Whitaker

MEMORANDUM **

Plaintiff Ronald Whitaker appeals from the district court’s dismissal, for lack of subject matter jurisdiction, of this Federal Tort Claims Act (FTCA) action. We affirm.

Under the FTCA, a claimant must present an administrative claim to the appropriate federal agency before filing an action in court. 28 U.S.C. § 2675 (a). A claim is not presented until it is received by the agency. Bailey v. United States, 642 F.2d 344 , 346 (9th Cir.1981). Plaintiff bears the burden of proving that the court has subject matter jurisdiction, Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992), which in an FTCA action includes proof of the defendant agency’s receipt of the claim.

Plaintiff argues that he is entitled to a presumption of receipt because he proved that he mailed his claim by certified mail. He relies on Cordaro v. Lusardi, 354 F.Supp. 1147, 1149 (S.D.N.Y.1973), for this proposition. However, this court considered Cordaro in Bailey, 642 F.2d at 347 n. 1, and declined to hold that such a presumption exists. Further, as we note below, any such presumption was rebutted by other evidence.

Plaintiff also argues that his possession of a certified mail…