McKenzie v. A.A.F.E.S. et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Esther Salas on 2/102017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JEREMIAH MCKENZIE,
Plaintiff,
v.
A.A.F.E.S., et al.
Defendants.

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Civil Action No. 15-2529 (ES) (JAD)
MEMORANDUM OPINION

SALAS, DISTRICT JUDGE
1.

Pro se Plaintiff Jeremiah McKenzie sued the Army and Air Force Exchange

Service (“AAFES”) and several individuals associated with the AAFES, alleging that, while
employed with the AAFES, he suffered bullying and workplace violence when his “coworkers
would constantly make up stories that [he] was not doing [his] job and giving [him] a hard time.”
(D.E. No. 1 (“Compl.”) at 5). Plaintiff further alleges that AAFES management and staff “made
up a false story that he had guns, bombs [and] automatic weapons,” and that these false statements
caused him to lose his job and led to his arrest and ban from all military bases in Europe. (Id.).
2.

Defendant United States of America1 (“Defendant”) moved to dismiss Plaintiff’s

Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

1

By Court Order dated August 24, 2016, the Hon. Joseph A. Dickson, U.S.M.J., (i) substituted the United
States of America as Defendant in place of named defendants John Sharp, Wendi Becker, Rachel Longoria, Jadi
Rendulic, Gladelys Pabon, Ronald Lavallis, Marcus A. Culbreath, and Sara A. Roth (collectively, the “Individual
Defendants); and (ii) dismissed all claims against the Individual Defendants. (See D.E. No. 21). This Court will also
dismiss all claims against defendants Bradley Barnhart, Heidi Porter, and JH (Jean), as Plaintiff has failed to allege
any claims against these defendants.

12(b)(1). (See D.E. No. 18-1 (“Def. Mov. Br.)). Plaintiff opposed Defendant’s motion.2 (See
D.E. No. 23). For the reasons below, the Court GRANTS Defendant’s motion and dismisses
Plaintiff’s Complaint with prejudice.
3.

“It is a fundamental principle of sovereign immunity that federal courts do not have

jurisdiction over suits against the United States unless Congress, via a statute, expressly and
unequivocally waives the United States’ immunity to suit.” United States v Bein, 214 F.3d 408,
412 (3d Cir. 2000).3 The Federal Tort Claims Act (“FTCA”) provides a limited waiver of
sovereign immunity for claims against the United States seeking monetary damages based on the
“negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant.” See 28 U.S.C. § 1346(b)(1).
4.

Pursuant to the FTCA, a claimant seeking monetary damages may not file a tort

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.” 28 U.S.C.
§ 2675(a); see also Medina v. City of Phila., 219 F. App’x 169, 172 (3d. Cir. 2007). In other
words, the claimant must exhaust his or her administrative remedies with the appropriate federal
agency before initiating suit. “The filing of an administrative claim with the appropriate agency

Furthermore, the Court notes that the United States of America is the only proper defendant in an action
arising under the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. § 2679(a); Dambach v. United States, 211 F.
App’x 105, 108 (3d Cir. 2006). Accordingly, the Court dismisses all claims against AAFES.
Plaintiff’s opposition comprises two single-spaced e-mails and various exhibits and thus violates Local Civil
Rule 7.2. Nevertheless, the Court in its discretion accepts Plaintiff’s opposition for purposes of deciding Defendant’s
motion. See Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (“Our policy of liberally construing pro
se submissions is driven by the understanding that implicit in the right of self-representation is an obligation on the
part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important
rights because of their lack of legal training.”).
2

3

Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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is referred to as ‘presentment.’” Medina, 219 F. App’x at 172. Under the FTCA, there is a twoyear limit on presentment. See 28 U.S.C. § 2401(b). Finally, a plaintiff carries the burden of proof
to establish presentment of his or her claim to the appropriate federal agency. See Medina, 219 F.
App’x at 172.
5.

