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Wiseman v. United States

filed: October 9, 1992.

LORNELL WISEMAN, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-90-1204-Z. Thomas S. Zilly, District Judge, Presiding.

Before: Eugene A. Wright, Robert R. Beezer and Edward Leavy, Circuit Judges.

Author: Per Curiam

Per Curiam:

Lornell Wiseman presents the single question whether the district court had jurisdiction to hear this Federal Tort Claims Act (FTCA) personal injury action. The district court dismissed with prejudice Wiseman's claim because the United States Postal Service (the Postal Service), by virtue of issuing a check in the full amount Wiseman entered on a Standard Form 95 ("Claim for Damage, Injury, or Death") (SF 95), never finally denied her claim. See 28 U.S.C. § 2675(a). We reverse.

I

On November 2, 1988, Wiseman suffered injuries in an accident with a Postal Service vehicle. On December 30, 1989, Wiseman filed an amended SF 95, on which she listed property damage of $3,900 and personal injury of $5,918.23, a total of $9,818.23. Immediately below the lines on which she listed her damages, the SF 95 contains a preprinted statement in bold capital letters:

I CERTIFY THAT THE AMOUNT OF CLAIM COVERS ONLY DAMAGES AND INJURIES CAUSED BY THE ACCIDENT ABOVE AND AGREE TO ACCEPT SAID AMOUNT IN FULL SATISFACTION AND FINAL SETTLEMENT OF THIS CLAIM

Wiseman signed and dated the SF 95 in the space provided immediately below this statement. Wiseman's amended SF 95 fails to state that the claim is partial or that additional personal injury damage amounts will be forthcoming.

On March 7, 1990, the Postal Service issued a $9,818.23 check to Wiseman in full settlement of her claim. Wiseman's attorney received the check on March 12, 1990. On March 13, 1990, Wiseman's attorney informed the Postal Service that his client could not accept the $9,818.23 check in full settlement. The check was returned to the Postal Service.

On April 26, 1990, the Postal Service issued a "final denial . . . pursuant to 28 U.S.C. § 2675(a)." In its final denial, the Postal Service determined that Wiseman could not recover damages beyond the amount presented by her and paid by the Postal Service and that payment in full of the amount on the SF 95 precluded amendment of her claim.

On May 10, 1990, Wiseman sought reconsideration and, on June 11, 1990, filed an amended SF 95 seeking $253,900. On July 9, 1990, the Postal Service acknowledged Wiseman's timely request for reconsideration, but stood firm on the determinations in its April 26 letter. Wiseman filed suit in the district court on August 27, 1990. The district court dismissed Wiseman's action for lack of subject matter jurisdiction on March 12, 1991.

II

Presenting an FTCA claim to the appropriate governmental agency and having it denied*fn1 is a jurisdictional prerequisite to filing a claim in the district court. We review de novo a dismissal for lack of subject matter jurisdiction. Meridian Int'l Logistics v. United States, 939 F.2d 740, 742-43 (9th Cir. 1991) (basing jurisdiction on 28 U.S.C. §§ 1346(b), 2675(a)).

The parties agree that a skeletal SF 95 meets the jurisdictional requirements of ยง 2675(a). The parties also agree that granting an FTCA claim in full does not constitute denial of a claim, which is one of two alternative requirements for jurisdiction in the district court. The parties dispute that check issuance ...


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