concurring:
This case provides fresh meaning to James M. Cain’s “The Postman Always Rings Twice.”1 Anton Vacek was first struck 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 *1254Office is entitled to immunity from suit when its employees lose a plaintiffs 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 undermined Bal-ley, and because I believe Bailey was incorrectly decided, I write separately to urge re-examination of the Bailey 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 complying with administrative requirements. Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir.1995). Before filing a lawsuit, 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. Section 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).
The presentation requirements of §§ 2401 and 2675 are satisfied when a federal agency receives “an executed Standard Form 95 or other written notification of an incident, accompanied 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 sufficient 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
*1255Our 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 Congress’s statutory scheme. Schikore v. BankAmerica Supplemental 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 administrative agency before going to court. With the amendment, Congress 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 unnecessary 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 rebut-table presumption that a properly addressed and mailed letter will arrive at its destination within a reasonable amount of time, is consistent 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 insurmountable 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, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (noting that the courts should neither extend nor narrow the congressional 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 rebuttable 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 decisions in more recent mailbox rule cases have undermined substantially our interpretation of the mailbox rule in that case. There, the plaintiffs counsel mailed an FTCA claim to the Air Force and argued, based on the common law mailbox rule, that his *1256having 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 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 regular mail, both plaintiffs had lengthy discussions with the relevant 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 rebutted 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 argument 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, sorting, and distributing mail, to show that these procedures 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 document at the addressee’s physical facility, and to establish that had the document been received around the time the claimant asserted it was mailed, 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 plaintiffs 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 Schikore 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 reasonable effort to search for the missing document. Under the Bailey construction of the mailbox rule, a litigant remains in the precise position that the mailbox rule seeks to avoid: the litigant— who has no access to the vast machinery of *1257a government agency — would have to present concrete evidence that his claim was received. Such a result is inconsistent with Congress’s intent to provide “for more fair and equitable treatment of private individuals ... [who] are involved in 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 requirement is a “jurisdictional prerequisite” should not foreclose our consideration of these equitable factors. In House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.1978), a case relied on by the majority, this court recognized that where “unusual and compelling 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 “jurisdictional” time limits applied, and noted that a number of exceptions 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, 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 government 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.
Ill
In sum, I would expressly apply the mailbox rule to FTCA claims. I would overrule Bailey, and adopt the cogent and persuasive 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.
. 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 PRODUCTIONS, 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 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.
. The Postal Service disputes this, but in reviewing a dismissal for lack of subject matter jurisdiction, we construe the facts in the light most favorable to the plaintiff. Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir.1999).
. 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 application 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 presumption exists for certified mail where the return receipt is not received by the sender.” Id. at 504 (citations omitted and emphasis added). Similarly, 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 FTCA claims. Rather, the Eighth Circuit appears to have based its decision 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 Drazan 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 *1255cannot infer that the Seventh Circuit considered it.