The opinion of the court was delivered by: Bumb, United States District Judge:
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 ...