Collins v. United States

20-2021
Collins v. United States
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 20-2021-cv
MICHAEL COLLINS,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
MICHAEL R. SCHOLL,
Defendant. ∗
__________
On Appeal from the United States District Court
for the Eastern District of New York
__________
ARGUED: JANUARY 7, 2021
DECIDED: APRIL 30, 2021
__________
Before: CALABRESI, RAGGI, and CHIN, Circuit Judges.
________________
∗
The Clerk of Court is directed to amend the caption to conform to the above.
Plaintiff Michael Collins, who sustained various injuries
requiring hospitalization and surgery as a result of being struck by a
United States Postal Service truck, appeals from a judgment of the
United States District Court for the Eastern District of New York
(Feuerstein, J.), dismissing his Federal Torts Claims Act (“FTCA”)
lawsuit for lack of subject matter jurisdiction. Collins argues that the
district court erred in ruling that he failed to satisfy the FTCA’s
jurisdictional requirement because he did not present his claims for
administrative review with sufficient specificity to allow the
government “to conduct an investigation and to estimate the claim’s
worth.” Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998)
(construing 28 U.S.C. § 2675(a)).
REVERSED AND REMANDED.
MICHAEL V. DESANTIS (Adam Nicolazzo, on
the brief), Kaufman, Dolowich & Voluck,
LLP, Woodbury, New York, for Plaintiff-
Appellant.
MEGAN FREISMUTH, Assistant United States
Attorney (Varuni Nelson, Rachel G.
Balaban, Assistant United States Attorneys,
on the brief), for Mark J. Lesko, Acting United
States Attorney for the Eastern District of
New York, Brooklyn, New York, for
Defendant-Appellee.
2
REENA RAGGI, Circuit Judge:
Early on the morning of October 25, 2017, a United States Postal
Service (“USPS”) truck traveling on Jericho Turnpike in Huntington,
Long Island, struck a pedestrian, plaintiff Michael Collins, fracturing
his left knee and six ribs. Pursuant to the Federal Torts Claims Act
(“FTCA”), see 28 U.S.C. §§ 1346(b)(1), 2671 et seq., Collins sought
compensation for his injuries, first administratively, and then by filing
this action in the United States District Court for the Eastern District
of New York (Sandra J. Feuerstein, J.). He now appeals from a
judgment entered in that court on May 26, 2020, dismissing his action
for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1),
(h)(3). Specifically, Collins challenges the district court’s finding that
he failed to satisfy the FTCA’s administrative exhaustion requirement
because, in presenting his claim for USPS review, he did not “provide
enough information to permit the agency to conduct an investigation
and to estimate the claim’s worth,” as required by this court’s
precedent. Collins v. U.S. Postal Serv., 462 F. Supp. 3d 231, 237, 241
(E.D.N.Y. 2020) (quoting Romulus v. United States, 160 F.3d 131, 132
(2d Cir. 1998)).
We agree that the district court erred in finding Collins’s
presentment inadequate. The FTCA’s jurisdictional presentment
prerequisite is one of notice, not proof. While this requirement
demands more than a conclusory assertion of claims, it does not
necessarily require that a claimant provide an agency with supporting
evidence. Rather, the presentment requirement mandates that the
claimant present the agency with sufficient information—whether
through narrative, evidence, or other means—to alert the agency to
the basis for his claim, the nature of his injuries, and the amount of
3
damages sought so that the agency can proceed to investigate its
liability and value the claim in order to assess the advisability of
settlement. Because Collins here presented information sufficient to
provide such notice, we reverse the dismissal of his FTCA action and
remand with directions to reinstate his complaint.
BACKGROUND 1
I. A USPS Truck Hits Collins
At approximately 5 a.m. on October 25, 2017, USPS employee
Michael Scholl was driving a USPS truck—specifically, a Mack
tractor-trailer—on Jericho Turnpike in Huntington, Long Island,
when he hit pedestrian Michael Collins.
Suffolk County police officers and a USPS investigator
responded to the accident scene. The USPS investigator reported that
the accident happened when Scholl, after stopping for a traffic light
at Melville Avenue, proceeded east about 30 yards on Jericho
Turnpike and hit a pedestrian who was “just standing . . . on Jericho
[Turnpike] . . . in the dark.” App’x at 63. The police reported Scholl
stating that he had not seen Collins standing in the road when he hit
him. See id. at 55. The police further reported Collins stating that he
1 The facts summarized herein, which we presume true for the purposes of this
appeal, are derived from Collins’s complaint, documents incorporated therein,
and documents submitted to and considered by the district court upon the motion
to dismiss for lack of subject matter jurisdiction. See Fountain v. Karim, 838 F.3d
129, 134 (2d Cir. 2016) (“In resolving a motion to dismiss under Rule 12(b)(1), the
district court must take all uncontroverted facts in the complaint (or petition) as
true, and draw all reasonable inferences in favor of the party asserting jurisdiction.
The court may resolve the disputed jurisdictional fact issues by referring to
evidence outside of the pleadings, such as affidavits, and if necessary, hold an
evidentiary hearing.” (internal alteration, citation, and quotation marks omitted)).
4
had been at a friend’s home smoking “weed” and doing “shots of
[J]ameson” prior to the accident. Id.Collins was transported to Huntington Hospital where a
battery of tests identified various injuries, among them six rib
fractures and a fracture of the medial femoral condyle in his left knee. 2
On October 26, 2017, doctors operated on Collins’s knee, inserting
three screws into the broken bone. When Collins was discharged on
October 30, 2017, hospital notes document his need for personal
assistance with various life activities, a number of prescription
medications, and acute rehabilitation therapy.
Apparently, Collins’s recovery did not go smoothly, and he
developed infections requiring further hospitalization from
November 12, 2017, to December 26, 2017, and then again in
June 2018.
II. Collins’s Standard Form 95 Claim for Compensation
On December 15, 2017—i.e., while Collins was hospitalized for
a second time—his attorney filed an administrative FTCA claim for
compensation using the government’s prescribed Standard Form 95
(“Form 95”). See 39 C.F.R. § 912.5. In response to inquiries on the
form, counsel stated, as relevant here, that the “Date” and “Time” of
the injury at issue were “10/25/17” at “5:04 a.m.,” and that the “Basis
of Claim” was as follows:
2Hospital records show that Collins’s “[a]lcohol level was minimal” and that a
“drug screen was not done.” Id. at 197.
