Creating Split in Circuits, Divided Sixth Circuit Panel Holds That Presenting “Specific Dollar Amount” to Agency in Federal Tort Claims Act Case Is Not a Jurisdictional Requirement

In Copen v. United States, No. 21-2655 (6th Cir. July 6, 2021), a 2-1 panel holds that the requirement under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671–80, that a tort victim first present “the amount of the claim . . . to the federal agency” (id. § 2675(b)) is mandatory, but not jurisdictional.

“Sovereign immunity generally bars claims against the United States without its consent,” but “Congress, through the FTCA, waived this governmental immunity for claims brought” for several types of actions, including claims for personal injury.

“Paul Copen was driving his daughter Kelly’s vehicle when it was struck by a driver for the United States Postal Service (USPS). Kelly was riding in the passenger seat. The vehicle was damaged, and both Kelly and Paul state that they were physically injured in the accident . . . . The accident between the Copens and the USPS driver took place on May 19, 2017. On May 22, Kelly Copen filed her SF 95 with USPS. The SF 95 is provided by the government as a ‘convenient format for supplying the information necessary to bring an FTCA claim.’”

“In the box titled ‘Personal Injury/Wrongful Death,’ Kelly listed herself and her father, and indicated that the extent of their injuries was unknown. Kelly alone signed the form, and she provided only her address and phone number. As to damages, the form requests a total amount and states: ‘[f]ailure to specify may cause forfeiture of your rights.’ On the cover page, Kelly wrote: ‘As we spoke earlier, I do not have rental car estimate yet or a total on medical. So I did not yet fill out those areas with numbers.’”

After submitting the SF 95 to the USPS, the agency responded to plaintiffs “a letter detailing the information the agency would need to consider a personal injury claim. The letter also explained: ‘A claim must be for a specific dollar amount (Sum Certain). That amount must be shown in the appropriate space(s); 12 A B & D, DOLLAR AMOUNT ONLY.’” Plaintiffs again did not respond with ‘further information . . . concerning an amount of personal injury damages.”

The district court dismissed the action for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) because “Kelly had failed to . . . identified a sum certain [associated with personal injury] as required in 28 U.S.C. § 2675,” while Paul “had failed to file a valid administrative claim because he had not submitted his own claim form.”

The Sixth Circuit vacates and remands. The panel majority agrees that under Section 2675 “the requirement to present a sum certain claim first to the agency is mandatory. The question is whether it is also jurisdictional.” Two circuits, the Third and Eighth, “have addressed the requirements in § 2675 post-Arbaugh and concluded that they are jurisdictional in nature.” Citing Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), though, the panel majority observes that the analysis of what is jurisdictional (going to the power of the court) has evolved.

“What remains is to assess whether Congress clearly showed its intention to designate § 2675 a jurisdictional rule by placing it in chapter 171 and beginning § 1346(b)—the jurisdictional grant—with the phrase ‘Subject to the provisions of chapter 171.’” The panel majority notes that “Section 2675 itself does not speak in jurisdictional terms, but rather in mandatory ones . . . . [N]either governing precedent nor the structure of the statute support the conclusion that Congress has plainly attached a jurisdictional label to the sum certain requirement in § 2675(b). The reference to chapter 171 in § 1346(b) is simply not clear enough to ‘turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle.’” The panel majority remands the case to be decided under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

Dissenting in part, Judge Rogers would simply affirm on the ground that the plaintiffs did not “meet the agency presentment and sum certain requirement of 28 U.S.C. § 2675 . . . . There is no question of government forfeiture or waiver of the agency presentment/sum certain requirement, no question of equitable tolling, and no indication that any procedure used by the district court in addressing the agency presentation question would be different depending on whether the issue is jurisdictional or not.” Judge Rogers deems the panel’s jurisdictional analysis unnecessary to resolution of the appeal and thus “lack[ing] precedential effect.”

Judge Rogers concludes: “Sovereign immunity principles at stake in the Federal Torts Claims Act are driven by separation-of-powers concerns that go beyond merely preserving congressional power to govern federal court jurisdiction. Modern sovereign doctrine preserves the power of Congress to control the public fisc, and accordingly requires a very explicit grant for the courts to have the power to order the federal government to pay damages. The Executive Branch accordingly cannot waive restrictions that are fairly considered to be limits on the waiver of sovereign immunity. We should be wary of granting such power to the Executive Branch by characterizing Federal Tort Claims Act limitations as non-jurisdictional and thus subject to Executive Branch waiver. If we are going to do so, it should be in a case where it is clear what the stakes are in making such a decision.”

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