Grost v. Terhakopian et al

Filing 11

ORDER GRANTING 5 Motion to Dismiss. Signed by Judge Kathleen Cardone. (fm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CRISTINA CRUZ GROST, M.D.
Plaintiff,
v.
ARTIN TERHAKOPIAN, et al.
Defendants.

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EP-12-CV-0114-KC

ORDER
On this day, the Court considered the United States of America’s Motion to Dismiss
(“Motion”), ECF No. 5. For the reasons set forth below, the Court GRANTS the Motion.
I.

BACKGROUND
Cristina Cruz Grost (“Plaintiff”) previously practiced psychiatry at the William

Beaumont Army Medical Center in El Paso, Texas. Notice of Removal Ex. 1 (“Complaint”), at
2, ECF No. 2. On February 21, 2012, Plaintiff filed suit in the Thirty-Fourth District Court of El
Paso County against Artin Terhakopian and Ron Moruzzi, two employees of the United States,
alleging libel, slander, intentional infliction of emotional distress, breach of contract, retaliation,
hostile work environment, and interference with contract rights. Compl. 2-5. Plaintiff seeks
$8,500,000.00 and injunctive relief. Compl. 4-5.
On March 29, 2011, the United States removed the case to this Court pursuant to 28
U.S.C. § 1442. Notice of Removal 1-2, ECF No. 1.1 That same day, the United States motioned
the Court to substitute the United States as the defendant because Terhakopian and Moruzzi were
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To assist the reader in finding citations, the Court references the page numbers
that the CM/ECF docketing system generates.

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employees of the United States, acting within the scope of their federal employment. Mem. in
Supp. of Notice and Substitution 1, ECF No. 2-2. On April 20, 2012, the Court substituted the
United States (“Defendant”) as the named defendant under the Federal Tort Claim Act. Order 1,
ECF No. 4. On May 29, 2012, Defendant filed this motion, seeking to dismiss Plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(1), alleging that (1) Plaintiff never submitted
an administrative claim as required under the [Federal Torts Claim Act], and (2) the United
States has not waived sovereign immunity for suits arising out of “libel, slander, . . . or
interference with contract rights.” Mot. 2.
II.

DISCUSSION
A.

Standard

Federal courts are courts of limited jurisdiction. Exxon Mobile Corp. v. Allapattah
Servs., 545 U.S. 546, 552 (2005); People’s Nat’l Bank v. Office of the Comptroller of the
Currency of the U.S., 362 F.3d 333, 336 (5th Cir. 2004). Without jurisdiction conferred by
statute or the Constitution, federal courts lack the power to adjudicate claims. Exxon Mobil, 545
U.S at 552; People’s Nat’l Bank, 362 F.3d at 336. A party may challenge a district court’s
subject matter jurisdiction by filing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1).
A federal court must consider a motion to dismiss pursuant to Rule 12(b)(1) before any
other challenge because a court must have subject matter jurisdiction before determining the
validity of a claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994).
“[T]he plaintiff constantly bears the burden of proof that the jurisdiction does in fact exist.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Where the motion to dismiss is

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based on the complaint alone, the court must decide whether the allegations in the complaint
sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d
521, 523 (5th Cir. 1998).
B.

Analysis

Defendant argues that the Court should dismiss this case because the Court lacks subject
matter jurisdiction. Mot. 2. First, Defendant asserts that Plaintiff failed to exhaust her
administrative remedies prior to filing this suit. Mot. 2, 5. Second, Defendant argues that the
United States has not waived sovereign immunity as to Plaintiff’s claim of intentional infliction
of emotional distress. Mot. 5-6. Plaintiff responds that she is “in the process” of filing an
administrative claim and that the law does not require dismissal. See Resp. to Def.’s Mots. to
Dismiss (“Response”) ¶ 3.2, ECF No. 6. Plaintiff also argues that her claim for intentional
infliction of emotional distress is “actionable under other aspects of the government’s conduct,”
and thus not barred by the FTCA. Resp. ¶ 2.3.
The Federal Torts Claim Act (“FTCA”) states that “[a]n 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 in
writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). The exhaustion of
administrative remedies is a jurisdictional prerequisite to suit under the FTCA. See Life Partners
Inc. v. United States, 650 F.3d 1026, 1029-30 (5th Cir. 2011) (holding that the administrative
exhaustion requirement is a prerequisite to suit under the FCTA); Gregory v. Mitchell, 634 F.2d
199, 203-04 (5th Cir. 1981) (holding that “the exhaustion of administrative review is a
jurisdictional requisite to the filing of an action under the FTCA.”); see also Mader v. United

