 2001, we rejected an argu-
ment identical to the one we had accepted 20 years earlier in
Bailey. We conducted a detailed analysis of “mailbox rule”
claims and held that a receiving party must do more than
swear that it did not receive a claim to rebut a presumption of
receipt. The receiving party must

describe in detail its procedures for receiving, sort-
ing, and distributing mail, to show that these proce-
dures were properly followed at the time when the
document in question might conceivably have been
delivered by the postal service, to provide evidence
that it has conducted a thorough search for the docu-
ment at the addressee’s physical facility, and to
establish that had the document been received
around the time the claimant asserted it was mailed,
5756 VACEK v. UNITED STATES POSTAL SERVICE
it would presently be at the location searched by the
[receiving party].

269 F.3d at 964. Applying Schikore in the FTCA context,
affidavits from the government stating that it did not receive
a plaintiff’s FTCA claim, like those produced in Bailey and
in this case, are insufficient to rebut the presumption of
receipt created by the mailbox rule. Thus, Bailey and Schikore
command opposite results.

The majority implies that there is no tension between Schi-
kore and Bailey by noting that “Schikore involved ERISA
claims and has nothing to do with the waiver of sovereign
immunity; thus, it is inapplicable to this case.” However, I do
not find this distinction persuasive. The mailbox rule is an
evidentiary presumption that has been applied consistently to
settle disputes about whether a properly mailed claim was
received. If, as Bailey assumed, the mailbox rule applies to
FTCA cases, it should apply with full force, even when the
defendant is the USPS. We do not change the standards for
admission of hearsay evidence when the government is the
defendant. Nor should we alter the operation of the mailbox
rule when the government is the defendant.

Moreover, if, as the majority opinion reasons, the Bailey
rule, and not that set forth in Schikore, applies to FTCA cases,
the mailbox rule would serve no purpose. The government
could rebut a presumption of receipt simply by claiming “we
never received it,” without showing that it had made a reason-
able effort to search for the missing document. Under the Bai-
ley construction of the mailbox rule, a litigant remains in the
precise position that the mailbox rule seeks to avoid: the liti-
gant — who has no access to the vast machinery of a govern-
ment agency — would have to present concrete evidence that
his claim was received. Such a result is inconsistent with Con-
gress’s intent to provide “for more fair and equitable treat-
ment of private individuals . . . [who] are involved in
 VACEK v. UNITED STATES POSTAL SERVICE 5757
litigation with their Government,” and our interpretation of
§ 2675 as requiring only “minimal notice.”

Thus, as Judge Jameson observed in his dissent in Bailey:

Merely because the administrative claim require-
ment is a “jurisdictional prerequisite” should not
foreclose our consideration of these equitable fac-
tors. In House v. Mine Safety Appliance Co., 573 609
(9th Cir. 1978), a case relied on by the majority, this
court recognized that where “unusual and compel-
ling circumstances” exist, literal compliance with the
administrative claim requirements may be excused.
Id. at 618. This court “softened the vigor” of [the
regulation] because certain claimants presented
problems not previously considered by this court and
their failure to strictly comply with the regulations
did not prejudice the government.

642 F.2d at 349.

Judge Jameson examined other statutes in which “jurisdic-
tional” time limits applied, and noted that a number of excep-
tions had been forged in order “to give effect to the broad
remedial purposes” of the acts. Id. He concluded: “I see no
reason why the FTCA time limitation should not likewise be
construed to give effect to the remedial purposes of the Act.”
Id.

The rule proposed by Judge Jameson in his dissent would
not render the FTCA time limits any less meaningful. Rather,
it would allow presentation of evidence to establish that a
claim had, in fact, been timely filed — as opposed to closing
the federal courthouse doors based on a contested government
affidavit alone.

In Bailey, as in this case, the plaintiffs vigorously denied
that they had slept on their rights. In Bailey, as in this case,
5758 VACEK v. UNITED STATES POSTAL SERVICE
the plaintiffs tendered evidence showing repeated attempts to
contact the government, and specific evidence that the claim
had, in fact, been mailed. Under such circumstances, the gov-
ernment ought not to be allowed to escape a valid cause of
action simply by tendering an affidavit that a government
official had examined his own files and had not found the
claim.

III

In sum, I would expressly apply the mailbox rule to FTCA
claims. I would overrule Bailey, and adopt the cogent and per-
suasive reasoning of Judge Jameson’s dissent. Bailey, 642
F.2d at 348-50. However, because I agree that Bailey controls
this case, I concur in the majority opinion.