17‐3911‐cv Cooke v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2018

(Submitted: October 24, 2018 Decided: March 7, 2019)

Docket No. 17‐3911‐cv

JESSICA COOKE,

Plaintiff‐Appellant,

v.

UNITED STATES OF AMERICA,

Defendant‐Appellee.*

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Before:

LIVINGSTON and CHIN, Circuit Judges, and CROTTY, District Judge.†

* The Clerk of the Court is directed to amend the official caption to conform to the above. † Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by designation. Appeal from an order of the United States District Court for the

Northern District of New York (Suddaby, J.), dismissing plaintiff‐appellantʹs

amended complaint asserting claims under the Federal Tort Claims Act for lack

of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure

12(b)(1), on the grounds that she failed to exhaust administrative remedies, and

the claims therefore were barred by sovereign immunity.

AFFIRMED.

Stephen L. Lockwood, Stephen L. Lockwood, P.C., and Christopher J. Kalil, Law Office of Christopher J. Kalil, Utica, New York, for Plaintiff‐Appellant.

Karen Folster Lesperance, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, New York, for Defendant‐Appellee.

CHIN, Circuit Judge:

Plaintiff‐appellant Jessica Cooke (ʺCookeʺ) commenced the action

below alleging that agents of the United States Customs and Border Protection

Agency (ʺCBPʺ) wrongfully detained and assaulted her at a highway checkpoint

stop. Although she initially purported to assert constitutional, civil rights, and

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state law claims, including claims against the individual CBP agents, she

eventually limited her claims, as set forth in the amended complaint, to tort

claims against the United States under the Federal Tort Claims Act (the ʺFTCAʺ).

On November 7, 2017, the district court dismissed the amended complaint for

lack of subject matter jurisdiction, holding that Cooke failed to administratively

exhaust her claims, and the claims therefore were barred by the doctrine of

sovereign immunity.

On appeal, Cooke principally contends that the common‐law

mailbox rule applies, such that mailing an administrative claim form satisfies the

FTCAʹs jurisdictional ʺpresentment requirement,ʺ even in the absence of proof

that the appropriate agency received the claim, because of the presumption that a

properly addressed and mailed letter will be delivered in the usual course.

As discussed more fully below, we hold that the mailbox rule does

not apply to FTCA claims. Accordingly, the district courtʹs order dismissing the

amended complaint is AFFIRMED.

BACKGROUND

On February 17, 2017, Cooke commenced this action in the district

court alleging that on or about May 7, 2015, CBP agents violated her

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constitutional rights when they violently and forcibly assaulted and tased her

during a highway checkpoint stop in St. Lawrence County, New York. In her

initial complaint, Cooke asserted claims against the CBP, two named CBP agents,

and the United States Department of Homeland Security (ʺDHSʺ) under the

Fourth, Fifth, and Fourteenth Amendments to the Constitution; Monell v. Depʹt of

Soc. Servs.,

(1976); and

, 1983, 1985, and 1988.

Before serving her complaint, Cooke filed an amended complaint on

March 1, 2017 naming the United States as the sole defendant. In the amended

complaint, Cooke described her lawsuit as a civil rights action brought pursuant

to

, 1985, and 1988; the Fourth, Fifth, and Fourteenth

Amendments; Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics,

(1971); and Monell. The amended complaint, however,

also cited the FTCA, and Cookeʹs briefing, both in the district court and in this

Court, makes clear that she is asserting only tort claims against the United States

under the FTCA. Indeed, Cookeʹs brief on appeal confirms that she is pursuing

only her tort claims against the United States ‐‐ claims for assault and battery,

common law negligence, and failure to intervene.

