BLODGETT v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
COLBY BLODGETT, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-00111-SDN
)
UNITED STATES OF AMERICA, 	)
)
Defendant 	)
ORDER ON MOTION TO DISMISS
Plaintiff Colby Blodgett alleges he was rear-ended by a United States Postal Service
(“USPS”) truck and suffered property damage and personal injuries as a result. Pl.’s
Compl. (ECF No. 1). He brings this action against the United States for damages under
the Federal Tort Claims Act (“FTCA”). Defendant United States moves to dismiss
Blodgett’s claim for damages in excess of $16,850.75 pursuant to Rule 12(b)(1) (ECF No.
10). For the reasons that follow, the motion is granted.
BACKGROUND
The 	Court 	draws 	the 	background 	from 	Plaintiff’s 	Complaint 	(ECF 	No. 	1),
Defendant’s Motion to Dismiss (ECF No. 10), and Plaintiff’s Objection to Defendant’s
Motion to Dismiss (ECF No. 12). See Gonzalez v. U.S. 284 F.3d 281, 288 (1st Cir. 2002)
(“While the court generally may not consider materials outside the pleadings on a Rule
12(b)(6) motion, it may consider such materials on a Rule 12(b)(1) motion . . . .”).
On October 20, 2021, Blodgett was driving when a USPS truck hit his car. Pl.’s
Compl. ¶¶ 7–9. Blodgett alleges he suffers from a reduced quality of life, physical and
property damages, and lost wages as a result of this crash. Id. ¶ 10; Pl.’s Obj. at 2. In
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response to this incident, Blodgett submitted a Standard Form 95 (“SF-95”) claim for
damage, injury, or death, which he later amended twice. Pl.’s Obj. at 2–4.
Blodgett filed his first SF-95 on November 11, 2021. Id. at 2. In the “Property
Damage” section of the Form, Blodgett wrote the amount $16,850.75. Id. at 2. In the
“Personal Injury” section, Blodgett wrote “to be determined as symptoms are ongoing.”
Id. at 2; Def.’s Mot. at 2. In the section marked “TOTAL (Failure to specify may cause
forfeiture of your rights),” Blodgett again wrote “to be determined as symptoms are
ongoing.” Pl.’s Obj. at 2; Def.’s Mot. at 2; (ECF No. 12-2). USPS then informed Blodgett’s
attorney that it would require documentation of the property damage and an updated SF-
95 form. Pl.’s Obj. at 2. On December 16, 2021, Blodgett’s attorney submitted the second
SF-95, this time with documentation of his property damage. Id. at 3. The second SF-95
Form stated “Initial estimate as $15,755.15 plus tow bill of $1095.00” under the “Property
Damage” section; Blodgett left the “Personal Injury” and “Wrongful Death” sections blank
(ECF No. 12-2). Under “TOTAL (Failure to specify may cause forfeiture of your rights)”,
Blodgett wrote “$16,850.76”. The second SF-95 also included a cover letter from
Blodgett’s attorney stating he “will subsequently and separately submit a Notice of Claim
for [Blodgett’s] personal injuries once the total value of his injury claim can be more
accurately determined.” Id.; (ECF No. 12-2).
On August 1, 2022, USPS sent Blodgett a letter that stated specifically:
In support of the claim for personal injury or death, the claimant should
submit a written report by the attending physician, showing the nature and
extent of the injury, the nature and extent of treatment, the degree of
permanent disability, if any, the prognosis and the period of hospitalization
or incapacitation, attaching itemized bills for medical, hospital or burial
expenses actually incurred.
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(ECF No. 9-4) (emphasis added). The letter went on to state: “These documents should
be sent to my attention with the next 30 days. If you do not submit any additional
documentation, we will be unable to properly evaluate the claim and we will
have no recourse but to issue a denial.” Id. (emphasis added). Blodgett did not
respond.
