Summary
holding that when plaintiff failed to file a government claim because she relied on a telephonic settlement offer, once the statute of limitation from date of alleged injury ran, lawsuit was barred
Summary of this case from Attorney Gen. of Guam v. GutierrezOpinion
The panel finds this case appropriate for submission without oral argument pursuant to Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Claimant brought suit under Federal Tort Claims Act (FTCA), seeking to recover for injuries allegedly caused by actions of United States Postal Service. The United States District Court for the District of Arizona, Virginia A. Mathis, United States Magistrate Judge, dismissed action as time-barred. Claimant appealed. The Court of Appeals held that settlement offer made by Postal Service during telephone conversation which took place subsequent to Service's "final denial" of claim did not operate to revoke "final denial," or to toll running of limitations period applicable to suit under FTCA.
Affirmed.
Page 623.
Appeal from the United States District Court for the District of Arizona, Virginia A. Mathis, Magistrate Judge, Presiding.
Before KOZINSKI, MICHAEL DALY HAWKINS, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The district court dismissed this Federal Tort Claim as barred by the statute of limitations, holding that an offer by the Postal Service to settle subsequent to a "final denial" neither revokes the finality of the prior "final denial" nor tolls the running of this limitations period.
Under 28 U.S.C. § 2401(b), claimants must file suit within six months of "final denial" of their administrative claim.
Our cases are not to the contrary. See Claremont Aircraft, Inc. v. United States, 420 F.2d 896, 898 (9th Cir.1970) (post denial communications do not necessarily invalidate agency's final denial); Woirhaye v. United States, 609 F.2d 1303, 1306 (9th Cir.1979) (a final order is not disrupted unless "[t]he agency leads the claimant reasonably to believe that it is still actively considering the original claim....").
Linton was not misled by the Postal Service into reasonably believing that the Postal Service was actively considering her claim. Given that (1) the Postal Service attorney did not say anything about reversing the finality of the "final denial" during the July 18 telephone conversation and (2) Linton never attempted to accept, refuse, or even confirm whatever settlement offer was made on July 18, Linton has not shown that she was reasonably misled.
It was unreasonable for Linton to rely on the July 18 phone conversation as a basis for not filing suit within the statutory time period. Linton cannot meet the Woirhaye standard and her personal injury claim is time barred. The dismissal by the magistrate judge is AFFIRMED.