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On May 16, 2017, the government moved to dismiss the amended

complaint for lack of subject matter jurisdiction, arguing, inter alia, that Cooke

failed to exhaust her administrative remedies because she did not ʺfirst present[]ʺ

the claim to the appropriate federal agency as required by the FTCA,

. In support of its motion, the government submitted a May 12, 2017

declaration from Michael D. Bunker, a CBP Assistant Chief Counsel. Bunker

explained that pursuant to a CBP directive, dated May 20, 2011, all claims

received by CBP for $10,000 or less are to be forwarded to the Office of Assistant

Chief Counsel in Indianapolis and all claims exceeding $10,000 are to be

forwarded to the Assistant or Associate Chief Counsel who services the office in

which the employee whose acts gave rise to the claim is located. All claims are

entered into the CBPʹs Chief Counsel Tracking System (ʺCCTSʺ). Bunker further

declared that he conducted a CCTS search for Cookeʹs name and ʺdetermined

that CCTS contains no records of any claim filed by [Cooke] under the FTCA in

the Office of Assistant Chief Counsel, Boston, the Office of Assistant Chief

Counsel, Indianapolis, or any other CBP Counsel office.ʺ J. Appʹx at 29‐30.

In response to the motion to dismiss, Cookeʹs counsel submitted a

June 12, 2017 affidavit with attached exhibits. Cookeʹs counsel stated that on

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April 1, 2016, he ʺfiledʺ a civil rights complaint form with DHSʹs Office of Civil

Rights and Civil Liberties (the ʺCRCLʺ), detailing Cookeʹs May 2015 assault by

CBP agents. J. Appʹx at 32. Exhibit A to the letter showed that counsel

addressed the civil rights complaint to the Attorney General in Washington,

D.C., with a copy to:

Department of Homeland Security CRCL/Compliance Branch Murray Lane, SW Building 410, Mail Stop #0190 Washington, DC 20528

J. Appʹx at 36; see

.

On May 31, 2016, Cookeʹs counsel sent an administrative ʺClaim for

Damage, Injury, or Death, Standard Form 95ʺ (SF‐95), by first class mail, to the

CRCL. J. Appʹx at 32. The back of the SF‐95 form contained instructions,

including the following:

Claims presented under the Federal Tort Claims Act should be submitted directly to the ʺappropriate Federal agencyʺ whose employee(s) was involved in the incident. . . . A CLAIM SHALL BE DEEMED TO HAVE BEEN PRESENTED WHEN A FEDERAL AGENCY RECEIVES FROM A CLAIMANT, HIS DULY AUTHORIZED AGENT, OR LEGAL REPRESENTATIVE, AN EXECUTED STANDARD FORM 95 OR OTHER WRITTEN NOTIFICATION OF AN INCIDENT, ACCOMPANIED BY A CLAIM FOR MONEY DAMAGES IN A SUM CERTAIN FOR INJURY TO OR LOSS OF PROPERTY, PERSONAL INJURY, OR DEATH ALLEGED 6

TO HAVE OCCURRED BY REASON OF THE INCIDENT. THE CLAIM MUST BE PRESENTED TO THE APPROPRIATE FEDERAL AGENCY WITHIN TWO YEARS AFTER THE CLAIM ACCRUES.

.

By counselʹs own description, the paperwork was ʺmisdirectedʺ to

the DHS/CRCL; the SF‐95 was sent not to the CBP or its appropriate Chief

Counselʹs Office, but to ʺDHS/CRCLʺ in Washington, D.C. J. Appʹx at 32.

Moreover, the mailing address omitted the street number (245) from the Murray

Lane address. In addition, the affidavit of service by mail, claiming that the SF‐

95 form was mailed on May 31, 2016, was not executed until almost a year later ‐‐

May 30, 2017.

By letter dated June 22, 2016, the CRCL acknowledged receipt of

Cookeʹs April 1, 2016 civil rights complaint, but the agency did not acknowledge

receipt of Cookeʹs SF‐95 submission or otherwise make any mention of it. On

July 5 and October 17, 2016, Cookeʹs counsel wrote to the CRCL inquiring into

the status of her civil rights complaint, but the letters made no reference to her

misdirected SF‐95.