Following the second SF-95, USPS and Blodgett’s attorney discussed a potential
settlement. Id. During these discussions Blodgett’s attorney repeated that “the value of
[Blodgett’s] personal injury claim could not yet be accurately made” and that Blodgett
would not settle if it required that he waive his personal injury claim. Pl.’s Obj. at 2. On
October 25, 2022, USPS sent Blodgett a letter offering “16,341.77 as full and final
settlement of this administrative claim.” (ECF No. 9-5). Shortly after receiving this offer,
during a telephone call with a USPS representative, Blodgett, through his counsel,
declined the settlement offer and told the representative that “Plaintiff could not accept
the property damage settlement offer if it meant he had to waive his personal injury
claim.” (ECF No. 12-1). Blodgett neither submitted an additional SF-95, nor revised the
December 16, 2021, SF-95. On December 12, 2022, nearly a year after having received the
December 2021 SF-95 and having not (1) reached a settlement with Blodgett, (2) received
the “separate Notice of Claim for Blodgett’s personal injuries,” nor (3) received any
indication that Blodgett was revoking the December 2021 SF-95 and did not want USPS
to act on the claim, USPS denied the claim for personal injury and property damage. Def.
Mot. at 3. In the denial letter, USPS also informed Blodgett that he had six months from
the date of the final decision to file a motion to reconsider. (ECF No. 9-6).
Blodgett pleads that he did not and could not finalize the original SF-95 claim for
personal injury because his work status “remained in limbo” until April of 2023, which
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made him unable to account for lost wages in valuing his personal injury. (ECF No. 12 at
3). In April 2023, Blodgett became certain he could not return to work at his old job. Id.
at 4. Blodgett’s attorney then hired an economics expert who valued Blodgett’s claim at
$1,074,891.00, most of which accounted for his lost wages. Id. On June 8, 2023, Blodgett
filed a request for reconsideration of his claim with USPS. Id. at 4. This request included
a demand for $1,074,891.00. Id. USPS denied the request as untimely. Id. On September
22, 2023, Blodgett finally submitted the third SF-95 as an amendment to his previous
claim. (ECF No. 9-9). The third SF-95 Blodgett filed included a claim for $1,074,891.00.
Id. USPS did not respond to SF-95 number three but sent a letter denying Blodgett’s
Request for Reconsideration on May 21, 2024. (ECF No. 14). Blodgett then filed suit in
this Court.
DISCUSSION
The United States moves to dismiss Blodgett’s claims in excess of $16,850.75 under
Rule 12(b)(1) for lack of subject matter jurisdiction based on sovereign immunity. I accept
Plaintiff’s well-pleaded factual allegations from his complaint (ECF No. 1), Objection to
Defendants Motion (ECF No. 12), and supporting affidavit (ECF No. 12-1). Valetin v.
Hosp. Bella Vista, 254 F.3d 358, 363–64 (1st Cir. 2001). I draw all reasonable inferences
in Plaintiff’s favor. Id.
“It is elementary that the United States, as sovereign, is immune from suit save as
it consents to be sued, and the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538
(1980) (cleaned up). The Federal Tort Claims Act “is a limited waiver of sovereign
immunity which allows an injured party to sue the United States for torts committed by
federal employees.” Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir. 1991). “[T]he
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FTCA must be ‘construed strictly in favor of the federal government, and must not be
enlarged beyond such boundaries as its language plainly requires.’” Bolduc v. United
States, 402 F.3d 50, 56 (1st Cir. 2005) (quoting United States v. Horn, 29 F.3d 754, 762
(1st Cir. 1994)). A plaintiff can only bring a claim against the United States for torts
committed by a federal employee after he properly raises the claim within the federal
agency and has it denied. 28 U.S.C. § 2675(a); Corte-Real, 949 F.2d at 485 (“Prior to
commencing an action against the United States under the FTCA, a claimant must have
first presented the claim to the appropriate federal agency and the claim must have been
denied.”). Section 14.2 of Title 28 of the Code of Federal Regulations provides guidance
on administrative claims filed pursuant to the FTCA. In relevant part, § 14.2(a) states:
For purposes of the provisions of 28 U.S.C. 2401(b . . . 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,
accompanied by a claim for money damages in a sum certain for injury to or loss
of property, personal injury, or death alleged to have occurred by reason of the
incident . . . .
28 C.F.R. § 14.2(a). In addition, § 14.2(c) allows claimants who have properly presented
their claims to make an amendment “at any time prior to final agency action.” Id.
