Dianne Khan v. United States, 808 F.3d 1169

Background

In 2006 twelve U.S. Marshals arrested Dianne Khan in her apartment for making false statements to HUD; she was convicted and given probation later that year.
Khan alleges humiliating and invasive treatment during the arrest (pat-down, exposure to a male agent while using the bathroom, refusal to cover her head, and inadvertent touching of her breasts).
She wrote to the Marshals Service Office of Inspection in June 2006 describing the treatment but did not request monetary damages; she received initial acknowledgement and later (through a Senator) learned the Service found no misconduct and closed the matter.
Khan sent an SF-95 administrative tort claim in September 2013 requesting $4 million; the Marshals Service rejected it as untimely under 28 U.S.C. § 2401(b).
Khan filed suit in 2014 against the United States (FTCA) and the marshals (Bivens). The district court dismissed as time-barred; the Seventh Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Khan’s June 2006 letter satisfied FTCA presentment requirement under 28 U.S.C. § 2675(a) and § 2401(b)	The June 2006 letter was an administrative claim presented within two years of accrual	The letter did not demand money in a sum certain (or any sum), so it was not a proper administrative claim	Held: June 2006 letter was not a valid FTCA claim because it lacked a demand for money; it therefore did not satisfy § 2401(b) presentment requirement
Whether Khan sued within six months of final denial under § 2401(b)	The agency’s later (2013) denial was the definitive denial, so suit was within six months	Even if 2009 communication was a denial, Khan did not sue within six months; but treating 2013 letter as denial still fails because of earlier presentment defect	Held: Court assumes 2013 denial could be definitive but suit still untimely because initial presentment was invalid under § 2401(b)
Whether § 2401(a) six-year limitations period applies instead of § 2401(b)	§ 2401(a) six-year bar should govern accrual from agency denial and make suit timely	FTCA tort claims are governed by § 2401(b) (specific to tort claims)	Held: § 2401(b) governs FTCA tort claims; § 2401(a) inapplicable here
Timeliness of Bivens claims against individual marshals (statute of limitations)	(Implicit) Bivens claim timely under federal law standards	Wisconsin six-year statute applies; claim accrued in 2006 so 2014 filing is too late	Held: Bivens claims are governed by Wisconsin six-year limitations and accrued in 2006; claims are time-barred

Key Cases Cited

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (established Bivens actions for constitutional violations by federal agents)
Cancer Foundation, Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671 (7th Cir. 2009) (district court may dismiss when complaint admits elements of affirmative defense)
Kanar v. United States, 118 F.3d 527 (7th Cir. 1997) (SF-95 sum-certain rule is flexible; facts plus demand for money suffice)
Murrey v. United States, 73 F.3d 1448 (7th Cir. 1996) (administrative claim must include facts plus demand for money to encompass related causes of action)
Smoke Shop, LLC v. United States, 761 F.3d 779 (7th Cir. 2014) (failure to request any damages is fatal to administrative presentment)
United States v. Glenn, 231 F.2d 884 (9th Cir. 1956) (FTCA tort claims governed by § 2401(b) rather than general § 2401(a))
Pittman v. United States, 341 F.2d 739 (9th Cir. 1965) (followed Glenn on FTCA timing)
Schuler v. United States, 628 F.2d 199 (D.C. Cir. 1980) (same)
Conn v. United States, 867 F.2d 916 (6th Cir. 1989) (same)
Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010) (state statute of limitations governs Bivens claims)
Malone v. Corrections Corp. of America, 553 F.3d 540 (7th Cir. 2009) (state limitations and accrual rules apply to federal civil rights/tort claims)
Leavell v. Kieffer, 189 F.3d 492 (7th Cir. 1999) (accrual occurs when plaintiff knows she has been injured)