On November 7, 2017, the district court granted the governmentʹs

motion to dismiss the amended complaint, concluding that Cooke had failed to

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exhaust her administrative remedies under the FTCA because she presented no

evidence that a government agency received the SF‐95. 1

This appeal followed.

DISCUSSION

In reviewing a district courtʹs dismissal for lack of subject matter

jurisdiction, we review factual findings for clear error and legal conclusions de

novo. Liranzo v. United States,

(2d Cir. 2012). To resolve

jurisdictional issues, we may consider affidavits and other materials beyond the

pleadings, but we cannot rely on conclusory or hearsay statements contained in

the affidavits. J.S. ex rel. N.S. v. Attica Cent. Sch.,

, 110 (2d Cir. 2004).

ʺThe plaintiff bears the burden of proving subject matter jurisdiction

by a preponderance of the evidence.ʺ McGowan v. United States,

(2d Cir. 2016) (internal quotation marks omitted). The plaintiff likewise bears the

burden of showing that she exhausted her administrative remedies by presenting

her claim to the appropriate federal agency before filing suit. See

(a); Payne v. United States,

(N.D.N.Y. 1998) (ʺA

1 The district court also ruled, in the alternative, that the first and second causes of action were barred because they relied on statutes, constitutional provisions, and claims applicable only to state actors and not the United States or federal actors. 8

plaintiff bears the burden of demonstrating that he or she has presented a claim

to the appropriate federal agency.ʺ) (citing Keene Corp. v. United States,

(2d Cir. 1983)); see also Mora v. United States,

(2d Cir.

1992) (ʺ[P]resentment is a prerequisite to the institution of a suit under the

FTCA.ʺ). In addition, we must strictly construe matters concerning the waiver of

sovereign immunity in favor of the government. United States v. Sherwood,

(1941); McGowan,

.

Cooke principally argues that the district court erred in dismissing

her amended complaint for lack of subject matter jurisdiction because she

administratively exhausted her FTCA claim when she mailed her SF‐95 to the

CRCL. She does not argue actual receipt of her notice of claim, but relies on the

mailbox rule, which is a rebuttable, common‐law presumption that a piece of

mail, properly addressed and mailed in accordance with regular office

procedures, has been received by the addressee. Akey v. Clinton Cty.,

, 235 (2d Cir. 2004) (citing Meckel v. Contʹl Res. Co.,

(2d Cir.

1985)). The question presented is whether the presumption of receipt applies to

claims brought under the FTCA. We conclude that it does not.

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The United States, as sovereign, is immune from suit unless it

waives immunity and consents to be sued. United States v. Mitchell,

(1980). The Supreme Court has ʺfrequently heldʺ that waivers of sovereign

immunity are ʺto be strictly construed, in terms of [their] scope, in favor of the

sovereign.ʺ Depʹt of the Army v. Blue Fox, Inc.,

(1999). Moreover,

a waiver must be ʺunequivocally expressed in the statutory text.ʺ

(internal quotation marks omitted).

One such ʺlimited waiverʺ of sovereign immunity is provided by the

FTCA, which ʺallows for a tort suit against the United States under specified

circumstances.ʺ Hamm v. United States,

(2d Cir. 2007). The

FTCA has several jurisdictional requirements, including that a suit ʺshall not be

instituted upon a claim against the United States . . . unless the claimant shall

have first presented the claim to the appropriate Federal agency.ʺ

(a); see also Adeleke v. United States,

(2d Cir. 2004) (ʺ[A]

plaintiff must first file an administrative claim with the appropriate federal

agency before suing for relief in federal court.ʺ). The contours of this

presentment requirement have been clarified through regulation. A plaintiff

satisfies the requirement when ʺa Federal agency receives from a claimant . . . an

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executed Standard Form 95 or other written notification of an incident.ʺ

(emphasis added).

