NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-2241 _______________

LYNN STROMAN, Appellant

v.

UNITED STATES of AMERICA

*(Amended pursuant to Clerk’s Order dated 7/12/22) _______________

On appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-21-cv-04400) District Judge: Honorable Gerald J. Pappert _______________

Submitted Under Third Circuit L.A.R. 34.1(a): June 12, 2023 _______________

Before: PORTER, FREEMAN, and FISHER Circuit Judges.

(Filed: September 22, 2023)

______________

OPINION ______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.

Lynn Stroman appeals the District Court’s dismissal of his federal tort action with

prejudice. He claims personal injuries arising from an alleged collision involving a

United States Postal Service (USPS) truck. USPS administratively denied Stroman’s

claim, at which time he had six months to file suit in federal court. He missed that

deadline, filed a second administrative claim, and then commenced litigation before

receiving USPS’s response to his second claim. The District Court dismissed the action

with prejudice. For the reasons that follow, we will affirm.

I

Stroman alleges that on October 6, 2019, he was injured when the parked car in

which he sat was struck by a USPS truck. On January 6, 2020, his counsel sent an SF-95

(Standard Form) for a federal tort claim to USPS (the “First Claim”). That form did not

contain a sum certain for damages, stating a claim for an amount “in excess of $100,000,”

which USPS interpreted as damages of $100,000. USPS requested Stroman’s medical

records and referred the claim to its National Tort Center. On January 26, 2021, USPS

denied Stroman’s claim in a letter sent via certified mail to his attorney and notified him

that he had six months to bring suit in a district court. The certified mail receipt shows

that the letter was delivered and signed for on February 8, 2021.

Citing disruptions in mail delivery during the COVID-19 pandemic, Stroman

claims that his attorneys never received the letter. When Stroman filed suit on September

14, 2021, (the “First Action”) the government filed a motion to dismiss the suit as

2 untimely. The government also brought to the attention of Stroman’s counsel the fact that

his SF-95 form had not included a sum certain. Stroman then voluntarily dismissed his

First Action on October 4, 2021, and on the same day submitted another administrative

claim (the “Second Claim”) on a second SF-95 form to USPS, stating the amount of his

claim as $100,000. Two days later, on October 6, 2021, Stroman initiated a lawsuit (the

“Second Action”) premised on his submission of the Second Claim.

On October 12, 2021, USPS issued a refusal to consider the Second Claim, as it

related to the same events alleged in the First Claim and the issues had already been

decided. The government timely moved to dismiss the Second Action, arguing that the

court lacked jurisdiction over the Second Action because it was filed prematurely, the

Second Claim not yet having been resolved.

II

The District Court dismissed the Second Action for lack of subject-matter

jurisdiction because Stroman had not exhausted his administrative remedies for the

Second Claim, which was the only basis for the Second Action. J.A. 150 (citing Lightfoot

v. United States,

, 626–27 (3d Cir. 2009)). It held that any suit based on the

alleged October 6, 2019 incident would be untimely under

(b)’s six-

month limitations period, and equitable tolling would not be warranted. It therefore

concluded that amendment would be futile, so it dismissed the Second Action with

prejudice. J.A. 151–54.

We have appellate jurisdiction over all final decisions of the district courts under

. Our review of a district court’s grant of a motion to dismiss under Rule

3 12(b)(1) or 12(b)(6) is plenary. Free Speech Coal., Inc. v. Att’y Gen.,

, 529–

30 (3d Cir. 2012). We accept as true the facts alleged in the complaint, along with

reasonable inferences that can be drawn from those facts. Keystone Redev. Partners, LLC

v. Decker,

(3d Cir. 2011). To state a claim, a plaintiff must offer a short

and plain statement of the claim showing that he is entitled to relief, including

“allegations plausibly suggesting (not merely consistent with)” such entitlement. Bell Atl.

Corp. v. Twombly,

(2007).

III

Stroman attempts here, as he did below, to obtain relief via equitable tolling of the

six-month limitations period. He argues two grounds for tolling: (1) the absence of a sum

certain from his first SF-95 rendered it void, so USPS could not consider it on the merits;

and (2) the unique circumstances of COVID-era mail delivery should be treated by this

Court as extenuating circumstances.1

To receive the benefit of equitable tolling, the claimant must show that

extraordinary circumstances prevented him from taking timely action. This requirement

is satisfied by demonstrating that (1) the defendant has actively misled him respecting his

cause of action; (2) he, in some extraordinary way, has been prevented from asserting his

rights; or (3) he has timely asserted his rights mistakenly in the wrong forum. D.J.S.-W.

