USCA1 Opinion
July 19, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 94-1061
GERARD A. CORMIER, ET AL.,
Plaintiffs, Appellants,
v.
U.S. DEPARTMENT OF LABOR, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
___________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
______________
___________________
Gerard A. Cormier on brief pro se.
_________________
Donald K. Stern, United States Attorney, and Roberta T.
________________ ___________
Brown, Assistant U.S. Attorney, on brief for appellees.
_____
__________________
__________________
Per Curiam. This is a pro se appeal from a summary
__________ ___ __
judgment entered by the district court in favor of the
government and against plaintiffs-appellants, Gerard A.
Cormier ("Cormier"), his wife and children. We affirm.
Background
__________
In October, 1992, Cormier filed a complaint pro se in
___ __
the United States District Court for the District of
Massachusetts on behalf of himself and his family, claiming
violation of the Federal Tort Claims Act ("FTCA").1
Essentially, Cormier claims that his former employer, the
United States Department of the Treasury, Internal Revenue
Service ("IRS"), and the United States Department of Labor,
Office of Workers Compensation Programs ("OWCP") caused pain
and suffering to Cormier and his family as a result of their
mishandling of his worker's compensation claim.
Cormier had filed a worker's compensation claim in
February, 1979, claiming a "disabling emotional condition"
resulting from harassment by an irate taxpayer and other
work-related stresses.2 The OWCP originally denied
____________________
1. Cormier, acting pro se, is representing himself and his
___ __
wife and children in this appeal. This court generally
prohibits non-lawyers from representing litigants other than
themselves. See Amann v. Stow School System, 982 F.2d 644,
___ _____ __________________
648 n.2 (1st Cir. 1992). "However, because we affirm on the
merits, we need not determine whether [Cormier's wife's and
children's appeals] are properly before us." Id.
___
2. This procedural history of Cormier's worker's
compensation claim is taken from his complaint.
-2-
Cormier's claim on the ground that his emotional illness was
not caused by the conditions of his employment. On appeal,
the case was remanded to resolve a conflict in medical
opinions.
The OWCP granted Cormier an award in July, 1984, only to
rescind the award in October, 1984. Cormier appealed to a
hearing officer and eventually to the Employees Compensation
Appeals Board ("ECAB"). After a hearing, the ECAB ruled in
Cormier's favor and,in an opinion dated September 18, 1986,
remanded to the OWCP for referral to a medical specialist for
an impartial medical evaluation to be followed by the
issuance of a de novo decision. In February, 1988, the OWCP
__ ____
awarded benefits to Cormier. His request for interest and
attorneys' fees was denied.
In his complaint, Cormier requests the following
compensation for the alleged violation of the FTCA: interest
on the worker's compensation award, attorneys' fees and costs
for the worker's compensation case, three days' pay allegedly
still due, and $500,000 for each of the five plaintiffs for
emotional distress, pain and suffering. In September, 1993,
the government moved for summary judgment on the grounds that
Cormier's failure to file an administrative claim deprived
the district court of jurisdiction over the tort claim and
that the OWCP's denial of interest and attorneys' fees was
not reviewable by a court of law.
-3-
Judge William G. Young of the United States District
Court for the District of Massachusetts held a motion hearing
on November 23, 1993. Cormier was represented by counsel.
The hearing was held at the Boston College School of Law,
apparently before a group of law students. At the conclusion
of the hearing, the district court granted the motion for
summary judgment for lack of subject matter jurisdiction on
the ground of Cormier's failure to file an administrative
claim. The district court did not issue a written opinion.
Discussion
__________
We review a district court's grant of summary judgment
de novo. See Calenti v. Boto, et al., No. 93-1759, slip op.
__ ____ ___ _______ ____ _____
at 6 (1st Cir. May 23, 1994). "We read the record indulging
all inferences in favor of the non-moving party. Summary
judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law." Id. (citations omitted).
__
Cormier raises two issues on appeal. First, he argues
that the motion hearing conducted by Judge Young amounted to
a denial of due process because he was not given an adequate
opportunity to address the court, the court discriminated
against his out-of-state attorney, the classroom format
imposed unreasonable time restrictions on the hearing and the
court was unfamiliar with the contents of the case record.
Second, Cormier contests the court's finding that he failed
-4-
to file the required administrative tort claim in a timely
fashion.
There is simply no support in the record for Cormier's
claim that he was denied a fair hearing on the summary
judgment motion. A review of the transcript from the
motion hearing indicates that the district court gave ample
opportunity to Cormier and his attorney to make their
arguments, treated both parties and their attorneys with
respect, demonstrated a complete understanding of the
relevant facts and law and decided the motion correctly.
