Seventh Circuit Opinion Creates a Split of Authority Among the Circuits on the Applicability of the “Prison-Mailbox Rule” to Filing of FTCA Claims

Censke v. United States, 947 F.3d 488 (7th Cir. 2020)

The Federal Tort Claims Act (FTCA) requires that a claimant give notice of a claim within two years of the act or omission.  28 U.S.C. § 2401(b).  The issue presented in Censke was whether Censke gave timely notice when he mailed the claim before the two-year period expired but it was received by the Bureau of Prisons after the deadline.  Under BOP regulations provided that notice could be given by sending the claim to the regional office and if the claim was sent to the wrong office it was to be transferred to the right one.  BOP considers a claim “filed” when it is received in any of its offices.

Censke claimed that correctional officers and medical staff in Terre Haute, Indiana physically abused him and then inadequately cared for his injuries.  Censke sent his claim nine days before the end of the two-year limitations period by placing it in the prison's outgoing mail.  The BOP stamped the claim as received at one of its regional offices over two months after it was placed in the prison mail.  BOP denied the claim on the merits but did not mention that it was untimely filed.

When Censke filed suit representing himself pro se, the government moved for summary judgment on timeliness grounds.  Censke argued that under the prison-mailbox rule, applied in other contexts, his claim was timely.  The district court, however, held that the rule was inapplicable to FTCA claims.  On appeal, the Seventh Circuit appointed counsel because the case presented a substantive and unresolved legal issue.  The court of appeals subsequently reversed the district court holding that the prisoner-mailbox rule applies to FTCA claims and Censke's claim was timely because it was placed in the prison mail prior to the running of the two-year period.

The government's argued that the prison-mailbox rule is applicable only where a statute or regulation does not provide the definition of filing and that, here, BOP regulation defined filing as the date a claim is received by any of its offices.  The Seventh Circuit disagreed but noted that the Third, Fifth, and Ninth Circuits have adopted in non-FTCA contexts the rule advocated by the government, i.e., the mailbox rule does not apply where a statute or regulation defines the date of filing.  The court also observed that the Second Circuit has adopted a narrower rule in the specific context of FTCA claims and held that because the FTCA's definition of “filing” was based upon an agency regulation—and not on a federal statute—the mailbox rule applies.  Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999).

The Seventh Circuit rejected the reasoning of the Third, Fifth, Ninth, and Second Circuits based upon the Supreme Court's holding in Houston v. Lack, 487 U.S. 266, 276 (1988).  There, the Supreme Court held that the mailbox rule applied to the filing of a notice of appeal even after acknowledging that the text of the Federal Rules of Appellate Procedure expressly required filing with the district court clerk.  The court of appeals reasoned that if the mailbox rule can apply only when there is no language providing a contrary definition of receipt, “we would be left to question whether Houston's reasoning remains good law.”  Censke, 947 F.3d at 492.

The court of appeals declined to read the Supreme Court's decision in Fex v. Michigan, 507 U.S. 43 (1993)—decided after the 1988 Houston decision—as silently overruling Houston.  In Fex, the Supreme Court held that the prison-mailbox rule did not apply to the Interstate Agreement on Detainers.  The Agreement allows a detainee to file a request for the disposition of charges pending in another state.  Upon such a request, the Agreement requires that the detainee be brought to trial within 180 days after the detainee “shall have caused to be delivered to the prosecuting officer … written notice” of the request.  Censke, 947 F.3d at 491.  The question before the Supreme Court was whether the 180-day clock began to run at the time the detainee placed the request in the prison mail or when it was received by the prosecutor.  The Court decided that the clock began to run when it was received by the prosecutor so that postal mishaps such as lost mail did not preclude the state from proceeding with the prosecution.  Id.   The Seventh Circuit explained that the result in Fex was based upon a balance-of-the-harms approach between the prisoner who faces the forfeit of his claim and the government that has need for a fair opportunity to investigate and possibly settle before a suit is filed.  Under that balance of interests, the court of appeals concluded the balance tipped in favor of the FTCA claimant where in the FTCA context no potential infringement by the federal government upon state interests is present—as was the case in Fex.