Sconiers v. United States, 896 F.3d 595 (3d Cir. 2018). Under the Federal Tort Claims Act, 28 U.S.C. §2401(b) (“FTCA”), a tort claim against the United States is “forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented” (emphasis added). Here, plaintiff sued the United States Postal Service within two years of the date that her vehicle was in an accident with a Post Office vehicle. But her filing came eight months after the Post Office mailed her notice of the rejection of the administrative claim that she filed with the Post Office. The question was whether a plaintiff must satisfy both time limits in order to be able to proceed, or whether the use of “or unless” meant that she need only show one or the other.
The District Court granted summary judgment for the United States, which substituted into the case in lieu of the Post Office. That court held that both time requirements had to be met. Plaintiff appealed, but today the Third Circuit affirmed after applying plenary, de novo review. Judge Greenaway wrote the panel’s opinion.
Judge Greenaway observed that “because the Federal Tort Claims Act constitutes a waiver of sovereign immunity, the Act’s established procedures have been strictly construed.” He found persuasive the opinion of the Sixth Circuit in Ellison v. United States, 531 F.3d 359 (6th Cir. 2008), which he quoted at length. Judge Greenaway also noted that this result was “consistent with our strict construction of the FTCA and with how we have described the FTCA’s filing requirement in the past.” Moreover, every other Circuit to have considered this issue reached this same result.
Finally, the panel stated that plaintiff had waived two arguments, one that she never made and one that she belatedly made for the first time on appeal. Plaintiff did not argue that the statute of limitations should be tolled, thereby waiving that argument, and her attempt to argue that the time limitations are an unconstitutional denial of due process and equal protection were also waived, since she did not raise them below.
One last note. The District Court’s order granting summary judgment ordered that all claims were “dismissed with prejudice.” Judge Greenaway stated that this usage was incorrect “because the grant of summary judgment and the dismissal of the complaint are inconsistent.” The panel thus disregarded the reference to dismissal of the complaint, and treated the matter as one in which summary judgment had been granted. The two concepts are often indiscriminately intermingled, but according to today’s opinion, and Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 121 n.2 (3d Cir. 1999), on which Judge Greenaway relied in this regard, it is erroneous to do so.