The opinion
Case: 12-31255 Document: 00512367139 Page: 1 Date Filed: 09/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 9, 2013
No. 12-31255 Lyle W. Cayce
Clerk
BILLY RAY FARMER, III; DIANE FARMER,
Plaintiffs - Appellants
v.
UNITED STATES OF AMERICA,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-1960
Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
In this appeal, the appellants contend that their suit against the United
States may be considered timely filed under 28 U.S.C. § 2679(d)(5). As explained
below, we disagree and AFFIRM the district court’s dismissal of this case for
lack of subject matter jurisdiction.
Billy Ray Farmer, III and his mother, Diane Farmer, filed their original
action on June 24, 2010, in Louisiana state court against, inter alia, the
Louisiana Electronic and Financial Crimes Task Force (“Task Force”). This Task
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-31255
Force is comprised of federal, state, and local law enforcement personnel and
was established by the United States Secret Service, a federal law-enforcement
agency that is a component of the Department of Homeland Security (“DHS”),
as part of the Patriot Act of 2001. The plaintiffs alleged that the Task Force
committed various torts against them in connection with the June 24, 2009
search of their home. The Task Force, acting through the United States
Attorney, removed the case to federal court under 28 U.S.C. § 1442(a)(1),
averring that the Task Force, the Secret Service, and the DHS are agencies of
the United States.
In September 2011, the Task Force and the United States filed a motion
to dismiss the claims against the Task Force for lack of subject matter
jurisdiction, asserting that the United States was the proper defendant, that the
plaintiffs failed to exhaust their administrative remedies regarding their
common law tort claims, and that a plaintiff cannot bring constitutional tort
claims against the United States. The district court granted this motion without
prejudice on October 25, 2011.
The plaintiffs then filed an administrative claim with the Secret Service
on December 22, 2011, which the Secret Service denied on January 30, 2012.
Subsequently, on July 27, 2012, the plaintiffs filed an action in the district court
against the United States, again alleging claims under the Federal Tort Claims
Act (“FTCA”). The United States moved to dismiss under Rule 12(b)(1) of the
Federal Rules of Civil Procedure, contending the plaintiffs’ untimely filing of
their administrative claim deprived the court of subject matter jurisdiction. The
district court granted this motion, and the plaintiffs timely appealed.
We review a district court’s decision to grant a motion to dismiss de novo.
United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012). “Lack of
subject matter jurisdiction may be found in any one of three instances: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced
2
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No. 12-31255
in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001).
“It is elementary that the United States, as sovereign, is immune from
suits save as it consents to be sued . . . and [that] the terms of its consent to be
sued in any court define that court’s jurisdiction to entertain the suit.”
Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993) (internal
quotations and citations omitted). “[L]imitations and conditions upon which the
Government consents to be sued must be strictly observed and exceptions
thereto are not to be implied.” Lonatro v. United States, 714 F.3d 866, 870 (5th
Cir. 2013) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)). The
FTCA requires plaintiffs alleging tort claims against the federal government to
file an administrative claim with the relevant agency within two years after the
claim accrues or “be forever barred.” 28 U.S.C. § 2401(b). Plaintiffs then have
six months following the denial of that claim to file a lawsuit based upon the
alleged tort claims. Id. “The FTCA’s statute of limitations is jurisdictional,
Flory v. United States, 138 F.3d 157, 159 (5th Cir. 1998), and a claimant is
required to meet both filing deadlines.” In re FEMA Trailer Formaldehyde
Prods. Liability Litigation, 646 F.3d 185, 189 (5th Cir. 2011).
It is established for this appeal that the Farmers’ claim accrued on June
24, 2009, the date the Task Force searched their home.1 Their December 22,
1
The district court found the Farmers’ claim accrued on this date. The Farmers, in
their argument to the district court, did not contend any other relevant accrual date existed.
Instead, they noted only that they first filed their suit “within a year of the offense (June 24,
2009).” USCA5 at 59. The Farmers similarly did not contest this issue in their opening brief.
Accordingly, they cannot now challenge this accrual date. See Martco Ltd. Partnership v.
Wellons, Inc., 588 F.3d 864, 876 (5th Cir. 2009) (“[A]rguments not raised before the district
court are waived and cannot be raised for the first time on appeal.”); Webb v. Investacorp, Inc.,
89 F.3d 252, 257 n.2 (5th Cir. 1996) (“[A]n appellant abandons all issues not raised and argued
in its initial brief on appeal.” (internal quotations and citations omitted) (emphasis in
original)).
3
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2011 filing of an administrative claim with the Secret Service therefore falls
outside the two-year window the FTCA prescribes.
The Farmers contend, however, that 28 U.S.C. § 2679(d)(5) saves their
claims from being forever barred. This provision provides:
Whenever an action or proceeding in which the United States is
substituted as the party defendant under this subsection is
dismissed for failure first to present a claim pursuant to section
2675(a) of this title, such a claim shall be deemed timely presented
under section 2401(b) of this title if–
(A) the claim would have been timely had it been filed
on the date the underlying civil action was commenced,
and
(B) the claim is presented to the appropriate Federal
agency within 60 days after dismissal of the civil action.
28 U.S.C. § 2679(d)(5). The Farmers assert they are entitled to the protections
of this provision because the United States “substitute[d] itself” as a defendant
in this case, they filed an administrative claim within 60 days of the dismissal,
and they had filed their original complaint within two years of the injury.
The district court rejected this argument, finding the United States was
never substituted as a party pursuant to § 2679(d)(1). We hold the district court
was precisely correct. Section 2679(d)(1) states:
Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose, any civil action
or proceeding commenced upon such claim in a United States
district court shall be deemed an action against the United States
under the provisions of this title and all references thereto, and the
United States shall be substituted as the party defendant.
Thus, for the federal government to be “substituted as the party defendant under
this subsection,” as § 2679(d)(5) requires, the Attorney General must certify that
the defendant employee was acting within the scope of his office or employment.2
2
See Johnson v. United States, 78 F.3d 579, 1996 WL 84475, at *2 (4th Cir. 1996)
(unpublished) (“This provision[, § 2679(d)(5),] prevents ‘sandbagging’ by the government and
4
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Here, no such certification was made, and no substitution ever occurred.3 Nor
did the plaintiffs or the defendant-employees ever request a certification or
substitution. See 28 U.S.C. § 2679(d)(3). We note, moreover, that the Farmers
admit in their statement of the case that when they first filed their lawsuit on
June 24, 2010, they served, among others, Mr. Kim Tate, SAC at the U.S. Secret
Service office in Metairie, Louisiana, thus clearly demonstrating that they were
aware from the beginning of the federal government’s involvement and that they
were not “sandbagged” as they claim. Br. of Plaintiffs-Appellants at 12; see also
Johnson, 1996 WL 84475, at *2.
Accordingly, the Farmers are not entitled to the protection of § 2679(d)(5).
The judgment of the district court is
AFFIRMED.
only applies if the United States eventually certifies the employee as acting within the scope
of employment and substitutes itself into the suit.”).
3
Indeed, the district court that first dismissed the plaintiffs’ claims against the Task
Force expressed no such substitution occurred. Farmer v. Louisiana Electronic Financial
Crimes Task Force, No. 10-2971, 2011 WL 5085089, at *2 (E.D. La. Oct. 25, 2011) (noting the
“plaintiffs’ claims against the United States, through the Louisiana Electronic and Financial
Crimes Task Force . . . must be dismissed for lack of subject matter jurisdiction,” and nowhere
indicating the United States had been substituted).
5