United States District Court, D. Utah
MARLENE L. EYRE, GARY J. EYRE, Plaintiffs,
JOHN W. HUBER, JEFF SESSIONS, LAURA BROWN, Defendants.
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
CAMPBELL, UNITED STATES DISTRICT COURT JUDGE
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
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
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. §§
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.
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.
this lawsuit is dismissed with prejudice as time-barred. For
the additional reasons set forth below, Defendants'
Motion to dismiss is GRANTED.
Plaintiff's claim is time barred.
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.
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).
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.”).
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 ...