5
Claimant, a pedestrian, was struck and
seriously injured as a result of a
vehicle/tractor trail[e]r driven by a U.S. Post
Office employee (named Michael Scholl)
that came into contact with claimant.
Incident occurred on E. Jericho Turnpike
approximately 100 feet east of Melville
Road, Town of Huntington, County of
Suffolk, NY.
App’x at 78.
Counsel further stated that Collins sought “$10,000,000”
compensation for “personal injury,” detailed as follows: “fractured
left knee; 6 rib fractures (3 front, 3 back); left elbow, exposed bone
and/or fracture; head; chest, including chest infection; equilibrium
issues; blood infection.” Id. In both the Form 95 and an
accompanying transmittal letter, counsel reported that Collins was
then in the hospital—specifically in the intensive care unit—receiving
treatment related to the claimed injuries. Collins’s counsel also
submitted bills showing his client’s $42,785.92 indebtedness to
Huntington Hospital for specified and unspecified services rendered
from October 25 to October 30, 2017. Among these were a $3,795.50
bill for “critical care,” “hospital care,” and “initial inpatient
consult[s],” and a $4,238.00 bill for “anesthesia services” provided by
Dr. Cory Schneider. Id. at 474–75.
III. Ensuing Correspondence
By response letter dated January 8, 2018, a USPS claims
examiner confirmed the agency’s December 29, 2017 receipt of
Collins’s Form 95 and advised that she was “reviewing” his claim to
6
determine “any legal liability” on the part of USPS. Id. at 84. 3 The
examiner stated that Collins’s claim would be “adjudicated as soon as
possible,” noting that USPS “ha[d] six months from December 29,
2017,” to do so. Id.; see 28 U.S.C. § 2675(a). The examiner did not then
indicate that Collins’s Form 95 claim was deficient in any way. Nor
did she request any further information. Rather, she advised that
“any additional information you wish to submit that would be helpful
in the review of this matter” should be directed to her attention.
App’x at 84 (emphasis added).
Subsequently, in support of USPS’s motion to dismiss this
action, the examiner professed to having had “several discussions
with and sent letters to plaintiff’s attorneys regarding the need for
medical documentation needed in order to fully evaluate plaintiff’s
claim.” Id. at 75. The next documented communication from USPS,
however, is not until June 2018. Well before that, on February 23,
2018, Collins’s attorney sent USPS “a HIPAA authorization for
Huntington Hospital” to release to USPS all Collins’s medical records
from “10/25/17” to the “present.” 4 Id. at 443–44. Counsel also sent a
February 2, 2018 bill from Huntington Hospital, itemizing $65,015.76
3USPS’s liability is not at issue on this appeal, and we express no opinion in that
regard.
4 The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), see
42 U.S.C. § 1320d et seq., prohibits the disclosure or receipt of “individually
identifiable health information” from “a covered entity . . . without authorization,”
id. § 1320d-6(a); see 45 C.F.R. § 164.508(b)–(c) (defining valid authorizations, core
elements, and required statements).
7
in services for Collins’s October hospitalization. 5 Counsel advised
that “once this firm receives more items/information that can assist
you in your evaluation (such as further medical records), then we will
forward them to you as well.” Id. at 443.
The next documented communication between the parties is an
April 3, 2018 letter from Collins’s counsel to USPS transmitting his
client’s complete Huntington Hospital medical records—totaling
over 300 pages—covering October 25–30, 2017. Counsel advised that
he was still awaiting other hospital records, which he would forward
to USPS upon receipt.
It was not until June 12, 2018—approximately two weeks before
the expiration of the six-month period for decision referenced in
USPS’s January 8, 2018 letter and mandated by 28 U.S.C. § 2675(a)—
that the examiner sent Collins’s counsel a letter stating that she
needed more information “to properly evaluate his claim.” Id. at 69.
5 These itemized services are as follows:
MRI Spinal Cord Spin $ 826.00
CT Scan $ 2,975.00
EKG/ECG $ 496.00
Emergency Room $ 1,875.00
Laboratory $ 4,872.00
Med/Surg Supplies & Devices $ 3,248.00
Operating Room Services $ 8,085.00
Pharmacy $ 1,602.24
Physical Therapy $ 862.00
Radiology-Diagnostic $ 12,757.00
Recovery Room $ 1,715.00
Room & Board $ 12,495.00
Room & Board I.C.U. $ 10,360.00
New York Surcharge $ 2,847.52
Id. at 447.
8
She requested “the ambulance report, complete records from the
hospitalization, and records for treatment Mr. Collins received after
10/30/2017 along with all medical billings, no fault payment log, and
documentation regarding any outstanding liens.” Id.; see 39 C.F.R.
§ 912.7(b).
Collins’s counsel responded promptly by letter dated June 19,
2018. He advised that he had already sent USPS some of the
requested materials, specifically, the ambulance report, Collins’s full
medical records from his October 25–30, 2017 hospitalization, and the
$65,015.76 bill from that hospitalization. Counsel reported that
Collins was not receiving any no-fault benefits. Further, he identified
by name and address those treating persons and entities from whom
he was still awaiting records and bills. 6 Counsel also supplemented
Collins’s Form 95 with a more particular description of his injuries.7
6The persons and entities so identified are Apex Rehabilitation & Healthcare,
North Shore Home Care, Huntington Hospital (for the period November 12–
December 26, 2017), and Doctors Harold German, Juliana Kanji, and Adam
Bitterman. Hospital records identify Dr. Bitterman as the orthopedic surgeon who
operated on Collins’s knee in October 2017.
