IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE
July 7, 2011
LEON HINKLE, JR. PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Bumb, United States District Judge:
[Dkt. Ent. 2]
This matter comes before the Court upon a motion to dismiss for failure to state an actionable claim and for lack of subject-matter jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), by defendant United States of America ("Defendant"). Plaintiff Leon Hinkle, Jr., proceeding pro se, sued federal employee Leslie Peligan for defamation and lost wages in New Jersey state court. The United States subsequently substituted itself as defendant and removed the action to this Court. For the foregoing reasons, the Court grants Defendant's motion to dismiss under Rule 12(b)(1).
Plaintiff initiated this action with the filing of a complaint against Peligan in the Superior Court of New Jersey, Burlington County, on February 17, 2011. The Complaint provides no description of the events giving rise to Plaintiff's claims. Instead, Plaintiff merely lists his injuries as "lost wages" ("Count 1") and "defermation [sic] of character" ("Count 2"). (Ntc. Rmvl. 11.) On April 25, 2011, Defendant removed the Complaint to this Court and substituted itself as the sole defendant in place of Peligan, pursuant to 28 U.S.C. § 2679(d)(2).*fn1 Defendant's Notice of Removal states:
Upon information and belief, Hinkle's allegations arise from his denial of access to Joint Base McGuire-Dix-Lakehurst ("JBMDL"). Peligan is a Reports and Analysis Manager with the 87th Security Forces Squadron, and part of her responsibilities include denial of access to JBMDL to individuals that threaten the orderly administration of the installation. (Ntc. Rmvl. ¶ 3.) Defendant subsequently filed the instant motion to dismiss. [Dkt. Ent. 2.] Plaintiff responded with a one-page letter to the Court, dated May 15, 2011, which this Court construes as an opposition to the motion to dismiss. Instead of addressing the merits of Defendant's arguments, however, Plaintiff merely stated the following:
Enclosed please find the documents I filed with the state against Leslie Peligan. She caused great strain with decisions she made. I wish to continue with this matter. Im [sic] seeking employment pay I should have had if this didnt [sic] occur. You will find the incident was resolved prior to her office. She reopened the matter and caused me my employment. Seeking 2000.00 monthly for 12 months[.] 20 thousand dollars plus damages you see fit. (Pl.'s Opp. 1, Dkt. Ent. 3.) Plaintiff attached to this letter various memoranda and correspondence, as well as paperwork reflecting his pay records and an application for Social Security benefits. (Id.) He also attached copies of the Summons and Complaint and his filing fee waiver request. (Id.) While this Court liberally construes Plaintiff's filing, as it must,*fn2 it appears that Plaintiff has not responded to Defendant's arguments pursuant to Rules 12(b)(1) and (6). This motion is now ripe for adjudication.
Because this Court grants Defendant's first motion pursuant to Rule 12(b)(1), it need not reach Defendant's concurrent motion under Rule 12(b)(6).
Rule 12(b)(1) motions may challenge subject-matter jurisdiction based upon the face of the complaint or its underlying facts. Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009); Pittman v. Metuchen Police Dept., No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29, 2009) (citing James Wm. Moore, 2 Moore's Federal Practice § 12.30 (3d ed. 2007)). A facial attack questions the sufficiency of the pleading, and requires the trial court to accept the allegations in the complaint as true. Common Cause of Pa., 558 F.3d at 257; Pittman, 2009 WL 3207854, *1. A factual attack, by contrast, calls upon the court to weigh the evidence. Pittman, 2009 WL 3207854, *1. Here, the Court will presume the truth of Plaintiff's allegations, since the motion challenges only the sufficiency of the Complaint.
Generally, claims against the United States are barred by the doctrine of sovereign immunity, unless the immunity is waived. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); United States v. Mitchell, 445 U.S. 535, 538 (1980), reh'g den'd, 446 U.S. 992 (1980); see also, F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Absent a specific waiver of sovereign immunity, courts lack subject matter jurisdiction over claims against the federal government. See Mitchell, 445 U.S. at 538. Thus, if a claim against the United States is not waived by statute or otherwise, a court must dismiss the claim for lack of subject-matter jurisdiction. Id.; White-Squire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010).
The Federal Tort Claims Act ("FTCA" or the "Act"), 28 U.S.C. §§ 1346, 2671-80 operates as a limited waiver of federal sovereign immunity and permits suit against the United States for alleged negligence by federal employees. White-Squire, 592 F.3d at 456; 28 U.S.C. § 1346(b)(1). Specifically, the FTCA gives federal courts jurisdiction over torts committed by "any employee of the Government while acting within the scope of his office or employment . . . ." 28 U.S.C. § 1346(b)(1). An "employee of the government" includes officers or employees of any federal agency, members of the military, and persons acting on behalf of a federal agency in an official capacity. 28 U.S.C. § 2671.
