Metropolitan News-Enterprise


Thursday, May 25, 2006


Page 3


Loss of Claim in Mail Held Fatal to Suit Against Postal Service


By a MetNews Staff Writer


A personal injury suit against the United States Postal Service was correctly dismissed for lack of jurisdiction where, although the plaintiff had timely deposited an administrative claim form in the mail,  the postal service never received it because it was lost in the mail, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed the dismissal of plaintiff Anton Vacek’s Federal Tort Claims Act suit for lack of subject matter jurisdiction by U.S. District Judge Vaughn R. Walker of the Northern District of California.

“We are not allowed to proceed in the absence of fulfillment of the conditions merely because dismissal would visit a harsh result on the plaintiff,” Senior Judge J. Clifford Wallace, writing for the Ninth Circuit, said.

  Vacek was injured on March 9, 1999 when a truck in which he was a passenger was struck by a postal service truck, the record showed. Vacek hired San Francisco attorney Harold J. Truett III to represent him.

Truett telephoned the postal service in late July, 2000, and was told to mail Form 95 to the Customer Service Department in San Francisco. Truett claimed he mailed the completed form on August 7, 2000.

  On August 16 Truett received a letter from the service containing instructions for filling out the form. Truett wrote back one week later, saying: “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 said he enclosed a copy of the completed Form 95 with his letter, although the letter does not indicate that he did.  He did not contact the service again for over a year.

  On March 9, 2001 the time allowed by the statute of limitations for bringing Vacek’s claim expired.

After writing several letters to the service beginning in September 2001 and receiving no response, Truett filed suit against the United States in April 2002.

The United States moved to dismiss on the grounds that Vacek had not exhausted his administrative remedies, as required by the act, because the service never received his completed Form 95. 

Vacek argued that the “mailbox rule,” which creates a presumption of receipt when an item has been properly deposited in the mail, should apply to claims under the act.

Wallace disagreed, noting that the United States can only  be sued to the extent it has waived it’s sovereign immunity.  Although the act waives that immunity “under circumstances where the United States, if a private person, would be liable to the claimant,” he said, quoting the act,  “[t]he Act provides that an ‘action shall not be instituted upon a claim against the United States for money damages’ unless the claimant has first exhausted administrative remedies.”

The judge quoted federal regulations which provide that “a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident . . .”

“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,” Wallace said.  “Furthermore, the administrative exhaustion requirement is satisfied if the administrative agency fails to make final disposition of a claim within six months. . . . 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 statue of limitations, and could have filed the claim anew.”

  Quoting a previous Ninth Circuit opinion, Wallace said,  “We do not think that we should now stretch and distort the statute and the regulations to rescue counsel from their own carelessness.”

  The case is Vacek v. United States Postal Service, 04-15961


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