Form 95 and its supporting exhibits, but never at the same time.
After one suit was filed and then voluntarily dismissed upon the
suggestion of the Postal Service, this suit was filed more than
six months after the Postal Service acknowledges it received the
Pursuant to 28 U.S.C. § 2679(a), claims against the United
States Postal Service must be brought as actions against the
United States under the Federal Tort Claims Act, 28 U.S.C. § 2674.
That Act provides that prior to suit such claims must be
first presented by the claimant to the appropriate federal agency
and denied by the agency in writing, although the claimant may
consider the agency's failure to make final disposition of the
claim within six months of its filing to be a denial of the
claim, 28 U.S.C. § 2675. The claim must be "presented in writing
to the appropriate Federal Agency within two years after such
claim accrues . . ." and any action must be initiated within six
months after final administrative denial. 28 U.S.C. § 2401(b).
It is beyond dispute that filing a proper claim with the
appropriate agency within the two year limitations period is a
jurisdictional prerequisite to suit under the Federal Tort Claims
Act. Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th
Cir. 1972). The statute is a Congressional waiver of sovereign
immunity and, accordingly, that waiver is only as broad as
Congress intended. United States v. Kubrick, 441 U.S. 111, 100
S.Ct. 352, 62 L.Ed.2d 259 (1979).
The government's motion to dismiss is predicated upon the
Regulations of the Postal Service. It contends that the first
Standard Form 95, Claim for Damage or Injury, did not comply with
28 C.F.R. § 14.2 and 39 C.F.R. § 912.5 because it did not claim
"a sum certain . . . for personal injury," as required by these
regulations. The Postal Service thereupon retained a copy of the
Form 95 as filed and returned medical and wage exhibits to the
claimant. Thereafter, plaintiff through counsel submitted a
second Form 95 in which the specific sum of $22,000 was claimed.
The Postal Service then lacked the medical and wage exhibits
required by 28 C.F.R. § 14.4 and 39 C.F.R. § 912.7 and, due to
plaintiff's failure to resubmit those exhibits within the two
year period, although requested to do so, the government claims
that the claim was not perfected within the limitations period
and that this Court is therefore without subject matter
That the claim must conform to the administrative regulations
to be a written claim within the meaning of 28 U.S.C. § 2401(b)
finds considerable support in the precedent. Failure of a lay
person to specify a sum certain for a personal injury was his
undoing in Bialowas v. United States, 443 F.2d 1047 (3rd Cir.
1971). Similarly, failure to specify $1,000,000 as the sum
demanded by after-added claimants disqualified their claims in
House v. Mine Safety Appliances Co., 573 F.2d 610 (9th Cir.
1978), even though their counsel had invariably claimed that
amount for each of the initial claims resulting from a common
mine disaster. Accord, Hlavac v. United States, 356 F. Supp. 1274
(N.D.Ill. 1972). Similarly, the failure to submit medical
exhibits defeated plaintiff's claim in Kornbluth v. Savannah,
398 F. Supp. 1266 (E.D.N.Y. 1975). Accord, Rothman v. United States,
434 F. Supp. 13 (C.D.Calif. 1977).
Other courts, in permitting cases to go forward, have
emphasized that technical defects in claims were promptly cured
even though not within the two year period, Apollo v. United
States, 451 F. Supp. 137 (M.D.Pa. 1978); or that the mistake was
a clerical error known to the government, Little v. United
States, 317 F. Supp. 8 (E.D.Pa. 1970); or that the defect was not
called to the claimant's attention, Hunter v. United States,
417 F. Supp. 272 (N.D.Calif. 1976). Even there, however, the courts
have struggled with the concept of jurisdiction within the
context of agency regulations.
The denial of jurisdiction has, from time to time, been
accompanied by expression of sentiments reminiscent of an ancient
epoch in which all rights flowed from the largess of a gracious
It may be that appellant did in fact sustain personal
injury and property damage at the hands of a
Government employee. Though sovereign, the Government
considerately provided him with convenient and
expeditious machinery for settlement of his alleged
damages and injuries. Unfortunately for him, he
repeatedly disregarded written and oral instructions
and eventually became the architect of his own
misfortune. Bialowas v. United States, supra, at p.
The issue, however, is not whether the plaintiff acted with due
appreciation for the sovereign's grace. Nor, as pointed out in
Apollo v. United States, supra, at p. 138, are the requirements
of the statute and the regulations necessarily indistinguishable.
Rather, the question is whether plaintiff filed a claim within
the meaning of 28 U.S.C. § 2401(b) within two years of his
alleged injury. This court believes that he did.
