Smith v. United States of America et al

Filing 10

RULING and ORDER granting 4 Motion to Dismiss. ORDERED that Plaintiffs claim against the United States is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Signed by Judge John W. deGravelles on 10/10/2019. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BERNICE SMITH
CIVIL ACTION
v.
NO. 19-238-JWD-RLB
UNITED STATES OF AMERICA, ET
AL.
RULING AND ORDER
This matter comes before the Court on the United States of America’s Motion to Dismiss
(Doc. 4) filed by the United States (“Defendant” or “United States”). Plaintiff Bernice Smith
opposes the motion. (Doc. 9.) Oral argument is not necessary. The Court has carefully
considered the law, facts in the record, and arguments and submissions of the parties and is
prepared to rule. For the following reasons, Defendant’s motion is granted, and Plaintiff’s claim
against the United States is dismissed for lack of subject matter jurisdiction.
I.

Relevant Factual Background
The following factual background touches on the allegations of the operative complaint,

but the Court primarily focuses on the exhibits submitted and cited to by Defendant. 1
Plaintiff brings this lawsuit pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq., alleging damages arising out of a motor vehicle accident. (Doc. 1 at 1, 2.) On
April 23, 2017, Plaintiff was driving a 2011 Chevrolet Equinox east on Government Street in
East Baton Rouge Parish, in the right travel lane. (Id. at 2.) Purportedly, at approximately the
same time, Bruce Hillman was driving a 2016 Kenworth 18-wheeler, also traveling east on

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As will be explained below, when evidence is presented with a motion to dismiss, the attack is “factual” and “no
presumptive truthfulness attaches to [the] plaintiff’s allegations.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981).

Government Street, in the left travel lane. (Id.) Plaintiff alleges, “Suddenly and without warning,
Bruce Hillman began making a right turn onto Acadia Street and struck [her] while turning.”
(Id.) Plaintiff alleges that, at the time of the accident, Hillman was an employee of the United
States within the meaning and intent of the FTCA, and that at all pertinent times, Hillman was
employed by the United States Postal Service (“USPS”). (Id. at 3.) Additionally, Plaintiff
contends Hillman was in the course and scope of his employment with the United States at the
time of the accident, making the United States vicariously liable for the damages caused by
Hillman. (Id. at 4.)
On April 23, 2018, Plaintiff presented an administrative tort claim pursuant to the FTCA
on a Standard Form 95 (“SF-95”) to the United States Department of Justice (“DOJ”) regarding
the motor vehicle collision which occurred on April 23, 2017. (Pl. Ex. A, Doc. 1-8.) In section
one of the SF-95, Plaintiff listed the U.S. DOJ as the appropriate federal agency to whom her
claim was directed.

(Pl. Ex. A, Doc. 1-8.)
Subsequently, on February 5, 2019, the DOJ returned Plaintiff’s claim with a letter
stating that if Plaintiff should determine that the DOJ is the “appropriate agency” and the
employer of the involved driver, Plaintiff could then resubmit her claim to them. 2 (Pl. Ex. B, Doc
1-9.) On April 23, 2019, Plaintiff submitted her claim for the second time to the DOJ regarding

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The letter specifically states, “Please resubmit a valid claim form at the address above, if you have determined that
the U.S. DOJ is the ‘appropriate agency’ and the employer of the involved driver.” (Pl. Ex. B, Doc 1-9.)

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the April 23, 2017 accident. (Pl. Ex. E, Doc. 9-5.) On May 1, 2019, the DOJ again returned
Plaintiff’s claim with a letter advising Plaintiff to resubmit a valid claim should she determine
that the DOJ is the “appropriate agency.” 3 (Pl. Ex. G, Doc 9-7.)
As a result, Plaintiff brought this action on April 23, 2019, alleging negligence against
Defendant United States. (Doc. 1.) The United States now moves to dismiss the complaint for
lack of subject matter jurisdiction.
II.

Rule 12(b)(1) Standard
Concerning the standard for Rule 12(b)(1) motions, the Fifth Circuit has explained:
Motions filed under Rule 12(b)(1) . . . allow a party to challenge the subject matter
jurisdiction of the district court to hear a case. Fed. R. Civ. P. 12(b)(1). Lack of
subject matter jurisdiction may be found in any one of three instances: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts. Barrera–Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction. McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995).
Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does
in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
In examining a Rule 12(b)(1) motion, the district court is empowered to consider
matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981).

