Monica White-Squire; John Squire v. UNITED STATES POSTAL SERVICE On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1577
MONICA WHITE-SQUIRE; JOHN SQUIRE,
Appellants
v.
UNITED STATES POSTAL SERVICE
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 3-08-cv-03486
District Judge: The Honorable Mary L. Cooper
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 15, 2010
Before: SCIRICA, Chief Judge, BARRY, and SMITH,
Circuit Judges
(Filed: January 27, 2010)

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John G. Mennie
Richard Schibell
Schibell Mennie & Kentos
1806 Hwy 35 South
P.O. Box 2237
Ocean, NJ 07712
Counsel for Appellants
Mark C. Orlowski
Office of United States Attorney
Room 430
402 East State Street
Trenton, NJ 08608
Counsel for Appellee
OPINION
SMITH, Circuit Judge.
This appeal requires us to determine whether a claimant
under the Federal Tort Claims Act, whose damages continue to
accrue, must nevertheless submit a claim to the appropriate
agency containing a “sum certain” for damages prior to filing
suit. Because the sum certain requirement is jurisdictional, we
answer this question in the affirmative.

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The letter stated that it was to serve as “formal notice1
under the Tort Claims Act pursuant to N.J.S.A. 59:8-4.” It did
not reference the Federal Tort Claims Act. The Complaint later
filed to institute this action referenced only the Federal Tort
Claims Act and not New Jersey law.
3
I.
On July 17, 2006, a United States Postal Service
(“USPS”) vehicle driven by a USPS employee acting within the
scope of his employment allegedly collided with a car driven by
Plaintiff Monica White-Squire, causing her serious personal
injury. On August 15, 2006, White-Squire’s attorney sent a
letter to the USPS purporting to provide formal notice that
White-Squire was pursuing a personal injury claim against it.1
This letter did not include a sum certain claim for damages.
The USPS responded by letter on August 18, 2006, and
provided White-Squire’s attorney with two copies of the
Standard Form 95 claim form. The August 18 letter outlined the
administrative presentment requirements under the Federal Tort
Claims Act (“FTCA”), including the requirement, written in
bold typeface, that “[a] claim must be for a specific amount.”
The USPS sent White-Squire’s attorney a second letter, dated
August 22, 2006, explaining that White-Squire’s August 15
letter “does not constitute a valid claim.” The August 22 letter
also directed White-Squire to the statutes and regulations
governing the procedures for submitting a claim under the

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FTCA. The USPS again informed White-Squire that to satisfy
the administrative presentment requirements, a claim must be
accompanied by “a ‘sum certain’ amount for injuries or losses
alleged to have occurred by reason of the incident.”
In a letter to the USPS dated October 6, 2006, White-
Squire’s attorney acknowledged receipt of the August 22, 2006,
letter. He also advised the USPS that he would be submitting
White-Squire’s medical records and a “‘sum certain’ demand to
resolve the claim” once White-Squire was discharged from her
doctors’ care. White-Squire never submitted a completed
Standard Form 95, supporting medical records, or a sum certain
demand for damages to the USPS.
On July 14, 2008, White-Squire filed this action in the
United States District Court for the District of New Jersey
against the USPS seeking damages for personal injury arising
from the collision. Pursuant to Federal Rule of Civil Procedure
12(b)(1), the USPS moved to dismiss the action for lack of
subject matter jurisdiction because White-Squire failed to
provide the USPS with a sum certain request for damages as
required by the FTCA. 28 U.S.C. § 2675(a), (b); 28 C.F.R. §
14.2(a). The District Court granted the USPS’s motion and
dismissed the case, concluding that White-Squire’s failure to
submit a sum certain claim deprived it of subject matter

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White-Squire’s husband was a party to this case before2
the District Court, and his claim was also dismissed for lack of
subject matter jurisdiction. Although he is listed in the caption
as an appellant, he raises no issue in this appeal. Thus, any
possible issues regarding the dismissal of his claim are waived.
Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26
F.3d 375, 398 (3d Cir. 1994) (citations omitted).
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jurisdiction. White-Squire timely filed this appeal.2
II.
White-Squire sought to invoke the District Court’s
subject matter jurisdiction under 28 U.S.C. § 1346(b). For
reasons that we will explain infra, the District Court was correct
in concluding that it lacked subject matter jurisdiction over
White-Squire’s claim; however, “it is familiar law that a federal
court always has jurisdiction to determine its own jurisdiction.”
United States v. Ruiz, 536 U.S. 622, 628 (2002) (citation
omitted). Appellate jurisdiction is proper under 28 U.S.C. §
1291. When reviewing an order dismissing a claim for lack of
subject matter jurisdiction, we exercise plenary review over
legal conclusions and review findings of fact for clear error.
CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008)
(citations omitted).

