Gorman v . United States 11-CV-538-SM 10/16/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Daniel Gorman, Plaintiff

v. Case N o . 11-cv-538-SM Opinion N o .

United States of America, Defendant

O R D E R

Daniel Gorman brings this action seeking damages for

injuries he sustained when his car was struck by a vehicle driven

by an employee of the United States Postal Service (“USPS”). The

government moves to dismiss Gorman’s suit, saying he failed to

file a timely administrative claim with the USPS and, therefore,

this court lacks subject matter jurisdiction over his claims.

Gorman objects.

Standard of Review

When faced with a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1), the plaintiff, as the

party invoking the court’s jurisdiction, has the burden to

establish by competent proof that such jurisdiction exists. See

Bank of N.H. v . United States,

1 4 , 215 (D.N.H.

2000). And, in determining whether that burden has been met, the

court must construe that complaint liberally, “treating all well- pleaded facts as true and indulging all reasonable inferences in

favor of the plaintiff.” Aversa v . United States,

(1st Cir. 1996). Importantly, however, the court may also

consider whatever evidence the parties have submitted, such as

depositions, exhibits, and affidavits, without converting the

motion to dismiss into one for summary judgment.

In a situation where the parties dispute the predicate facts allegedly giving rise to the court’s jurisdiction, the district court will often need to engage in some preliminary fact-finding. In that situation, the district court enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction. In such a case, the district court’s findings of fact will be set aside only if clearly erroneous.

Skwira v . United States,

4 , 71-72 (1st Cir. 2003)

(citation and internal quotation marks omitted). See also

Torres-Negron v . J & N Records, LLC,

5 1 , 162-63 (1st

Cir. 2007); Valentin v . Hosp. Bella Vista,

5 8 , 365 (1st

Cir. 2001).

Background

On April 3 0 , 2009, Daniel Gorman was injured when a USPS

truck, operated by a USPS employee, struck the side of Gorman’s

vehicle. In addition to the damage to his automobile, Gorman

says he sustained head, neck, and back injuries. On July 2 2 ,

2009, Gorman (acting pro se) filed a notice of claim with the

2 USPS for damage to his vehicle. The USPS granted his claim and

sent him a check for approximately $2,100. Subsequently,

however, Gorman sought legal advice, returned the check, and

advised the USPS that he would be submitting a revised claim

which would include his physical injuries and medical expenses.

On December 2 , 2009, Gorman filed a revised notice of claim,

seeking $33,500 in damages for both personal injury and property

damage to his vehicle. But, because he was still receiving

treatment, he could not yet document (or, apparently, calculate)

the full extent of his medical expenses. His counsel, Attorney

Quinn, spoke with the claims specialist assigned to Gorman’s case

to discuss the fact that M r . Gorman was still undergoing

treatment. See Affidavit of Attorney Francis S . Quinn (document

n o . 14-4) at para. 2 . The claims specialist, Francine Fenton,

took contemporaneous notes of those conversations and describes

one of them as follows:

On January 1 4 , 2010, I contacted Francis Quinn to obtain any remaining medical invoices in support of his client, Daniel Gorman’s, claim. M r . Quinn advised at that time that Daniel Gorman was still treating. I explained to M r . Quinn at that time that without medical documentation of the claim, it could possibly be denied. I explained to M r . Quinn that he may wish to consider withdrawing M r . Gorman’s claim until such time as they had medical documentation to support i t . I additionally advised him that, should he choose to withdraw the claim, then he would have two years from the date of the accident to resubmit i t .

3 Affidavit of Francine Fenton (document n o . 1 2 - 2 ) , at par. 7

(emphasis supplied). Attorney Quinn appears to dispute that

claim, saying:

At no time during our telephone calls did M s . Fenton advise me that, in following her advice, the “withdraw[al]” would be treated as a complete withdraw[al] of M r . Gorman’s claim requiring an additional notice of claim form to be resubmitted.

Affidavit of Attorney Quinn at para. 3 . See also

at para. 4 .