Courts have recognized that, under the statutory language, Congress intended the FTCA to impose liability on the federal government for the negligent wrongs of its employees under the common law principle of respondeat superior. See, e.g., Laird v. Nelms, 406 U.S. 797, 801 (1972), reh'g den'd, 409 U.S. 902 (1972); United States v. Becker, 378 F.2d 319, 321 (9th Cir. 1967).
When bringing suit under the FTCA, a plaintiff must comply with the Act's procedural requirements, which are strictly construed. White-Squire, 592 F.3d at 456 ("Because the Federal Tort Claims Act constitutes a waiver of sovereign immunity, the Act's established procedures have been strictly construed.").
In its Notice of Removal, Defendant asserts that the FTCA applies to Plaintiff's claims.*fn3 Plaintiff does not dispute this. While the facts before this Court are limited, it appears that Plaintiff seeks money damages for lost wages against Peligan, a federal official, whom he alleges acted negligently or wrongfully within the scope of her employment by denying him access to his place of employment at JBMDL. Thus, the Court finds it appropriate to consider Plaintiff's claims under the framework of the FTCA. See, supra, n.3.
Lost Wages Claim
The FTCA bars a claimant from bringing suit in a district court unless he has first exhausted administrative remedies. See 28 U.S.C. § 2675(a); see also McNeil v. United States, 508 U.S. 106, 113 (1993); Deutsch, 67 F.3d at 1091. Specifically, 28 U.S.C. § 2675(a) provides:
An action shall not be instituted upon a claim against the United States for money damages . . . 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.*fn4
These procedures "were intended to ensure that meritorious claims can be settled more quickly without the need for filing suit and possible expensive and time-consuming litigation." Pascale v. United States, 998 F.2d 186, 188 (3d Cir. 1993) (internal quotations and citations omitted).
A tort claim against the United States is also time-barred unless a claimant (1) presents the claim in writing to the appropriate federal agency within two years after the claim accrues, and (2) files the action in the district court within six months after a final decision of the claim by the agency to which it was presented. See 28 U.S.C. § 2401(b); Pascale, 998 F.2d at 188. The requirements that a claimant timely present his or her claim to the appropriate agency and that he or she do so in writing for a sum certain are jurisdictional prerequisites to a suit in the district court. Deutsch, 67 F.3d at 1091.
In this case, Defendant submitted an affidavit with its motion to dismiss from Jeremy L. Mooney, a Claims Attorney at the Air Force Office of the Staff Judge Advocate at JBMDL. (Mooney Aff., Apr. 29, 2011, Dkt. Ent. 2-2.) Mooney avers that he personally searched the tort claim records in his possession as well as the Armed Forces Claims Information Management System, an Air Force information management system that contains information on all claims filed against the Air Force within any jurisdiction. He confirmed that Plaintiff has never presented the Air Force with an administrative tort claim in connection with lost wages and defamation. (Id.) Plaintiff did not dispute Mooney's averments in his opposition brief. Indeed, Plaintiff has not alleged any facts indicating that he has presented any possible claims to the appropriate federal agency. Since failure to exhaust administrative remedies is a jurisdictional bar to suit under the FTCA, the Court dismisses the Complaint without prejudice.*fn5
The FTCA provides only a limited waiver of the United States' sovereign immunity. White-Squire, 592 F.3d at 456 (citing Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003), cert. den'd, 543 U.S. 874 (2004)). It expressly exempts from this waiver certain intentional torts, such as "libel, slander, misrepresentation, [and] deceit". 28 U.S.C. § 2680(h). Defamation suits against the United States are thus prohibited, and a plaintiff who is defamed by a federal employee acting within the scope of his or her employment has no remedy under the FTCA. See Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir. 2000), cert. den'd, 532 U.S. 958 (2001); Izzo v. U.S. Gov't, 138 Fed. Appx. 387, 389 (3d Cir. 2005) ("Defamation is not included in the list of actions for which the United States has waived immunity under the Federal Tort Claims Act"). This Court therefore lacks jurisdiction to hear Plaintiff's claim for defamation and, accordingly, dismisses that claim with prejudice.
Rule 12(b)(6) Motion
Furthermore, the Complaint would easily fail under Rule 12(b)(6), due to Plaintiff's failure to allege any facts to establish a plausible claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.") (internal citations and quotations omitted). Since the Court grants Defendant's motion to dismiss under Rule 12(b)(1), it does not reach this issue, and thus dismisses this motion as moot.
ACCORDINGLY, IT IS on this 7th day of July 2011, hereby: ORDERED that Defendant's motion to dismiss pursuant to Rule 12(b)(1) [Dkt. Ent. 2] is granted; and it is further
ORDERED that Count 1 for lost wages is dismissed without prejudice, and Count 2 for defamation is dismissed with prejudice; and it is further
ORDERED that Defendant's motion to dismiss pursuant to Rule 12(b)(6) is dismissed as moot; and it is finally
ORDERED that the Clerk of the Court shall close this file.
RENEE MARIE BUMB UNITED STATES DISTRICT JUDGE