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The claim must be presented to the appropriate agency3
within two years after it accrues. 28 U.S.C. § 2401(b); see also
6
III.
The District Court concluded that it lacked jurisdiction
over White-Squire’s claim because she failed to provide the
USPS with a sum certain claim for damages prior to filing suit.
White-Squire argues that she was not required to submit a sum
certain request because her medical treatment arising from the
collision was ongoing, and thus her damages could not be
liquidated.
As a sovereign, the United States is immune from suit
unless it consents to be sued. United States v. Mitchell, 445 U.S.
535, 538 (1980) (quoting United States v. Sherwood, 312 U.S.
584, 586 (1941)). Its consent to be sued must be “unequivocally
expressed,” and the terms of such consent define the court’s
subject matter jurisdiction. Id. (quotations omitted). The FTCA
operates as a limited waiver of the United States’s sovereign
immunity. See Roma v. United States, 344 F.3d 352, 362 (3d
Cir. 2003). “Because the Federal Tort Claims Act constitutes a
waiver of sovereign immunity, the Act’s established procedures
have been strictly construed.” Livera v. First Nat’l State Bank
of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989). “[W]e should not
take it upon ourselves to extend the waiver beyond that which
Congress intended.” United States v. Kubrick, 444 U.S. 111,
117-18 (1979).3

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Kubrick, 444 U.S. at 117-18 (noting that the two year statute of
limitations “is a condition of th[e] waiver” of sovereign
immunity”).
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The FTCA is codified in scattered sections of Title 28 of
the United States Code. One section is § 1346, which is
contained in chapter 85 of the Federal Judicial Code, pertaining
to the jurisdiction of the district courts. Subsection 1346(b)(1)
provides:
Subject to the provisions of chapter 171 of this
title, the district courts . . . shall have exclusive
jurisdiction of civil actions on claims against the
United States, for money damages, . . . for injury
or loss of property, or personal injury or death
caused by the negligent or wrongful act or
omission of any employee of the Government
while acting within the scope of his office or
employment, under circumstances where the
United States, if a private person, would be liable
to the claimant in accordance with the law of the
place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). Chapter 171 of Title 28 pertains to the
tort claims procedure for FTCA claims. 28 U.S.C. §§ 2671-
2680. Section 2675 mandates that an FTCA action “shall not
be instituted upon a claim against the United States for money
damages . . . unless the claimant shall have first presented the
claim to the appropriate Federal agency . . . .” 28 U.S.C. §

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The Department of Justice has also promulgated the4
following regulation, specifying the mechanics of presenting a
claim:
“[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) (emphasis added).
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2675(a). Subsection (b) further specifies that an FTCA action
“shall not be instituted for any sum in excess of the amount of
the claim presented to the federal agency . . . .” Id. § 2675(b)
(emphasis added). This provision “anticipates that the claim
will be for a definite amount.” Adams v. United States, 615 F.2d
284, 292 n.17 (5th Cir. 1980). Because the requirements of4
presentation and a demand for a sum certain are among the
terms defining the United States’s consent to be sued, they are
jurisdictional. Sherwood, 312 U.S. at 586; Bialowas v. United
States, 443 F.2d 1047, 1049 (3d Cir. 1971) (noting that the
requirement to present a claim to the agency “is jurisdictional
and cannot be waived”) (citation omitted).
Indeed, in CNA v. United States, we considered whether