§ 14.2(c).
To state a sum certain, a claimant must provide a definite monetary figure,
representing the maximum amount of claimed damages. Holloway v. United States, 845
F.3d 487, 489 (1st Cir. 2017) (“An essential element of a claim is ‘notification of the
incident,’ via ‘an executed’ SF 95 or ‘other written’ document, ‘accompanied by’ a demand
‘for money damages in a sum certain’” (quoting 28 C.F.R. § 14.2(a))). “The purpose of the
sum certain requirement goes beyond mere administrative convenience; it is to apprise
the government of its possible liability and to provide the government with notice
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‘sufficient to allow it to investigate the alleged negligent episode to determine if settlement
would be in the best interests of all.’” Coska v. United States, 114 F.3d 319, 322 (1st Cir.
1997); Corte-Real, 949 F.2d at 486.
A. The First Two SF-95s
First 	Circuit 	precedent 	maintains 	that 	indefinite 	language 	such 	as 	“to 	be
determined” fails to meet the sum certain requirement. Corte-Real, 949 F.2d at 486. In
Corte-Real the plaintiff submitted an SF-95 claiming personal injury damages of
“$100,000 plus because still treating and out of work.” Id. at 485. The First Circuit
reasoned:
To be sure, when the $100,000 appeared in [the SF-95] it was
unfortunately accompanied by language suggesting the possibility of a
higher claim. The Government was entitled and indeed required, if it was
to proceed with the claim, to disregard this. We think it should have done
so. To throw out the claim entirely, as other than one for a sum certain,
was, on these facts, bureaucratic overkill.
Id. The facts are similar here. With respect to his first two SF-95 submissions, Blodgett
gave a sum certain of $16,850.75 for property damage and indicated that he could not
determine the personal injury damage at that time. Despite instruction from USPS to file
an amended SF-95 that identifies a numerical amount for personal injury damages or risk
being denied, Blodgett refrained from doing so until he gained more clarity on the status
of his employment (ECF No. 12-1). Moreover, Blodgett was under the impression that,
although they resulted from the same incident, the claim for property damages could be
assessed separately from the personal injury claim. Id.; Pl.’s Obj. at 2–3. Unfortunately,
Blodgett’s failure to claim a numerical amount for personal injury damages waives his
claim to such recovery under the FTCA. Corte-Real, 949 F.2d at 486–87.
B. The Request for Reconsideration and Third SF-95
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Blodgett argues that either his request for reconsideration or his third SF-95
presents USPS with a sum certain for $1,074,891.00. Pl.’s Obj. at 7–8. This would be true
had either operated as a timely amendment to his claim. Regulations passed under the
FTCA provide that a claim “may be amended by the claimant at any time prior to final
agency action or prior to the exercise of the claimant’s option under 28 U.S.C. 2675(a).”
28 C.F.R. § 14.2(c).1 Here, Blodgett presents two arguments in determining whether he
complied with this regulation.
First, Blodgett argues he is entitled to amend his claim any time prior to filing this
action. Pl.’s Obj. at 8. This is a flawed understanding of the administrative process. A plain
reading of the regulation supports the government’s position that Blodgett was allowed
to amend his claim until it was denied. 2 The FTCA’s underlying policy is consistent with
this reading. See Coska v. United States, 114 F.3d 319, 322 (1st Cir. 1997) (“The purpose
of the sum certain requirement goes beyond mere administrative convenience; it is to
apprise the government of its possible liability and to provide the government with notice
‘sufficient to allow it to investigate the alleged negligent episode to determine if settlement
would be in the best interests of all.’” (quoting Corte-Real, 949 F.2d at 486). Notice of a
sum certain cannot come after the government investigates and denies said claim. Rather,
FTCA regulations provide it must come before or during the investigation. See 28 C.F.R.
§ 14.2(a), (c).
1 In Defendant’s Reply to Plaintiff’s Objection (ECF No. 19), the government argues regulations specific to
suits against USPS control here. Def.’s Reply at 4. Those regulations provide that a claim against USPS may
be amended before “the claimant’s exercise of the option to file a civil suit pursuant to 29 U.S.C.