7The supplemented response detailed the nature and extent of Collins’s injuries
as follows:
• Closed non-displaced fracture of femoral condyle;
• 10/26/17: Open reduction and internal fixation of the
left femoral condyle;
• Acute fractures of the left second and third ribs
anteriorly;
• Acute fractures of the left fourth and fifth ribs
segmentally, posteriorly and anteriorly, with the
posterior fracture fragments mildly comminuted
and overriding;
9
Finally, counsel advised that Collins was again hospitalized to treat
an infection stemming from his October surgery, and “reserve[d] the
right to further supplement [Collins’s] claim” upon anticipated
receipt of “an abundance of medical records.” Id. at 71–72.
The record reveals no further communication by USPS before
August 22, 2018, when Collins commenced this FTCA action in the
district court. Three weeks later, by letter dated September 12, 2018,
USPS formally denied Collins’s administrative claim. The stated
reason was as follows:
Despite our discussions regarding
additional treatment your client received
beyond his initial hospitalization, you
refused to provide records for the additional
treatment. As such, due to your failure to
submit competent evidence of your client’s
injuries and damages as is required, the
above-referenced administrative claim is
hereby denied.
• Acute fractures of the . . . left sixth rib posteriorly;
• Impacted fractures of the anterior right third and
fourth ribs;
• Compression fracture within the T7 vertebral body,
with loss of 50% of vertebral body height;
• Pneumothorax.
App’x at 73.
We cannot discern from the record whether these descriptions pertain to
injuries already stated in Collins’s Form 95 or whether, as the district court
thought, the last two injuries are in addition to those earlier identified. We do not
pursue the matter because it makes no difference to our decision.
10
Id. at 86–87.
Some ten months later, on June 26, 2019, the government
moved in the district court to dismiss Collins’s federal complaint for
lack of subject matter jurisdiction, arguing that Collins had not
adequately presented his claim for USPS review, thereby failing to
satisfy the law’s administrative exhaustion requirement. The district
court agreed and, on May 26, 2020, dismissed the complaint.
This timely appeal followed.
DISCUSSION
I. Standard of Review
“A plaintiff asserting subject matter jurisdiction has the burden
of proving by a preponderance of the evidence that it exists.” Fountain
v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)). On appeal of a dismissal for
lack of subject matter jurisdiction, we review the district court’s
factual findings for clear error and its legal conclusions de novo. See
id.; McGowan v. United States, 825 F.3d 118, 125 (2d Cir. 2016).
II. The FTCA’s Presentment Requirement
A. The FTCA’s Conditional Waiver of Sovereign Immunity
The law is clear that “[t]he United States, as sovereign, is
immune from suit unless it waives immunity and consents to be
sued.” Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019) (collecting
cases). A waiver of sovereign immunity by the United States “must
be unequivocally expressed in the statutory text,” and “strictly
construed, in terms of its scope, in the sovereign’s favor.” Department
11
of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (internal quotation
marks omitted).
In the FTCA, Congress expressly waived sovereign immunity
by stating that “[t]he United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same manner and
to the same extent as a private individual under like circumstances.”
28 U.S.C. § 2674; see Cooke v. United States, 918 F.3d at 81. But the
waiver is subject to a jurisdictional prerequisite: a tort action “shall
not be instituted . . . against the United States for money damages . . .
unless the claimant shall have first presented the claim to the
appropriate Federal agency” for its review. 28 U.S.C. § 2675(a)
(emphasis added). Further, an FTCA action “shall not be instituted
for any sum in excess of the amount of the claim presented to the
federal agency.” Id. § 2675(b). 8 Such presentment must be made
within two years after a tort claim accrues. See id. § 2401(b).
Congress enacted this jurisdictional presentment requirement
“in 1966 as part of a package of amendments designed to facilitate
out-of-court settlement of [FTCA] claims.” GAF Corp. v. United States,
818 F.2d 901, 905 (D.C. Cir. 1987) (footnote omitted). To facilitate such
settlements, the FTCA authorizes “[t]he head of each Federal agency
or his designee” to settle tort claims presented for agency review “in
accordance with regulations prescribed by the Attorney General.”
28 U.S.C. § 2672. Further, to give the agency an exclusive window to
8 The FTCA nevertheless authorizes lawsuits in excess of administratively
presented amounts where a greater sum is based “upon newly discovered
evidence not reasonably discoverable” at the time of presentment or “upon
allegation and proof of intervening facts, relating to the amount of the claim.” Id.12
consider settlement, the FTCA permits an action under the statute to
be filed in federal court only after the agency denies a tort claim or
denial is presumed from the passage of six months from presentment
without a final agency disposition. See 28 U.S.C. § 2675(a); Celestine v.
Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005)
(“The FTCA requires that a claimant exhaust all administrative
remedies before filing a complaint in federal district court. This
requirement is jurisdictional and cannot be waived.”); accord Cooke v.
United States, 918 F.3d at 81.
Thus, Collins was required to present his personal injury claim
for USPS review before initiating an FTCA action in federal court.
B. What Constitutes Presentment
1. Statutory Text
What suffices to “present” a tort claim to a federal agency so as
to satisfy this FTCA jurisdictional prerequisite? Congress did not
define the word “present” as used in the FTCA, and the Supreme
Court has not addressed the issue. Under traditional principles of
construction, we assume that Congress intended for a word to bear
its ordinary meaning unless the word has acquired a specialized
meaning at law. See Bostock v. Clayton County, 140 S. Ct. 1731, 1738
(2020) (“This Court normally interprets a statute in accord with the
ordinary public meaning of its terms at the time of its enactment.”);
United States v. Scott, 990 F.3d 94, 109–10 (2d Cir. 2021) (en banc)
(construing word “omission” in light of specialized meaning acquired
at law).
In common usage, the verb “present” means “to bring or
introduce into the presence of someone.” Webster’s Third New
13
International Dictionary 1793 (1986). At law, the word’s meaning is
the same, but more focused: “to lay (as a charge) before a court as an
object of inquiry.” Id. (emphasis added). Thus, at law, “presentment”
is understood as “[t]he act of presenting or laying before a court or
other tribunal a formal statement about a matter to be dealt with
legally.” Black’s Law Dictionary 1433 (11th ed. 2019). 9 We assume
Congress was aware of this legal meaning when it conditioned federal
courts’ exercise of FTCA jurisdiction on a preliminary administrative
presentment. See United States v. Scott, 990 F.3d at 109–10.
