Cook v. U.S. on Behalf of U.S. Dept. of Labor

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4553
Summary Calendar
STEPHEN A. COOK,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
o/b/o U.S. Department of
Labor, U.S. Occupational
Safety & Health Administration,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(November 2, 1992)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Stephen A. Cook appeals the dismissal of
his Federal Torts Claims Act (FTCA) suit for failure to furnish
sufficient and timely notice to the Occupational Safety & Health
Administration (OSHA) of his claim against that agency. Finding no
reversible error by the district court, we affirm.
I
FACTS AND PROCEEDINGS
In November 1987 Cook complained to OSHA about alleged
violations by his employer, the United States Postal Service.
Thereafter, alleges Cook, an OSHA employee negligently revealed
Cook's name to the postal service. Cook insists that, as a result
of that disclosure, he was subjected to mental harassment and
retaliatory employment practices, beginning in February 1988.
Cook's pleadings are unclear as to how long the retaliatory
practices lasted, but he alleges that he retired from the postal
service on December 17, 1988.
Cook subsequently sent OSHA a Standard Form 95, generally
describing his claim against that agency. OSHA does not appear to
have taken action on the claim. In August 1989 Cook filed an FTCA
suit. The court dismissed the suit without prejudice in July 1990
for failure properly to present an administrative claim. Cook did
not appeal that dismissal.
Prior to that dismissal, however, Cook had filed an additional
Form 95 with OSHA, again generally describing his claim. OSHA
denied this claim on December 17, 1990.
In June 1991 Cook filed a second FTCA suit. The government
moved to dismiss the suit pursuant to Fed.R.Civ.P. 12(b)(1), (2),
(3), and (6), pleading that the suit was barred by Cook's failure
to file an administrative claim within two years from the date of
injury as required by 28 U.S.C. § 2401(b). The district court
granted the motion for Cook's failure to provide OSHA sufficient
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information for it to begin investigating his claim.
II
ANALYSIS
Under the FTCA, a plaintiff must give notice of his claim to
the appropriate federal agency. 28 U.S.C. § 2675(a); Transco
Leasing Corp. v. United States, 896 F.2d 1435, 1441, amended on
other grounds, 905 F.2d 61 (5th Cir. 1990). Furnishing notice is
a jurisdictional prerequisite to filing suit under the FTCA. Id.A claimant gives proper notice within the meaning of § 2675(a) only
when the agency obtains sufficient written information to begin
investigating and the claimant places a value on his claim. Id. at
1442. No particular method of giving notice is required. Williams
v. United States, 693 F.2d 555, 557 (5th Cir. 1982); Crow v. United
States, 631 F.2d 28, 30 (5th Cir. 1980). The usual method,
however, is by filing a Form 95 with the agency. Id.A plaintiff waives his claim if he fails to 1) notify the
agency in writing about his claim within two years after the claim
accrues, or 2) file suit within six months after the agency denies
his claim. 28 U.S.C. § 2401(b).
In the first Form 95 that Cook filed with OSHA, he stated the
dollar amount of his claim, but failed to provide any specific
information about his claim. For example, he did not indicate
1) to which OSHA office he complained about the postal service's
alleged OSHA violations; 2) at which location the postal service
was violating OSHA regulations; 3) the date he complained to OSHA;
or 4) when OSHA revealed his name to the postal service. Cook also
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failed to identify the person to whom he reported the violations or
the name of his immediate supervisor at the postal service.
Moreover, in the complaint filed to initiate his first suit, Cook
failed to include any specific information; he simply provided a
general account of the incident.
As support for his position, Cook relies heavily on Williams
v. United States, 693 F.2d 555 (5th Cir. 1982). In that case we
found that the government received sufficiently detailed
information about the claim from the information contained in a
state-court complaint and in a timely filed Form 95. 693 F.2d at
558. Here, Cook similarly filed a Form 95 with the appropriate
federal agency and sued the United States within two years after
his claim accrued. Unlike Williams, however, Cook failed to
provide specific information about his claim in the Form 95 or in
his complaint. Williams, therefore, is factually distinguishable.
Not until the second suit, which Cook filed more than two
years after his claim accrued, did he provide OSHA with specific
information about his claim. In the second complaint he alleged
that a Mr. Gross from OSHA admitted that someone from the postal
service must have read Cook's complaint while it was on his desk.
Cook also alleged that a Mr. Vicknair was the postal service safety
officer who confronted him about the complaint to OSHA; and Cook
indicated that Paul Hansen, OSHA Area Director, sent him a letter
admitting that someone from the postal service had observed Cook's
complaint on Gross's desk. Cook also provided dates of relevant
events.
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Even though the requirements of § 2675 are minimal, an FTCA
claimant must nonetheless provide facts sufficient to allow his
claim to be investigated and must do so in a timely manner.
Accordingly, we find that Cook failed to satisfy the requirements
of § 2675 because he did not timely provide sufficiently specific
information to OSHA about his claim. See Montoya v. United States,
841 F.2d 102, 104 (5th Cir. 1988) (notice given not sufficiently
specific). The district court's dismissal of Cook's complaint is
AFFIRMED.
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