The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DANIEL MJEMA, )
)
Plaintiff, )
) Civil Action No. 11-1244 (EGS)
v. )
)
UNITED STATES OF AMERICA, )
)
Defendant. )
)
MEMORANDUM OPINION
This case is before the Court on defendant the United
States of America’s Motion to Dismiss for lack of subject matter
jurisdiction. Plaintiff Daniel Mjema filed a complaint on July
7, 2011, alleging that he was injured when United States Postal
Service (“USPS”) employee Janet Binger acted negligently in
operating her motor vehicle during the course of her employment.
Defendant moved to dismiss, arguing that plaintiff’s failure to
file an administrative complaint within two years of the accrual
of his claim as required by the Federal Tort Claims Act (“FTCA”)
deprived this Court of subject matter jurisdiction. Upon
consideration of defendant’s motion, the response and reply
thereto, the applicable law, the entire record, and for the
reasons set forth below, the Court hereby GRANTS defendant’s
motion to dismiss.
I. BACKGROUND
On December 15, 2005, plaintiff and Ms. Binger were
involved in an automobile accident in Bedford, Virginia. Compl.
¶¶ 5-8. Plaintiff alleges that the accident was caused by the
negligence of Ms. Binger, who was at all times acting within the
scope of her employment for the United States Postal Service.
Id. ¶¶ 7-9.
On October 15, 2007, plaintiff filed an action against Ms.
Binger in the Circuit Court for Bedford County, Virginia. Pl.’s
Opp. to Def.’s Mot. to Dismiss (“Pl.’s Opp.”) at 3. On August
27, 2009, the USPS sent a letter to plaintiff’s counsel stating
that Ms. Binger had been acting within the course and scope of
her federal employment as a rural mail carrier on December 15,
2005 and that, accordingly, the FTCA applied to plaintiff’s
case. Pl.’s Opp. Ex. 1 at 1. The USPS stated that the FTCA
required plaintiff to file a claim with the USPS within 2 years
of the alleged tort. Id. at 2. The USPS further stated that
the FTCA required plaintiff to name the United States, rather
than Ms. Binger, as defendant in the action. Id. at 2 (citing
28 U.S.C. §§ 2675, 2679). Because plaintiff had failed to do
either of these things, the USPS argued, plaintiff’s suit was
subject to dismissal. Id. The USPS requested that plaintiff
voluntarily dismiss the suit “or [the USPS] will be required to
remove the matter to federal court.” Pl.’s Opp. Ex. 1 at 3.
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Following his receipt of the USPS letter, nearly four years
after the alleged tort, plaintiff provided notice of his claim
to the USPS on November 13, 2009. 1 Compl. ¶ 12. Plaintiff then
voluntarily dismissed the Virginia state court action on
November 30, 2009. Pl.’s Opp. at 3. On July 7, 2011, plaintiff
commenced this action.
II. LEGAL STANDARDS
1. Standard of Review
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), a plaintiff bears the burden of establishing
that the court has subject-matter jurisdiction to hear his
claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d
20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation
to ensure that it is acting within the scope of its
jurisdictional authority.” Grand Lodge of Fraternal Order of
Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). “For
this reason ‘the [p]laintiff’s factual allegations in the
complaint . . . will bear closer scrutiny in resolving a
1
On August 16, 2011, the USPS informed plaintiff that the notice
of claim he filed on November 13, 2009 was denied because it was
filed beyond the 2-year statute of limitations for an action
brought under the FTCA. Def.’s Mot. to Dismiss (“Def.’s Br.”)
at Ex. 3. Under the FTCA, however, plaintiff’s administrative
claim was deemed administratively denied on May 13, 2009, six
months after he sent it to the USPS. 28 U.S.C. § 2675(a). The
timing of the denial of plaintiff’s administrative claim does
not affect the outcome of this motion.
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12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure
to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.
1987)). Additionally, unlike with a motion to dismiss under
Rule 12(b)(6), the Court “may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for
lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402
F.3d 1249, 1253 (D.C. Cir. 2005); see Herbert v. Nat’l Acad. of
Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (holding that on a
motion to dismiss under Rule 12(b)(1), a court may consider the
facts alleged in the complaint, supplemented by undisputed facts
evidenced in the record, and disputed facts in the record that
have been resolved by the district court).
2. Federal Tort Claims Act
The FTCA, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b) and 2671-
80, waives the United States’ sovereign immunity with regard to
certain types of tort claims and is the exclusive remedy in
personal injury cases arising from the negligence of federal
employees acting within the scope of their employment. 28
U.S.C. § 2679(b)(1). The Act requires plaintiffs to exhaust
their administrative remedies by first presenting their claims
to the appropriate federal agency before instituting a civil
action. Specifically, it states that:
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An action shall not be instituted upon a claim against
the United States for money damages for injury or loss
of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, unless the claimant shall have
first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by
the agency in writing and sent by certified or
registered mail. The failure of an agency to make
final disposition of a claim within six months after
it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim
for purposes of this section.
28 U.S.C. § 2675(a). The Act carries a two-year statute of
limitations and states that “[a] tort claim against the United
States shall be forever barred unless it is presented in writing
to the appropriate federal agency within two years after such
claim accrues . . . . ” 28 U.S.C. § 2401(b).
In limited circumstances, an FTCA claim that is not filed
with the appropriate administrative agency within the two-year
limitations period may nonetheless be timely pursuant to 28
U.S.C. § 2679(d)(5). That section provides:
Whenever an action or proceeding in which the United
States is substituted as a party defendant under this
subsection is dismissed for failure first to present a
claim pursuant to [the administrative exhaustion
requirement], such a claim shall be deemed timely
presented . . . 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 of the dismissal of the
civil action.
