Fogle v. Pacheco

Filing 15

ORDER GRANTING 13 Motion to Dismiss Signed by Judge Kathleen Cardone. (dl1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JAMAAL MARION FOGLE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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EP-14-CV-240-KC

ORDER
On this day, the Court considered Defendant’s Motion to Dismiss (the “Motion”), ECF
No. 13. By the Motion, Defendant requests that the Court dismiss the above-captioned case (the
“Case”) for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). Mot. 3. For the following reasons, the Court GRANTS the Motion.
I.

BACKGROUND
On May 18, 2014, Plaintiff filed his “Petition: Small Claims Case” (“Complaint”)

alleging “[d]efamation of character in the form of slander and libel” against Rosa Lydia Pacheco.
See Am. Notice of Removal (“Amended Notice”), ECF No. 6, at 5.
Ms. Pacheco removed the Case to this Court on June 25, 2014, pursuant to 28 U.S.C. §
1442, which authorizes removal of a case against an officer of the United States “for or relating
to any act under color of [his or her] office.” 28 U.S.C. § 1442(a)(1); Am. Notice 2.
On the same day, Defendant moved to substitute itself in Ms. Pacheco’s place as the
defendant in the Case, so that the Case would thereafter “proceed as an action against the United
States[] under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80.”
See Am. Notice of Substitution and Appl. for Order Thereon (“Motion to Substitute”), ECF No.
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9, at 1. Plaintiff did not respond to the Motion to Substitute, and the Court granted that motion
on July 17, 2014. See Order, ECF No. 12.
Defendant filed the Motion on August 21, 2014. See Mot. Plaintiff did not respond to
the Motion.
II.

DISCUSSION
A.

Standard

Federal courts are courts of limited jurisdiction. Exxon Mobile Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 552 (2005). Without jurisdiction conferred by statute or the
Constitution, federal courts lack the power to adjudicate claims. Id. 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). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Where a defendant files a “factual
attack” on the court’s jurisdiction, supported by evidentiary materials, a plaintiff “is also required
to submit facts through some evidentiary method and has the burden of proving by a
preponderance of the evidence that the trial court does have subject matter jurisdiction.”
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
B.

Analysis

By the Motion, Defendant argues that the Court lacks subject matter jurisdiction on two
grounds. First, Defendant argues that Plaintiff failed to exhaust his administrative remedies
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before filing suit as required by the Federal Tort Claims Act (“FTCA”). Mot. 5-6. Further,
Defendant argues that the FTCA does not waive the United States’ sovereign immunity from
suits arising out of libel or slander. Id. at 6-7. Plaintiff has not responded to Defendant’s
arguments. The Court addresses each in turn.
1.

Whether Plaintiff has exhausted his administrative remedies

Defendant first argues that the Court lacks subject matter jurisdiction because Plaintiff
has failed to exhaust his administrative remedies.1 Mot. 5-6. “The requirement of exhaustion of
administrative review is a jurisdictional requisite to the filing of an action under the FTCA.” See
Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981). Under the express provisions of the
FTCA, a plaintiff may not sue 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 [or her] office or employment,
unless the claimant shall have first presented the claim to the appropriate Federal
agency and his [or her] claim shall have been finally denied by the agency in
writing and sent by certified or registered mail.
28 U.S.C. § 2675(a).
If a plaintiff fails to exhaust his or her remedies by obtaining a final agency denial as required by
28 U.S.C. § 2675(a), the federal district courts lack subject matter jurisdiction over the claim.
See Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995).
Defendant has presented evidence that Plaintiff did not file any administrative complaint
with the relevant federal authority prior to instituting this action. See Decl. of Connie E.
McConahy, Mot. Ex. A, ECF No. 7-2. Accordingly, Plaintiff has the burden to submit facts
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Defendant cites to 28 U.S.C. § 2401(b) to support its contention that Plaintiff must exhaust his administrative
remedies before bringing an action against the United States government. Mot. 5. Though Defendant is correct that
the FTCA requires exhaustion of administrative remedies, the Court notes that this requirement is found in 28
U.S.C. § 2675. As the Court does not understand Defendant’s motion to assert that Plaintiff’s claim is beyond §
2401(b)’s statute of limitations, and the action must be dismissed on other grounds, the Court does not address §
2401(b).

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proving by a preponderance of the evidence that the Court does have subject matter jurisdiction.
Paterson, 644 F.2d at 523. When reviewing a factual attack, there is no presumption of
truthfulness to Plaintiff’s allegations, and the Court “is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Evans v. Tubbe, 657 F.2d 661, 663 (5th
Cir. 1981).
Plaintiff’s Complaint provides no indication that Plaintiff has filed any form of
administrative complaint. See Mot. 4-7. Nor has Plaintiff presented any other evidence
indicating that he has otherwise exhausted his administrative remedies. Defendant’s evidence
that Plaintiff has not exhausted his administrative remedies, therefore, is undisputed. The Court
accordingly finds that the weight of the evidence indicates that Plaintiff never filed the required
administrative complaint. Consequently, the Court lacks subject matter jurisdiction over the
Case. See 28 U.S.C. § 2675(a); Nwangoro v. Dep’t of Army, 952 F. Supp. 394, 397 (N.D. Tex.
1996).
2.

Whether the FTCA waives the United States’ sovereign immunity for
suits arising out of libel or slander

Defendant further argues that the Court lacks jurisdiction because the FTCA does not
waive the United States’ sovereign immunity for suits arising out of libel or slander. Mot. 6.
“As the sovereign, the United States is immune from suit unless, and only to the extent
that, it has consented to be sued.” Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994)
(citation omitted). Through the FTCA, the United States has consented to a limited waiver of its
sovereign immunity under some circumstances. 28 U.S.C. § 2674; Truman, 26 F.3d at 594.
Nonetheless, the FTCA expressly exempts from its waiver of sovereign immunity “[a]ny claim
arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
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process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C.
§ 2680(h); Truman, 26 F.3d at 594-95. “If the conduct upon which a claim is based constitutes a
claim ‘arising out of’ any one of the torts listed in section 2680(h), then the federal courts have
no jurisdiction to hear that claim.” Truman, 26 F.3d at 594 (citing United States v. Neustadt, 366
U.S. 696 (1961)).
According to Plaintiff’s Complaint, “[t]he basis for the claim which entitles the plaintiff
to seek relief against the defendant is . . . [d]efamation of character in the form of slander and
libel.” Am. Notice 5. As stated above, claims under both libel and slander are expressly
exempted from the FTCA’s waiver of sovereign immunity. 28 U.S.C. § 2680(h); Williams v.
United States, 71 F.3d 502, 507 (5th Cir. 1995). Furthermore, Plaintiff has not presented, and
the Court has not found, any other grounds by which the United States has waived its sovereign
immunity in relation to Plaintiff’s claims. Accordingly, the Court lacks jurisdiction to hear the
Case. See Williams, 71 F.3d at 507; Truman, 26 F.3d at 594.
III.

CONCLUSION
“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting

jurisdiction.” Ramming, 281 F.3d at 161. The Court finds that Plaintiff has failed to carry his
burden to establish that the Court has subject matter jurisdiction to hear Plaintiff’s claims against
the United States. Consequently, the Court lacks subject matter jurisdiction and must dismiss the
Case. See Fed. R. Civ. P. 12(h)(3).
It is therefore ORDERED that Defendant’s Motion to Dismiss, ECF No. 13, is
GRANTED. The Court hereby DISMISSES the Case.
The Clerk shall close the Case.

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SO ORDERED.
SIGNED this 13th day of October, 2014.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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