2675(a) . . . [or] the Postal Service’s issuance of a written denial of the claim.” 39 C.F.R. § 912.5. Blodgett
argues the FTCA controls. Pl.’s Obj. at 7 n.2. Under either regulation my analysis would reach the same
conclusion: Blodgett’s right to amend ended when USPS denied his claim.
2 28 C.F.R. § 14.2(c) reads in relevant part “[a] claim presented in compliance with paragraph (a) of this
section may be amended by the claimant at any time prior to final agency action or prior to the exercise of
the claimant’s option under 28 U.S.C. 2675(a).”
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Blodgett’s second argument is that he complied with FTCA regulations because
USPS did not take “final agency action” until May 21, 2024, when it formally denied his
request for reconsideration. The First Circuit has not interpreted “final agency action” in
the context of FTCA regulations. Here, the Court draws a parallel between the FTCA and
the Administrative Procedure Act (“APA”). 5 U.S.C. §§ 551–59. In the context of judicial
review of agency decisions under the APA, “final agency action” has two criteria: “[f]irst,
the action must mark the consummation of the agency’s decisionmaking process—it must
not be of a merely tentative or interlocutory nature. And second, the action must be one
by which rights or obligations have been determined, or from which legal consequences
will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up); see also Impact
Energy Res. v. Salazar, 693 F.3d 1239, 1254 (10th Cir.2012) (Seymour, J., concurring)
(“When interpreting the meaning of the word ‘final’ in statutes using that term in relation
to judicial review of agencies, courts commonly apply the APA’s meaning of ‘final.’”). 3
Under this definition, Blodgett’s argument is unsuccessful. USPS’s denial of
Blodgett’s claim was neither tentative nor interlocutory and rights and obligations clearly
arose under the FTCA and its regulations following this denial. Blodgett’s right to file this
very action accrued as soon as USPS denied his claim. The FTCA itself does not use “final
agency action,” but instead provides that a claimant can commence action after his claim
is “finally denied.” 28 U.S.C. § 2675. Under the FTCA and its regulations, final agency
action was taken when USPS denied Blodgett’s claim on December 12, 2022. Blodgett’s
ability to seek reconsideration of USPS’s decision does not render it nonfinal. Cf. Olamide
3 The FTCA is not a statute permitting judicial review of agencies. However, like the APA, the FTCA requires
a plaintiff exhaust administrative remedies before turning to the courts. And, as discussed infra, the APA’s
construction is consistent with the FTCA’s underlying policy. Therefore, I look to the APA’s construction of
“final agency action” in assessing Defendant’s Motion to Dismiss.
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Olorunniyo Ore v. Clinton, 675 F. Supp. 2d 217, 223 (D. Mass. 2009) (“[I]n cases seeking
judicial review pursuant to the APA, a plaintiff is not required to exhaust non-mandatory
administrative remedies.” (citing Darby v. Cisneros, 509 U.S. 137, 153–54 (1993))).
To read § 14.2(c) otherwise runs counter to the principle that the Court must not
construe the FTCA “beyond such boundaries as its language plainly requires.” Bolduc,
402 F.3d at 56. Further support comes from the settlement-driven policy of the FTCA. As
the government notes, allowing post-denial amendment of a claim would render any
investigation an agency performs on the initial claim futile. See McKenzie v. United
States, No. 21-cv-00233, 2022 WL 2073373, at *4 (D. Me. June 9, 2022) (“[C]ourts have
determined that amendments attempting to add new claimants, claims, and/or damages
outside the limitations period were impermissible material changes that would disrupt
the settlement process.”).
Therefore, Blodgett’s amendment was untimely, and USPS was not presented a
sum certain with respect to his personal injuries in accordance with 28 U.S.C. § 2675(a).