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
There are two forms of Rule 12(b)(1) challenges to subject matter jurisdiction: “facial
attacks” and “factual attacks.” See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
“A facial attack consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence that
challenges the court’s jurisdiction based solely on the pleadings.” Harmouche v. Consulate

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Specifically, that letter says, “Please resubmit a valid claim at the address above, once you have determined the
‘appropriate agency’ that employs the driver of the involved vehicle. You should submit the claim to that agency for
processing.” (Pl. Ex. G, Doc 9-7.)

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General of the State of Qatar, 313 F. Supp. 3d 815, 819 (S.D. Tex. June 12, 2018) (citing
Paterson, 644 F.2d at 523). In considering a “facial attack,” the court “is required merely to look
to the sufficiency of the allegations in the complaint because they are presumed to be true. If
those jurisdictional allegations are sufficient[,] the complaint stands.” Paterson, 644 F.2d at 523.
In contrast, “[a] factual attack challenges the existence of subject matter jurisdiction in
fact, irrespective of the pleadings, and matters outside the pleadings such as testimony and
affidavits may be considered.” Harmouche, 313 F. Supp. 3d at 819 (citing Paterson, 644 F.2d at
523). “[N]o presumptive truthfulness attaches to the plaintiff’s allegations, and the existence of
disputed facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
Here, Defendant United States does not just challenge the sufficiency of the pleading but
claims that Plaintiff has failed to meet the FTCA's jurisdictional prerequisites. In challenging
this, Defendant United States relies on matters outside the pleadings, so the Court will treat this
motion as a 12(b)(l) factual attack on subject matter jurisdiction. Paterson, 644 F.2d at 523; see
also Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981). As such, the Court weighs the
evidence without presuming the truthfulness of Plaintiff’s allegations or attempting to view the
evidence in the light most favorable to Plaintiff.
III.

Discussion
A. Parties’ Arguments
The United States files the instant motion under Federal Rule of Civil Procedure 12(b)(1)

seeking to dismiss Plaintiff’s claim for lack of subject matter jurisdiction. (Doc. 4-1.) Defendant
contends that, as a jurisdictional prerequisite to filing a lawsuit under the FTCA, a plaintiff is
required to exhaust administrative remedies by presenting the claim to the appropriate federal

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agency. Defendant argues that, because Plaintiff filed her administrative claim with the DOJ, and
not with the USPS, Plaintiff did not file a claim with the appropriate federal agency prior to
filing this suit. As a result, Defendant concludes the Court lacks subject matter jurisdiction over
her claims.
In response, Plaintiff contends that she has exhausted her administrative remedies as
required by 28 U.S.C. § 2675, in that she filed an administrative claim with the DOJ on or about
October 31, 2018 and then submitted her claim a second time to the DOJ on April 23, 2019.
(Doc. 9.)
B. Applicable Law
The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity,
making the United States liable for certain torts committed by federal employees acting within
the scope of their employment. See 28 U.S.C. § 2679 (exclusiveness of remedy); see also United
States v. Orleans, 425 U.S. 807, 813, 96 S. Ct. 1971, 1975 (1976). The FTCA requires each
individual seeking damages to present his or her claim to the appropriate administrative agency
before a suit in tort can be initiated against the United States. Frantz v. United States, 29 F.3d
222, 224 (5th Cir. 1994). More specifically, 28 U.S.C. § 2675(a) provides in pertinent part that
an FTCA action “shall not be instituted upon a claim against the United States . . . 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.” (emphasis added.)
The “appropriate Federal agency” is the agency “whose activities gave rise to the claim.”
28 C.F.R. § 14.2(b)(1). 4 The requirement that a claimant present a claim to the “agency whose

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28 C.F.R. § 14.2(b)(1) also provides that when an administrative claim is presented to the wrong agency, it should
be forwarded to the appropriate agency if the proper agency can be identified from the claim. If the transfer is not
feasible, the regulation directs that the claim be returned to the claimant. Here, Plaintiff’s claim did not mention the
USPS in any manner; nor did it refer to any other federal agency outside of the DOJ. (See Doc. 1-8.) Moreover, the

