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HLAVAC v. UNITED STATES

November 9, 1972

VIRGINIA HLAVAC, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Motion To Dismiss

  This suit arises out of an automobile accident which occurred
on May 14, 1970 between plaintiff Hlavac and Emmett O'Neil who
was at the time driving a U.S. Post Office truck. The action was
originally filed in the Circuit Court of Cook County (No. 72 Mont. 40282)
 against O'Neil and the United States and was subsequently
removed to this Court where defendant O'Neil was dismissed from
the suit.

The Government seeks to have this suit dismissed on the grounds that plaintiff failed to conform with the requirements of 28 U.S.C. § 2675(a) in filing an administrative claim which is a prerequisite to a suit in this Court. Title 28 U.S.C. § 2675(a) provides:

  "An action shall not be instituted upon a claim
  against the United States for money damages for
  injury or loss of property or personal injury or
  death caused by the negligent or wrongful act or
  omission of any employee of the Government while
  acting within the scope of his office or employment,
  unless the claimant shall have first presented the
  claim to the appropriate Federal agency and his claim
  shall have been finally denied by the agency in
  writing and sent by certified or registered mail."

The Government argues that no such administrative claim was filed, that consequently suit in this Court is jurisdictionally impermissible, and that as a result plaintiff is forever barred from bringing this action since the 28 U.S.C. § 2401(b) two year statute of limitations for administrative claims has run.

Plaintiff contends that she did file an administrative claim on July 6, 1970 and that the United States Postal Service failed to act upon it and that she is therefore statutorily permitted to file this suit.

There is no doubt that plaintiff did "submit" a Form 95 "Claim For Damage Or Injury" and the Government concedes as much. But the question remains whether the submission of the form constituted a "filing" of a claim as required by 28 U.S.C. § 2675(a).

Mrs. Hlavac —

    Two claim forms, SF 95 sent, but only 1 received,
    need duplicate. Also Item # 8 must show total
    amount and show date of claim.

In conclusion Carlson states that he never received a completed form from Mrs. Hlavac.

We must therefore determine whether a proper claim based on the above facts was ever filed.

It is clear that as a sovereign the United States is immune from suit and that its consent to be sued in certain instances can be conditioned upon conformity to various procedural requirements. United States v. ...


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