The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court is defendant's Motion to Dismiss or, in the
Alternative, Summary Judgment filed July 19, 1983. The
government argues this action is barred by the two year
federal statute of limitations pursuant to 28 U.S.C. § 2401(b).
The facts that are relevant to this motion are undisputed.
In November of 1978, James Pardy was admitted to the Scott Air
Force Base Medical Center for treatment of a urinary tract
infection. On November 6, 1978, the attending radiologist gave
Mr. Pardy an injection of Conray-60, a contrast medium. A few
minutes after completion of the injection, Mr. Pardy suffered
a severe reaction to the contrast medium and went into
anaphylactic shock while suffering both respiratory and
cardiac arrest. Mr. Pardy remained in a comatose state until
November 21, 1978, at which time he became aware of his
surroundings and of the events of November 6, 1978. On
December 6, 1978, Mr. Pardy was discharged.
On November 10, 1980, the Pentagon received a letter from
Leroy M. Steiner, Attorney at Law, purporting to be an
administrative claim. An SF 95 Administrative Claim Form was
submitted on March 10, 1981.
The government's argument for dismissal of this action is
twofold. First, the government contends that the letter sent
to the Pentagon by Attorney Steiner does not constitute an
administrative claim. Second, even if a proper administrative
claim was filed on November 10, 1980, the two year statute of
limitations ran on Mr. Pardy's claim on November 6, 1980.
The government argues that the correspondence by Attorney
Steiner is defective because it fails to include evidence of
authority to present the claim as required by
28 C.F.R. § 14.3(e). Section 14.3(e) provides:
A claim presented by an agent or legal
representative shall be presented in the name of
the claimant, be signed by the agent or legal
representative, show the title or legal capacity
of the person signing, and be accompanied by
evidence of his authority to present a claim on
behalf of the claimant, as agent, executor,
administrator, parent, guardian or other
Attorney Steiner's failure to file a Standard Form 95 form on
November 10, 1980, is not relevant because the regulations
explicitly permit the use of the Form or other written evidence
of his authority to file a claim for Mr. Pardy. See
28 C.F.R. § 14.2.
The Court finds that plaintiff properly filed an
administrative claim on November 10, 1980. First, the
requirements of 28 C.F.R. § 14.3(e) are not jurisdictional
since the regulation was promulgated pursuant to the settlement
section of the Federal Tort Claims Act, 28 U.S.C. § 2672, and
not the jurisdictional section, 28 U.S.C. § 2675(a). Graves v.
United States Coast Guard, 692 F.2d 71, 74-75 (9th Cir. 1982).
Moreover, even if § 14.3(e) was jurisdictional, plaintiff
satisfied the requirements in this case. On November 10, 1980,
Attorney Steiner filed a letter and a Notice of Claim. The
letter identifies Mr. Steiner as an Attorney at Law who
represents James Pardy in his Federal Tort Claim. In that
representative capacity, Attorney Steiner signed the letter.
The Court finds that this letter adequately sets out Attorney
Steiner's authority to file a claim for Mr. Pardy.
In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62
L.Ed.2d 259 (1979), the Court addressed when a claim accrues
under 28 U.S.C. § 2401(b). The Court of Appeals in Kubrick had
decided that a claim does not accrue until the injured party is
1) aware of his injury, 2) its cause, and 3) that the doctor
who caused the injury was negligent. The Supreme Court removed
the third prong from the analysis holding that Congress did not
intend that accrual of a claim "must await awareness by the
plaintiff that his injury was negligently inflicted." Id. at
123, 100 S.Ct. at 360. Therefore, plaintiff's claim for relief
accrued when he was aware of his injury and its cause.
Since Mr. Pardy was in a coma until November 21, 1978, he
could not appreciate his injury or its cause until at least
that date. Therefore, under Kubrick the two year statute of
limitations began to run on November 21, 1978. The government
seeks to avoid this result by arguing, (1) that the discovery
rule is inapplicable to ...