Dianne Khan v. United States , 808 F.3d 1169 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3292
DIANNE KHAN,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14-cv-00285-LA — Lynn Adelman, Judge.
____________________
ARGUED NOVEMBER 18, 2015—DECIDED DECEMBER 23, 2015
____________________
Before POSNER, MANION, and SYKES, Circuit Judges.
POSNER, Circuit Judge. In 2006, twelve U.S. Marshals ar-
rested Dianne Khan in her apartment for making false
statements to the federal Department of Housing and Urban
Development. (She was found guilty of the offense later that
year and sentenced to five years’ probation.) The marshals
were waiting for her in the apartment, and when she entered
they confronted her at gunpoint. Why twelve marshals with
2 No. 14-3292
drawn guns were thought necessary to arrest a woman for a
nonviolent offense has not been explained. When she asked
to use the bathroom, a marshal first patted her down and
then watched her pull down her underwear, urinate, and
wipe and cleanse herself according to a Muslim ritual that
she observes. The marshals handcuffed her and refused to
allow her to cover her head. And while attempting to buckle
her seatbelt in the back seat of the squad car that was to take
her to jail, a marshal touched her breasts three or four times,
though apparently this was attributable to his clumsiness,
rather than being intentional.
In June, three months after her arrest, Khan wrote to the
Marshals Service Office of Inspection (now called the Office
of Professional Responsibility) describing the indignities to
which she’d been subjected during the arrest and complain-
ing about the absence of any female agents, her having to
expose herself to a male agent in her bathroom, being patted
down, and having her breasts touched by a male agent be-
cause he didn’t know how to fasten the seat belt on her.
The letter did not ask the Office of Inspection to disci-
pline the marshals who had arrested her or pay her compen-
sation for the way she’d been treated—which, if her allega-
tions are true (a big if, since we have only her allegations),
seems indeed improper. The Office replied to the letter
about two weeks later, stating that it took her complaint of
mistreatment by the arresting marshals “very seriously.” But
in a second letter, sent three months later, the Chief of the
Office of Inspection told her she was “not entitled to know
the outcome of the investigation” because of “privacy is-
sues.” Three years later, however, through the intercession
of a Senator, Khan learned that the Marshals Service had in
No. 14-3292 3
2006 “reviewed the incident and found no evidence of mis-
conduct” and had therefore “closed the case.”
Six years passed before she wrote another letter to the
Marshals Service, this one insisting that it “settle this mat-
ter.” Again she did not request compensation. The Service
did not respond to the letter or pay any further attention to
the matter.
In September 2013—more than seven years after the ar-
rest—Khan mailed the Marshals Service an administrative
claim on Standard Form 95 (the form routinely used to pre-
sent tort claims against the United States) requesting $4 mil-
lion in damages. The Service replied that the Federal Tort
Claims Act places a two-year limit on filing claims alleging
misconduct by federal officers, 28 U.S.C. § 2401(b), and
therefore her claim was untimely.
Six months later she filed this lawsuit against both the
United States and the arresting marshals, suing the United
States under the Federal Tort Claims Act and the marshals
under the Bivens doctrine, which allows suits against federal
employees for violation of constitutional rights. Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). The district court dismissed the suit as time-
barred. Although generally a plaintiff is not required to
plead around an affirmative defense, such as a statute of lim-
itations, the district court can dismiss a complaint as untime-
ly if the plaintiff has admitted all the elements of the affirma-
tive defense, see Cancer Foundation, Inc. v. Cerberus Capital
Management, LP, 559 F.3d 671, 674–75 (7th Cir. 2009), as the
plaintiff in this case had.
4 No. 14-3292
A plaintiff who sues a federal agency under the Tort
Claims Act must first submit her claim to the agency; not un-
til it’s denied can she sue. 28 U.S.C. § 2675(a). The Act estab-
lishes deadlines for filing claims, both with the agency and
(if denied) in a court. Khan’s principal argument on appeal
is that the June 2006 letter to the Marshals Service was an
administrative claim that satisfied the requirement of filing a
claim with the agency within two years. See 28 U.S.C.
§ 2401(b). She also argues that she sued within six months of
the agency’s final denial of the claim and thus satisfied the
second deadline (the deadline for suing) in that section.
We start with her second contention. Three years after
sending her first letter Khan learned that the Marshals Ser-
vice had decided that her claim of having been mistreated by
the arresting marshals had no merit. If that 2009 letter is
deemed a claim denial, Khan is out of luck, not having sued
within six months of the denial, the deadline in section
2401(b). But she’d learned of the denial of her claim
secondhand, through the intervention of the Senator. The
Service had failed (indeed refused) to notify her of the deni-
al; perhaps then there was no final denial. But even we
therefore treat the letter denying the claim for damages that
she made later, in September 2013, as the definitive denial of
her claim—in which event her suit was filed within the six-
month deadline—the suit was untimely because of Khan’s
failure to comply with the requirement in section 2401(b)
that the administrative claim be presented to the federal
agency within two years of its accrual. Though her June 2006
letter had been filed within two years of her arrest, and the
date of the arrest was the date of the accrual, that letter was
not a proper administrative claim because it had not de-
manded any damages, as required by a regulation, 28 C.F.R.
