Bumann v. United States of America
Filing
12
MEMORANDUM Opinion and Order denying 5 Motion to Dismiss (See Order Text). Signed by Senior Judge Donald E OBrien on 9/24/2012. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ROBERT BUMANN, Estate Of,
No. 12-CV-4031-DEO1
Plaintiff,
v.
Memorandum and Opinion Order
UNITED STATES OF AMERICA,
Defendant.
____________________
I.
INTRODUCTION AND BACKGROUND
On
February
“Plaintiff”)
was
25,
2008,
injured
in
Robert
a
Bumann
motor
(hereinafter
vehicle
accident.
Plaintiff alleges a Mr. Philip P. Sykes, an employee of the
United States Postal Service, ran a stop sign with his post
truck and collided with Plaintiff’s vehicle. Docket No. 2, 2.
On February 18, 2010, Plaintiff filed a negligence cause
of action, naming Mr. Sykes as the sole Defendant, in the Iowa
District Court for Ida County.
1, 2.
11-CV-4007-DEO, Docket No. 5-
In the hearing of August 22, 2012, Plaintiff’s counsel
informed this Court that Plaintiff’s insurance company was
involved and Plaintiff was represented by counsel, but neither
1
Case 11-CV-4007-DEO, a case arising from the same set of
facts as the instant case that will be discussed later in this
Order, was previously dismissed by this Court due to
exhaustion matters.
were aware of the implications that the Defendant was a postal
worker until a later date.
On March 1, 2010, Mr. Bumann died; and the Iowa District
Court
gave
Plaintiff
leave
to
Amend
his
Complaint
to
substitute “The Estate of Robert Bumann” for the Plaintiff in
his individual capacity.
Id.
On January 20, 2011, the United States Attorney for the
Northern District of Iowa, Stephanie M. Rose, certified that
Mr. Sykes “was acting within the scope of his employment as an
employee of the United States of America” when the accident at
issue
took
place.
11-CV-4007-DEO,
Docket
No.
1-2,
1.
Pursuant to 28 U.S.C. § 2679(d)(2)2 of the Federal Tort Claims
Act (hereinafter “FTCA”), Plaintiff’s cause of action was then
removed to this Court.
11-CV-4007-DEO, Docket No. 1.
On
February 17, 2011, the United States of America (hereinafter
“the Government”) filed an Unresisted Motion to substitute
itself as the party in interest pursuant to 28 U.S.C. §
2
28 U.S.C. § 2679(d)(2) provides that “[u]pon
certification by the Attorney General that [a] defendant
employee was acting within the scope of his employment at the
time of [an] incident . . . any proceeding commenced . . . in
a State court shall be removed . . . to the district court of
the United States for the district and division embracing the
place in which the action or proceeding is pending.”
2
2679(d)(1).3
11-CV-4007-DEO, Docket No. 6.
On the same day,
this Court issued an Order granting their Motion. 11-CV-4007DEO, Docket No. 7.
On February 18, 2011, the Government filed a Motion to
Dismiss,
arguing
that
Plaintiff
failed
to
file
an
administrative claim as required pursuant to 28 U.S.C. §
2675(a).4
11-CV-04007-DEO, Docket No. 8.
On March 29, 2011,
this Court granted the Government’s Motion and dismissed
Plaintiff’s action without prejudice.
11-CV-4007-DEO, Docket
No. 12, 4.
On April 7, 2011, Plaintiff filed his Federal Tort Claim
with the United States Postal Service as a prerequisite to
3
28 U.S.C. § 2679(d)(1) provides that “[u]pon
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.”
4
28 U.S.C. § 2675(a) provides that “[a]n action shall not
be instituted 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.”
3
pursuing its cause of action in a United States district
court.
Docket No. 2, 1.
On October 3, 2011, the United
States Postal Service denied Plaintiff’s Federal Tort Claim.
Id. On March 30, 2012, Plaintiff filed his pending Complaint.
Id. Currently before this Court is the Government’s Motion to
Dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure.”
II.
(Docket No. 5).
LAW AND ANALYSIS
Rule 12(b)(1) of the Federal Rules of Civil Procedure
allows for dismissal of a cause of action for “lack of
subject-matter jurisdiction.”
It is a central principle of
our Constitution that United States district courts are courts
of
limited
subject-matter
jurisdiction.
United
States
district courts may gain subject-matter jurisdiction under two
conditions: (1) via the express terms of the Constitution, or
(2) via a Congressional grant of jurisdiction.
See 13 Fed.
Prac. & Proc. Juris. § 3522 (3d ed.).
