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Tort/Negligence – FTCA – Exhaustion of Administrative Remedies – Claim Amendment – Reset Clock

Weston v. United States (Lawyers Weekly No. 15-03-0925, 26 pp.) (William Osteen Jr., J.) 1:15-cv-00084; M.D.N.C.

Holding: After plaintiff was injured in an auto accident with an employee of the Federal Aviation Administration, a letter from her attorney demanding $3,000 was sufficient to constitute a “claim” within the meaning of the Federal Tort Claims Act. However, the attorney’s subsequent letters demanding significantly more (first $40,000, then an additional $17,200) constituted amendments to the original letter, thus giving the FAA six more months to respond before plaintiff’s administrative remedies were exhausted and she could file suit.

Since plaintiff did not wait the required six months before filing suit, her complaint is dismissed without prejudice for failing to exhaust her administrative remedies.

While plaintiff contends that she bargained in good faith to resolve the dispute and that defendant did not, because the FTCA’s exhaustion requirement is jurisdictional in nature, the court cannot create an equitable exception to the six-month time period.

Even though the FAA denied plaintiff’s claim after she filed suit, McNeil v. United States, 508 U.S. 106 (1993), rejected a plaintiff’s argument that an agency’s later denial of his claim cured his premature filing of an action.

Defendant argues that the original letter did not sufficiently demonstrate that counsel was authorized by plaintiff to file a claim on her behalf. However, the appearance of an attorney for a party raises a presumption that the attorney has the authority to act on that party’s behalf. The FAA responded to counsel’s letter but made no mention of needing further proof of counsel’s authority to make a claim on plaintiff’s behalf.

Although the FAA’s response implied that counsel’s letter was deficient as a claim, such an implication does not render the letter deficient as a claim.

Defendant also argues that counsel’s failure to sign the letter rendered it deficient. While there is little guidance from binding authority on this issue, this court is persuaded by Warren v. United States Dep’t of Interior Bureau of Land Mgmt., 724 F.2d 776 (9th Cir. 1984). Refusing to grant jurisdiction because of the absence of a signature is contrary to the purposes of the FTCA. Ruling the letter as a deficient claim would result in unfair and inequitable treatment of a claimant; in contrast, doing the opposite would not significantly increase any burden on courts or agencies. Where the jurisdictional requirement of minimal notice required to cause an agency to investigate a claim is met, a failure to authenticate or sign a claim is not fatal.

Defendant has not overcome the burden of showing that counsel was unauthorized to act on plaintiff’s behalf.

Dismissed without prejudice.

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