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28 U.S.C. § 2679(d)(5). As the statute makes clear, four things
must occur for the exception to apply: 1) a plaintiff must file
a civil action within two years of the alleged tort; 2) the
United States must be substituted as the defendant; 3) the case
must be dismissed for failure to present the tort claim to the
administrative agency; and 4) the claim must be presented to the
administrative agency within 60 days of the dismissal of the
case.
III. DISCUSSION
Defendant argues that plaintiff’s complaint must be
dismissed because plaintiff filed his tort claim with the USPS
nearly four years after the alleged tort occurred, exceeding the
statute of limitations by nearly two years. Def.’s Br. at 4.
Defendant further argues that the exception set forth in Section
2679(d)(5) does not apply to the plaintiff for two reasons.
First, the United States was never substituted as the defendant
in the underlying action. Second, the action was not dismissed
for failure to exhaust administrative remedies, but rather due
to the voluntary dismissal of the suit by plaintiff. Defendant
argues that plaintiff’s failure to satisfy these requirements
bars plaintiff from bringing his claim in this Court.
In his opposition to defendant’s motion to dismiss,
Plaintiff concedes that his suit can only be deemed timely filed
under the FTCA if he satisfies the requirements of Section
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2679(d)(5). Pl.’s Opp. at 3. Recognizing that he did not meet
the exact requirements of that provision, plaintiff argues that
he “substantially and essentially performed” its requirements.
Id. Plaintiff asserts that he was “more diligent than required”
by the statute, and that he “voluntarily dismissed the case to
achieve the result dictated by 28 U.S.C. § 2679(d)(5) more
quickly and efficiently, and without any prejudice to the USPS
or any other party.” Id. at 4. Plaintiff argues that the
defendant’s motion should be denied on those grounds. Id. at 5.
The Court disagrees. Section 2679(d)(5) unquestionably
contains threshold requirements that apply in this case: that
there is “an action or proceeding in which the United States is
substituted as the party defendant” that “is dismissed for
failure first to present a claim” to the proper administrative
agency. 28 U.S.C. § 2679(d)(5). Plaintiff clearly fails to
meet those conditions. The United States was never substituted
as the defendant in the state court action and, as a result, the
case was not dismissed for failure to present a claim to the
USPS. Rather, instead of requiring the government to substitute
the United States as the defendant in place of Ms. Binger,
plaintiff voluntarily dismissed the case. Accordingly,
plaintiff has failed to meet the requirements of Section
2679(d)(5).
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Although plaintiff does not argue that equitable tolling
should apply to his claim, 2 plaintiff argues essentially that
because he “substantially complied” with Section 2679(d)(5), his
case should not be dismissed. The law, however, requires more
than substantial compliance. “[A] waiver of the Government’s
sovereign immunity will be strictly construed, in terms of its
scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187,
192 (1996); see Seitu v. Rutherford, No. 96-cv-575, 1997 WL
122919, at *1 (D.D.C. Mar. 12, 1997) (“As a waiver of sovereign
2
In its motion to dismiss, defendant argued that equitable
tolling should not apply to plaintiff’s claim. Def.’s Br. at 5.
Because plaintiff failed to respond to this argument in his
opposition to defendant’s motion to dismiss, it is deemed
conceded. “It is well understood in this Circuit that when a
plaintiff files an opposition to a motion to dismiss addressing
only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as
conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (citing FDIC
v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)). Even if
plaintiff had not conceded the argument, however, plaintiff has
failed to demonstrate, or even plead, that he exercised any
diligence in preserving his legal rights. See Norman v. United
States, 467 F.3d 773, 775 (D.C. Cir. 2006) (affirming denial of
equitable tolling in FTCA case and recognizing that such relief
is granted “only sparingly” and is generally denied “where a
plaintiff failed to exercise due diligence in preserving his
legal rights”). Plaintiff only alleges that he “first
discovered” that Ms. Binger was a federal employee on August 26,
2009, the day before he received the USPS letter. Compl. ¶ 11.
Plaintiff does not allege that he made any effort prior to or
during the state court action to identify Ms. Binger’s employer.
Where a plaintiff has failed to “make any effort – diligent or
otherwise” to identify defendant’s employer, equitable tolling
is not warranted. Norman, 467 F.3d at 776. Accordingly,
equitable tolling would not have been warranted in this case,
even if plaintiff had not conceded that issue by failing to
respond to defendant’s argument.
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immunity, the FTCA’s limitations and procedural requirements
must be strictly applied.”); see also Martin v. United States,
439 Fed. App’x 842, 844-845 (11th Cir. 2011) (strictly
construing Section 2679(d)(5) to affirm dismissal of FTCA claim
where plaintiff chose to voluntarily dismiss her first state
court suit and file an action in federal court rather than
substituting the United States as a defendant in her original
state court action). Plaintiff cites no basis for the Court to
make an exception to the strict requirements of the FTCA in this
case. By asserting that he dismissed the state court suit
deliberately, “to achieve the same result” as Section
2679(d)(5), (Pl.’s Opp. at 4), plaintiff demonstrates only that
he knew what the rules required, but declined to follow them.
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IV. CONCLUSION
Because the clear language of Section 2679(d)(5) requires
the United States to have been substituted a party defendant in
the original action and also requires that the original action
be dismissed, rather than voluntarily withdrawn, plaintiff’s
claim cannot be saved by that exception. Therefore, his
administrative claim, filed more than two years after his claim
arose, is time-barred. Accordingly, this Court lacks
jurisdiction to hear plaintiff’s claim, and defendant’s motion
to dismiss is GRANTED.
Signed: Emmet G. Sullivan
United States District Judge
August 7, 2012
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