In the wake of the FTCA,5 Congress passed 28 U.S.C. §
1346(b)(1),
which
provides
United
5
States
district
courts
Prior to the passage of the FTCA, the United States was
traditionally immune from suits on the basis of sovereign
immunity; however, the FTCA provided a “broad waiver of
sovereign immunity . . . .”
Kosak v. U.S., 465 U.S. 848, 852
(1984).
4
authority to hear certain suits brought against the Federal
Government. In pertinent part, 28 U.S.C. § 1346(b)(1) states:
the district courts . . . shall
have exclusive jurisdiction of
civil actions on claims against
the United states, for . . .
personal injury 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 . . . .
However, the FTCA does not provide Federal district
courts unlimited authority to hear suits brought against the
Government.
When passing legislation granting subject matter
jurisdiction to Federal district courts, Congress may define
the exact conditions of its grant of jurisdictional authority.
In
relation
to
the
FTCA,
Congress
has
limited
the
jurisdictional authority of United States district courts to
cases that have been “presented in writing to the appropriate
Federal agency within two years after such claim accrues” and
that have been brought in United States district court “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.”
28 U.S.C. § 2401(b).
In this case, though Plaintiff filed its Complaint with
this Court within six months after the United States Postal
5
Service’s final denial of the claim, Plaintiff did not present
its claim to the United States Postal Service within two years
after its claim accrued.
However, Plaintiff contends that 28 U.S.C. § 2679(d)(5)
acts as a savings clause which places his cause of action
within
the
purview
jurisdiction.
of
this
Court’s
subject
matter
Section 2679(d)(5) 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 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.
In other words, Section 2679(d)(5) provides a district
court subject matter jurisdiction though a plaintiff has not
technically
complied
with
the
statute
of
limitations
in
Section 2401(b). A close review of Section 2679(d)(5) reveals
four requirements:
(1) there must be an initial cause of
action in which the United States was substituted as the party
defendant; (2) the initial cause of action must have ben
6
dismissed pursuant to Section 2675(a); (3) the initial cause
of action must have been filed within the 2 year statute of
limitations period required under Section 2401(b); and (4)
after dismissal of the initial cause of action, the plaintiff
must have filed the instant action with the appropriate
federal agency within 60 days.
As previously noted, on February 17, 2011, this Court
granted the Government’s motion to substitute itself as the
party of interest in the initial cause of action.
29,
2011,
Plaintiff’s
initial
cause
dismissed pursuant to Section 2675(a).
of
action
On March
was
then
Plaintiff filed the
initial cause of action on February 18, 2010, which is within
two years of the initial accident of February 25, 2010, as
required pursuant to Section 2401(b).
Finally, after this
Court dismissed Plaintiff’s cause of action on March 29, 2011,
Plaintiff filed his Federal Tort Claim with the United States
Postal Service on April 7, 2011, within the required 60 day
period.
It would appear Plaintiff has clearly met all of the
requirements of Section 2679(d)(5).
Regardless, Government’s
council cites a series of district court opinions for the
general
proposition
that
the
7
Section
2679(d)(5)
savings
provision does not apply when the Plaintiff was always aware
that the initial defendant was a government employee who was
more than likely operating within the scope of his employment.
Docket No. 5-1, 14-18 (citing Carney v. United States, 2003 WL
21653853 (N.D. Tex. Mar. 31, 2003);6 Bryant v. United States,
96 F. Supp. 2d 552, 553-54 (N.D Miss. 2000); Faura Cirino v.
United States, 210 F. Supp. 2d 46 (D. Puerto Rico 2002); and
Filaski v. United States, 776 F. Supp. 115, 117 (E.D. New York
1991)).
It is undisputed that Plaintiff, at the time of the
accident on February 25, 2008, was aware that he was hit by a
United States Postal Service truck but initially sued Mr.
Phillip P. Sykes, the postal worker driving the truck, in his
individual
capacity.
However,
the
cases
Government are not binding upon this Court.
cited
by
the
Furthermore,
after thorough review of the cases, this Court is persuaded
that the Government relies upon creative editing involving the
6
The quotation provided in the Government’s brief was
from a Magistrate Judge’s Report and Recommendation, cited as
“Carney v. United States, No. 177 Civ. 3:99-CV-1989, slip op.
*9 (Dec. 5 2002) (Mag.).
Docket No. 5-1, 14.
The Order
Accepting Findings and Recommendation of the United States
Magistrate Judge, which this Court was able to find, only
explicitly deals with the issue of fraudulent concealment,
which is not currently before this Court.
This Court was
unable to obtain a copy of the Magistrate’s Report and
Recommendation.
Therefore, this Court will not explicitly
address the context of the passage of the Magistrate’s Report
and Recommendation cited by the Government.
8
dicta of case law not directly on point.
