Katherine Graham v. United States

Opinion by Judge SCHROEDER, Dissent by Judge KOZINSKI.

The district court dismissed this Federal Tort Claims Act (“FTCA”) case as untimely. Plaintiff Katherine Graham appeals, contending that the notice of denial of her administrative claim was insufficient to trigger the time for filing the complaint pursuant to 28 U.S.C. § 2401 because the notice was not mailed to her counsel of record.

The facts are unusual. Graham was a federal prisoner who was injured when an eighty-pound roll of roofing material fell through a skylight and struck her. She retained counsel, filed an administrative claim •with the Bureau of Prisons (“Bureau”), and listed her counsel on the claim form as her “personal representative.” Graham’s counsel corresponded with the Bureau to ensure that the agency’s records correctly reflected Graham’s representation. The Bureau advised counsel to notify the agency if his address changed.

The correspondence between the Bureau and Graham’s counsel clearly contemplated that the agency would notify counsel of important developments in the ease. However, when the agency decided the administrative claim, it did not notify Graham’s counsel. Rather, it sent the notice of…

dissenting.

The worst thing about this opinion is the pretense that we are interpreting the regulation. In crisp terms 28 C.F.R. § 14.9 (a) authorizes the agency to deliver notice of denial of a Federal Tort Claims Act claim to “the claimant, his attorney, or legal representative.” The regulation gives no further directions; it doesn’t narrow the agency’s choice from among the possibilities listed. Under the circumstances, I don’t see what the majority is purporting to interpret when it holds that the notice is defective because it was sent to claimant rather than to her lawyer. Interpretation, as I know that term, is a process whereby we figure out the meaning of words that are actually there; interpreting the sounds of silence is a euphemism for rewriting. And this is just what the majority does. To the language of the regulation the majority tacks on the following proviso: “but if the claimant is represented, the notice may not be sent to the claimant but must be sent to the lawyer instead.”

My colleagues note a conflict with Hanson v. United States, 908 F.2d 257 (8th Cir.1990), and take the Eighth Circuit to task for failing to “explain why the regulation should be…

96 F.3d 446 65 USLW 2223 , 96 Cal. Daily Op. Serv. 7000 , 96 Daily Journal D.A.R. 11 ,477 Katherine GRAHAM, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 94-17218. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 12, 1996. Decided Sept. 19, 1996. Kevin P. Urbatsch, Bancroft & McAlister, San Francisco, California, for plaintiff-appellant. Patricia J. Kenney, Assistant United States Attorney, San Francisco, California, for defendant-appellee. Appeal from the United States District Court for the Northern District of California, William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-94-02426-WHO. Before SCHROEDER, D.W. NELSON, and KOZINSKI, Circuit Judges. Opinion by Judge SCHROEDER, Dissent by Judge KOZINSKI. SCHROEDER, Circuit Judge: 1 The district court dismissed this Federal Tort Claims Act ("FTCA") case as untimely. Plaintiff Katherine Graham appeals, contending that the notice of denial of her administrative claim was insufficient to trigger the time for filing the complaint pursuant to 28 U.S.C. § 2401 because the notice was not mailed to her counsel of record. 2 The facts are unusual. Graham was a federal…