Jones v. United States of America

Filing 10

ORDER: IT IS HEREBY ORDERED that the United States of America's 7 Motion to Dismiss Claims Against Defendant United States of America for Lack of Subject Matter Jurisdiction is GRANTED. Signed by Chief Judge Nannette Jolivette Brown on 9/4/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUNE JONES

CIVIL ACTION

VERSUS

NO. 18-4496

UNITED STATES OF AMERICA

SECTION: “G”(5)

ORDER
Before the Court is Defendant the United States of America’s (the “United States”)
unopposed “Motion to Dismiss Claims Against Defendant United States of America for Lack of
Subject Matter Jurisdiction.”1 The pending motion was filed on May 17, 2018, and set for
submission on June 6, 2018.2 Pursuant to Local Rule 7.5, opposition to a motion must be filed
eight days before the noticed submission date. Plaintiff has not filed any opposition to the motion,
timely or otherwise. This Court has authority to grant a motion as unopposed, although it is not
required to do so.3
On April 5, 2018, Plaintiff June Jones (“Plaintiff”) filed suit against Mark Wilberg
(“Wilberg”), an employee of the Transportation Security Administration (“TSA”), in the 8th
Justice of the Peace Court for the Parish of Jefferson, State of Louisiana.4 Plaintiff’s claim stems
from an incident that occurred at the Louis Armstrong New Orleans International Airport on May

1

Rec. Doc. 7.

2

Id.

3

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir. 1993).

4

Rec. Doc. 1-1.

1

24, 2017.5
On May 1, 2018, the United States removed the case to this Court.6 At the time of removal,
the United States was substituted as the sole proper party federal Defendant, pursuant to the Federal
Tort Claims Act (the “FTCA”), because the Acting United States Attorney certified that Wilberg
was in the course and scope of his federal employment during the time in which Plaintiff’s
allegations arose.7
In the instant motion, the United States seeks dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject-matter jurisdiction, based on sovereign immunity and
Plaintiff’s failure to comply with 28 U.S.C. §§ 2401(b) and 2675(a).8 In the pending motion, the
United States contends that this Court lacks subject matter jurisdiction over this matter because
there is no waiver of sovereign immunity as Plaintiff did not file an administrative claim with the
TSA prior to filing this lawsuit.9
“The United States, as sovereign, is immune from suit save as it consents to be sued and
the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the
suit.”10 To clearly waive the Federal Government’s sovereign immunity, the waiver “must be

5

Id.

6

See Rec. Doc. 1.

7

Id. The FTCA provides that a suit against the United States shall be the exclusive remedy for persons with
claims for damages resulting from the actions of federal employees taken within the scope of their office or
employment. 28 U.S.C. § 2679(b)(1).
8

Rec. Doc. 7-1 at 3.

9

Id. at 3–4.

10

Hercules, Inc. v. United States, 516 U.S. 416, 422 (1996) (internal quotation marks and alterations omitted).

2

unequivocally expressed in statutory text.”11 “Consequently, no suit may be maintained against
the United States unless the suit is brought in exact compliance with the terms of a statute under
which the sovereign has consented to be sued.”12 “Where the United States has not consented to
suit or the plaintiff has not met the terms of the statute, the court lacks jurisdiction and the action
must be dismissed.”13
Before a plaintiff may bring an action under the FTCA, she must first comply with the
administrative claim requirement, which is a prerequisite to filing a claim under the FTCA. As set
forth in 28 U.S.C. § 2675(a):
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.
Subject matter jurisdiction over claims brought under the FTCA “is conditioned on compliance
with 28 U.S.C. § 2675(a),” and this jurisdictional requirement may not be waived.14
Even with the most liberal construction, Plaintiff does not allege that she complied with
the administrative requirements of the FTCA prior to filing this action, nor is it apparent from the
record that she has done so. To the contrary, the United States presents a declaration of the Branch
Chief for the Claims Management Branch of the TSA, which states that Plaintiff has not filed any

11

Lane v. Pena, 518 U.S. 187, 192 (1996).

12

Koehler v. United States, 153 F.3d 263, 266 (5th Cir. 1998) (internal citations omitted).

13

Id.

14

Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995), on reh’g in part, 81 F.3d 520 (5th Cir. 1996).

3

administrative tort claims. Accordingly, because Plaintiff has failed to comply with 28 U.S.C.
§ 2675(a) and has not identified any other applicable waiver of sovereign immunity, any claims
Plaintiff is asserting against the United States must be dismissed for want of subject-matter
jurisdiction.
Based on the foregoing,
IT IS HEREBY ORDERED that the United States of America’s “Motion to Dismiss
Claims Against Defendant United States of America for Lack of Subject Matter Jurisdiction”15 is
GRANTED.

4th

NEW ORLEANS, LOUISIANA, this ______ day of September, 2018.

________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

15

Rec. Doc. 7.

4