On January 3, 1977, within three months of the accident, the
Postal Service was advised in writing by Thomas Koziol that he
had suffered a broken nose, which required surgery, in a
specified rear end collision with a postal vehicle on October 5,
1976 while driving the truck of another, that he had specified
medical expenses, as indicated by enclosed copies of bills and a
surgeon's report, that he had been away from work for a specified
period as a result and that he had lost a specified amount of
wages during that period. At that time, in short, the Postal
Service had ample notice of a personal injury claim arising from
a specified occurrence, of the nature of the claim and of the
"specials" arising from that claim. It had, at that point,
sufficient information to initiate an investigation to determine
if the Postal Service may have been at fault, to deny the claim
if it concluded that the Postal Service was not at fault and to
enter into settlement negotiations if it concluded that the
Postal Service was legally vulnerable. Specifying a sum certain
at some point was a predicate to suit, since a suit normally
cannot be for more than the amount administratively claimed. 28,
U.S.C. § 2675(b). Nor, obviously, was the Postal Service under
any obligation to make an offer of settlement unless the
documentation provided to it justified the offer. That is,
however, far different from insisting that a written personal
injury claim which does not specify an amount is no claim at all.
Common experience teaches us that the amount first demanded is
less a measure of the value of a claim than of a lawyer's
flamboyance. Indeed, under the Federal Rules of Civil Procedure
the demand is separate and distinct from the claim. Rules 8 and
The legislative history of the Federal Tort Claims Act
amendments of 1966 does not support the judicial obeisance to
administrative regulations which the government urges here and
which it has successfully urged in the past. That legislative
history is set forth in 1966 U.S.Code Cong. & Admin.News at pp.
Prior to those amendments any claims over $2,500 could not be
administratively resolved. Mindful that the great majority of
claims in excess of that amount were eventually settled after
litigation commenced, Congress authorized an administrative
settlement procedure which permitted such claims to be resolved
without requiring citizens to resort first to the courts. While
anticipating and intending that the amendments would reduce court
congestion, the reports do not suggest that the central purpose
of the changes was, as stated in Robinson v. United States Navy,
342 F. Supp. 381 (E.D.Pa. 1972), ". . . to spare the Court the
burden of trying cases . . ." i.e., a provision for the relief of
judges and courts. Id. at 383. Rather, the Congress specifically
stated that the amendments had ". . . the common purpose of
providing more fair and equitable treatment of private
individuals and claimants when they deal with their Government."
S.Rep.No.1327, 89th Cong. 2d Sess. 1, reprinted in 1966 U.S.Code
Cong. & Ad.News 2515, 2515-2516 (hereinafter "Leg. Hist."). That
the primary purpose of the amendments was to benefit claimants
seeking relief from their government, but with resulting
collateral benefits as well, is
underscored by the Senate Committee's observations that "the bill
would not only benefit private litigants, but would also be
beneficial to the courts, the agencies, and the Department of
Justice itself." Leg. Hist. at 2516.
The notice provisions are explicitly referred to in the Senate
report. Their purpose is "`. . . to protect the municipality from
the expense of needless litigation, give it an opportunity for
investigation, and allow it to adjust differences and settle
claims without suit. (McQuillan, Municipal Corporations (3d ed.).
section 53.153).'" Leg. Hist. at 2517. The passage upon which the
Senate report relies goes on to state:
"By means thereof the municipality is given an
opportunity to determine whether it prefers to adjust
the claim without suit or to contest its validity in
the courts. However, it is not intended that such a
provision be used as a sword to defeat the rights of
a person having a legitimate claim; its purpose is as
a shield to protect the municipality against spurious
claims. If the claim is not just and litigation is
necessary, such provisions enable cities to get their
proof in hand before the witnesses scatter, and while
the facts are fresh in their minds."
See City of West Plains, Missouri v. Loomis, 279 F.2d 564 (8th
The amendments were intended to provide a framework conducive
to the administrative settlement of claims, not to provide a
basis for a regulatory checklist which, when not fully observed,
permits the termination of claims regardless of their merits.
Such a framework presupposes that not all claimants will be
equally diligent and thorough in the prosecution of their claims
administratively any more than all claimants will be equally
reasonable in attempting to reach agreement before turning to the
courts. That such a framework is conducive to the administrative
settlement of most claims does not mean that all claims will, or
must, follow precisely the same course to grant or denial.
The inattention of plaintiff's counsel to the directions of the
Postal Service to follow the regulations is manifest. The penalty
suffered by the dilatory claimant is well illustrated here. Mr.
Koziol might possibly have resolved his aging dispute with the
Postal Service years ago in a manner satisfactory to him if there
had been prompt compliance with agency procedures. Instead, he
has but a claim in court, a claim occupying the attention of his
attorneys and very much in contention.
The cases upon which the government relies are, perhaps, a
reflection of a reluctance to let go of the incidents and
language of the concept of sovereign immunity. But Congress
expressly did waive that immunity in cases of this nature. It
evidenced no intention that the courts should act with greater
rigidity with respect to claims against the sovereign than with
respect to claims against the sovereign's ministers or servants.
Contrast Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64
L.Ed.2d 15 (1980), Murray v. City of Chicago, 634 F.2d 365 (7th
Cir. 1980); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.
1973). See City of West Plains, Missouri v. Loomis, supra.
The Federal Tort Claims Act requires that the claimant give
notice to permit the government to investigate the matter in a
timely fashion and to permit negotiations in an effort to resolve
the claim without litigation if the government determines there
is some merit to the claim. Plaintiff's notice in 1977 was
sufficient for those purposes, and he is properly now before this