The quality of mercy is not strained: interpreting the notice requirement of the Federal Tort Claims Act.

• Author: McGuire, Ann

What need the bridge much broader than the flood? The fairest grant is the necessity. Look, what will serve is fit.(1)

INTRODUCTION

Under the Federal Tort Claims Act of 1946 (FTCA),(2) the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances."(3) This limited waiver of sovereign immunity,(4) subject to certain exceptions,(5) grants federal district courts exclusive jurisdiction over civil tort actions against the United States for money damages.(6)

The Act requires a claimant suing the United States to file her claim first with the appropriate administrative agency.(7) If the agency denies the claim, it mails a notice of final denial, and the claimant then has six months to file the claim against the United States in federal court.(8) Failure to file suit within six months from the date of mailing and within two years after the claim accrues(9) "forever bar[s]" the claimant from seeking relief in the courts under the FTCA.(10) The Act does not specify to whom the agency must send the notice of denial. The Department of Justice (DOJ), charged by Congress with administering the Act,(11) therefore promulgated 28 C.F.R. [sections] 14.9(a), which requires that the agency send notice to the claimant, her attorney, or her legal representative.(12)

The courts have applied this regulation to claims arising under the Act nearly uniformly, interpreting it to permit an agency to send notice to any of the recipients enumerated in the regulation. They generally have dismissed claimants' arguments that the notice of denial should have been sent only to them, or alternatively, to their attorneys, often with a succinct reference to the language of section 14.9.(13) In late 1996, however, the Ninth Circuit let slip the dogs of war and held in Graham v. United States that section 14.9(a) requires that the notice of denial be sent only to the claimant's attorney, if the agency knows that the claimant is represented.(14) The court justified its override of the language of the regulation primarily on the grounds of "prevailing ethical standards."(15) Sending the notice to the claimant, the Ninth Circuit held, violates the ethical rule that attorneys may not communicate directly with parties they know to be represented.(16) Because the Bureau of Prisons sent the notice of denial to Graham instead of to her attorney, the court permitted Graham's suit to proceed despite its late filing.(17)

The Ninth Circuit's holding, while well-meaning, is perplexed in the extreme. This Note contends that courts should follow the traditional reading of section 14.9(a) and uphold the propriety of notice sent to either the claimant or her attorney. Courts seeking to grant relief to an unfortunate claimant should look to the principles of equity, not to a tortured reading of section 14.9. Part I argues that the traditional judicial interpretation of the Act's notice-of-denial requirement, unlike the Ninth Circuit's reading, accords with the judicial deference properly given to administrative regulations, the plain language of 28 C.F.R. [sections] 14.9(a), and the established precepts of statutory construction. Part II demonstrates that sending the notice of denial directly to the claimant has the Ninth Circuit's wrong rebuke and does not violate the ethical prohibition against communication with represented parties. Finally, Part III proposes an alternative method for ensuring that claimants are not unfairly deprived of their rights by outrageous fortune or unscrupulous defendants. Courts should apply the well-established doctrine of equitable tolling when extraordinary circumstances warrant relief, instead of being straight-jacketed in every case by a per se rule.

1. HEEDING THE WORDS, WORDS, WORDS: THE JUSTIFICATIONS FOR A LITERAL READING

   The traditional reading of 28 C.F.R. [sections] 14.9(a), which permits an agency to send notice to either the claimant, her attorney, or her legal representative,(18) enjoys strong support from a number of sources. Section I.A demonstrates that the doctrines of judicial deference to agencies' interpretations of statutes and their own regulations dictate that courts should regard as authoritative both the DOJ's regulation and its reading of that regulation. Section I.B then contends that the plain language of the regulation, interpreted in accordance with the canons of construction, justifies a traditional reading by the DOJ or other agency. Section I.B also argues that the drafters of the regulation intended to give agencies discretion in choosing the recipient of the denial notice, and that courts should give effect to that intent because the usual justification for overriding regulatory text -- clear frustration of drafters' intent -- is not applicable here.

