[PUBLISH]
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 00-10566 MAR 28, 2001
-------------------------------------------- THOMAS K. KAHN
CLERK
D. C. Docket No. 99-00921-CV-UUB
DONALD SHOFF,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
OFFICERS, several unknown officers,
FEDERAL BUREAU OF PRISONS, employees, et al.
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 28, 2001)
Before EDMONDSON, FAY and NEWMAN*, Circuit Judges.
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* Honorable Jon O. Newman, U.S. Circuit Judge for the Second Circuit, sitting by
designation.
PER CURIAM:
Plaintiff Donald Shoff appeals from the district court’s dismissal of his
negligence suit brought against the United States. The court dismissed the suit
because Plaintiff failed to bring the suit within the period prescribed by the Federal
Tort Claims Act (“FTCA”).
On 30 March 1998, Plaintiff filed an administrative claim with the Federal
Bureau of Prisons alleging negligence on the part of Bureau officers, physician
assistants and other employees. The Bureau sent a certified letter to Plaintiff
notifying him of the denial of his claim. The letter also notified Plaintiff that if he
was dissatisfied with the denial he could “file suit in the appropriate United States
District Court no later than six (6) months after the date of mailing of th[e]
notification.” Plaintiff filed the Complaint on 30 March 1999, seven months after
the date of the mailing of the denial letter.
The district court dismissed Plaintiff’s complaint: it had not been filed
within the six-month limitation imposed by the FTCA and, therefore, was
jurisdictionally barred. Plaintiff has appealed.
Plaintiff argues that, because the Bureau mailed the denial letter to Plaintiff -
- instead of to Plaintiff’s counsel, section 2401(b)’s six-month limitation was not
triggered.
Section 2401(b) provides:
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A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to which it
was presented.
28 U.S.C. § 2401(b).
The federal regulation interpreting section 2401(b) states that “Final denial
of an administrative claim shall be in writing and sent to the claimant, his attorney,
or legal representative by certified or registered mail.”
28 C.F.R. §14.9.
Plaintiff urges us to adopt the Ninth Circuit’s decision in Graham v. United
States,
96 F.3d 446 (9th Cir. 1996). In Graham, a majority of a three-judge panel
construed section 14.9 to preclude the sending of a denial letter to a claimant when
the agency has notice that the claimant is represented by counsel.
But the Ninth Circuit’s construction of section 14.9 conflicts with the plain
language of the regulation. “Contrary to what the opinion claims, the agency has
never interpreted the regulation as requiring that notice be sent to counsel if the
claimant is represented... In fact, the government has always taken the position
that the regulation permits it to send notice directly to a represented claimant.”
Id.
at 450 (Kozinski, J. dissenting opinion).
Because the pertinent regulation is not in conflict with the FTCA or other
regulation, see Childers v. United States,
442 F.2d 1299, 1302 (5th Cir. 1971), we
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believe the language of section 14.9 means what it says: the final denial of a claim
may be sent to a claimant or to his attorney.
Our reading of section 14.9 is not without support in our circuit’s law. In
Childers, we addressed a claimant’s assertion that the agency erred when it failed
to serve the claimant personally but instead sent the denial notice to the claimant’s
attorney. We concluded that, because the regulation explicitly lists an attorney as a
person to whom the denial may be mailed, the claimant’s argument was without
merit. In this case, because the regulation explicitly lists a claimant as a person to
whom the denial may be mailed, we also conclude Plaintiff’s argument to be
without merit.
In addition, Plaintiff argues that the denial letter was an unethical
communication pursuant to DR 7-104(a)(1) of the ABA Model Code of
Professional Responsibility and, therefore, was inadequate to trigger sections
2401(b)’s limitation. We are uncertain whether a Bar-discipline rule can trump a
federal regulation. In any event, DR 7-104(a)(1) proscribes a lawyer’s
communication with a represented party; but in this case, the Bureau was acting in
its capacity as an adjudicator. DR 7-104(a)(1) provides no basis for invalidating an
administrative agency’s communication with a represented party; when an agency
is acting in its capacity as an adjudicator, it may communicate directly with a party.
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See Graham,
96 F.3d at 450-52 (Kozinski, J. dissenting) (citing the sources of
federal regulations providing for sending notice of an agency decision to the
claimant).
The Bureau’s denial letter, mailed to Plaintiff, was sufficient to trigger the
six-month limitation of section 2401(b). Because Plaintiff failed to file his
complaint within the designated time, we affirm the district court’s dismissal of
Plaintiff’s complaint.
AFFIRMED.
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NEWMAN, Circuit Judge, concurring:
I concur in the Court's opinion affirming the dismissal of Appellant's
untimely suit under the Federal Tort Claims Act, but add a few words to suggest to
the Bureau of Prisons a simple way to avoid the possible unfairness of its current
regulation.
As the Court notes, a timely suit must be filed within six months after an
agency's denial of a claim, and the pertinent regulation,
28 C.F.R. § 14.9 (2000),
permits a denial to be sent either to the claimant or his attorney. Many people
would assume that when they obtain an attorney to represent their interests before
an agency and the attorney notifies the agency of his representation, the agency
will thereafter communicate with the attorney. In reliance on this assumption,
some people might take extended vacations without arranging for the forwarding
of their mail. For federal prisoners, many of whom are moved around the country,
the assumption that their attorney is handling all aspects of their claim is especially
important, because mail sent only to the prisoner will sometimes not be promptly
(if ever) forwarded.
The Bureau maintains that it cannot send notice of claim denial only to an
attorney, because, with an administrative claim, disputes may arise whether the
attorney is really acting for the prisoner, unlike with lawsuits, where an attorney
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files a formal appearance. The force of that contention is diminished by two
circumstances. First, the Bureau sends a voucher for payment of approved claims
only to the attorney. See
id. § 14.10 (2000). Second, another agency within the
Department of Justice, the Immigration and Naturalization Service, manages with a
regulation providing for notice to the attorney “or the person himself if
unrepresented.”
8 C.F.R. § 292.5(a) (2000) (emphasis added).
Even if, as we hold, the Bureau is entitled to start the six- month clock by
sending notice of claim denial to the prisoner, an obvious solution to the Bureau's
concern is for the Bureau to send a notice of claim denial to both the prisoner and
any person the Bureau has reason to believe is acting as the prisoner's attorney, as
several agencies now do. See Graham v. United States,
96 F.3d 446, 451-52 n.3
(9th Cir. 1996) (Kozinski, J., dissenting) (collecting regulations). This would start
the six-month clock, without risking any dispute as to the true authority of the
attorney. The additional notice to the attorney would avoid the needless default of
some lawsuits in the normal circumstances where the attorney is in fact acting for
the prisoner and will act in a timely manner to file the lawsuit.
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