Toni Marie Gervais, by and Through Her Conservator and Legal Guardian Connie Bremner v. United States of America and the Bureau of Indian Affairs

This is an action under the Federal Tort Claims Act alleging that the negligent operation of a tribal jail facility by the Bureau of Indian Affairs resulted in the attempted suicide and permanent mental retardation of the appellant, Toni Marie Ger-vais. The district court dismissed the suit for lack of subject matter jurisdiction, holding that the complaint was not timely filed within six months of the denial of the claim by the BIA. 667 F.Supp. 710 . This ruling was based upon the court’s holding that the appellant’s, request for reconsideration of the denial of her claim, which if timely would have extended the period for filing the complaint in the district court under 28 C.F.R. § 14.9 , was filed one day late. The district court accepted the position of the government that unless an agency employee physically received the request and stamped it “filed” within the six-month period, the request was untimely. We reverse, because the unusual facts in this case show that the request for reconsideration arrived within the six-month period at the place the BIA itself designated for receipt.

Gervais’ attempted suicide took place July 13, 1985. Gervais filed a timely claim under the…