Souder v. U.S. Navy et al
Filing
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MEMORANDUM OPINION AND ORDER granting 17 MOTION for Leave to File Surreply, granting 8 MOTION by defendant to Dismiss; directing clerk to close case. Signed by Judge Paul W. Grimm on 9/22/2014. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
FREDERICK J. SOUDER, III,
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PLAINTIFF,
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V.
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U.S. NAVY, et al.,
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DEFENDANTS.
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CASE NO.: PWG-13-2809
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MEMORANDUM OPINION AND ORDER
In early 2005, Plaintiff Frederick J. Souder, III suspected that his employer, the United
States Navy, may have lost some of his employment records that documented training that he
received. In late 2012, he filed an administrative claim regarding the purported loss of the
records. When this claim did not redress his complaint, he filed this Federal Tort Claims Act
action.
I must determine whether Plaintiff’s administrative claim was timely, despite this more
than seven-year lapse.1 I conclude that it was not, and consequently Plaintiff failed to exhaust
his administrative remedies. Consequently, I will dismiss Plaintiff’s Complaint.
1
The United States of America, which acknowledges that it is the proper defendant for
Plaintiff’s Federal Tort Claims Act case, has moved to dismiss. ECF No. 8; see Def.’s Mem. 5,
ECF No. 8-1. The parties fully briefed the motion, including in Plaintiff’s Surreply. ECF Nos. 81, 14, 15, 17-1. A hearing is not necessary. See Loc. R. 105.6. Plaintiff’s Motion for Leave to
File Surreply, ECF No. 17, which the Government opposed, ECF No. 18, IS GRANTED, and for
the reasons stated in this Memorandum Opinion and Order, Defendant’s Motion to Dismiss IS
GRANTED. This Memorandum Opinion and Order disposes of ECF Nos. 8 & 17.
I. BACKGROUND2
Plaintiff “has been a Navy civilian employee for over 28 years helping and aiding the
United States Military as a Naval ship, submarine and prototype model builder.” Compl. ¶ 2,
ECF No. 1.3 During that time, “Mr. Souder received many commendations and certificates
(apprenticeships etc.) of classroom completion in his field of U.S. Naval ship and prototype
model building.” Id. His personnel folder (“OPF”) contained “all his pertinent job training and
schooling documentation (two apprenticeships: a two year printing and a five year Modelmaking
etc.) and training certificates.” Id. ¶ 9.
He claims that “in 2004 . . . he noticed his training records were missing” and he “made a
request to look at his OPF [personnel folder].” Id. ¶ 8. Plaintiff learned from Lavern Gilchrist in
human resources (“HR”) that “personnel . . . had switched all employee training records over to
an electronic database.” Id. He emailed Gilchrist repeatedly about retrieving his records from
the database, but she did not respond. Id.; Admin. Cl. Att. 2.4 Plaintiff emailed Linda Florian in
HR on March 23, 2005, stating that he “never got any reply[] from Ms. Gilchrist about the
training record problem” and contending that Gilchrist “evidently lost [his] training records.”
Admin. Cl. Att. 1. Florian replied the next day, explaining, id.:
Your records were not lost. When we converted to the region (in 1999 I
believe) everyone’s OPFs [were] condensed and all training records were mailed
to the employee. All HR folks (myself included) mailed all training records to
employees. [S]ome employees lost them, some threw them away, etc. This did
not however, remove them from the training database. Whatever training
2
For purposes of considering Defendant’s Motion, this Court accepts the facts that Plaintiff
alleged in his Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).
3
Plaintiff was self-represented at the time he filed his Complaint, but he retained counsel prior to
opposing Defendant’s Motion to Dismiss. ECF No. 10.
4
Plaintiff filed his Administrative Claim and all attachments to it as Exhibit 1 to his Complaint,
ECF No. 1-1.
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Carderock paid for, is in the system. I will request a training history for you and
send it to you as soon as I get it.
Plaintiff claims that he “never heard anything back” until September 2010, when he filed
a request for his “training records” on September 28, 2010, after learning via the Internet that “he
could request copies of certain parts of his records from his personnel department.” Compl. ¶¶ 8–
9.
In response to his request, he received an email dated September 30, 2010, in which
Jacqueline Wourman from personnel informed him that “HRSC OPF room reviewed the file of
Frederick Souder III. There is [sic] no training records in the file.” Admin. Cl. Att. 4.