Accordingly, based simply on the statutory text, we construe the
presentment requirement as one of notice, not proof. An FTCA
claimant must provide the appropriate agency with sufficient notice
9The noun form, “presentment,” is perhaps most famously used in its legal sense
in the Fifth Amendment to the Constitution: “No person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury . . . .” U.S. Const. amend. V (emphasis added). As the leading
commentators on federal practice and procedure explain,
Although modern grand juries deal only with
indictments, the Fifth Amendment to the
Constitution also speaks of presentments.
Historically a presentment was the process by which
a grand jury initiated an independent investigation
and asked that a charge be drawn to cover the facts
that constitute a crime. Given the very heavy
influence that federal prosecutors exercise over
grand jury investigations, and more importantly,
given the prosecutor’s ability to prevent the case
from moving forward by refusing to sign an
indictment, the use of the presentment is now
obsolete in federal practice.
1 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 111,
at 455–56 (4th ed. 2008) (footnotes omitted).
14
of his claim to permit the agency to conduct an inquiry into the merits
of his demand for compensation.
2. The Regulatory Requirement for Presentment and This
Court’s Decision in Romulus v. United States
What exactly must a claimant lay before an agency to provide
sufficient notice of an FTCA claim? Again, the statute does not say,
and the Supreme Court has not addressed the issue.
A USPS implementing regulation states that a “claim shall be
deemed to have been presented when the U.S. Postal Service receives
from a claimant” two things: “[1] an executed Standard Form 95 . . .
or other written notification of an incident, accompanied by [2] a
claim for money damages in a sum certain.” 39 C.F.R. § 912.5(a). The
sum-certain requirement can be traced to 28 U.S.C. § 2675(b), which,
as noted supra at 12 & n.8, generally limits the United States’ waiver
of sovereign immunity to the damages amount presented to the
agency. The Form 95 requirement, however, was promulgated by the
Attorney General not on the basis of any authority conferred in § 2675
to prescribe requirements for presentment but, rather, on the basis of
§ 2672’s authority to establish regulations facilitating settlement.
Accordingly, 39 C.F.R. § 912.5 cannot dictate presentment. 10
10As we discuss infra at Point IV, this conclusion finds support in the decisions of
our sister circuits. See Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982)
(Kennedy, J.) (stating that FTCA regulations “were promulgated pursuant to
section 2672 of the Act dealing with the agencies’ settlement authority, and do not
interpret the claims section, section 2675(a)”); Adams v. United States, 615 F.2d
284, 288 (5th Cir. 1980) (identifying error in assumption that “notice requirements
of 28 U.S.C. § 2675 must be read in light of the settlement procedures established
15
Indeed, just as Form 95 is not the only way to present a claim,
this court has ruled that “the mere act of filing a [Form] 95 does not
necessarily fulfill the presentment requirement of § 2675(a).” Romulus
v. United States, 160 F.3d at 132. Rather, a claimant presenting an
FTCA claim for administrative review—whether by Form 95 or
otherwise—“must provide more than conclusory statements which
afford the agency involved no reasonable opportunity to investigate.”
Id.That concern arose in Romulus because the plaintiff there—also
claiming damages from an accident involving a USPS vehicle—
submitted a Form 95 stating the date, time, and approximate location
of the accident but not identifying the driver or number of the USPS
vehicle. See Romulus v. United States, 983 F. Supp. 336, 337 (E.D.N.Y.
1997). Further, that Form 95 reported only unspecified injuries to the
claimant’s “head, body, and extremities, pain and suffering, and
emotional distress,” and offered no medical records describing these
injuries more particularly. Id. (internal quotation marks omitted).
Finding such a submission insufficient to satisfy the FTCA’s
presentment requirement, the district court dismissed the action.
Judge Trager observed that while a plaintiff “need not provide all
possible information to satisfy the jurisdictional predicate” of
presentment, neither could she “maintain an action after submitting
by [FTCA regulations], which were promulgated pursuant to section 2672”); see
also Byrne v. United States, 804 F. Supp. 577, 581 (S.D.N.Y. 1992) (“Because the
[FTCA settlement] regulations were not promulgated under the jurisdictional
notice provision of the FTCA—indeed, section 2675 makes no provision for the
promulgation of regulations under its authority—courts have declined to find that
strict compliance with the regulations is a jurisdictional requirement.”).
16
a conclusory form that provided no information” and “simply
refus[ing] to provide an agency with any information to investigate
the claim.” Id. at 342 (noting plaintiff’s complete failure to respond to
USPS requests for more specific information).
This court adopted the district court’s reasoning in affirming
dismissal. See Romulus v. United States, 160 F.3d at 132. We ruled that
to satisfy the law’s jurisdictional requirement a presentment “must be
specific enough to serve the purpose of the FTCA to enable the federal
government to expedite the fair settlement of tort claims.” Id. (citing
Johnson ex rel. Johnson v. United States, 788 F.2d 845, 848–49 (2d Cir.
1986), overruled on other grounds, Sheridan v. United States, 487 U.S. 392(1988)). 11 To do that, a claimant “must provide enough information
to permit the agency to conduct an investigation and to estimate the
claim’s worth.” Id. (citing Keene Corp. v. United States, 700 F.2d 836,
842 (2d Cir. 1983)).
Applying that standard here, we conclude that, because Collins
provided sufficient information for an investigation, he satisfactorily
presented his claim to USPS more than six months before filing his
court action, thus supporting the district court’s exercise of
jurisdiction.
11 After evaluating presentment, Johnson addressed whether the plaintiff could
maintain an FTCA claim for negligent failure to prevent assault and battery by a
government employee and held that such claims were precluded by 28 U.S.C.
§ 2680(h), the FTCA’s intentional tort exception. See 788 F.2d at 850. In Sheridan,
the Supreme Court ruled that the intentional tort exception did not universally bar
claims based on a negligence theory. See 487 U.S. at 401–03.