The Supreme Court has not examined the FTCAʹs presentment

requirement, nor have we squarely addressed whether the mailbox rule applies

to claims under the FTCA such that mailing notice of a claim satisfies the

statuteʹs presentment requirement. We have recognized, in a summary order,

that the majority of other courts that have addressed the question have held that

the common‐law mailbox rule is inapplicable to FTCA claims. See Garland‐Sash v.

Lewis, 348 F. Appʹx 639, 643 (2d Cir. 2009) (summary order) (citing Vacek v. U.S.

Postal Serv.,

(9th Cir. 2006) (ʺ[V]irtually every circuit to have

ruled on the issue has held that the mailbox rule does not apply to [FTCA]

claims, regardless of whether it might apply to other federal common law

claims.ʺ)); see also Flores v. United States, 719 F. Appʹx 312, 317 n.1 (5th Cir. 2018)

(ʺThe common law mailbox rule is inapplicable to the FTCAʺ); Lightfoot v. United

States,

(3d Cir. 2009) (holding that mailing a FTCA claim does

not satisfy the presentment requirement when the agency did not receive the

claim); Moya v. United States,

(10th Cir. 1994) (same); Bellecourt v.

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United States,

(8th Cir. 1993) (same); Drazan v. United States,

(7th Cir. 1985) (same).

At least one other circuit and one district court in the Second Circuit

have applied the mailbox rule to a FTCA claim. See Barnett v. Okeechobee Hosp.,

, 1238‐39 (11th Cir. 2002) (holding that the common‐law mailbox

rule applies to FTCA claims); Cordaro v. Lusardi,

(S.D.N.Y.

1973) (holding that ʺ[p]roof of mailing creates a rebuttable presumption of

receiptʺ under the FTCA). More recently, however, district courts in our circuit,

including in the Southern District of New York, have declined to apply the

mailbox rule in FTCA cases, instead heeding the Supreme Courtʹs instruction

that courts must strictly construe FTCA filing requirements in favor of the

government. See, e.g., Arias‐Rios v. U.S. Postal Serv., No. CV‐07‐1052,

, at *2 (E.D.N.Y. July 9, 2008) (ʺMere mailing of a notice of claim is

insufficient to satisfy the presentment requirement of the FTCA, and proof of

actual receipt is necessary.ʺ); Pinchasow v. United States,

(E.D.N.Y. 2006) (holding that the mailbox rule is insufficient to satisfy the FTCAʹs

presentment requirement because waivers of the United Statesʹ sovereign

immunity must be strictly construed in favor of the government); Vecchio v.

12

United States, No. 05 CIV. 393,

, at *4 (S.D.N.Y Nov. 3, 2005)

(same).

We now hold that the mailbox rule is inapplicable to claims brought

under the FTCA, and that therefore the mere mailing of a notice of claim does

not satisfy the FTCAʹs presentment requirement. The statute and corresponding

regulation make clear that actual receipt is required, and applying the mailbox

rule to claims under the FTCA would be inconsistent with the principle that

waivers of sovereign immunity must be strictly construed and limited in scope in

favor of the sovereign. See Blue Fox, Inc.,

; Honda v. Clark,

(1967) (ʺ[T]he Government is ordinarily immune from suit, and . . . it

may define the conditions under which it will permit such actions.ʺ); see also

Bailey v. United States,

(9th Cir. 1981) (rejecting appellantsʹ

ʺinvitation to . . . in effect repeal [Section 14.2(a)] by holding that mailing alone is

sufficient to meet the requirement that a claim be ʹpresentedʹʺ). Hence, we

conclude, as have five circuits and numerous district courts, that a plaintiff in a

FTCA case may not invoke the common‐law presumption of receipt and that,

instead, she must show actual receipt.

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In light of our holding that the mailbox rule does not apply to claims

under the FTCA, we do not reach the question of whether the requirements of

the mailbox rule were met in this case.

CONCLUSION

For the reasons set forth above, the district courtʹs order of dismissal

is AFFIRMED.

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