Filed: Jun. 23, 2014
Latest Update: Jun. 23, 2014
Summary: ORDER JAMES C. FOX, Senior District Judge. This matter is before the court on the Government's unopposed Motion to Dismiss for lack of subject matter jurisdiction [DE-5]. For the reasons set forth below, the court agrees, and the Motion to Dismiss [DE-5] is ALLOWED. Plaintiff initiated this action on December 12, 2013, by filing a complaint in the General Court of Justice, District Court Division-Small Claims, Cumberland County, against Brian Koppenhaver, an employee of the United States Post
Summary: ORDER JAMES C. FOX, Senior District Judge. This matter is before the court on the Government's unopposed Motion to Dismiss for lack of subject matter jurisdiction [DE-5]. For the reasons set forth below, the court agrees, and the Motion to Dismiss [DE-5] is ALLOWED. Plaintiff initiated this action on December 12, 2013, by filing a complaint in the General Court of Justice, District Court Division-Small Claims, Cumberland County, against Brian Koppenhaver, an employee of the United States Posta..
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ORDER
JAMES C. FOX, Senior District Judge.
This matter is before the court on the Government's unopposed Motion to Dismiss for lack of subject matter jurisdiction [DE-5]. For the reasons set forth below, the court agrees, and the Motion to Dismiss [DE-5] is ALLOWED.
Plaintiff initiated this action on December 12, 2013, by filing a complaint in the General Court of Justice, District Court Division-Small Claims, Cumberland County, against Brian Koppenhaver, an employee of the United States Postal Service. Plaintiff alleges that Koppenhaver filed false statements with Plaintiff's employer, resulting in Plaintiff losing wages in the amount of $3,159.00. Compl. [DE-1-2]. The Government, invoking the Westfall Act, filed a notice of removal [DE-l] pursuant to 28 U.S.C. § 1442, and has been substituted as the party defendant on the grounds that the acts complained of were within the scope of Koppenhaver's employment with the United States Postal Service. See Certification and Scope of Employment and Substitution [DE-4]; see also 28 U.S.C. § 2679.1As the substituted defendant, the Government seeks dismissal of this action on the ground that Plaintiff has failed to exhaust his administrative remedies, as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.
As a sovereign, the United States "`is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA affords a limited, conditional waiver of sovereign immunity by the United States government for certain torts of federal government employees committed within the scope of their employment. See 28 U.S.C. §§ 2671 et seq;2 see also FDIC v. Meyer, 510 U.S. 471, 475 (1994). The United States, however, has retained sovereign immunity for "[a]ny claim arising out of misrepresentation." 28 U.S.C. § 2680(h).
Additionally, the FTCA specifically requires that before an action may be instituted in court, a claimant must first present his claim to the appropriate administrative agency for determination. See 28 U.S.C. § 2675; see also Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994). It is well-established that "the requirement of filing an administrative claim is jurisdictional and may not be waived." Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986).
The Government asserts, and the prose Plaintiff has not made any showing to the contrary, that Plaintiff has failed to file an administrative claim and concomitantly, the administrative process has not been completed. This court, accordingly, lacks subject matter jurisdiction over this action, and Plaintiffs claim is DISMISSED without prejudice for failure to exhaust administrative remedies.3
SO ORDERED.