No. 14-3292 5
§ 14.2(a), the validity of which she doesn’t challenge. The
regulation states, so far as pertains to this case, that “a claim
shall be deemed to have been presented when a Federal
agency receives from a claimant, his duly authorized agent
or legal representative, an executed Standard Form 95 or
other written notification of an incident, accompanied by a
claim for money damages in a sum certain for injury to or
loss of property, personal injury, or death alleged to have
occurred by reason of the incident.”
Failure to specify a “sum certain” is not fatal, however,
see Kanar v. United States, 118 F.3d 527, 529 (7th Cir. 1997), as
it is unlikely to derail the settlement process, which the regu-
lation is designed to facilitate, and as the claimant may not
yet have been able to calculate her precise loss. Id. at 529,
531. All that must be specified, therefore, is “facts plus a de-
mand for money;” if those two things are specified, “the
claim encompasses any cause of action fairly implicit in the
facts.” Murrey v. United States, 73 F.3d 1448, 1452 (7th Cir.
1996). But as “facts plus a demand for money” must be spec-
ified, failure to ask for any damages—any money—is fatal.
See Smoke Shop, LLC v. United States, 761 F.3d 779, 787–88
(7th Cir. 2014). As it should be. Khan’s first letter would
have created the impression that the “claimant” was seeking
something other than money—such as an apology for the
misconduct of the arresting marshals, or punishment of
them, or better training of marshals. It would not have been
apparent that she was contemplating suit. The Marshals Ser-
vice might have been deceived into thinking it needn’t pre-
pare a defense or attempt to negotiate a settlement.
Khan’s suit is thus untimely under section 2401(b), but
she has an argument that it’s timely under 28 U.S.C.
6 No. 14-3292
§ 2401(a). That section provides that “every civil action
commenced against the United States shall be barred unless
the complaint is filed within six years after the right of action
first accrues.” The plaintiff argues that her right of action
first accrued in September 2013, when the Marshals Service
denied her claim, and if this is correct then her suit, filed the
next year, was of course timely under section 2401(a). The
Service counters that if as Khan contends her June 2006 letter
was the claim, her right of action first accrued late in 2006,
when six months had elapsed with no response from the
Marshals Service. It points to 28 U.S.C. § 2675(a), which says
that when an agency fails to decide a claim within six
months, its failure shall “at the option of the claimant any
time thereafter, be deemed a final denial of the claim.” She
did not sue by December 2012, six years after that final deni-
al.
Though the foregoing analysis of section 2401(a) is plau-
sible, we don’t need or want to decide when a right of action
accrues under that section because the section turns out to be
inapplicable to this case. Although it establishes a six-year
limitations period for “every civil action commenced against
the United States,” section 2401(b), discussed earlier in this
opinion, refers specifically to tort claims: “A tort claim
against the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency with-
in two years after such claim accrues or unless action is be-
gun 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.” The plaintiff’s claim was
unquestionably a tort claim, as it alleged assault—pointing
guns at her gratuitously—and battery and intentional inflic-
tion of emotional distress. And United States v. Glenn, 231
No. 14-3292 7
F.2d 884, 886 (9th Cir. 1956), noting that section 2401(b) orig-
inated in the Federal Tort Claims Act, holds sensibly that (b)
rather than (a) governs tort suits against the federal govern-
ment. The reasoning in Glenn has been followed in Pittman v.
United States, 341 F.2d 739, 740 (9th Cir. 1965); Schuler v.
United States, 628 F.2d 199, 201 (D.C. Cir. 1980); Conn v. Unit-
ed States, 867 F.2d 916, 920 (6th Cir. 1989); and Carter v. Unit-
ed States, 55 Fed. App’x 464, 465 (9th Cir. 2003). The analysis
in the cases we’ve just cited is persuasive.
Parenthetically we note that even if section 2401(a) were
applicable to claims under the Federal Tort Claims Act, it
would not come into play in all FTCA suits. The Act incor-
porates the substantive law of the state where the tort oc-
curred, Midwest Knitting Mills, Inc. v. United States, 950 F.2d
1295, 1297 (7th Cir. 1991), and many states have statutes of
repose for tort actions, statutes that would cut off a plain-
tiff’s right to sue before the time bar in section 2401(a) kicked
in. Cf. Augutis v. United States, 732 F.3d 749, 752–53 (7th Cir.
2013).
As for the Bivens defendants, the plaintiff’s claim against
them clearly is time-barred. Because her arrest was in Wis-
consin, the applicable statute of limitations is Wisconsin’s
six-year statute of limitations for a variety of tort suits. Wis.
Stat. § 893.53; Reget v. City of La Crosse, 595 F.3d 691, 694 (7th
Cir. 2010); Malone v. Corrections Corp. of America, 553 F.3d
540, 542 (7th Cir. 2009). The statute of limitations begins to
run when a plaintiff knows she’s been injured. See, e.g.,
Leavell v. Kieffer, 189 F.3d 492, 495 (7th Cir. 1999). That was in
2006 in this case. Khan didn’t file suit until 2014—eight years
later.
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The judgment of the district court is
AFFIRMED.