McNealy v. Becnel et al

Filing 246

ORDER AND REASONS granting 238 Motion for Clarification. IT IS FURTHER ORDERED that Plaintiffs federal and state law tort claims as to the Federal Defendant are hereby DISMISSED without prejudice for lack of subject matter jurisdiction. Signed by Judge Susie Morgan on 11/1/2016. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEWTON MCNEALY,
Plaintiff

CIVIL ACTION

VERSUS

NO. 14-2181

DARRYL J. BECNEL, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
Before the Court is a Motion to Clarify filed by the Federal Defendant, The Equal
Employment Opportunity Commission (“EEOC” or “Federal Defendant”). 1 On October
17, 2016, the Court issued its Order and Reasons 2 with respect to the Defendants’ eight
dispositive motions. 3 On October 18, 2016, the Federal Defendant filed its Motion to
Clarify. 4 The EEOC seeks confirmation that the lone remaining purported state law tort
claim as to the Federal Defendant is also dismissed, for the same reasons articulated in
Court’s Order and Reasons as to the Plaintiff’s Federal Tort Claims Act claims.
As the Court stated in its October 17, 2016 Order and Reasons:
The EEOC correctly points out that McNealy’s claims against it are barred
under the doctrine of sovereign immunity. The basic rule of federal
sovereign immunity is that the United States cannot be sued without the
consent of Congress. This immunity from suit extends to the agencies and
officers of the United States, such as the EEOC. Thus, suits against agencies
of the United States are barred, unless there is a waiver of sovereign
immunity. 5
The Court specifically addressed Plaintiff’s Federal Tort Claims Act claims and stated:
It is well-accepted the FTCA is the exclusive remedy for tort suits against
the United States, and the FTCA thus operates as a limited waiver of
sovereign immunity. The FTCA’s waiver of sovereign immunity is, however,
R. Doc. 238.
R. Doc. 237.
3 R. Docs. 117, 119, 121, 138, 146, 210, 215, 216.
4 R. Doc. 238.
5 R. Doc. 237, at 30-31 (internal quotations and citations omitted).
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2

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subject to several exceptions. As a general rule, it is beyond dispute that the
United States, and not the responsible agency or employee, is the proper
party defendant in an FTCA suit. Thus, McNealy does not have a valid FTCA
claim against the EEOC. 6
The Federal Defendant argues, “[T]o the extent a state law claim as to the Federal
Defendant may have been alleged by Plaintiff, pursuant to La. Civ. Code art. 2315, such
claims should also be dismissed for the exact same reasons stated in the Court’s Order
and Reasons.” 7 Specifically, the Federal Defendant adds, “it is well settled that the FTCA
is the exclusive remedy for tort claims against the United States (and its agencies).” 8
The Court agrees with the Federal Defendant. Pursuant to 28 U.S.C. § 2675(a), no
action in tort may be instituted against the United States “unless the claimant shall have
first presented the claim to the appropriate Federal agency and his claim shall have been
denied by the agency in writing.” 9 Only when the claim has been denied or six months
have passed since the administrative claim was filed may a plaintiff bring suit in federal
district court on the claim. 10 Any failure to comply with the FTCA’s administrative
exhaustion requirement is a jurisdictional defect. 11
The regulations at 28 C.F.R. Part 14 set forth the procedural requirements for
submitting an administrative tort claim to an agency. Under 28 C.F.R. § 14.2, an
individual may file an administrative claim for damages against a federal agency by
submitting a Standard Form 95 or other written notice of the claim to the agency that

Id. at 33 (internal citations and quotations omitted).
R. Doc. 238-1, at 2.
8 Id. (emphasis in original).
9 28 U.S.C. § 2675(a).
10 See id.; 28 U.S.C. § 2401(b).
11 See, e.g., McNeil v. United States, 508 U.S. 106, 112 (1993); Jerves v. United States, 996 F.2d 517, 519
(9th Cir. 1992); Plylyer v. United States, 900 F.2d 41, 42 (4th Cir. 1990); Williamson v. U.S. Dep’t of
Agriculture, 815 F.2d 368, 378 (5th Cir. 1987); Henderson v. United States (785 F.2d 121, 123 (4th Cir.
1986); Keene Corp v. United States, 700 F.2d 836, 840-41) (2d Cir. 1983), cert denied, 464 U.S. 864
(1983).
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allegedly committed the tort. Plaintiff failed to submit an administrative tort claim to the
relevant federal agency as required.
Accordingly, IT IS ORDERED that the Federal Defendant’s Motion for
Clarification 12 is hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s federal and state law tort claims as
to the Federal Defendant are hereby DISMISSED without prejudice for lack of subject
matter jurisdiction.
New Orleans, Louisiana, this 1st day of November, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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R. Doc. 238.
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