The Court is sympathetic to the fact that Blodgett repeatedly indicated to the USPS
that another SF-95 form was forthcoming and that he specifically declined the offer of
settlement—for nearly the exact amount requested—for the property damage because he
did not want to waive his personal injury claims and relayed the same to USPS. Moreover,
Blodgett ultimately filed his final SF 95, with a sum certain, before the two-year statute of
limitations deadline expired. The fact is if Blodgett had never initiated the original SF-95
“property” claim and simply waited until he had the information required regarding his
personal injury damage, his claim apparently would have been timely. However, simply
informing the USPS of a forthcoming claim is insufficient under the FTCA. See William
Spencer & Spencer Bros. LLC v. U.S. Dep’t of Transp., No. 23-cv-227, 2024 WL 3429437,
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at *4 (D.N.H. July 16, 2024) (“Exhaustion requires more than just putting the agency on
notice of a future lawsuit.”).
Unfortunately, although the First Circuit has allowed some “leniency” concerning
technical compliance with the “sum certain” requirement, see, e.g., Holloway, 845 F.3d
at 490–91 (“sum certain” requirement can be met where claimant includes paperwork
along with the claim that permits the agency to calculate the total damages), there is
nothing in the FTCA or in this Circuit’s precedent that requires a federal agency to wait
until the two-year statute of limitations has passed before issuing a final decision on a
claim it has pending before it. The Court in William Spencer explained it well: “[T]here is
no support in the law for a “history of litigation” exception to the requirement of a written
FTCA claim. On the contrary, the First Circuit has made clear that judges must give the
FTCA exhaustion requirement ‘a strict reading’ and refuse to extend the waiver of
sovereign immunity ‘beyond that which Congress intended.’” 2024 WL 3429437, at *5
(citations omitted) (quoting Holloway, 845 F.3d at 489).
C. 	28 U.S.C. § 2675(b)
Plaintiff’s final argument is that even if his amendment was untimely, it is still
permissible under the FTCA, which provides:
Action under this section shall not be instituted for any sum in excess of the
amount of the claim presented to the federal agency, except where the
increased amount is based upon newly discovered evidence not reasonably
discoverable at the time of presenting the claim to the federal agency, or
upon allegation and proof of intervening facts, relating to the amount of the
claim.
28 U.S.C. § 2675(b).
Blodgett argues that, because he was unsure whether he would return to work at
his previous job until April 2023, it was impossible to calculate his lost wages claim and
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he should be able to seek $1,074,891.00 in damages under the “newly discovered
evidence” allowance. Pl.’s Obj. at 9. However, this argument has been rejected by the First
Circuit. “[The FTCA] demands a showing that some new and previously unforeseen
information came to light” between the time of filing the administrative claim and the
civil action. Reilly v. United States 863 F.2d 149, 171 (1st Cir. 1988) (citation and internal
quotations omitted).
Although Blodgett was not given a definite timeline, he was taken out of work
following the collision on October 20, 2021. Pl.’s Obj. at 4. Blodgett’s valuation of his lost
wages claim was performed by an economics expert on June 7, 2023, nearly two months
after learning he was unable to return to CSX. Id. at 9. Blodgett maintains that “[t]he only
way his future lost wages could be calculated is to compare what he would have continued
to earn in his prior occupation to what he will likely be able to earn in the future.” Pl.’s
Obj. at 9–10. The law does not require Blodgett to be certain about every outcome before
investigating his potential claims. See Reilly, 863 F.2d at 171 (“[Plaintiff’s] knowledge
need not be certain.”). Blodgett’s investigation of his lost wages could have commenced
as he foreshadowed the worst-case scenarios in his claims against the United States.
For those reasons, Blodgett’s lost wages claim cannot be considered “newly
discovered evidence” under the FTCA. 28 U.S.C. § 2675(b). Having not amended his claim
either in compliance with the FTCA or its regulations, Blodgett cannot pursue his claims
in excess of $16,850.75.
CONCLUSION
While I am sympathetic to the hardships Blodgett has endured both from his injury
and the form-filled bureaucratic process to seek damages, without having timely given
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USPS a value of his physical injury before USPS took final action on the claim before it,
sovereign immunity prevents Blodgett from pursuing those damages.
I therefore GRANT Defendant’s Motion to Dismiss (ECF No. 10) and dismiss
Plaintiff’s claims in excess of $16,850.75.
SO ORDERED
Dated this 22nd day of October, 2024
/s/ Stacey D. Neumann
U.S. District Judge
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