that we must resolve is whether a plaintiff's lack of knowledge of a defendant's employment relationship with the federal government can operate to bar defenses grounded on the limitation of actions provisions of the FTCA.
"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. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941) (citations omitted). Congress created a limited waiver of sovereign immunity in the Federal Tort Claims Act. United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). That waiver allows suit only on prescribed terms and conditions. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 1197, 18 L. Ed. 2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d Cir. 1962). Thus, although the FTCA allows suits against the government for torts committed by its employees while acting within the scope of their employment, as noted earlier, the Act specifically requires an initial presentation of the claim to the appropriate federal agency and a final denial by that agency as a prerequisite to suit under the Act. 28 U.S.C. § 2675(a). Because the FTCA constitutes a waiver of sovereign immunity, courts should strictly construe the limitation period established by Congress. See United Missouri Bank South v. United States, 423 F. Supp. 571, 577 (W.D.Mo.1976) (limitation provision of FTCA not to be extended by equitable considerations); Thompson v. Dugan, 427 F. Supp. 342, 344 (E.D.Pa.1977) (exceptions to the limitation provision not to be implied); Childers v. United States, 442 F.2d 1299, 1303 (5th Cir.), cert. denied, 404 U.S. 857, 92 S. Ct. 104, 30 L. Ed. 2d 99 (1971).
Applying this principle, courts almost uniformly have dismissed complaints where the plaintiff failed to file a claim with the appropriate federal agency within the two-year limitation period, even though plaintiff's failure to timely submit a claim resulted from his ignorance of defendant's status as a government employee. For example, in Lien v. Beehner, 453 F. Supp. 604 (N.D.N.Y.1978), plaintiff sought medical assistance from the defendants, both of whom were practicing medicine at a medical center located in New York. The plaintiff alleged that the defendants failed to properly diagnose and treat his ailment, which he subsequently discovered, through an independent diagnosis, to be diabetes. As a result of the defendants' alleged negligence, plaintiff suffered a permanent and irreversible partial loss of vision. The plaintiff in Lien conceded that his claim accrued more than two years prior to commencement of the action and that he had not filed a written administrative claim with the appropriate federal agency. He argued, however, that the government should be estopped from asserting the statute of limitations defense because the government allegedly shielded the fact of defendants' public employment from both the plaintiff and the public. Noting that it was not "totally unmindful of the unfairness of (its) result, " Id. at 606, n. 2, the court nonetheless granted defendants' motions for summary judgment. The court stated that "strong equitable considerations notwithstanding, the two-year limitation period of 28 U.S.C. § 2401(b) cannot be tolled or waived." Id. at 606. Plaintiff's claim, because it fell outside the terms of Congress's limited waiver of sovereign immunity, was extinguished. Id.
The court in Driggers v. United States, 309 F. Supp. 1377, 1379 (D.S.C.1970), also expressly rejected the contention that a plaintiff need not file an administrative claim within two years of the date of an accident simply because the plaintiff was unaware that the individual defendant was a government employee acting in the course of his employment at the time of the accident. See also Steele v. United States, 599 F.2d 823 (7th Cir. 1979) (tort claim against Federal Aviation Administration accrued at time of injury even though plaintiff unaware at that time that agency of United States was party allegedly negligent in failing to warn about power switch that caused electrical shock to plaintiff; case dismissed for failure to file timely administrative claim); West v. United States, 592 F.2d 487, 492 (8th Cir. 1979) (medical malpractice claim accrued on date plaintiffs learned of injury and not date when they discovered status of doctor as federal employee acting within scope of employment; case dismissed for failure to file timely administrative claim).
In opposition to the government's motion to dismiss, plaintiff relies heavily upon Kelley v. United States, 568 F.2d 259 (2d Cir.), cert. denied, 439 U.S. 830, 99 S. Ct. 106, 58 L. Ed. 2d 124 (1978). In that case, the Second Circuit departed from strict adherence to the filing requirement set forth in section 2675(a). The circuit court affirmed a district court ruling that permitted an action commenced in state court against an individual defendant within the two-year FTCA statute of limitations to be maintained against the United States in federal court even though plaintiffs had not filed an administrative claim within two years after their claim accrued.
