Case: 18-40346 Document: 00514791241 Page: 1 Date Filed: 01/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-40346
Fifth Circuit
FILED
Summary Calendar January 11, 2019
Lyle W. Cayce
CATHERINE JENKINS, Clerk
Plaintiff - Appellant
v.
UNITED STATES POSTAL SERVICE; UNITED STATES OF AMERICA,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CV-316
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
This case presents two issues on appeal. The first is whether the
Appellant’s claim for personal injury and property damages, which offers only
general assertions of injury, satisfies the “sum certain” requirement of the
Federal Tort Claims Acts (“FCTA”). 28 U.S.C § 1346(b)(1). The second is
whether equitable tolling applies to this case, where the only reasons offered
for delay are attorney neglect or error. Plaintiff-Appellant Jenkins presses the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-40346 Document: 00514791241 Page: 2 Date Filed: 01/11/2019
No. 18-40346
same arguments offered below, on which the district court ruled, and presents
no new legal arguments or factual allegations.
Following a collision between an employee of the United States Postal
Service (“USPS”) and Ms. Jenkins and her minor children, a rotation of
attorneys sent letters to the USPS indicating that a collision and injury
occurred, requesting the production and preservation of evidence, and
providing notice of representation. While the letters included a request for a
rental vehicle reimbursement, none of the letters specified a monetary sum to
cover injuries. The USPS mailed a letter to Ms. Jenkin’s attorney noting that
the letters were not sufficient to serve as a claim and providing instructions on
how to submit a proper claim. The instructions included the admonition that
a proper claim must provide a “sum certain” amount for injuries or losses, and
that under 28 U.S.C. § 2401(b) an administrative claim must be filed within
two years from the time the claim accrues. Rather than submit an
administrative claim, the attorneys filed suit under the FTCA one month
before the two-year limitations period had run. The district court held an
initial pretrial conference in which Appellants’ counsel admitted that the
letters lacked a sum certain sufficient to make the letters an administrative
claim. The district court granted Appellee’s motion to dismiss, finding that the
court lacked subject matter jurisdiction because Appellants did not present an
administrative claim prior to filing suit and that attorney error or neglect
would not authorize the application of equitable tolling to the FTCA claims.
On appeal, Appellants press the same arguments offered below and
provide no new legal arguments or factual allegations on which the district
court did not rule. Finding no reversible error of fact or law, we AFFIRM the
district court judgment for essentially the same reasons articulated by that
court.
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