17
III. Collins’s December 15, 2017 Submission Satisfied the
FTCA’s Jurisdictional Presentment Requirement
The Form 95 and appended materials that Collins submitted to
USPS on December 15, 2017, were sufficient to satisfy the FTCA’s
jurisdictional presentment requirement as construed by this court.
First, Collins did not rely on mere conclusory statements in
presenting his claim. On his Form 95, he provided not only the date,
time, and precise location of the collision, but also the name of the
USPS employee involved and a narrative of the relevant events. This
avoided the missteps identified in Romulus v. United States, 983 F.
Supp. at 337, and provided USPS with sufficient information to
enable it to investigate its potential liability, see Johnson ex rel. Johnson
v. United States, 788 F.2d at 849 (“By stating the cause of the injury, the
name of the employee who committed the assault, and the date and
location of the attack, the claim notified the agency of sufficient
factual circumstances to enable it to investigate the matter.”). That
conclusion is reinforced, moreover, by the fact that additional
information regarding the accident was available to USPS from its
own identified employee Scholl; its internal records, specifically, the
reports of its on-scene investigator; and from an equally accessible
police accident report. See id. (stating that presentment does not
require plaintiff to provide information likely already in agency’s
possession). Indeed, we note that the district court did not find, nor
does the government argue, that Collins’s December 2017 filing failed
to provide sufficient information to allow USPS to investigate liability.
The presentment concern identified pertains to Collins’s provision of
information regarding his injuries, specifically those continuing or
arising after October 2017.
18
That brings us to our second point. Collins’s Form 95 provides
quite specific information about the nature of the injuries he sustained
from the collision. It identifies seven bone fractures by location: one
in Collins’s left knee, three to his front ribs, and three to his back ribs.
The Form 95 also reports a possible fracture to Collins’s left elbow,
chest and blood infections, and equilibrium issues. Thus, with respect
to injury as well as liability, Collins’s Form 95 provides USPS with
much more detailed information than the assertion of unspecified
injuries to a claimant’s “head, body, and extremities” in Romulus v.
United States, 983 F. Supp. at 337 (internal quotation marks omitted).
Moreover, along with his Form 95, Collins submitted documents from
Huntington Hospital that, at a minimum, confirmed that his injuries
required hospitalization, that the hospitalization lasted from October
25 to October 30, 2017, and that treatment had required, inter alia,
anesthesia services—strongly suggesting that surgery was
performed. Finally, in filing the Form 95, counsel advised USPS that
Collins was again hospitalized, indeed, in the intensive care unit,
alerting USPS that Collins was by no means recovered from his
injuries. This information was sufficient to allow USPS to investigate
and value the claim, thereby satisfying the jurisdictional presentment
requirement of 28 U.S.C. § 2675. See Adams v. U.S. Dep’t of Hous. &
Urb. Dev., 807 F.2d 318, 321 (2d Cir. 1986) (stating that “specificity
requirement” for presentment serves “to give the government
adequate notice of the extent of the claimant’s demands”); Johnson ex
rel. Johnson v. United States, 788 F.2d at 848–49 (stating “[a]ll that is
necessary” for presentment “is that a claim be specific enough to serve
the purposes intended by Congress in enacting § 2675(a)—to ease
court congestion and avoid unnecessary litigation, while making it
19
possible for the Government to expedite the fair settlement of tort
claims asserted against the United States” (internal quotation marks
omitted)).
The government appears to argue that even if Collins’s
December 15, 2017 administrative filing was sufficient notice of the
injuries sustained during the collision, his “refus[al]” to provide
records for subsequent “additional treatment” rendered his
presentment inadequate (or premature) to support the district court’s
jurisdiction. App’x at 86; see Appellee Br. at 15–22. 12
We are not persuaded. As noted, Collins’s December 2017
administrative filing advised USPS that he had been readmitted to the
hospital for intensive care related to his injuries. This information
was sufficient to alert USPS that he required significant further
treatment. Congress did not require either a claimant’s complete
recovery or resolution of all his outstanding medical issues before he
could submit an FTCA claim. Rather, Congress appears to have
anticipated that such issues might be ongoing in allowing FTCA
actions to be maintained even for amounts in excess of the sum certain
stated in a presentment “where the increased amount is based
[1] upon newly discovered evidence not reasonably discoverable at
the time of presenting the claim to the federal agency, or [2] upon
12Nothing in the existing record indicates that Collins ever “refused” to provide
USPS with records for his additional treatment. Rather, it appears that Collins had
not yet himself received all records requested from various treating persons and
entities. Insofar as he explained this to USPS—and provided it with such records
as he had received as well as HIPAA authorization allowing USPS to obtain his
Huntington Hospital treatment records—this case does not present the sort of
“refus[al]” noted in Romulus v. United States, 983 F. Supp. at 342.
20
allegation and proof of intervening facts, relating to the amount of the
claim.” 28 U.S.C. § 2675(b). The development of complications
following surgery that slow recovery and the treatment required for
such complications are intervening facts the particulars of which are
not reasonably discoverable to an injured party upon initial discharge
from hospitalization. Thus, based on the statutory text, we reject the
idea that a seriously injured party cannot present a claim until he has
completed all treatments or is fully recovered.
To be sure, this court has ruled that a claim is not adequately
presented when it vaguely references the possibility of future
damages in an “amount yet to be determined, which may dwarf the
sum stated.” Keene Corp. v. United States, 700 F.2d at 842 (internal
quotation marks omitted). But that is not this case because
(1) Collins’s court action seeks compensatory damages in the same
$10,000,000 amount stated in his December 2017 administrative filing;
and (2) nothing in the record presented suggests that compensation
for future treatments will “dwarf” compensation for the serious
physical injuries and attendant pain and suffering already sustained
as of presentment. In sum, we conclude that Collins’s December 2017
filing put USPS on notice not only of the immediate, specifically
described injuries sustained during the collision but also of ongoing
recovery challenges likely to require further treatment. The provision
of this information was sufficient to alert USPS to the scope of
Collins’s alleged injuries and to permit an investigation in order to
value this claim.