   1. To Thine Own Agencies Be True: The Commitment to Judicial Deference

      The principles of judicial deference to administrative agencies' interpretations of statutes and of their own regulations demand that courts respect the traditional interpretation of 28 C.F.R. [sections] 14.9(a). Given broad discretion by the FTCA to interpret the statute,(19) the DOJ decreed that notice may be sent either to the claimant or to her representative. Part I.A.1 first asserts that because section 14.9(a) is a reasonable and permissible construction of the Act's notice provisions, a court may not fashion, wrest, and bow its own reading of the statute to require that agencies send notice only to attorneys. Part I.A.2 then argues that because the judiciary also owes deference to an agency's interpretation of its own regulations, a court should ratify the DOJ's construction of section 14.9(a), which permits notice to be sent to either a claimant or her attorney. This Part concludes that these doctrines of judicial deference require that courts direct policy concerns to the political branches of the government. Because neither the DOJ nor Congress has found section 14.9(a) and its traditional interpretation to be so rank and gross in nature as to require changing, courts should accede to the language of the regulation and its implementation by agencies and allow agencies to send notice to the claimant.

      1. Chevron Deference

         Under the principles of judicial deference to agencies' interpretations of statutes, a court should defer to the regulation promulgated by the DOJ, which allows agencies to choose the recipient of the notice of denial. The Supreme Court has held, most notably in Chevron U.S.A., Inc. v. Natural Resources Defense Council,(20) that when a court reviews an administrative agency's interpretation of a statutory provision the agency is charged with administering, the court must accept the agency's "reasonable" or "permissible" construction, if the statute is silent or ambiguous on the issue in question.(21) The interpretation offered by the agency, moreover, need not be the only permissible interpretation or even one the court itself would have reached.(22) "If the agency regulation is not in conflict with the plain language of the statute," the Supreme Court makes clear, "a reviewing court must give deference to the agency's interpretation of the statute."(23) In short, the judiciary may not supplant an agency's judgment with its own.(24)

         In enacting and amending the Federal Tort Claims Act, Congress essentially delegated the choice to the DOJ by remaining silent on the issue of the proper recipient of the denial notice.(25) The Attorney General, in promulgating 28 C.F.R. [sections] 14.9(a), construed the FTCA's notice requirement to allow notice to be sent to either the claimant or her attorney. To merit the great deference accorded administrative regulations, section 14.9(a) need only be reasonable, a measure the regulation easily meets. Though 28 U.S.C. [sections] 2401(b) mentions neither the claimant nor the claimant's attorney, section 2675 speaks in terms of the claimant. A suit is barred, that section provides, unless "the claimant shall have first presented the claim to the appropriate Federal agency."(26) When the only party named in the FTCA notice provisions is the claimant, allowing the notice of denial to be sent to the claimant is not "arbitrary, capricious, or manifestly contrary"(27) to the statute.(28)

         Because section 14.9(a) is a reasonable interpretation of the Act's notice provisions, that regulation should be the be-all and end-all of a court's analysis of permissible notice recipients. A court cannot issue a blanket order that notice be sent only to counsel of record.(29) Such a rule, in addition to playing fast and loose with the plain language of the regulation, would not give proper deference to the DOJ's interpretation. A court should not disturb a reasonable choice made by an agency unless the statute or its legislative history shows that Congress would not have approved of the agency's interpretation.(30) Nothing in the Act, its amendments, or its legislative history demonstrates congressional rejection of the DOJ's interpretation of the notice requirement. Because the Ninth Circuit "may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency,"(31) the Graham court should have confirmed the language of section 14.9.

      2. Bowles Deference

         The Ninth Circuit is further curtailed to the fair proportion of the traditional reading by a second prescript of judicial deference. In addition to giving deference to the regulation promulgated by the DOJ, a court should also give deference to the DOJ's interpretation of its own regulation and allow the DOJ and its constituent subdivisions to choose from among the recipients the Attorney General listed in section 14.9(a). The Supreme Court held in Bowles v. Seminole Rock and Sand Company(32) and subsequent cases(33) that when the meaning of an administrative construction itself is in doubt, an agency's interpretation of its own regulation is...