Atia v. United States Postal Service et al

Filing 11

ORDER granting 5 United States' Motion to Dismiss and DISMISSES Mr. Atias complaint without leave to amend and without prejudice, by Judge James L. Robart.(MD, cc to pltf)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

AHMAD RAMADAN SELEEM
ATIA,

11

CASE NO. C14-1966JLR
ORDER DISMISSING
COMPLAINT

Plaintiff,
12
v.
13
UNITED STATES,
14
Defendant.
15
I.

INTRODUCTION

16
Before the court is Defendant United States’ motion to dismiss Plaintiff Ahmad
17
Ramadan Seleem Atia’s (“Mr. Atia”) complaint. (Mot. (Dkt. # 5).) The court has
18
considered the motion, the balance of the record, and the applicable law. Considering
19
itself fully advised, the court grants the motion and dismisses Mr. Atia’s complaint
20
without leave to amend and without prejudice.
21
//
22
ORDER- 1

1

II.

BACKGROUND

On August 26, 2014, Mr. Atia filed a “Small Claims – Notice of Claim” in

2

3 Snohomish County District Court against the Lynnwood Post Office and Postmaster
4 James A. Sutliff claiming that he was owed “$736.75 + Costs” for “Mobile Phone +
5 Postage.” (Small Claim (Dkt # 1-2).) The action was removed to federal court and,
6 pursuant to 28 U.S.C. § 2679(d)(1), the United States was substituted as the party
7 defendant. (See Not. of Rem. (Dkt. # 1); Not. of Substitution (Dkt. # 2).) The United
8 States moved to dismiss the action for lack of subject matter jurisdiction. (Mot. (Dkt. #
9 5).) Mr. Atia did not file a response. (See generally Dkt.) That motion is now before the
10 court.
11

III.

ANALYSIS

12 A.

Postal Service Exception

13

The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity

14 that permits claims to be brought against the United States for the “negligent or wrongful
15 act or omission of any employee of the Government while acting within the scope of his
16 office or employment.” 28 U.S.C. § 1346(b)(1). Certain types of claims, however, are
17 expressly exempted from the FTCA’s scope. See 28 U.S.C. § 2680; Molzof v. United
18 States, 502 U.S. 301, 311 (1992) (“Through the § 2680 exceptions, Congress has taken
19 steps to protect the Government from liability that would seriously handicap efficient
20 government operations.”). The postal service exception provides that the FTCA’s waiver
21 of sovereign immunity does not extend to “any claim arising out of the loss, miscarriage,
22 or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b); see Anderson
ORDER- 2

1 v. U.S. Postal Serv., 761 F.2d 527, 528 (9th Cir. 1985) (applying 28 U.S.C. § 2680(b) to
2 hold that the petitioner’s “tort claim against the Postal Service for loss of his package . . .
3 was barred by sovereign immunity”).
Construed liberally, Mr. Atia’s allegations appear to seek damages related to the

4

5 loss or damage of a mailed package that contained a mobile phone. See Bernhardt v. L.A.
6 Cnty., 339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to construe pro se
7 pleadings liberally, including pro se motions . . . .”). As such, his claim falls squarely
8 within the postal service exception to the FTCA. See 28 U.S.C. § 2680(b); Anderson,
9 761 F.2d at 528. Because the United States has not waived sovereign immunity with
10 respect to Mr. Atia’s claim, his claim must be dismissed for lack of subject matter
11 jurisdiction. See Anderson, 761 F.2d at 528.
12 B.

Failure to Exhaust Administrative Remedies

13

Additionally, the FTCA bars claimants from bringing suit in federal court until

14 they have exhausted their administrative remedies. McNeil v. United States, 508 U.S.
15 106, 113 (1993). Specifically, the FTCA provides: “An action shall not be instituted
16 upon a claim against the United States . . . unless the claimant shall have first presented
17 the claim to the appropriate Federal agency and his claim shall have been finally denied
18 by the agency . . . .” 28 U.S.C. § 2675(a). “The requirement of an administrative claim
19 is jurisdictional.” Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). “Because
20 the requirement is jurisdictional, it must be strictly adhered to.” Id. “This is particularly
21 so since the FTCA waives sovereign immunity.” Id.
22
ORDER- 3

1

Mr. Atia has not filed an administrative claim with the Postal Service seeking

2 recovery of his package. (See Arstad Decl. (Dkt. # 6) ¶¶ 3-4.) As such, he has failed to
3 exhaust his administrative remedies. See 28 U.S.C. § 2675(a). For this reason also, Mr.
4 Atia’s claim must be dismissed for lack of subject matter jurisdiction. See Brady, 211
5 F.3d at 502.
6 C.

Leave to Amend

7

“In general, a court should liberally allow a party to amend its pleading.” Sonoma

8 Cnty. Ass’n of Retired Employees v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013);
9 see Fed. R. Civ. P. 15(a). Dismissal without leave to amend is proper, however, if any
10 amendment would be futile. Id. (“[D]ismissal without leave to amend is improper unless
11 it is clear . . . that the complaint could not be saved by any amendment.”).
Here, it is clear that Mr. Atia’s complaint cannot be saved by any amendment. As

12

13 discussed above, Mr. Atia’s claim against the United States to recover damages for a
14 package lost in the mail is barred by sovereign immunity. See 28 U.S.C. § 2680(b); see
15 Anderson, 761 F.2d at 528. Therefore, the court dismisses Mr. Atia’s action without
16 leave to amend.
17 //
18 //
19 //
20 //
21 //
22 //
ORDER- 4

1
2

IV.

CONCLUSION

For the foregoing reasons, the court GRANTS the United States’ motion to

3 dismiss (Dkt. # 5) and DISMISSES Mr. Atia’s complaint without leave to amend and
4 without prejudice.
5

Dated this 17th day of March, 2015.

6

8

A

9

JAMES L. ROBART
United States District Judge

7

10
11
12
13
14
15
16
17
18
19
20
21
22
ORDER- 5