Anton Vacek, and Golden Eagle Insurance Company v. United States Postal Service United States of America

Anton Vacek (Vacek) appeals from the district court’s judgment of dismissal of his Federal Tort Claims Act (Act) claim for lack of subject matter jurisdiction. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 . We affirm.

I

On March 9, 1999, Vacek was injured when his employer’s truck, in which he was a passenger, was struck by a United States Postal Service (USPS) truck. His workers’ compensation claim was processed by Golden Eagle Insurance Company, his employer’s insurance company and the co-appellant in this case.

Vacek retained Harold Truett as his attorney. According to Truett’s declaration, Truett telephoned the USPS in late July 2000 to determine how to proceed with Vacek’s claim. He was told to complete a Standard Form 95 and to mail it to True-dell Griffin in the Customer Service Department in San Francisco. Truett alleges that he received a Form 95 soon after his telephone call, and that he mailed a completed copy of it to Griffin on August 7, 2000.

On August 16, 2000, Truett received a letter from the USPS containing instructions on how to fill out the Form 95. Truett responded one week later: “A properly completed claim form SF95 was mailed to…

concurring:

This case provides fresh meaning to James M. Cain’s “The Postman Always Rings Twice.” 1 Anton Vacek was first struck by a Post Office truck, and then had his damage claim stamped out because the Post Office lost it in the mail. 2

The legal question presented by this case is whether the United States Post *1254 Office is entitled to immunity from suit when its employees lose a plaintiffs claim in the mail? The answer, based on the letter of the law as expressed in Bailey v. United States, 642 F.2d 344 (9th Cir.1981), appears to be “yes.” However, because subsequent case law has undermined Bal-ley, and because I believe Bailey was incorrectly decided, I write separately to urge re-examination of the Bailey rule.

I

The Federal Tort Claims Act (“FTCA”) “waives the United States’ sovereign immunity for actions in tort” and permits claimants to sue the United States in district court after complying with administrative requirements. Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir.1995). Before filing a lawsuit, a claimant must “have first presented the claim to the appropriate Federal agency,” 28 U.S.C. § 2675 (a), “within two years after such claim accrues,” 28…

447 F.3d 1248 Anton VACEK, Plaintiff-Appellant, and Golden Eagle Insurance Company, Plaintiff, v. UNITED STATES POSTAL SERVICE; United States of America, Defendants-Appellees. No. 04-15961. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 15, 2006. Filed May 24, 2006. Harold J. Truett, III, San Francisco, CA, for Appellant Anton Vacek. Kevin V. Ryan, United States Attorney; Joann Swanson, Chief, Civil Division; Abraham A. Simmons, Assistant United States Attorney, San Francisco, CA, for Appellee United States of America. Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-02-1406-VRW. Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges. WALLACE, Circuit Judge: 1 Anton Vacek (Vacek) appeals from the district court's judgment of dismissal of his Federal Tort Claims Act (Act) claim for lack of subject matter jurisdiction. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 . We affirm. 2 * On March 9, 1999, Vacek was injured when his employer's truck, in which he was a passenger, was struck by a United States Postal Service (USPS) truck. His…