In Faura Cirino, the Government argued the plaintiff did
not strictly comply with Section 2679(d)(5) in that they filed
their administrative claim prior to dismissal of their initial
cause of action and not within the 6 month period after
dismissal.
“easily”
The Faura Cirino Court
210 F. Supp. at 54.
concluded
that
the
plaintiff’s
“actions
were
reasonable and diligent under the circumstances, and their
failure to wait for dismissal [was]
. . . excusable.”
Id.
The initial defendant in Faura Cirino was an employee at a
federal health clinic, and so, just as here, the plaintiff in
Faura Cirino was, from the start, aware that the federal
government was implicated but was unaware of the ins and outs
of the Federal Tort Claims Act.
The Government correctly
notes that the Faura Cirino Court stated that the “purpose of
Section 2679(d)(5) is to provide protection to plaintiffs that
are diligently pursuing their claim, but are unaware that the
proper defendant is the United States of America,” but, when
viewed in context, this appears to be precisely what happened
in the case at bar.
9
Bryant v. United States involved a defendant who filed
his initial cause of action 2 years, 8 months, and 12 days
after his cause of action accrued, which fails to satisfy the
third requirement7 under Section 2679(d)(5).
at
553.
While
the
Bryant
Court
stated
96 F. Supp. 2d
that
“Section
2679(d)(5) provides protection for the plaintiff who has no
knowledge of the federal presence in a case,” the Court
neither
explained
the
nature
of
plaintiff’s
“knowledge”
required nor stated this was the only protection Section
2679(d)(5) provides.
Furthermore, the Bryant Court, directly
below portions quoted by the Government, went on to conclude
that “a plaintiff, whose claim is dismissed for failure to
exhaust, [has] sixty days to file an administrative claim with
the appropriate agency, as long as the original lawsuit was
commenced within the two year time period allowed for filing
a claim,” which, again, is precisely what occurred in this
case.
96 F. Supp. 2d at 554-55 (emphasis in original).
The Court in Filaski v. United States dismissed the
plaintiff’s
cause
of
action
for
failure
to
file
any
administrative claim whatsoever in direct contravention of
7
The third requirement is that the initial cause of
action must have been filed within the 2 years of the accrual
of the action.
10
Section 2675(a).
776 F. Supp. 115.
Viewed in the context of
Section 2679(d)(5), the Filaski plaintiff failed to file her
action with the appropriate federal agency within 60 days
after the dismissal of the initial action because there had
yet to be a dismissal.
The Government correctly notes that
the Filaski Court stated, like the Bryant Court, that Section
2679(d)(5) “provides protection for the plaintiff who has no
knowledge
of
the
federal
presence
in
the
case,”
but
it
continued on to conclude that the
plaintiff’s claim herein will not
be time-barred even if dismissed
provided that she commenced her
state court action within two
years
of
the
date
of
the
accident, which she appears to
have done, and provided that she
present
her
claim
to
the
appropriate federal agency within
sixty days from the dismissal.
776 F. Supp. at 117.
The Government appears to read Faura Cirino, Bryant, and
Filaski to require that a plaintiff have no knowledge that the
person who injured them was acting in their capacity as a
Government employee in order for a Court to have subject
matter jurisdiction pursuant to Section 2679(d)(5).
However,
these cases, when read in their entirety, merely indicate that
Section 2679(d)(5) can, so long as its requirements are met,
11
provide relief to those who were unaware they were injured by
a Government employee, but these cases do not indicate Section
2679(d)(5)’s effects are limited to those precise situations.
A fair reading of these cases, as well as a fair reading of
Section 2679(d)(5), supports the conclusion that relief can
also be granted to those who, though they knew they were
injured by a Government employee, did not know the Fair Tort
Claims Act limited any cause of action they may have to the
Federal Government. After all, the United States Attorney did
not certify that Mr. Sykes was acting within the scope of his
employment,
which
directly
resulted
in
his
case
being
transferred to this Court and ultimately dismissed, until more
than 11 months after the Plaintiff filed his initial complaint
in state court.
Furthermore, Plaintiff timely engaged his
insurance company as well as competent counsel for his state
action, both of whom, though trained and sophisticated in
these matters, were caught unaware of the intricacies of the
FTCA.
Given this set of events, to hold that Plaintiff is no
longer allowed to seek relief in a Federal Court would be,
stated plainly, unfair; and this is precisely why Congress
passed Section 2679(d)(5).
12
III.
CONCLUSION
Therefore, based upon the above considerations, this
Court clearly has subject matter jurisdiction pursuant to the
plain language of Section 2679(d)(5); and the Government’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction is
hereby denied (Docket No. 5).
IT IS SO ORDERED this 24th day of September, 2012.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
13
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