Souder asserts that “his worst fears hand [sic] been confirmed; all his pertinent job
training and schooling documentation . . . and training certificates that had originally been in his
OPF were missing.” Compl. ¶ 9. He claims that, unlike other employees, he never received hard
copies of his training records. Id. ¶ 10. Plaintiff filed suit pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 1346, asserting the loss of his training records and alleging that “the
negligent and wrongful acts and omissions of agents and employees of the United States
Government” caused him “loss of job promotion, income, [and] salary increases,” as well as
emotional distress. Id. ¶ 3. He claims that, by “timely serv[ing] . . . notice of his claim on the
Office of the Secretary of the Navy at two locations . . . which were received September 25, and
September 27, 2012,” he complied with the jurisdictional requirements of 28 U.S.C. § 2675,
Compl. ¶¶ 5–6, which requires that a claimant “first present[] the claim to the appropriate
Federal agency” and have the agency “make final disposition of [the] claim” before commencing
an action “upon a claim against the United States for money damages for injury or loss of
property . . . 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,” 28 U.S.C. § 2675(a) .
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The Government moves to dismiss for lack of subject matter jurisdiction, arguing that,
contrary to Plaintiff’s assertion, he did not comply with 28 U.S.C. § 2675(a). Def.’s Mem. 6.
According to the Government, “Mr. Souder had knowledge as early as late 2004 and early 2005
that his training records were lost, but he failed to pursue his administrative remedies until
October 3, 2012,” well beyond the two-year statute of limitations provided in 28 U.S.C.
§ 2401(b) for filing an administrative claim. Id. at 2, 6.
II. STANDARD OF REVIEW
When a defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject
matter jurisdiction, asserting that “a complaint simply fails to allege facts upon which subject
matter jurisdiction can be based,” as the Government does here for failure to exhaust
administrative remedies, “the facts alleged in the complaint are assumed to be true and the
plaintiff, in effect, is afforded the same procedural protection as he would receive under a
12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see Lutfi v. United
States, 527 F. App’x 236, 241 (4th Cir. 2013); Fianko v. United States, No. PWG-12-2025, 2013
WL 3873226, at *4 (D. Md. July 24, 2013). Indeed, as “[i]t is today reasonably clear that a
failure to exhaust administrative remedies based on untimely filings is not an issue of subject
matter jurisdiction,” the proper framework for analyzing a motion to dismiss for untimeliness in
pursuing administrative remedies is that provided by Fed. R. Civ. P. 12(b)(6). See Brown v.
McKesson Bioservices Corp., No. DKC-05-0730, 2006 WL 616021, at *3 (D .Md. Mar. 10,
2006); Upshaw v. Tenenbaum, No. PWG-12-3130, 2013 WL 3967942, at *4 n.3 (D. Md. July 31,
2013). Thus, “the facts alleged in the complaint are taken as true, and the motion must be denied
if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009); see In re KBR, Inc., Burn Pit Litig., 925 F. Supp. 2d
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752, 758 (D. Md. 2013) (quoting Kerns, 585 F.3d at 192). “[W]hen ‘jurisdictional facts are
inextricably intertwined with those [facts] central to the merits, the [district] court should resolve
the relevant factual disputes only after appropriate discovery.’” Blitz v. Napolitano, 700 F.3d
733, 739 (4th Cir. 2012) (quoting Kerns, 585 F.3d at 193).
The Court must act “on the assumption that all the allegations in the complaint are true
(even if doubtful in fact),” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (citations
omitted), and must “construe the facts and reasonable inferences derived therefrom in the light
most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). That
said, “‘factual allegations must be enough to raise a right to relief above a speculative level.’”
Proctor v. Metro. Money Store Corp., 645 F. Supp. 2d 464, 472–73 (D. Md. 2009) (quoting
Twombly, 550 U.S. at 545). Particularly, the Court is not required to accept as true “a legal
conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), or
“allegations that are merely conclusory, unwarranted deductions of fact or unreasonable
inferences,” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation omitted).
In reviewing a motion to dismiss, “[t]he court may consider documents attached to the
complaint, as well as documents attached to the motion to dismiss, if they are integral to the
complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-121569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Moreover,
where the allegations in the complaint conflict with an attached written instrument, “the exhibit
prevails.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
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1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2–3 (D.
Md. Apr. 12, 2011).