In this regard, we note that the adequacy of Collins’s
presentment does not depend on whether USPS could reasonably be
21
expected to complete its investigation or reach a precise valuation of
the claim within the six-month decisional period before an FTCA
action can be filed in federal court. See 28 U.S.C. § 2675(a). Courts,
lawyers, and juries must frequently make a value determination as to
future damages based on the seriousness of present injuries. As the
district court correctly recognized in Romulus, even in such
circumstances, the statutory timetable serves Congress’s purpose by
“allow[ing] simple claims to be settled, while complex claims, which
most likely cannot be settled within six months, can be adjudicated.”
Romulus v. United States, 983 F. Supp. at 340. 13
Certainly, before making any settlement decision on Collins’s
claim, USPS would reasonably wish to investigate and confirm these
injuries and to ascertain the likelihood of Collins making a full
recovery. Toward that end, it may well have employed its regulatory
authority to require Collins to submit substantiating evidence, see
39 C.F.R. § 912.7(b), and to deny his administrative claim if he failed
to comply. But, as we explain in the next section of the opinion, this
regulation requires evidence production to facilitate settlement; it
does not do so to define presentment. Presentment demands
sufficiently detailed information for investigation, and that
13 The FTCA and its implementing settlement regulations contain no provisions
for extension of the six-month decisional period a claimant must wait before filing
suit in federal court. While an agency may request that a claimant refrain from
filing suit to afford the agency additional time to complete its investigation, the
agency cannot unilaterally prevent a claimant, who has properly presented a
claim, from filing suit after the six-month decisional period has expired. See
28 U.S.C. § 2675(a) (“The failure of an agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant any time thereafter,
be deemed a final denial of the claim for purposes of this section.” (emphasis
added)).
22
information can be provided by narrative, even before substantiating
evidence is requested or produced. 14
In sum, as long as an FTCA claimant presents the appropriate
agency with sufficiently specific information—whether by narrative,
evidence, or other means—to permit the agency to conduct an
investigation and then to estimate the value of the claim, the FTCA’s
jurisdictional presentment requirement is satisfied. Because Collins
did that here, the judgment dismissing his FTCA action for lack of
jurisdiction must be reversed.
IV. Presentment Does Not Require Compliance with Settlement
Regulations Issued Under 28 U.S.C. § 2672One final point needs to be addressed. Collins submits that the
district court’s erroneous dismissal of his FTCA action derived from
its mistaken assumption that presentment requires an administrative
claimant to supply the agency with supporting evidence referenced
in regulations promulgated pursuant to 28 U.S.C. § 2672.
We do not think such a mistake caused the erroneous
determination here. Indeed, although this court has yet to rule
specifically on the point, the district court assumed that an FTCA
14On the record before us, USPS does not appear to have been particularly diligent
in pursuing such evidence. Its only documented request for information was
made on June 12, 2018, approximately two weeks before expiration of the six-
month period for decision afforded by 28 U.S.C. § 2675(a). Moreover, nothing in
the record indicates that USPS availed itself of the HIPAA authorization that
Collins provided on February 23, 2018, affording USPS access to all his Huntington
Hospital records. Nor does it appear that USPS carefully reviewed the hospital
records that Collins provided on April 3, 2018, because the agency’s June 12, 2018
request sought some materials contained in these already transmitted records.
23
claimant “need not comply” with settlement regulations stemming
from § 2672 to establish proper presentment. Collins v. U.S. Postal
Serv., 462 F. Supp. 3d at 238 (quoting Romulus v. United States,
983 F. Supp. at 340). Rather, it found Collins’s December 15, 2017
submission insufficient, by itself, to satisfy the § 2675(a) jurisdictional
presentment requirement. See id. at 239 (stating that “it is clear that
submission of the [Form 95] was not, by itself, sufficient to present his
claim”). Thereafter, the district court considered the supplemental
evidence Collins provided USPS only to explain why it concluded
that this evidence failed to cure the original presentment deficiency
or, even if it did, why it restarted § 2675(a)’s six-month decisional
clock, making Collins’s court filing premature. See id. at 239 & nn.3–
4 (stating that “question of the sufficiency of the evidence provided to
the agency concerns whether [Collins] adequately presented his claim
under § 2675(a) and does not implicate the settlement provision
§ 2672 and the related regulations”).
While we do not identify the urged legal error, we nevertheless
sense in both the parties’ arguments and the district court’s reference
to a claimant’s “burden to provide evidence,” see id. at 239 (internal
quotation marks omitted), some confusion about how FTCA
settlement regulations might influence § 2675(a) presentment. In past
cases, we have found it unnecessary to address this issue because the
challenged presentments were inadequate in any event. See, e.g.,
Romulus v. United States, 160 F.3d at 132 (stating that issue of § 2672
regulations was not properly before court on appeal because district
court had resolved issue in plaintiff’s favor and, nevertheless, found
presentment inadequate); Keene Corp. v. United States, 700 F.2d at 841–
42 & n.9 (noting, but not addressing, question of § 2672 regulations
24
where presentment failed, in any event, to state damages in sum
certain). By contrast, where, as here, we conclude that an initial
administrative filing provides sufficient information for agency
investigation, we cannot avoid the question of whether presentment
requires the claimant to substantiate his claim with specific
regulatory-defined evidence.
We conclude that it does not. We do not foreclose the
possibility that, in some cases, a claimant’s complete refusal to
respond to agency requests for evidence could cast doubt on the good
faith of a bare presentment, thereby implicating a district court’s
subject matter jurisdiction. That, however, is not this case. After
presentment, Collins repeatedly transmitted supporting evidence to
USPS and, as in the case of his HIPAA authorization, facilitated
USPS’s access to such evidence. 15 Indeed, it appears that to the extent
he did not provide evidence requested by USPS, it was because the
pertinent records were not yet in his possession. Collins’s counsel
reiterated as much in his prompt response to USPS’s only
documented request for supporting evidence in June 2018. Thus,
nothing in the record casts doubt on the good faith of Collins’s
December 15, 2017 presentment. We therefore clarify that, in general
and certainly here, a claimant who fails to provide supporting
evidence for a well-presented FTCA claim may be denied an
15Because Collins’s December 15, 2017 submission was a satisfactory presentment
of his claim, his subsequent submissions of substantiating evidence do not
constitute an amended claim so as to restart the six-month decisional period and
render his court action premature. We reference them here only to explain why
there is no record basis to conclude that presentment was made in bad faith.