M s . Fenton followed-up on her January 1 4 , 2010, telephone

conversation with a letter dated January 2 8 , 2010, in which she

reminded Attorney Quinn that “before this claim can be considered

for adjudication it must be supported by competent medical

evidence.” Letter from Francine Fenton to Attorney Quinn

(document n o . 14-4) at 1 . She went on to ask that such

supportive evidence be provided within thirty days and noted that

“if these materials are not furnished, we will be unable to

properly evaluate the claim and will have no recourse but to

issue a denial.”

Attorney Quinn appears to have been concerned that he could

not provide the requested documentation within the short time

frame specified by M s . Fenton. S o , by letter dated February 4 ,

2010, he “withdrew” M r . Gorman’s pending administrative claim.

4 This letter is to confirm that due to M r . Gorman’s need to obtain further medical treatment as a result of injuries sustained in the above-referenced collision, we are withdrawing his claim at this time.

We will provide supplemental medical information once the medical treatment has been completed. We reserve the right to supplement the claim based on other damages that may result.

Letter from Attorney Quinn to M s . Fenton (document n o . 12-2) at

13 (emphasis supplied). There i s , at least arguably, some

ambiguity in that letter, since it purports to “withdraw” M r .

Gorman’s pending claim, and yet it also refers to his intent to

“supplement” (not “refile”) that claim at a later date.

On May 1 2 , 2011 (more than two years after the accident),

Attorney Quinn telephoned M s . Fenton, informing her that he now

had medical bills to support M r . Gorman’s claim. Affidavit of

Francine Fenton at para. 9. She advised Attorney Quinn that

“there was no claim pending from M r . Gorman and reminded him that

[she] had told him at the time he withdrew the claim that it

would need to be re-filed within two years of the accident.”

That same day, Attorney Quinn sent a letter to M s . Fenton,

resubmitting M r . Gorman’s administrative claim, and enclosing

“all medical records and bills in our file to date.” Letter from

Attorney Quinn to M s . Fenton (document n o . 12-2) at 1 5 . In that

letter, Attorney Quinn noted the following:

5 As I indicated in my letter of February 4 , 2010 [purportedly withdrawing M r . Gorman’s claim], . . . it was my understanding that the “claim” had been timely; however, it was being held until such time as M r . Gorman had completed his treatment. I withdrew the claim with the understanding that the medicals could be supplemented. I apologize for my misunderstanding and I am respectfully asking that this claim be processed based on the initial application.

Two weeks later, M s . Fenton informed Attorney Quinn that M r .

Gorman’s claim was denied, as untimely.

Pursuant to

(b), the statute of limitations period for an action brought pursuant to the Federal Tort Claims Act is two years. Claimant originally filed his claim with the Postal Service on December 4 , 2009. However, via your letter dated February 4 , 2010, you withdrew M r . Gorman’s claim. Accordingly, M r . Gorman was obligated to file a claim on or before April 3 0 , 2011. Your correspondence dated May 1 2 , 2011 attempting to re-file M r . Gorman’s claim was untimely. Accordingly, this claim is denied.

Letter from M s . Fenton to Attorney Quinn (document n o . 12-2) at

17.

This litigation ensued and the government moves to dismiss

Mr. Gorman’s complaint, saying he failed to exhaust available

administrative remedies and, therefore, this court lacks subject

matter jurisdiction over his claims. Gorman objects.

6 Discussion

Mr. Gorman brings this action against the government

pursuant to the Federal Tort Claims Act (“FTCA”),

(b), 2401(b), 2671 et seq. As the court of appeals has

observed:

The FTCA is a limited waiver of sovereign immunity by the United States whereby a claimant can sue for the negligent or wrongful act or omission of certain government employees. However, a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues. The general rule is that a tort claim accrues at the time of the plaintiff’s injury.

Ramirez-Carlo v . United States,

1 , 46 (1st Cir. 2007)

(citations and internal punctuation omitted) (emphasis supplied).

Here, the government says Gorman withdrew his (timely) notice of

claim with the USPS and, before he refiled a notice of claim, the

two-year limitations period lapsed.