III. DISCUSSION
Through the FTCA, the Government provides a limited waiver of its sovereign immunity,
and “the circumstances of its waiver must be scrupulously observed and not expanded by the
courts.” See Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000) (citing United States
v. Kubrick, 444 U.S. 111, 117-18 (1979)). Therefore, an aggrieved party “must file an FTCA
action in careful compliance with its terms.” Id. One “prerequisite to filing suit under the FTCA
involves the presentation of an administrative claim to the government within two years of the
incident.” Id. (citing 28 U.S.C. § 2401(b) (1994)). Indeed, § 2401 provides that “[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.” 28 U.S.C. § 2401(b).
Here, the issue is when Plaintiff’s claim accrued. As Plaintiff sees it, his claim did not
accrue until September 30, 2010, when he learned that his training records were lost. But,
according to the Government, Plaintiff knew as much back in early 2005, and his claim accrued
at that time.
In FTCA cases, federal law governs the limitations period and the date
when a claim accrues. See, e.g., Miller v. United States, 932 F.2d 301, 303 (4th
Cir. 1991) (“State law determines whether there is an underlying cause of action;
but federal law defines the limitations period and determines when that cause of
action accrued.”)[.] Under 28 U.S.C. § 2401(b), a “cause of action accrues under
the FTCA when the plaintiff knows, or in the exercise of reasonable diligence
should have known, that he is injured and of the cause of the injury.” Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993) (citing United States v. Kubrick,
444 U.S. 111, 120 (1979); Gould v. U.S. Dep’t of Health & Human Servs., 905
F.2d 738, 742 (4th Cir. 1990).
Trinkle v. United States, No. CCB-11-3316, 2012 WL 1963393, at *3 (D. Md. May 31, 2012).
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Plaintiff claims that the March 24, 2005 email did not put him on notice that his records
were lost. At first glance, the email appears to support his position, as its first sentence states:
“Your records were not lost.” Admin. Cl. Att. 1. But, the email then explains that “OPFs [were]
condensed and all training records were mailed to the employee.” Id. Although the email states
that Plaintiff’s records were still in “the training database,” it is abundantly clear from the email
that they were no longer in his OPF. See id.
On its own, this email might not support the conclusion that, after its receipt, Plaintiff
should have known that something was amiss, as it also states that someone in HR would
“request a training history” for him. See id. Yet, Plaintiff admits that “in 2004 . . . he noticed his
training records were missing.” Compl. ¶ 8. And, significantly, the September 30, 2010 email
that Plaintiff claims finally put him on notice contains the same information and nothing more: It
states that there were “no training records in [his] file.” Admin. Cl. Att. 4. If that statement was
enough in 2010 to prompt Plaintiff to file an administrative complaint, it should have been
enough in 2005. Therefore, Plaintiff should have known of the incident—the loss of the records
from his OPF—as of March 24, 2005, and his claim accrued on that date. See Muth, 1 F.3d at
250; Trinkle, 2012 WL 1963393, at *3. Further, Plaintiff became suspicious in 2004, sent emails
in 2005, and then, according to his Complaint, did not pursue the matter until late 2010.5 These
infrequent inquiries fall far shy of a showing of “reasonable diligence.” See Muth, 1 F.3d at 250.
Plaintiff had until March 24, 2007 to file his administrative claim, see 28 U.S.C. § 2401(b), but
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Even if I were to consider the April 2, 2007 letter Plaintiff wrote to Senator Barbara Mikulski,
which Plaintiff attached to his Opposition and Defendant attached to its Motion to Dismiss, and
in which Plaintiff complained that his “personnel folder was compromised” because his “training
records and Certificates were removed illegally,” Mikulski Ltr. 9, Pl.’s Opp’n Ex. A, ECF No.
14-1; see also Robert B. Thomas Decl. Att. C, Def.’s Mem. Att. A, ECF No. 8-5, one additional
letter at the midpoint of a five-year span would not show “reasonable diligence.” See Muth, 1
F.3d at 250.
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failed to do so until September 2012, more than five years too late. Consequently, Plaintiff
failed to exhaust his administrative remedies prior to filing suit in this Court. See Kokotis, 223
F.3d at 278.
IV. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Leave to File Surreply, ECF No. 17,
IS GRANTED, and Defendant’s Motion to Dismiss, ECF No. 8, IS GRANTED. The Clerk is
directed to CLOSE THIS CASE.
Dated: September 22, 2014
/S/
Paul W. Grimm
United States District Judge
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