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jurisdiction over an FTCA claim was lacking if the claimant was
unable to demonstrate that a government employee had been
acting within the scope of his employment, as § 1346(b)(1)
requires. We stated that “[t]o evaluate whether Congress
‘clearly stated’ that a requirement should ‘count as
jurisdictional,’ we ask whether the requirement appears in or
receives mention in the jurisdictional provision of a given
statute.” 535 F.3d at 142 (internal citation omitted) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 & 515 n.11
(2006)). We noted that the scope of employment requirement
“appear[ed] in the same sentence as Congress’s grant of
jurisdiction.” Id. We reiterated that under § 1346(b)(1),“each
clause of that provision represents a limitation on Congress’s
waiver of sovereign immunity and thus a limitation on federal
courts’ jurisdiction.” Id. Because the scope of employment
requirement was “tether[ed]” to the grant of jurisdiction, we
concluded that the requirement was jurisdictional. Id. at 143.
IV.
CNA is instructive. Here, although the sum certain
requirement is not set forth in the text of § 1346, the sum certain
requirement is nevertheless tethered to the grant of jurisdiction
because § 1346 specifies at the outset that a district court’s
jurisdiction over an FTCA claim is “[s]ubject to the provisions
of chapter 171.” 28 U.S.C. § 1346(b)(1). Chapter 171 contains
§ 2675, which sets forth the sum certain requirement. Id. §
2675(b). Accordingly, to remove any doubt on this point, we

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hold that the sum certain requirement contained in § 2675(b) is
jurisdictional. Thus, a claimant’s failure to present her FTCA
claim to the appropriate agency with a sum certain, as required
by § 2675(b), compels the conclusion that a district court lacks
subject matter jurisdiction over the claim.
We are mindful of White-Squire’s contention that her
damages continued to accrue and precluded her from stating a
sum certain. However, neither the FTCA nor the regulations
promulgated thereunder contain an exception to this sum certain
requirement when a claimant’s damages continue to accrue
through the two years following accrual of a claim. As stated
above, sovereign immunity can only be waived by the sovereign,
and the “conditions upon which the Government consents to be
sued must be strictly observed and exceptions thereto are not to
be implied.” Soriano v. United States, 352 U.S. 270, 276 (1957)
(citation omitted). Creating an exception to the sum certain
requirement would constitute a judicial expansion of the waiver
of sovereign immunity embodied in the FTCA, something which
only Congress can effectuate. Kubrick, 444 U.S. at 117-18.
This is not the first time we have rejected a proposed
exception to the FTCA’s administrative presentment
requirements. In Bialowas, 443 F.2d at 1050, we refused to
excuse the failure to file an administrative claim because of
“exceptional circumstances.” We noted that “[t]hough
sovereign, the Government considerately provided [the
claimant] with convenient and expeditious machinery for

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settlement of his alleged damages and injuries. Unfortunately
for him, he repeatedly disregarded written and oral instructions
and eventually became the architect of his own misfortune.” Id.
Moreover, several of our sister courts of appeals have declined
to create the very exception White-Squire urges. For example,
in Suarez v. United States, 22 F.3d 1064, 1065-66 (11th Cir.
1994) (per curiam), the Eleventh Circuit refused to create an
exception to the sum certain requirement where the claimant’s
damages were unliquidated. In Kokotis v. United States Postal
Serv., 223 F.3d 275, 279-80 (4th Cir. 2000), the Fourth Circuit
declined to create an exception to the sum certain requirement
because of the claimant’s ongoing treatment and uncertainty
regarding the extent of her damages. It noted that “courts
cannot insert into the FTCA administrative process special
provisions that the statute does not contain.” Id. at 279. The
Ninth Circuit followed suit in Blair v. I.R.S., 304 F.3d 861, 868-
69 (9th Cir. 2002). There, the claimant set forth a sum certain
for lost wages, but stated that his medical expenses were still
being incurred. The Court concluded that the claimant satisfied
the sum certain requirement for his wage loss claim, but held
that the district court lacked jurisdiction over the claim for
medical expenses as the sum certain requirement had not been
met. Id. at 866-69. We join our sister circuits in holding that a
claimant’s ongoing medical treatment does not exempt her from
the jurisdictional obligation to present a claim for a sum certain
to the appropriate agency as required by 28 U.S.C. §§ 1346(b)
and 2675(a) & (b), and 28 C.F.R. § 14.2(a).

