VICTOR WAKLEY and JULIE WAKLEY v. National Credit Union Administration

*After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 26, 2007*
Decided October 9, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1649
VICTOR WAKLEY and
JULIE WAKLEY,
Plaintiffs-Appellants,
v.
NATIONAL CREDIT UNION
ADMINISTRATION,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division
No. 1:06-cv-1503-SEB-VSS
Sarah Evans Barker,
Judge.
O R D E R
Victor and Julie Wakley brought suit in Indiana state court as third-party
plaintiffs against the National Credit Union Administration (NCUA), alleging that
the NCUA negligently failed to investigate the Indiana Members Credit Union
(IMCU) pursuant to the Federal Credit Union Act. After the NCUA removed the
case to federal court, the district court granted the defendant’s motion to dismiss for
failure to exhaust administrative remedies. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-1649 Page 2
1The parties do not challenge that satisfaction of the exhaustion requirement of
the FTCA is a jurisdictional issue. See Palay v. United States, 349 F.3d 418, 424 (7th Cir.
2003). Because we find that the Wakleys failed to exhaust their administrative
remedies, our decision today does not extend our jurisdiction and we need not hold this
case pending the Supreme Court’s decision in John R. Sand & Gravel Co. v. United
States, 457 F.3d 1345 (Fed. Cir. 2006), cert. granted, 75 U.S.L.W. 3636 (U.S. May 29, 2007)
(No. 06-1164).
This case arises out of a dispute between the Wakleys and the IMCU over an
amount the IMCU removed from the Wakleys’ bank account. The Wakleys wrote a
letter to the IMCU demanding that it return the funds. They also sent a copy of the
letter to the Federal Deposit Insurance Corporation, who forwarded it to the NCUA,
the federal agency that supervises federally chartered credit unions. The NCUA, in
turn, wrote to the Wakleys explaining that it forwarded their letter to the Indiana
agency that oversees state-chartered credit unions.
The IMCU then sued the Wakleys in Indiana state court seeking payment on
a loan. The Wakleys filed a third-party claim against the NCUA, alleging that it
negligently failed to investigate the IMCU’s lending practices. The NCUA removed
the case to federal court, where the parties agreed that the Wakleys’ claim could only
be actionable under the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346.
The NCUA moved to dismiss the Wakleys’ third-party claim, arguing that the
Wakleys failed to exhaust their administrative remedies because they did not first
notify the NCUA about the claim before filing suit. In response, the Wakleys
contended that their letter to the IMCU demanding the return of their money, which
had been forwarded to the NCUA, constituted sufficient notice of their claim. The
district court granted the NCUA’s motion to dismiss, holding that the Wakleys did
not exhaust its claim before filing suit. The court then denied as futile the Wakleys’
motion to amend their complaint to substitute the United States for the NCUA as the
appropriate defendant. The court also denied the Wakley’s post-judgment motion,
where the Wakleys argued for the first time that the exhaustion requirement was
unconstitutional.
We review de novo a district court’s grant of a motion to dismiss for lack of
subject-matter jurisdiction.1 Small v. Chao, 398 F.3d 894, 897 (7th Cir. 2005). This
case turns on whether the Wakleys’ letter that was forwarded to the NCUA
constituted sufficient notice of their claim against the NCUA. The FTCA requires
that plaintiffs present their claims to the appropriate federal agency before
beginning a lawsuit. 28 U.S.C. §§ 2401(b), 2675(a); Palay v. United States, 349 F.3d
418, 425 (7th Cir. 2003). A claim shall be considered presented when the appropriate

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No. 07-1649 Page 3
agency, here the NCUA, receives “written notification of an incident accompanied by
a claim for money damages.” 28 C.F.R. § 793.2(a), see also 28 C.F.R. § 14.2(a). We
have held that a written notification must contain “a statement of the essential facts
underlying a claim” sufficient to allow “a legally trained reader [to] infer” the legal
cause of action. Murrey v. United States, 73 F.3d 1448, 1452-53 (7th Cir. 1996);
Palay, 349 F.3d at 425-26.
The district court correctly concluded that the Wakleys failed to present their
claim to the NCUA before filing this suit. We are unpersuaded that the Wakleys’
demand letter to the IMCU was sufficient to present their claim to the NCUA. The
letter is not addressed to the NCUA or any federal agency; it does not ask a federal
agency to help resolve their dispute with the IMCU or take any other action; nor
does it reference a neglected duty to investigate the IMCU. The letter simply
demands that the IMCU return the funds to their account. In short, the letter
alleges nothing that would allow a legally trained reader to infer a cause of action
against the NCUA. Therefore, the district court properly granted the NCUA’s
motion to dismiss.
And because the Wakleys failed to exhaust their administrative remedies, the
district court did not err in refusing to allow the Wakleys to amend their complaint to
substitute the United States for the NCUA as the proper defendant. See Hughes v.
United States, 701 F.2d 56, 58 (7th Cir. 1982). Such an amendment would have been
futile. Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001).
The Wakleys finally contend that the district court erroneously denied their
post-judgment motion, in which they argued that the FTCA’s exhaustion
requirement is unconstitutional. But parties cannot file post-judgment motions to
advance new legal arguments that could have been made before the district court
rendered its judgment. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819
(7th Cir. 2006). Because the Wakleys failed to raise their constitutional claims prior
to the post-judgment motion, the district court did not abuse its discretion in denying
their motion.
AFFIRMED.

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