Case: 15-60614      Document: 00513444695         Page: 1    Date Filed: 03/30/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60614                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 30, 2016
PETER J. BARBER,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

UNITED STATES OF AMERICA,

              Defendant–Appellee.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:14-CV-470


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       This appeal concerns Peter Barber’s suit against the United States under
the Federal Tort Claims Act (“FTCA”). The district court granted the United
States’ motion to dismiss for lack of subject-matter jurisdiction on the ground
that Barber failed to exhaust his administrative remedies. We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                              I. BACKGROUND
      In December 2014, Plaintiff–Appellant Peter Barber sued Defendant–
Appellee United States under the FTCA, asserting negligence and professional
malpractice by the Department of Veteran Affairs (“VA”) in connection to its
medical care of Barber at its Gulf Coast Health Care System (“Gulf Coast”) in
Biloxi, Mississippi. In his complaint, Barber alleged compliance with 28 U.S.C.
§ 2675, which requires a FTCA claimant to “present[]” his claim to the relevant
federal agency before filing suit. 28 U.S.C. § 2675(a). He also attached to his
complaint a copy of his claim—an executed Standard Form 95 (“SF 95”).
      The Government moved to dismiss for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). It argued that Barber did not
satisfy the FTCA’s presentment requirement because he failed to show the VA
actually received his claim. In support, it submitted sworn declarations from
four VA employees, including the mailroom supervisor at the Biloxi office,
describing the VA’s procedure for logging mail and stating that they were
unable to find any evidence that the VA had received Barber’s SF 95 despite
searching several offices. Barber opposed the motion to dismiss with evidence
indicating that he gave his SF 95 to his lawyer’s receptionist and that the
receptionist sent the claim via first-class mail to an address for a VA office in
Biloxi, Mississippi, that she had found through an internet search. The district
court granted the motion and dismissed the case without prejudice, explaining
that “[n]o evidence of actual receipt of [Barber’s] claim by the VA has been
submitted to the Court.” It also denied Barber’s motion to conduct
jurisdictional discovery. Barber timely appealed.
                              II. DISCUSSION
      We review de novo the district court’s dismissal for lack of subject-matter
jurisdiction under Rule 12(b)(1). Ramming v. United States, 

, 161


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                                  No. 15-60614
(5th Cir. 2001). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction.” 

suit under the FTCA, the plaintiff must “first present[] the
claim to the appropriate Federal agency.” 28 U.S.C. § 2675(a). We have
recognized that presentment is a jurisdictional prerequisite. Cook v. United
States, 

, 165–66 (5th Cir. 1992). “Its purpose is ‘to ease court
congestion and avoid unnecessary litigation, while making it possible for the
Government to expedite the fair settlement of tort claims asserted against the
United States.’” Life Partners Inc. v. United States, 

, 1030 (5th
Cir. 2011) (quoting Frantz v. United States, 

, 224 (5th Cir. 1994)).
Further, because presentment is a “condition[] upon which the government
consents to be sued” under the FTCA’s waiver of sovereign immunity, it “must
be strictly construed in favor of the United States.” Atorie Air, Inc. v. Fed.
Aviation Admin., 

, 958 (5th Cir. 1991).
       The applicable federal regulations provide that presentment requires
actual receipt of the claim. Under 38 C.F.R. § 14.604(b), a claim “shall be
deemed to have been presented when the [VA] receives from a claimant . . . an
executed SF 95, or other written notification of an incident, together with a
claim for money damages, in a sum certain, for . . . personal injury.” 38 C.F.R.
§ 14.604(b) (emphasis added); see also 28 C.F.R. § 14.2(a) (“[A] claim shall be
deemed to have been presented when a Federal agency receives from a
claimant . . . an executed Standard Form 95 or other written notification of an
incident . . . .”).
       Barber contends that evidence that his SF 95 was mailed to the VA is
sufficient to prove presentment. In support, he cites Barnett v. Okeechobee
Hospital, 

(11th Cir. 2002), which held that properly mailing an
SF 95 creates a presumption of receipt. 

law, however, requires us
to reject Barber’s argument and conclude that he has not carried his burden of
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proof. In Bailes v. United States, 

, 

(5th Cir.
March 11, 1993) (per curiam) (unpublished), 1 we found that the plaintiff had
not carried his burden to demonstrate presentment. In that case, the plaintiff
had provided “some evidence that the claim had been mailed” to the
appropriate federal agency. 