Although the forum for the hearing was somewhat unusual, it
did not deprive Cormier of a fair hearing. Nor did Cormier
object to the forum, although he had advance notice that the
hearing would be held at Boston College Law School.
The district court correctly ruled that Cormier's
failure to file an administrative claim deprived it of
jurisdiction over Cormier's tort claims against the
government. The timely filing of an administrative claim
with the appropriate federal agency is a jurisdictional
prerequisite to the prosecution of an FTCA claim. See 28
___
U.S.C. 2675(a); see also Cotto v. United States, 993 F.2d
___ ____ _____ _____________
274, 280 (1st Cir. 1993). The district court found that
plaintiffs had failed to file an administrative claim on time
and, therefore, dismissed the case for lack of jurisdiction.
Cormier argues on appeal that his letter to the ECAB, dated
-5-
October 1, 1990, constituted an administrative claim.
Alternatively, he argues that the Form 95s that he and the
other plaintiffs filed in November, 1993 satisfied the
administrative claim requirement.
"This circuit approaches the notice requirement
leniently," Santiago-Ramirez v. Secretary of Dep't of
________________ _________________________
Defense, 984 F.2d 16, 19 (1st Cir. 1993). Cormier's letter to
_______
the ECAB, however, failed to meet even the minimal
requirements imposed by this court: that the notification
include "1) sufficient information for the agency to
investigate the claims, and 2) the amount of damages sought."
Id.
___
The letter requested that the ECAB review the OWCP's
award to Cormier, specifically its failure to award interest
and attorneys' fees. In the last sentence of his letter,
Cormier states his belief that "this is being filed within
one year of the decision as I thought the check of 10/2/89
would include the interest for the 10 years," indicating that
the letter was intended as an appeal from the OWCP's failure
to award interest and attorneys' fees. There is no
suggestion in the letter that Cormier was also requesting
damages for himself and his family for emotional pain and
suffering. By failing to state the most basic information --
the type of injury alleged and the amount of damages
requested as compensation for that injury -- the letter
-6-
clearly fails to fulfill the statutory requirement. See
___
Santiago-Ramirez, 984 F.2d at 20 (letter fulfilled statutory
________________
requirement where it stated the type of injury alleged and
the amount of damages requested and "adequately indicated
that appellant's complaint was premised on her emotional
distress and mental suffering.")
At best, Cormier's letter gave notice to the government
of his claims for interest and attorneys' fees. Those
claims, however, amount to a request for review of the OWCP's
award under the Federal Employee's Compensation Act. It is
well established that we have no jurisdiction to review such
awards. "The Secretary [of Labor's] action in denying or
granting compensation is final and conclusive and may not be
reviewed by a court of law. 5 U.S.C. 8128(b)(1) and (2) and
8145." Bruni v. United States, 964 F.2d 76, 79 (1st Cir.
_____ _____________
1992) (footnote omitted).
The administrative claim forms (Form 95s) filed by
Cormier and his family in November, 1993 also failed to
fulfill the statutory requirement. The forms were filed
after Cormier commenced the FTCA action in federal court.
The Supreme Court recently held that a district court lacked
jurisdiction over an FTCA action where "the claimant failed
to exhaust his administrative remedies prior to filing suit,
but did so before substantial progress was made in the
litigation." McNeil v. United States, 113 S. Ct. 1980, 1981
______ _____________
-7-
(1993). The Court specifically held that a litigant's pro se
___ __
status does not excuse his failure timely to file an
administrative claim. Id. at 1984.3
___
For the foregoing reasons, the district court's entry of
summary judgment in favor of the government is affirmed.
____________________
3. The Form 95s are also insufficient in that they were not
filed within the two-year statute of limitations period for
FTCA claims. See 28 U.S.C. 2401(b). Cormier's argument
___
that his children's minority tolled the statute of
limitations is without merit. See Vega-Velez v. United
___ __________ ______
States, 800 F.2d 288, 290 (1st Cir. 1986) (holding that "it
______
is well established that state (and commonwealth) tolling
rules do not affect the two-year statute of limitations
applicable to federal claims." and citing Jastremski v.
__________
United States, 737 F.2d 666 (7th Cir. 1984) (minority does
_____________
not toll federal statute of limitations)); see also Landreth
___ ____ ________
By and Through Ore v. United States, 850 F.2d 532, 534 (9th
__________________ _____________
Cir. 1988) ("The fact of minority does not toll the statute
[of limitations established by 28 U.S.C. 2401(b)]."), cert.
____
denied,, 488 U.S. 1042 (1989).
_______
-8-
