agency nor returned to the claimant." 854 F.2d at 203. If the EEOC received Mrs. Bukala's claim and, in the exercise of due diligence, could have transferred the claim to the VA before the two-year limitations period had run, her misdelivered claim may be deemed timely presented to the proper agency in satisfaction of § 2401(b). Id. at 204. The Court remanded for, and the parties' briefs here are directed to, this determination.
According to the stamp on Mrs. Bukala's Notice of Claim, she filed the claim with the EEOC on July 10, 1984, eight months before the two-year limitations period ran out. The Notice clearly indicates that Mrs. Bukala's claim was against the VA. The United States concedes that the EEOC did not attempt to transfer her claim to the VA or return it to Mrs. Bukala as improperly filed, and we have no doubt that had the EEOC made an effort to comply with the transfer regulation, the VA would have received the claim by the deadline.
Instead, the government contends that Mrs. Bukala has not proven the threshold fact that she ever filed the claim with any agency. The government points to deposition testimony indicating that the EEOC has no record of her claim, no EEOC official recalls having seen the claim and Collins, who allegedly filed the claim, does not recall filing that specific Notice. This line of argument is disingenuous in light of the fact that Mrs. Bukala has produced the Notice of Claim form which was stamped as received by the EEOC, credible evidence that the claim was filed. Cf. Lotrionte v. United States, 560 F. Supp. 41, 42-43 (S.D.N.Y.), aff'd, 742 F.2d 1436 (2d Cir. 1983). The government's evidence establishes at most that many of the people involved cannot specifically recall the filing after more than four years. The government suggests that Collins might have taken the claim to the EEOC, stamped it herself when no one was present and left without leaving a copy with an EEOC employee. This is nothing more than unfounded speculation.
In the absence of evidence to the contrary, we will presume that the stamp means exactly what it states: that the EEOC received the claim on July 10, 1984. Mrs. Bukala need not present the testimony of an individual who recalls having filed or an EEOC employee who recalls having received that specific claim.
The government further contends that Mrs. Bukala cannot prove that the government should be estopped from asserting a statute-of-limitations defense. This contention misconstrues the Seventh Circuit's rationale in Bukala. "The statute of limitations under the FTCA is jurisdictional in nature and is not subject to equitable considerations." Myszkowski v. United States, 553 F. Supp. 66, 68 (N.D.Ill. 1982), quoting Stewart v. United States, 503 F. Supp. 59, 63 (N.D.Ill. 1980), aff'd, 655 F.2d 741 (7th Cir. 1981). See also Smith v. Mark Twain National Bank, 805 F.2d 278, 293-94 (8th Cir. 1986). The Seventh Circuit did not deviate from this principle when it reconciled § 2401(b) and the transfer regulation. The Court based its decision on the conclusion that the transfer regulation is "thoroughly consistent with the intent of Congress" that underlies the FTCA. Bukala, 854 F.2d at 203. Notions of estoppel did not appear expressly or implicitly in the decision.
The evidence shows that Mrs. Bukala filed her claim in the EEOC office on July 10, 1984, and the EEOC did not attempt to forward the claim to the VA as was its duty under the transfer regulation. Accordingly, Mrs. Bukala constructively filed her claim within the two-year statute of limitations, and the United States' motion to dismiss is denied. The United States is to answer the complaint within fifteen days. A status hearing is set for July 18, 1989, at 10:00 a.m. It is so ordered.
DATED July 11, 1989