Moore et al v. Anniston Army Depot
MEMORANDUM OPINION. Signed by Judge Robert B Propst on 1/2/2014. (AVC)
2014 Jan-02 AM 08:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
JOSEPH H. MOORE and
ANNISTON ARMY DEPOT
This cause comes on to be heard on Defendant’s Motion to Dismiss, or for Summary
Judgment filed by the United States of America on November 14, 2013 and Plaintiffs’ Motion to
Substitute United States of America as Defendant and Supplemental Response to Defendant’s
Motion and Brief to Dismiss or for Summary Judgment filed by plaintiffs on December 18, 2013.
This action presents questions not directly addressed in any case cited by the parties, nor
in any statute dealing with claims against the United States arising out of negligence or wrongful
acts. At least one of the differences here is that the initial action was not brought against any
employee of a Federal agency, but was brought against “Anniston Army Depot” which is not
likely an entity which is subject to a Federal agency claim nor a legal action. The entity against
whom such a claim may generally be made would likely be the Department of Army, Department
of Defense, U. S. Army, etc.1
This court has not been cited, nor has it found, any controlling authority on what constitutes a “Federal
agency” with whom a claim can be filed or a legal action brought. But, for example, a claim must usually be made
against and filed with the U. S. Postal Service, not a local post office. “Anniston Army Depot” is likely a facility or
installation rather than such a Federal agency. The court makes no relied upon ruling as to what constitutes an
The following are statutory provisions which may have some application to this case.
1. 28 U.S.C. § 2675
(a) An action shall not be instigated 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 with 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. (Emphasis added).2
2. 28 U.S.C. § 2401
(b) 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 or unless action is begun within six months after the date of
mailing, by certified or registered mail, of notice of final denial of the claim by the
agency to which it was presented.
Again, “appropriate Federal agency.”
3. 28 U.S.C. § 2679
(a) The authority of any federal agency to sue and be sued in its own name shall
not be construed to authorize suits against such federal agency on claims which
are cognizable under section 1346(b) of this title, and the remedies provided by
this title in such cases shall be exclusive.
(5) 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 to be
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.
“appropriate Federal agency.” Regardless, no claim has been filed in this case.
See the reference to “appropriate Federal agency.”
Various references in Section 2679 are to suits against “employees of a Federal agency.”
The foregoing statutes do not discuss whether suits against such an installation as
Anniston Army Depot would be considered to be such a Federal agency. It is clear that no
appropriate claim has been filed here unless, somehow, the filing of the state court action in this
case on October 21, 2013 allows a delay in filing an appropriate and timely claim.
The following cases have some pertinent language:
1. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008)
“The FTCA is a specific, congressional exception” to the United States' sovereign
immunity for tort claims, under which the government may “be sued by certain
parties under certain circumstances for particular tortious acts committed by
employees of the government.” Suarez v. United States, 22 F.3d 1064, 1065 (11th
Cir.1994) (per curiam). However, this waiver “must be scrupulously observed, and
not expanded, by the courts.” Id. A federal court does not have “jurisdiction over a
suit under the FTCA unless the claimant first files an administrative claim with the
appropriate agency ... within two years from the time the claim accrues ...
accompanied by a claim for money damages in a sum certain.” Dalrymple v. United
States, 460 F.3d 1318, 1324 (11th Cir.2006) (citing 28 U.S.C. §§ 2675, 2401(b); 28
C.F.R. § 14.2(a)). The sum certain requirement of § 2675(a) serves a valuable
purpose; it informs the government of the maximum amount of a claim, enabling the
government to evaluate whether to settle a claim or proceed to trial. See Tidd v.
United States, 786 F.2d 1565, 1568 (11th Cir.1986). Before instituting a federal suit,
the claimant must wait either until the administrative agency finally denies the claim
or until at least six months have passed after the claim was filed. 28 U.S.C. §
2675(a). Because “[t]he FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies,” the district court lacks subject
matter jurisdiction over prematurely filed suits. McNeil v. United States, 508 U.S.
106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993).
“The FTCA requires that each claim and each claimant meet the prerequisites for
maintaining a suit against the government.” Dalrymple, 460 F.3d at 1325. Thus, “in
multiple claimant actions under the FTCA, each claimant must individually satisfy
the jurisdictional prerequisite of filing a proper claim.” Id. (citation omitted). If the
claimant fails to provide a sum certain within the claim, the administrative claim
“fails to meet the statutory prerequisite to maintaining a suit against the government,
and leaves the district court without jurisdiction to hear the case.” Id. at 1324
(citation omitted). Although we have stated that we take “a somewhat lenient
approach to the ‘sum certain’ requirement,” Tidd, 786 F.2d at 1567 n. 6, “we have
held that the FTCA requires, at a minimum, that a claimant expressly claim a sum
certain or provide documentation which will allow the agency to calculate or estimate
the damages to the claimant.” Dalrymple, 460 F.3d at 1325 (citation omitted).
The action filed in state court on October 21, 2013 did not claim a “sum certain.”
2. Compare the case of Burchfield v United States, 168 F.3d 1252 (11th Cir. 1999).
The plaintiffs suggest that the case of Martin v. United States, 439 Fed. Appx 842 (11th
Cir. 2011) may cast some doubt on this court’s decision to dismiss this action for lack of
jurisdiction. However, that case is different from this case. The state court action in Martin was
begun against a Federal employee.
28 U.S.C. § Section 2679(c) provides that “[t]he Attorney General shall defend any civil
action or proceeding brought in any court against any employee of the Government or his estate
for any such damage or injury.” (emphasis added). 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 … 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.
Section 2679(d)(5) is applicable “[w]henever 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.” (Emphasis added).
Section 2679(d)(2) states, in relevant part:
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 State court shall be removed without bond at any time before trial by
the Attorney General to the District court of the United States for the district and
division embracing the place in which the action or proceeding is pending. Such
action or proceeding shall be deemed to be an action or proceeding brought
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. This
certification of the Attorney General shall conclusively establish scope of office or
employment for purposes of removal.
Actions against Federal employees are different in that there has to be a line and scope of
employment decision. The district court’s dismissal in Martin was affirmed because, “the
district court lacked jurisdiction to hear her claim.”
This action will be dismissed for lack of jurisdiction. The dismissal will not be
determinative of whether an appropriate Federal Agency should give some consideration to a
later filed claim which the plaintiffs may file. Any such determination may be subject to further
Federal court review in a separate action.3
This court is satisfied that no appropriate claim has ever been filed in this case.4
This the 2nd day of January, 2014.
ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE
The Memorandum Opinion is adopted as to rulings on any pending motions, etc.
Since this court has no jurisdiction because of the lack of any filed claim, this court has no jurisdiction to
decide if a claim can be later filed. The action will be dismissed. However, the dismissal is not intended to have any
bearing on a claim which the plaintiffs may elect to later file. The appropriateness and timeliness of any such claim
may be determined by the appropriate Federal agency. The dismissal is for lack of subject matter jurisdiction. There
may also be a lack of service of process and personal jurisdiction.
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