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V.
Requiring parties to submit a sum certain claim before all
losses have accrued is unremarkable. Both settlements of claims
and damages awards commonly contemplate costs that will
accrue in the future. See, e.g., Camiolo v. State Farm Fire &
Cas. Co., 334 F.3d 345, 360-62 (3d Cir. 2003); Domeracki v.
Humble Oil & Ref. Co., 443 F.2d 1245, 1249-50 (3d Cir. 1971)
(noting the “elementary rule of damages” that a personal injury
plaintiff should be compensated for future losses). “Every
limitations period embodies the possibility that a complaint must
be filed before the claimant’s knowledge is complete. That
possibility, however, affords no basis for disregarding the
interest of finality embodied in a statute of limitation that a
legislative body has chosen to enact.” Kokotis, 223 F.3d at 279
(citation omitted); see also Suarez, 22 F.3d at 1065-66
(“Although Suarez claims that he has not yet reached full mental
health since his encounter with the government, this will
necessarily be the case in a number of situations where a tortious
act occurs. It is quite normal for full recovery, both physical and
mental, to require more than the two years allowed for the filing
of an administrative claim.”).
Furthermore, we note that White-Squire was not in the
predicament she claims she was. She argues that she was unable
to present a sum certain claim because a doctor recommended
that she undergo additional procedures. To the contrary, this
prescription enabled her to comply with the sum certain

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requirement: she could simply have asked the doctor to estimate
the cost of the procedures and then have included that estimate
on her Standard Form 95. Cf., Bialowas, 443 F.2d at 1049-50
(noting claimant failed even to “attach the doctors’ reports or
medical bills as directed by the instructions on the back of Form
95”). If the actual cost of treatment proved higher than this
initial estimate, White-Squire could have amended her claim to
account for the disparity by taking advantage of the means
provided to do so. See 28 C.F.R. § 14.2(c); 28 U.S.C. §
2675(b). A claimant’s failure to take advantage of these
available procedures cannot justify judicial tinkering with the
United States’s waiver of its sovereign immunity and the subject
matter jurisdiction of the federal courts.
Finally, requiring all claimants to present a sum certain
claim for damages advances Congress’s purpose in requiring
administrative presentment, which is to encourage the settlement
of meritorious claims. Tucker v. United States Postal Serv., 676
F.2d 954, 958 (3d Cir. 1982). The Government has
“considerately provided [claimants] with convenient and
expeditious machinery for settlement of [their] alleged damages
and injuries” through the administrative presentment
requirements. Bialowas, 443 F.2d at 1050. Prompt settlement
of claims provides considerable benefits to both the courts and
the parties by avoiding costly litigation and compensating the
injured party in a timely manner. Tucker, 676 F.2d at 958; see
also McNeil v. United States, 508 U.S. 106, 112 (1993) (noting
that Congress’s “interest in [the] orderly administration of” the

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“vast multitude of [FTCA] claims” is “best served by adherence
to the straightforward statutory command”). Providing a sum
certain claim for damages is central to this policy of requiring
presentment of claims to the appropriate federal agency because
it enables the agency head to determine whether the claim can
legally be settled by the agency and, if so, from where the
payment should come. See 28 U.S.C. § 2672; Bialowas, 443
F.2d at 1050. Moreover, it goes without saying that an agency
cannot consider settling a claim if it cannot ascertain the claim’s
value.
VI.
White-Squire was aware of the requirement that she
present a sum certain claim for damages. In addition to the text
of the statute, 28 U.S.C. §§ 1346(b), 2675(b), the regulation, 28
C.F.R. § 14.2(a), and our prior case law confirming the
requirement of submitting a sum certain, see, e.g., Bialowas, 443
F.2d at 1049-50, the USPS informed White-Squire’s counsel on
two separate occasions, the August 18 and August 22 letters,
that she was required to submit a sum certain amount for injuries
or losses arising from the accident. The USPS directed her to
the relevant statutory and regulatory provisions and also sent
two Standard Form 95 claim forms with instructions in bold
typeface that “[a] claim must be for a specific amount.”
Nevertheless, White-Squire failed to comply with the
administrative presentment requirement. In the absence of a
demand for a sum certain jurisdiction is lacking, and the District

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Court properly dismissed her claim. We will affirm the
judgment of the District Court.

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