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Eyre v. Huber

United States District Court, D. Utah

September 6, 2019

MARLENE L. EYRE, GARY J. EYRE, Plaintiffs,
v.
JOHN W. HUBER, JEFF SESSIONS, LAURA BROWN, Defendants.

          JOHN W. HUBER, United States Attorney (#7226) TODD C. HILBIG, Assistant U.S. Attorney (#8643) Attorneys for Defendants

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DISMISSING COMPLAINT WITH PREJUDICE

          TENA CAMPBELL, UNITED STATES DISTRICT COURT JUDGE

         On March 15, 2019, Defendants filed a Motion to Dismiss. The motion was fully briefed (see ECF Nos. 16, 17, 19, and 21). A hearing was held before the Court on July 31, 2019. Marlene L. Eyre and Gary J. Eyre appeared pro se, and Defendants were represented by Todd C. Hilbig. Based on the parties' written and oral arguments, the pleadings, and the relevant law, the Court enters the following Memorandum Decision and Order.

         In the Complaint, Marlene Eyre (“Plaintiff”) claims that on July 5, 2015, she was with her family in Bryce Canyon National Park, walked backwards on a paved path to take a photograph, stepped backwards off an 18 inch ledge onto the paved path below, and was injured. She did not fall to the ground but “… was able to remain upright.” ECF No. 1, p. 4. Plaintiff alleges the National Park Service of the U.S. Department of the Interior was at fault for her accident. Pursuant to Rule 7(b) of the Federal Rules of Civil Procedure and DUCivR 7-1(a)(1) of the Rules of Practice, Defendants moved for an order dismissing Plaintiffs' Complaint on the ground that Plaintiffs' claim is time barred.

         Ms. Eyre's Federal Tort Claims Act (“FTCA”) administrative claim was dated the latter part of June 2017. On October 26, 2017, the Intermountain Office of the Solicitor (“SOL”) of the Department of the Interior mailed a letter denying the claim, which Plaintiff received a few days later. Federal law required Plaintiff to file a lawsuit within six months of October 26, 2017, or to ensure that the SOL received any request for reconsideration by Plaintiff within six months of October 26, 2017. 28 U.S.C. §§ 2401(b), 2675(a); 28 C.F.R. §§ 14.2(a), 14.9(b))

         However, it was not until April 30, 2018, that SOL received Plaintiff's correspondence dated April 24, 2018 (and stamped April 26, 2018 with an expected delivery of April 28, 2018), requesting reconsideration of the claim (“Request for Reconsideration”). The Request for Reconsideration was denied by SOL on September 21, 2018, when SOL indicated that the determination of the claim could not be reconsidered because the request for reconsideration was received after April 26, 2018, the request for reconsideration was untimely, and the denial determination remained in effect as of the date it was mailed on October 26, 2017. Plaintiffs did not timely exhaust their administrative claim, a fatal defect. Belatedly, Plaintiffs filed suit in the United States District Court of Utah on October 30, 2018.

         The three critical dates are October 26, 2017 when SOL mailed its denial of Plaintiff's first administrative claim; April 26, 2018 which was the statutory deadline for Plaintiff to file a lawsuit or, alternatively, for SOL to receive a written request from Plaintiff for reconsideration; and April 30, 2018 when SOL finally received Plaintiff's Request for Reconsideration. Plaintiff's Request for Reconsideration is time barred because it was not received by the National Park Service (or its agency counsel, SOL) until the six month limitation period had already expired.

         Therefore, this lawsuit is dismissed with prejudice as time-barred. For the additional reasons set forth below, Defendants' Motion to dismiss is GRANTED.

         Discussion

         I. Plaintiff's claim is time barred.

         Plaintiff's claim is time barred because her Request for Reconsideration was not received by the SOL until after the limitation period had expired. That window began to run on the date of mailing the final denial, October 26, 2017, and expired six months later on April 26, 2018, the last day that receipt would have been timely. However, Plaintiff did not present the Request for Reconsideration to the agency until it was received on April 30, 2018.

         As a prerequisite to suit, the FTCA requires that a “claimant shall have first presented the claim to the appropriate Federal agency.” 28 U.S.C. § 2675(a); 28 U.S.C. § 2401(b). Section 2401(b) provides that “[a] tort claim against the United States shall be forever barred unless it is . . . begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented”. Within six months following notice of a “final denial, ” a claimant may either file suit in district court, 28 U.S.C. § 2401(b), or file a request for reconsideration with the agency, 28 C.F.R. § 14.9(b). If unsatisfied with the resolution of the request for reconsideration, a claimant has six months from the date of filing the request to bring suit in district court. 28 C.F.R. § 14.9(b).

         The six month period of limitations (to file suit or request consideration) commences to run “after the date of mailing” of the final denial of the administrative claim, not the date on which a claimant receives the notice of rejection of the claim. 28 U.S.C. § 2401(b); see also 28 C.F.R. § 14.9(a) (“Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail.”).

         A 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.” Under the FTCA, federal regulations are clear when presentment occurs. It happens when the agency receives the claim. The applicable regulation, 28 C.F.R. § 14.2(a), applies to all federal agencies, and it states that “a claim shall be deemed to have been ...


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