OpenJurist

917 F2d 566 Baker III v. United States

917 F.2d 566

Unpublished Disposition

Gordon BAKER, III, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 89-55876.

2

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 5, 1990.*
Decided Nov. 5, 1990.

3

Before BEEZER and TROTT, Circuit Judges, and CROCKER,** District Judge.

4

MEMORANDUM***

5

Baker appeals from order dismissing his Federal Tort claim for lack of subject matter jurisdiction. Baker argues that he was not seven days late filing his complaint after six-months had run from the Navy's denial of his claim because the denial was sent to his attorney and not to him personally.

6

Mr. Gelfand had filed a claim with the Navy as attorney for Mr. Baker but Mr. Baker had not signed it. The Navy requested evidence of Mr. Gelfand's authority to represent Mr. Baker or a new claim signed by Mr. Baker. The second claim, which was identical to the first, was signed by Mr. Baker and submitted to the Navy by Mr. Gelfand with a cover letter stating that future correspondence could be directed to him personally.

7

Baker only had one claim and Mr. Gelfand was his attorney; the Navy's denial sent to Baker's attorney was valid and because Baker did not file his complaint within the period of the statute of limitations, his claim was time barred. 28 U.S.C. Sec. 2401(b); 28 C.F.R. Sec. 14.9(a); Spector v. Mermelstein, 361 F.Supp. 30, 39 (SDNY 1972), aff'd, 485 F.2d 474 (2d Cir.1973); Rule 1.4, Model Rules of Professional Conduct; Dyniewcz v. United States, 742 F.2d 484, 486 (9th Cir.1984); Hatchell v. United States, 776 F.2d 244, 245-246 (9th Cir.1985); Berti v. V.A. Hosp., 860 F.2d 338, 340 (9th Cir.1988), citing Burns v. United States, 764 F.2d 722, 724 (9th Cir.1985).

8

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 343(a)

**

Honorable Myron D. Crocker, United States District Judge, Eastern District of California, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3