“Evidence of mailing,” we explained,
“does not show presentment” under the FTCA. 

claim is not
presented until received” and the plaintiff had failed to proffer “evidence of
receipt.” 

emphasized in Bailes that the United States had
submitted affidavits from three agency employees “attesting that they found
no administrative claim related to the subject matter of the instant suit after
a search of the pertinent files and records.” 

only evidence is that his lawyer’s receptionist sent his SF
95 by first-class mail, and it was addressed to the VA’s Biloxi office. He has not
provided any affirmative evidence of actual receipt. Further, the United States
has submitted declarations detailing the VA’s procedure for tracking incoming
mail and attesting that its employees were unable to find any indication that
the VA received Barber’s claim. Given the record, Barber’s evidence of mailing
is insufficient to prove actual receipt. See 

Indeed, even assuming
arguendo that Barnett’s presumption of receipt applied here, 2 we agree with
the district court that the United States rebutted this presumption through its
declarations.




       1  5th Cir. R. 47.5.3 (“Unpublished opinions issued before January 1, 1996, are
precedent.”).
        2 Other circuits have declined to follow Barnett. See, e.g., Vacek v. U.S. Postal Serv.,

, 1252 (9th Cir. 2006) (“Because Barnett is contrary to the law of the Supreme
Court, to our circuit, and to that of three other circuits, we will not follow it”); see generally
Lightfoot v. United States, 

, 628 (3d Cir. 2009) (collecting cases and noting that
“[c]ourts in other jurisdictions have almost uniformly concluded that the term ‘presented’ in
the filing of an administrative claim means more than merely mailing the claim”).
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       Barber alternatively argues that he satisfied the presentment
requirement because the VA had actual knowledge of the negligent medical
treatment that formed the basis of his FTCA claim. In particular, he contends
that the VA received sufficient notice when he applied for and received service-
connected disability benefits under 38 U.S.C. § 1151 that compensated him for
the VA’s inadequate medical care. We find this argument unavailing. To give
notice under 28 U.S.C. § 2675(a), Barber must submit “a monetary claim in a
sum-certain.” Montoya v. United States, 

, 104 (5th Cir. 1988)
(citing 28 C.F.R. § 14.2(a)); accord Martinez v. United States, 

, 697
(5th Cir. 1984) (“[P]resentation of a claim including ‘a sum certain’ is a
jurisdictional requirement . . . .”). Even assuming we could construe Barber’s
unsigned 38 U.S.C. § 1151 claim as a notice of claim under the FTCA, it does
not state any dollar amount and therefore is not “a claim for money damages,
in a sum certain.” 38 C.F.R. § 14.604(b); see also 

. 3
       Lastly, Barber argues that the district court committed reversible error
when it denied his motion to conduct jurisdictional discovery. We review the
district court’s ruling for abuse of discretion. Davila v. United States, 

, 263–64 (5th Cir. 2013). The plaintiff is “not entitled to jurisdictional
discovery if the record shows that the requested discovery is not likely to
produce the facts needed to withstand a Rule 12(b)(1) motion.” 

(quoting Freeman v. United States, 

, 342 (5th Cir. 2009)).
“Moreover, the burden is greater where, as in the present case, ‘the party




       3 We also find no error in the district court’s denial of Barber’s motion to amend
judgment pursuant to Federal Rule of Civil Procedure 59 on the basis of the Supreme Court’s
decision in United States v. Kwai Fun Wong, 

(2015). Wong held that the
FTCA’s statute of limitations was “non-jurisdictional and subject to equitable tolling.” 135 S.
Ct. at 1638. We find that Wong’s holding regarding the FTCA’s time limits has no bearing on
our analysis of the jurisdictional limitation provided by 28 U.S.C. § 2675(a)’s presentment
requirement.
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                                   No. 15-60614
seeking discovery is attempting to disprove the applicability of an immunity-
derived bar to suit because immunity is intended to shield the defendant from
the burdens of defending the suit, including the burdens of discovery.’” 

556 F.3d at 342).
      Barber posits that discovery would allow him to demonstrate receipt of
his SF 95. He specifically seeks to depose two of the United States’ declarants
that worked in the Biloxi office, as well as the VA Gulf Coast’s Director, about
“the mail handling processes at the VA Gulf Coast, the names of persons who
may have knowledge of Barber’s SF[ ]95,” and “the details of the search made
by the VA Gulf Coast,” among other things. The district court denied his
request, reasoning that Barber is “speculat[ing] without any factual basis” that
he may discover some proof of actual receipt. This ruling is not an abuse its
discretion. The United States has presented declarations from employees in
multiple VA offices indicating that they were unable to locate the SF 95. Barber
has not provided any concrete evidence that explains how deposing some of
these individuals is likely to uncover proof that the VA received an SF 95 from
Barber. 

.
                             III. CONCLUSION
      For the foregoing reasons, we affirm the district court’s judgment.




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