The FTCA’s presentment procedures are strictly construed. See Livera v. First

Nat’l State Bank of New Jersey, 879 F.2d 1186, 1194-95 (3d Cir. 1989); Medina, 219 F. App’x at
172. And “[f]ailure to observe the requirements of the [FTCA] mandates dismissal.” See Peterson
v. United States, 694 F.2d 943, 945 n.5 (3d Cir. 1982). Accordingly, if a plaintiff commences a
suit without first exhausting administrative remedies, his suit must be dismissed for lack of subject
matter jurisdiction. See McNeil v. United States, 508 U.S. 106, 112-13 (1993); see also Medina,
219 F. App’x at 171-72 (“Because the FTCA permits suits against the Government by private
parties, its presentment requirement and limitation periods are considered jurisdictional.”).
6.

Here, Plaintiff does not allege in his Complaint that he exhausted his administrative

remedies, nor does he address this argument in his opposition. Furthermore, Defendant submitted
a supporting declaration from Colonel Patrick J. Wells, Chief of the United States Air Force’s
Claims and Tort Litigation Division, setting forth various records searches and other procedures
undertaken by Colonel Wells to determine whether Plaintiff ever presented an administrative tort
claim to the Air Force.4 (D.E. No. 18-2, Declaration of Colonel Patrick J. Wells (“Wells Decl.”)
at 1-2). Based on these searches, the Wells Declaration concludes that “there is no record
indicating that a tort claim has ever been submitted to the Air Force or AAFES” by Plaintiff. (Id.
at 2).

4

According to the Wells Declaration, the Air Force is responsible for adjudicating administrative tort claims
filed alleging negligence on the part of AAFES employees that occurs on Air Force installations. (See Wells Decl. at
1).

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7.

Based on the foregoing, the Court finds that Plaintiff has not met his burden of

demonstrating compliance with the FTCA’s presentment requirement. Consequently, Plaintiff’s
claims against Defendant must be dismissed.5 See Bender v. Hargrave, No. 15-6936, 2015 WL
7574763, at *3 (D.N.J. Nov. 25, 2015) (granting motion to dismiss for lack of subject matter
jurisdiction because plaintiff failed to exhaust administrative remedies).
8.

Defendant additionally argues that Plaintiff’s claims are barred by the FTCA’s

intentional-torts exception. (See Def. Mov. Br. at 8). Section 2680(h) of the FTCA provides an
exception to the waiver of sovereign immunity for “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights . . . .” 28 U.S.C. § 2680(h); see also
Vanderklok v. United States, 142 F. Supp. 3d 356, 360 (E.D. Pa. 2015). So, to the extent Plaintiff
alleges claims covered by § 2680(h)—including, for example, claims for slander, libel, false arrest,
or malicious prosecution—those claims are barred by the FTCA. See, e.g., Izzo v. U.S. Gov’t, 138
F. App’x 387, 389 (3d Cir. 2005) (affirming dismissal of defamation claim as barred by § 2680(h)
of the FTCA).6

To the extent Plaintiff’s Complaint alleges claims for employment discrimination, those claims must also be
dismissed. Pursuant to AAFES Operating Procedures and federal law, Plaintiff was required to initiate contact with
an AAFES Equal Employment Opportunity counselor within forty-five days of the last discriminatory action. (See
D.E. No. 18-3, Declaration of Carol Chandler (“Chandler Decl.”) at 1-3); see also German v. Pena, 88 F. Supp. 2d
216, 218-20 (S.D.N.Y. 2000) (dismissing federal employee’s discrimination claim where employee failed to initiate
contact with EEO counselor within forty-five days of the alleged discrimination). Plaintiff does not allege that he ever
initiated contact with an AAFES counselor, and Defendant’s searches of AAFES records “revealed that [Plaintiff] has
never initiated contact with an EEO counselor regarding his separation of employment effective February 14, 2013.”
(See Chandler Decl. ¶ 7).
5

For completeness, the Court notes that Defendant advances a third argument: that Plaintiff’s claims are barred
by the FTCA’s foreign-country exception. (Def. Mov. Br. at 9). Plaintiff does not address this argument in his
opposition brief. Because the Court finds that Plaintiff’s claims are barred for failure to exhaust administrative
remedies and by virtue of the FTCA’s intentional-torts exception, the Court declines to address this third argument.
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9.

For the foregoing reasons, Plaintiff’s Complaint is dismissed with prejudice. An

appropriate order follows.
s/Esther Salas
Esther Salas, U.S.D.J.

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