25
administrative settlement, but not his day in court. 16 In so holding,
we join the overwhelming majority of courts of appeals to have
considered the matter.
To explain, we acknowledge at the outset that Form 95—the
form used by Collins—instructs FTCA claimants that their damages
claim should both be stated in a sum certain and “substantiated by
competent evidence.” App’x at 79. With respect to personal injury or
death claims, Form 95 instructs that
the claimant should submit a written report
by the attending physician, showing the
nature and extent of the injury, the nature
and extent of treatment, the degree of
permanent disability, if any, the prognosis,
and the period of hospitalization, or
incapacitation, attaching itemized bills for
medical, hospital, or burial expenses
actually incurred.
Id.
As noted supra at 15, requiring an FTCA claimant to present a
sum certain claim for damages finds support in the statutory text of
the presentment requirement, which generally limits FTCA actions to
the amount of damages “presented to the federal agency.” See
16A claimant denied a settlement is, of course, forced to incur the additional time,
costs, and risks of a court action. This will likely encourage most claimants to
provide supporting evidence to secure settlement. See, e.g., Adams v. United States,
615 F.2d at 290 (“A claimant will ordinarily comply with [FTCA settlement
regulations] if he or she wishes to settle his or her claim with the appropriate
agency.”).
26
28 U.S.C. § 2675(b). Form 95’s substantiation instruction, on the other
hand, derives not from the text of § 2675 or even from 39 C.F.R.
§ 912.5(a), the regulation stating what an agency will deem an
adequate presentment. Rather, it derives from 39 C.F.R. § 912.7, a
regulation promulgated to facilitate an agency’s exercise of the
settlement authority conferred by 28 U.S.C. § 2672 without regard to
the adequacy of presentment. 17
17 In regards to personal injury, the regulation states as follows:
In support of a claim for personal injury, including
pain and suffering, the claimant may be required to
submit the following evidence or information:
(1) A written report by his attending
physician or dentist setting forth the nature
and extent of the injury, nature and extent of
treatment, any degree of temporary or
permanent disability, the prognosis, period
of hospitalization, and any diminished
earning capacity. In addition, the claimant
may be required to submit to a physical or
mental examination by a physician
employed by the agency or another Federal
agency. A copy of the report of the
examining physician shall be made available
to the claimant upon the claimant’s written
request, provided that he has, upon request,
furnished the report referred to in the first
sentence of this paragraph and has made, or
agrees to make available to the agency or
another Federal agency. A copy previously
or thereafter made of the physical or mental
condition which is the subject matter of his
claim.
27
Some forty years ago, however, the First Circuit upheld the
dismissal of an FTCA action as premature on the ground that the
plaintiff had sued before providing the agency reviewing his claim
with requested substantiating evidence. See Swift v. United States, 614
F.2d 812, 814–15 (1st Cir. 1980). The First Circuit stated that “the
agency had clear authority under its own regulations . . . to request
supporting information,” and that plaintiff counsel’s failure to
provide that information “prevented the agency from further
evaluating the claim for settlement purposes, the very reason for the
stringent claim requirements set forth in 28 U.S.C. § 2675(a).” Id.
at 814.
(2) Itemized bills for medical, dental, and
hospital expenses incurred, or itemized the
report referred to in the first expenses.
(3) If the prognosis reveals the necessity for
future treatment, a statement of expected
expenses for such treatment.
(4) If a claim is made for loss of time for
employment, a written statement from his
employment, whether he is a full- or part-
time employee, and wages or salary actually
lost.
(5) If a claim is made for loss of income and
the claimant is self-employed, documentary
evidence showing the amount of earnings
actually lost.
(6) Any other evidence or information which
may have a bearing on either the
responsibility of the United States for the
personal injury or the damages claimed.
39 C.F.R. § 912.7(b).
28
In ruling that jurisdiction was thus lacking, the First Circuit
cited approvingly to a district court decision in this circuit: Kornbluth
v. Savannah, 398 F. Supp. 1266 (E.D.N.Y. 1975). In dismissing an FTCA
claim by a plaintiff injured in a collision with a USPS vehicle, that
district court held that plaintiff’s failure to submit doctors’ reports
and medical bills requested by the agency defeated jurisdiction. It
explained:
The purpose of requiring preliminary
administrative presentation of a claim is to
permit a government agency to evaluate
and settle the claim at an early stage, both
for the possibility of financial economy and
for the sake of relieving the judicial burden
of FTCA suits. These purposes would be
defeated if a claimant could refuse to submit
the information necessary for the agency to
evaluate the claim and then present the
matter for the first time to a district court.
Id. at 1268. The point is not devoid of persuasive appeal, but other
courts of appeals to consider the question have reached a different
jurisdictional conclusion, and we adopt their reasoning as our own.
Specifically, after a careful review of the statute’s legislative
history, the Fifth Circuit construed § 2675(a)’s presentment
requirement to demand notice, not proof, of a claim for compensation.
See Adams v. United States, 615 F.2d 284, 291–92 (5th Cir. 1980). That
court held that a claimant provides the requisite notice if he “(1) gives
the agency written notice of his or her claim sufficient to enable the
agency to investigate and (2) places a value on his or her claim.” Id.29
at 289. The Fifth Circuit explained that the “[p]resentation of a claim
and its settlement are distinct processes” and, thus, “[t]he
requirements of section 2675 and of section 2672 are . . . independent.”