Gorman, on the other hand, says he “never withdrew his claim

from the U.S. Postal Service’s consideration.” Plaintiff’s

memorandum (document n o . 14-1) at 5 . He explains his position as

follows:

The language of M r . Gorman’s February 4 , 2010 letter cannot reasonably be interpreted as a withdrawal that would require him to resubmit a new notice of claim. In the first sentence of the letter, M r . Gorman explains that the reason for his letter is that he is

7 in need of additional medical care and is not finished treating his injuries. The claims representative, M s . Fenton, made statements to cause M r . Gorman to believe that if he did not submit all of his medical records within thirty (30) days of her January 2 9 , 2010 letter, his claim would be denied. M r . Gorman believed that since he was still treating and not able to submit all his medical records by that deadline his claim would be denied without further consideration unless he took M s . Fenton’s advice. This “withdraw” would allow M r . Gorman additional time to receive medical treatment and provide the necessary records upon M r . Gorman’s recovery without the threat of denial. M r . Gorman did not communicate to the Postal Service that he was withdrawing his claim from consideration and investigation.

(citations omitted). He goes on to point out that, “there

was no indication from the U.S. Postal Service that they would

treat M r . Gorman’s February letter as a complete withdraw[al] of

his notice. The government did not respond to this letter by

telephone or by letter to advise that it would interpret M r .

Gorman’s letter as a withdraw[al].” Id. at 6. Omitted from his

argument, however, is any reference to authority or precedent

suggesting that the USPS had an obligation, regulatory or

otherwise, to acknowledge receipt of his letter or to notify him

that it would treat the letter as a withdrawal of his claim.

As the government points out, if Attorney Quinn’s letter of

February 4 , 2010, operated as a “withdrawal” of M r . Gorman’s

claim - that i s , the complete discontinuation, cancellation, or

nullification of his then-pending administrative claim - then

8 this court lacks subject matter jurisdiction over his lawsuit

under the FTCA. I f , on the other hand, that letter served merely

as a request that M s . Fenton stay or hold in abeyance any final

administrative resolution of his pending claim, Gorman’s FTCA

suit is likely not barred. Neither party has adequately briefed

that critical issue.

Conclusion

Accordingly, on or before November 1 5 , 2012, each party

shall submit a supplemental legal memorandum addressing, at a

minimum, the following issues:

1. Whether any regulations (or judicial precedent) describe the procedure by which a claimant may withdraw an administrative claim for damages against the government and/or establish an obligation on the part of the agency to specifically acknowledge that a claim has been withdrawn. C f .

(governing the withdrawal of an appeal filed with the Board of Veterans’ Appeals).

2. Whether, when determining the legal effect of Attorney Quinn’s February 4 , 2010, letter, the court looks exclusively to the objective manifestation of intent as expressed in the letter, or whether Attorney Quinn’s subjective intent is also relevant. In other words, is the context in which that letter was sent - including any representations or omissions that M s . Fenton may have made - relevant?

3. Whether the withdrawal of a pending administrative claim must be knowing, voluntary, and/or intelligently made. C f . Siobal v . Shinseki,

(Nov. 3 0 , 2011 Vet. App.) (holding that the withdrawal of a pending administrative appeal to the Board of Veterans’ Appeals must be knowing and concluding that “it is not clear whether M r . Siobal knowingly intended to withdraw

9 his claim or whether he thought his claim was on hold. . . . . ” ) . ; Marrero v . Shinseki,

(Jan. 1 3 , 2011 Vet. App.) (“The Court concludes that the appellant’s pro se statement that he wished to withdraw his claim was not a knowing withdrawal of the claim because his submission of evidence during the testimony demonstrated his continuous intent to seek benefits . . . . ” ) .

After the parties have submitted their supplemental legal

memoranda, the court will, if appropriate, schedule an

evidentiary hearing to resolve any outstanding disputed material

facts that bear on its exercise of subject matter jurisdiction

over Gorman’s claims.

SO ORDERED.

Steven J./McAuliffe Jnited States District Judge

October 1 6 , 2012

cc: Francis X . Quinn, Jr., Esq. Michael T . McCormack, Esq.

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