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States, 654 F.3d 794, 807-08 (8th Cir. 2011) (concluding that § 2675(a)’s exhaustion
requirement was jurisdictional because of the statute’s text, the statute’s structure, and longstanding precedent within the Eighth Circuit holding that § 2675(a) was jurisdictional).
“[J]urisdiction must exist at the time the complaint is filed.” Gregory, 634 F.2d at 204.
A plaintiff cannot cure a failure to exhaust administrative remedies after filing suit. See McNeil
v. United States, 508 U.S. 106, 111-13 (1993) (holding that plaintiff filed his lawsuit too early
because his claim had not been “finally denied” by the agency prior to the filing of suit);
Bergman v. United States, No. 4:09-CV-061-A, 2010 WL 637951, at *2 (N.D. Tex. Feb. 23,
2010) (citing Gregory, 634 F.2d at 203-04; Price v. United States, 69 F.3d 46, 54 (5th Cir.
1995)) (finding that § 2675(a) requires a plaintiff to exhaust administrative remedies before
filing suit). Accordingly, when a plaintiff has failed to exhaust all administrative remedies, the
district court does not have jurisdiction and must dismiss. See McNeil, 508 U.S. at 113;
Gregory, 634 F.2d at 204-05; Radar Solutions, Ltd. v. U.S. Fed. Commc’n Comm’n, 628 F.
Supp. 2d 714, 725 (W.D. Tex. 2009).
In this case, Plaintiff admits that she has not exhausted her administrative remedies.
Resp. ¶¶ 2.1, 3.3. According to her Response, Plaintiff is either “in the process of filing her
claim” or “will file” the required administrative claim in the future. Resp. ¶¶ 2.1, 3.3. Either
way, Plaintiff has not yet exhausted her administrative remedies and the Court lacks subject
matter jurisdiction over Plaintiff’s claims. See 28 U.S.C. 2675(a); Gregory, 634 F.2d at 203-04.
Despite Plaintiff’s admission that she failed to exhaust her administrative remedies, she
argues that the Court may allow the action to proceed, dismiss the action pending exhaustion of
administrative remedies, or institute a stay of judicial review pending administrative exhaustion.

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Resp. ¶ 3.2. In support of this claim, Plaintiff cites to Sierra Club v. Robertson, 764 F. Supp.
546 (W.D. Ark. 1991). Resp. ¶ 3.2. In Sierra Club, the Arkansas district court ordered a “brief
stay of proceedings” until the administrative process reached its conclusion. Sierra Club, 764 F.
Supp. at 550, rev’d on other grounds, 28 F.3d 753 (8th Cir. 1994). The court stayed the case,
rather than dismissing the case, because the plaintiffs had “been involved in protracted and
complex administrative proceedings that seem[ed] to be unending.” See id. at 549. Moreover,
the defendant had acted “in a way that might forestall judicial review indefinitely if left
unchecked.” Id. at 550.
Sierra Club does not help Plaintiff’s case here. First, as a district court case, Sierra Club
is not binding on this Court. Second, Sierra Club was an environmental case in which
administrative exhaustion was an open issue, and determined to not be jurisdictional. See id. at
549-50. In contrast, it is settled that the FCTA’s exhaustion requirement is jurisdictional. See
Gregory, 634 F.2d at 203-04. Third, the facts are not similar. Unlike in Sierra Club, Plaintiff
has not “been involved in protracted and complex administrative proceedings that seem to be
unending,” nor has Defendant acted in a way that “might forestall judicial review indefinitely if
left unchecked.” See Sierra Club, 764 F. Supp. at 550; Resp. ¶¶ 2.1, 3.3. In sum, Sierra Club is
inapposite to this case.
In conclusion, it is undisputed that Plaintiff has not exhausted her administrative
remedies. Therefore, the Court lacks jurisdiction and must dismiss this case. Because the Court
finds the administrative exhaustion argument dispositive, it does not need to address the issue of
sovereign immunity.

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III.

CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss, ECF

No. 5, and DISMISSES the case.
The Clerk shall close the case.
SO ORDERED.
SIGNED on this 12th day of July, 2012.

______________________________________
KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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