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employee's activity allegedly caused the damage” helps facilitate settlement of meritorious
claims without the need for filing suit and “possible expensive and time-consuming litigation.”
McNeil v. United States, 508 U.S. 106, 112 n. 7, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
Moreover, failure to completely exhaust administrative remedies prior to commencing a
civil action under the FTCA deprives the Court of subject matter jurisdiction. McAfee v. Fifth
Circuit Judges, 884 F.2d 221, 222-23 (5th Cir. 1989) (per curiam); Hinojosa v. U.S. Bureau of
Prisons, 506 F. App’x 280, 283 (5th Cir. 2013) (per curiam); Price v. United States, 69 F.3d 46,
54 (5th Cir. 1995). The burden of proving that jurisdiction exists is borne by the plaintiff as the
party asserting jurisdiction. Manchaca v. Chrysler Credit Corp., 613 507, 511 (5th Cir. 1980);
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
C. Analysis
The Court finds that the United States should prevail in the instant motion. Because
Plaintiff did not file an administrative claim with the “appropriate Federal agency” prior to
initiating this suit, she failed to comply with the jurisdictional requirements of § 2675(a), and, as
such, the Court lacks subject matter jurisdiction over her FTCA claim.
While the Complaint implies that Plaintiff’s claim was properly presented to the
“appropriate Federal agency,” Defendant cites to evidence that indicates Plaintiff never filed an
administrative claim with the “appropriate Federal agency” and thus did not exhaust her claim
prior to filing this suit. 5

USPS could not confirm that Hillman was its employee at the time of Plaintiff’s accident. (Def. Ex. A, Doc. 4-2.)
Since the transfer of the claim to a different agency was not feasible, the DOJ properly discharged its obligation
under the regulation by returning the claim to Plaintiff.
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More specifically, the Complaint states that “Complainant has exhausted her administrative remedies” by filing a
claim with the DOJ on or about April 23, 2018, and the DOJ “denied the claim on February 5, 2019,” and
“Complainant files this complaint within six months after receiving the final disposition which constituted a denial
thereof.” (Doc. 1 at 2.)

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The jurisdictional requirements are unambiguous and specifically outlined on the reverse
side of the claim form. They read:

(Pl. Ex. A, Doc. 1-8.) Plaintiff’s administrative tort claim named the DOJ as the “appropriate
Federal agency” to whom her claim was directed. (Pl. Ex. A, Doc. 1-8.) However, the USPS is
the “appropriate Federal agency” under 28 C.F.R. § 14.2(b)(1) and as defined by the instructions
on the SF-95 Claim Form because the USPS is the agency whose purported employee (Hillman)
was involved in the incident. Thus, for purposes of making a claim pursuant to 28 U.S.C. § 2675,
the USPS was the “appropriate Federal agency” to which to present an administrative tort claim,
not the DOJ.
In addition, although the Complaint states that Plaintiff filed an administrative claim with
the “appropriate Federal agency” on April 23, 2018 for negligence, the United States has
proffered a sworn affidavit from Kimberly Herbst, Supervisor, Tort Claims
Examiner/Adjudicator with the United States Postal Service National Tort Center. (Def. Ex. A,
Doc. 4-2.) Herbst states that she searched the Postal Service Law Department records and the
Postal Service Tort Claim Coordinators database for evidence of a claim submitted by or on
behalf of Plaintiff and discovered no such claim. (Id.) Plaintiff has submitted no evidence to
contest this assertion; thus, she has not met her burden of showing that her FTCA claims are
properly exhausted.
Plaintiff also alleges that her claim was denied and therefore properly exhausted;
however, Defendant correctly points out that Plaintiff mischaracterized the letters she received
from the DOJ when her SF-95 Claim Forms were returned. Because the DOJ could not

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determine the federal government’s interest in the matter, it returned the administrative claim to
Plaintiff on February 5, 2019, and again on May 1, 2019, advising Plaintiff to resubmit a valid
claim if she determined that the DOJ is the “appropriate Federal agency.” (Pl. Ex. B, Doc 1-9; Pl.
Ex. G, Doc 9-7.) These do not constitute denials of her claim under 28 U.S.C. § 2675(a); the
DOJ merely returned Plaintiff’s claim to her without denying it. Further, the DOJ is not the
“appropriate Federal agency” and could not determine the appropriate agency which to forward
Plaintiff’s claim, so pursuant to 28 C.F.R. § 14.2(b)(1), they returned the claim to Plaintiff.
In sum, because the undisputed evidence in the record indicates that Plaintiff did not
present her administrative claim to the USPS as the “appropriate Federal agency”, she failed to
completely exhaust her administrative remedies prior to commencing this suit in accordance with
§ 2675(a). Absent compliance with the statute’s exhaustion requirement, a federal district court
is without jurisdiction to consider any claims under the FTCA. McAfee v. 5th Circuit Judges, 884
F.2d 221, 222-23 (5th Cir. 1989). Consequently, Plaintiff’s claim against the United States under
the Federal Tort Claims Act must be dismissed.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the United States of America’s Motion to Dismiss (Doc. 4) is

GRANTED; and
IT IS FURTHER ORDERED that Plaintiff’s claim against the United States is
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
Signed in Baton Rouge, Louisiana, on October 10, 2019.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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