It is far from clear that Kelley is good law in this circuit. Cf. Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971) (2675(a) filing requirement "cannot be waived"). In any event, the Kelley case is distinguishable from the instant case. The result in Kelley was predicated upon the peculiar circumstances of that case. The plaintiffs in Kelley instituted an action against a federal employee in state court within the two-year period of 28 U.S.C. § 2401(b). After the two-year period had expired, the government petitioned for removal, to be substituted in place of the individual defendant, and for dismissal for failure to file an administrative claim within two years. The district court found that the government had "lull(ed) plaintiffs into a false sense of security by waiting until plaintiffs' time to file an administrative claim had expired and thereupon (moving) to be substituted and to dismiss." Kelley v. United States, 568 F.2d at 262. The Second Circuit, in affirming, characterized the case as one of "innocent ignorance or ingenuous blunder." Id.
In the case at bar, the operative facts giving rise to the court's decision in Kelley are not present. Although plaintiff filed a praecipe for a writ of summons on or about February 19, 1981, thus satisfying the two-year state statute of limitations, she did not file the complaint in her state court action until May 22, 1981, thus first giving defendant notice of the circumstances giving rise to the suit well past two years after her claim had accrued. The government filed its petition on June 5, 1981, thus acting promptly to remove the action to district court. Thus, we are not faced with the case of intentional government delay presented in Kelley.
The present mandatory administrative claims procedure was added to the Federal Tort Claims Act in 1966. Act of July 18, 1966, Pub. L. No. 89-506, 80 Stat. 306. The purpose of this procedure is not to make recovery from the government technically more difficult. Rather, insisting upon prior presentation of the claim to the affected agency is designed to improve and expedite disposition of monetary claims against the government by establishing a system for prelitigation settlement, to enable consideration of claims by the agency having the best information concerning the incident, and to ease court congestion and avoid unnecessary litigation. S. Rep. No. 1327, 89th Cong., 2d Sess. (1966), reprinted in (1966) U.S. Code Cong. & Ad. News 2516.
We are not alone in our recognition that strict adherence to the requirements of the FTCA often works a substantial hardship on plaintiffs and may bring about unjust results. See Dunaville v. Carnago, 485 F. Supp. 545, 548 (S.D. Ohio 1980) ("Although recognizing the hardship resulting to plaintiff herein, the Court has no choice but to apply the law as it finds it."); Baker v. United States, 341 F. Supp. 494, 496 (D.Md.1972) ("If this case is appealed, I would be happy to be reversed.") However, to accept plaintiff's argument would in effect be rewriting the FTCA to allow a blanket exception to sections 2675(a) and 2401(b) whenever a plaintiff is not aware at the outset of defendant's employment status. "Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit." Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968). It is the prerogative of Congress, not that of the courts, to make any such change. Wollman v. Gross, 637 F.2d 544, 549 (8th Cir. 1980), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 389 (1981) (No. 81-33).
b.) Filing a State Court Suit
Plaintiff argues, in the alternative, that even if 28 U.S.C. §§ 2675(a) and 2401(b) apply given the facts of this case, plaintiff fulfilled the requirements set forth in those sections by filing her action in state court, thus putting the government on notice of her claim. There is no merit to this contention. "Filing suit does not meet the requirement of first presenting a claim to the appropriate governmental agency." Gunstream v. United States, 307 F. Supp. 366, 369 (C.D.Cal.1969); Meeker v. United States, 435 F.2d 1219, 1221 (8th Cir. 1970). "The statute requires that the claim be presented to the agency within two years, not that the Government be put on notice that such a claim will be forthcoming." Miller v. United States, 418 F. Supp. 373, 376 (D.Minn.1976) (emphasis in original).
Jurisdiction over plaintiff's complaint against the United States was based on the Federal Tort Claims Act. The filing of a timely administrative claim is a jurisdictional requirement under that Act. Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). Plaintiff's failure to comply with the statutory directive thus deprives this court of jurisdiction. Accordingly, we will grant the government's motion to dismiss. There being no independent jurisdictional basis to support plaintiff's complaint against the Cowansville Clinic, we also will dismiss plaintiff's complaint against the Clinic. Therefore, we need not address the Clinic's motion for leave to file a third-party complaint against the United States.