Id. at 290. While a failure to provide the notice required by § 2675
deprives a plaintiff of the ability to sue, “[n]oncompliance with
section 2672 deprives a claimant only of the opportunity to settle his
or her claim outside the courts.” Id. 18
Two years later, the Ninth Circuit—in an opinion authored by
then-Judge, later Justice, Kennedy—characterized Adams’s view of
presentment as “the proper one” and ruled that “jurisdictional
dismissal of FTCA suits brought by plaintiffs who presented only
skeletal claims to the agency is not warranted by the statutory
language and history.” Avery v. United States, 680 F.2d 608, 609–10
(9th Cir. 1982). The court explained:
Section 2675(a) was not intended to allow an
agency to insist on proof of a claim to its
satisfaction before the claimant becomes
entitled to a day in court. To so hold would
permit federal defendants to be judge in
their own cause by the initial determination
18 In further support of its conclusion that 28 U.S.C. § 2672 did not determine
jurisdiction, the Adams court cited Congress’s allowance for attorneys’ fees to be
recovered by claimants who settled FTCA claims. See id. at 290 n.11 (“[O]ne of the
reasons for which Congress included an attorneys’ fee provision was, according
to the Attorney General, to encourage claimants and their attorneys to make use
of this new administrative procedure. Encouragement would hardly have been
thought necessary if the administrative procedures under section 2672 were
mandatory or were, through section 2675, a jurisdictional prerequisite to suit.”
(internal citation and quotation marks omitted)); 28 U.S.C. § 2678 (permitting
recovery of attorneys’ fees up to 20% of settlement amount); 39 C.F.R. § 912.13.
30
of a claim’s insufficiency. The result would
not be consistent with the congressional
purpose of providing for more fair and
equitable treatment of private individuals
and claimants when they deal with the
Government.
Id. at 611 (internal quotation marks omitted).
The Third Circuit also adopted Adams’s reasoning in reinstating
an FTCA complaint that had been dismissed because the claimant
failed to support his injury claim with itemized bills. See Tucker v.
U.S. Postal Serv., 676 F.2d 954, 956–57 (3d Cir. 1982) (distinguishing
statutory presentment requirement from regulations identifying
evidence that agency may require when considering settlement).
The Seventh Circuit did the same in Charlton v. United States,
743 F.2d 557, 561 (7th Cir. 1984) (citing approvingly to Adams and
Avery in stating that “were we to conclude that compliance with the
[settlement] regulations was jurisdictional, we would be creating the
anomalous situation whereby an agency could prevent a claimant
from going to court by forever requesting additional information”).
It concluded that “the statutory requirement of ‘presenting a claim’
merely requires the filing of minimal notice and the setting of a ‘sum
certain.’ The establishment of more stringent exhaustion
requirements, should they appear desirable, is better left to
Congress.” Id.The Eleventh Circuit also approved Adams’s presentment
standard, see Tidd v. United States, 786 F.2d 1565, 1567–68 (11th Cir.
1986), although it there concluded that an FTCA plaintiff unable to
31
provide even the date or location of the alleged injurious vaccination
had not provided the agency with sufficient information to
investigate, see id. at 1569 n.10 (observing that, without information as
to date or location, agency was relegated “to locating the proverbial
needle of a single inoculation out of a haystack of thousands of such
inoculations”).
The District of Columbia Circuit cited approvingly to Adams in
“distinguish[ing] between the presentment filing mandated by
Section 2675(a) and the settlement procedures of Section 2672.” GAF
Corp. v. United States, 818 F.2d at 918–19 & n.99 (”Presentment is
mandatory; settlement is merely optional.”). It concluded therefrom
that
the presentment requirement imposes on
claimants a burden of notice, not
substantiation, of claims. To conflate the
mandatory presentment requirement of
Section 2675(a) with the settlement
procedures of Section 2672, and require
claimants to substantiate claims for
settlement purposes as a prerequisite to
filing suit, is to compel compliance with
settlement procedures contrary to
congressional intent.
Id. at 919 & n.101 (citing Adams v. United States, 615 F.2d at 288).
The reasoning stated in Adams and now adopted by most courts
of appeals comports with our own construction of the FTCA’s
jurisdictional requirement. To clarify our construction, we reiterate
32
that the claimant’s presentment burden is one of notice, not proof.
Presentment requires more than a conclusory statement of claim that
makes it essentially impossible for an agency to know what it must
investigate. It requires a claimant to provide the reviewing agency
with sufficiently specific information as to the basis for his claim, the
nature of his injuries, and the amount of damages sought that the
agency can reasonably understand what it must probe to determine
liability, to value the claim, and to assess the advisability of
settlement. See Romulus v. United States, 160 F.3d at 132. But a plaintiff
can provide this information by narrative, evidence, or other means.
To the extent 39 C.F.R. § 912.7 empowers an agency to require the
production of evidence to facilitate its consideration of settlement, a
claimant who fails to respond to such a demand to the agency’s
satisfaction may be denied an administrative settlement—as was
Collins. But where, as here, a claimant satisfies presentment
consistent with our precedent, his failure to submit substantiating
evidence, either generally or in response to a § 912.7 demand, does
not deprive a federal court of subject matter jurisdiction over an
ensuing FTCA action or a claimant of his day in court.
CONCLUSION
To summarize,
(1) The FTCA’s jurisdictional presentment requirement, see
28 U.S.C. § 2675(a), is one of notice, not proof.
(2) The notice required for FTCA presentment must provide
a reviewing agency with sufficiently specific information
as to the basis of the claim, the nature of claimant’s
injuries, and the amount of damages sought such that the
33
agency can reasonably understand what it must
investigate to determine liability, to value the claim, and
to assess the advisability of settlement.
(3) An FTCA claimant can provide the specific information
required for presentment by narrative, by evidence, or by
other means.
(4) An FTCA claimant who provides a sufficiently specific
narrative need not also submit substantiating evidence to
satisfy presentment. While a failure to present such
evidence can support an agency’s administrative denial
of a claim, it does not deprive a district court of
jurisdiction over an FTCA action subsequently filed by
the claimant.
(5) Plaintiff Collins’s December 15, 2017 filing of a Standard
Form 95, together with accompanying materials,
provided USPS with sufficiently specific information to
allow the agency to investigate the claim and to assess its
value. Any failure by Collins then (or thereafter) to
provide evidence supporting his claim to the satisfaction
of USPS did not warrant the dismissal of his court action
for lack of subject matter jurisdiction.
Accordingly, the May 26, 2020 judgment dismissing this action
for lack of subject matter jurisdiction is REVERSED, and this case is
REMANDED with instructions to reinstate Collins’s complaint.
34