642 F. App'x 411
5th Cir.2016Background
- Peter Barber sued the United States under the Federal Tort Claims Act (FTCA) for alleged negligent medical care by the VA at Gulf Coast in Biloxi, MS. He attached an executed SF-95 to his complaint and alleged compliance with 28 U.S.C. § 2675(a).
- The United States moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, arguing Barber failed to present his administrative claim because the VA never received the SF-95.
- The Government submitted sworn VA declarations describing mail‑handling procedures and stating no record or evidence of receipt of Barber’s SF-95 despite searches.
- Barber submitted evidence that his lawyer’s receptionist mailed the SF-95 first-class to a Biloxi VA address (found by internet search) and argued mailing (or VA’s actual knowledge via a §1151 disability claim) satisfied presentment.
- The district court dismissed without prejudice for failure to show actual receipt, denied jurisdictional discovery, and Barber appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA presentment satisfied by proof of mailing | Barber: mailing SF-95 to VA creates presumption of receipt (relying on Barnett) | U.S.: presentment requires actual receipt; no VA record of receipt | Held: Mailing evidence insufficient; must show receipt; Government rebutted any presumption |
| Whether VA’s knowledge via §1151 benefits constitutes presentment | Barber: VA’s compensation under §1151 gave notice of the claim | U.S.: Presentment requires a sum‑certain monetary claim (SF-95) — §1151 form lacks sum certain | Held: §1151 benefits/filing did not satisfy FTCA presentment (no sum‑certain claim) |
| Whether district court abused discretion by denying jurisdictional discovery | Barber: Discovery could show VA received the SF-95 (depose VA personnel) | U.S.: Declarations show searches found nothing; discovery unlikely to produce contrary evidence | Held: No abuse of discretion; record did not show discovery likely to produce receipt evidence |
| Whether Wong decision (equitable tolling) affected dismissal | Barber: Move to amend based on Wong re: FTCA limitations | U.S.: Wong concerns statute of limitations, not presentment requirement | Held: Wong does not affect the jurisdictional presentment analysis; denial proper |
Key Cases Cited
- Ramming v. United States, 281 F.3d 158 (5th Cir.) (Rule 12(b)(1) dismissal reviewed de novo; burden on party asserting jurisdiction)
- Cook v. United States, 978 F.2d 164 (5th Cir.) (FTCA presentment is jurisdictional prerequisite)
- Life Partners Inc. v. United States, 650 F.3d 1026 (5th Cir.) (purpose of presentment: allow agency to settle claims and reduce litigation)
- Frantz v. United States, 29 F.3d 222 (5th Cir.) (same underlying purpose of presentment)
- Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954 (5th Cir.) (condition to waiver of sovereign immunity strictly construed)
- Barnett v. Okeechobee Hosp., 283 F.3d 1232 (11th Cir.) (held properly mailed SF-95 may create presumption of receipt)
- Montoya v. United States, 841 F.2d 102 (5th Cir.) (presentment requires a sum‑certain monetary claim)
- Martinez v. United States, 728 F.2d 694 (5th Cir.) (same — sum‑certain requirement for FTCA presentment)
- Davila v. United States, 713 F.3d 248 (5th Cir.) (standard for jurisdictional discovery denial)
- Freeman v. United States, 556 F.3d 326 (5th Cir.) (burden for jurisdictional discovery greater when immunity bars suit)
- United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (FTCA statute of limitations is non‑jurisdictional and subject to equitable tolling; court here found it irrelevant to presentment)