1 To the extent that Stroman argues that equitable tolling could render the Second Action timely, he is incorrect. The Second Action was based on the unexhausted Second Claim, so the District Court was obligated to dismiss the action for lack of jurisdiction; equitable tolling was unavailable. Lightfoot,

(“The final denial requirement is ‘jurisdictional and cannot be waived.’” (quoting Bialowas v. United States,

(3d Cir. 1971))). 4 ex rel. Stewart v. United States,

(3d Cir. 2020) (citing Oshiver v.

Levin, Fishbein, Sedran & Berman,

(3d Cir. 1994)). In addition, the

claimant must show that he exercised due diligence in preserving his claim.

(citing

Santos ex rel. Beato v. United States,

(3d Cir. 2009)). Equitable tolling

is an “extreme remedy” that is “extend[ed] only sparingly.” Id. at 752 (citation and

quotation marks omitted). “‘It is especially appropriate to be restrictive’ in extending this

remedy ‘in cases involving the waiver of the sovereign immunity of the United States,’

such as those arising under the FTCA.” Id. at 750 (quoting Santos, 559 F.3d at 197–98).

Stroman does not allege a forum issue nor misleading behavior by the

government, so he must allege that he has, in some extraordinary way, been prevented

from asserting his rights. See id. But neither of his arguments to this end is availing. First,

the omission of a sum certain from his first SF-95 did not place it beyond the power of

USPS to address and resolve. The inclusion of a sum certain is for the benefit of the

government. See White-Squire v. U.S. Postal Serv.,

(3d Cir. 2010)

(“Providing a sum certain claim for damages . . . enables the agency head to determine

whether the claim can legally be settled by the agency and, if so, from where the payment

should come. Moreover, . . . an agency cannot consider settling a claim if it cannot

ascertain the claim's value.” (citations omitted)). Failure to include it does not permit

negligent filers to make successive or untimely claims.

The cases cited by Stroman do not require otherwise. See Bialowas,

; White-Squire,

. Bialowas and White-Squire present instances of

claimants who brought suit under the FTCA in a district court only to have their suits

5 dismissed for failure to exhaust administrative remedies because the claimants did not

properly complete their SF-95s. Bialowas,

; White-Squire,

. Neither stands for the proposition that an administrative claim filed without a sum

certain forecloses its resolution by the agency.

Stroman posits that USPS’s denial letter was either delivered late or perhaps

delivered to the wrong address. His equitable tolling argument relies on Title VII cases,

where time limitations on filing suit are measured from the point of receipt. Appellant Br.

11–12; see Irwin v. Dep’t of Veterans Affairs,

(1990) (Title VII time limit

runs from date of delivery) (citing 42 U.S.C. § 2000e-16(c)). None stand for the

proposition that an alleged inability to identify the signature on a certified mail receipt

requires a finding of non-delivery.

In any event, FTCA deadlines run from the date of mailing.

(b);

(a). Under the statute, a claimant has “six months after the date of

mailing, by certified or registered mail, of notice of final denial of the claim by the

agency” to either submit a request for reconsideration to the agency or to file suit against

the agency in district court.

(b). The denial letter to Stroman was mailed

on January 26, 2021. Stroman, therefore, had until July 26, 2021, to seek reconsideration

or file suit. He waited until October 4, 2021, to file his Second Claim—more than eight

months from the denial of his First Claim.

Stroman’s account of delay or misdelivery fails to satisfy our “restrictive”

standard for extending equitable tolling in FTCA suits. D.J.S.-W.,

.

Generalized claims about the pandemic, without more, are insufficient to warrant

6 equitable tolling and all the more so in suits against the government, where our use of

equitable tolling is already more constrained. See

Nor does Stroman demonstrate that he exercised due diligence in pursuing his

claim. At the very least, he could have inquired with USPS directly. He made no efforts

to learn the status of his claim by phone, email, or mail correspondence. Instead, he

commenced suit after the six-month statute of limitations had expired.

Stroman could not benefit from equitable tolling for any FTCA action arising out

of the October 6, 2019 incident. Therefore, the District Court properly dismissed

Stroman’s FTCA action with prejudice.

* * *

We will affirm the District Court’s judgment.

7