Summary
In Dengler, the plaintiff alleged that the defendant, a without compensation employee of the Department of Veterans Affairs, refused him the right to ride a shuttle van.
Summary of this case from Calvin v. United StatesOpinion
No. C 02-3846 JSW.
June 18, 2003.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Now before the Court is the motion by defendants Ken Wingett ("Wingett") and Disabled American Veterans to dismiss the complaint of plaintiff Raymond Dengler ("Dengler") for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby GRANTS Defendants' motion to dismiss for lack of subject matter jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of the operation of a shuttle van between Santa Rosa and the San Francisco VA Medical Center by the U.S. Department of Veterans Affairs ("the VA"). Dengler alleges that on or about May 21, 2002 and May 25, 2002, Wingett, a volunteer at the VA, refused him the right to ride the shuttle van and refused to return his phone calls regarding appointments for van rides. Dengler filed a complaint for damages against Wingett and the Disabled American Veterans in the Sonoma County Superior Court on July 8, 2002.
The United States filed a certification that with respect to all allegations made in the complaint, Wingett was acting within the course and scope of his employment for the VA within the meaning of 28 U.S.C. § 2679(d)(2). (Certification pursuant to 28 U.S.C. § 2679(d) ¶ 2.) Upon certification, the United States removed Dengler's complaint to the United States District Court on August 9, 2002. Dengler has not contested the facts set forth in this certification. The United States now moves to dismiss Dengler's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
ANALYSIS
A. An Action May Not Be Brought Against the United States Without Specific Statutory Consent.
The United States is the sole party that may be sued for the "negligent or wrongful" acts of its employees performed in the course and scope of their federal employment. 28 U.S.C. § 1346(b), 2679(a); see also Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984). In this case, defendant Wingett is a "without compensation employee" of the United States government and defendant Disabled American Veterans is an agency of the United States government. The United States has certified that with respect to all allegations made in the complaint, Wingett was acting within the course and scope of his federal employment. The Liability Reform Act of 1988 provides federal employees absolute immunity from liability for common-law torts committed within the scope of their employment. 28 U.S.C. § 2679(b)(1); see also United States v. Smith, 499 U.S. 160, 163 (1991). It precludes direct actions against federal employees and makes plaintiff's exclusive remedy an action against the United States under the Federal Tort Claims Act ("FTCA"). Smith, 499 U.S. at 163. Thus, the United States is the only proper party in this case.
A review of Dengler's complaint shows that all of his allegations concern Wingett acting in his federal employment, as a volunteer of the VA. In order to sue a defendant in his personal capacity, the complaint must allege actions outside of the scope of federal employment. See Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 743-45 (9th Cir. 1991). Accordingly, Dengler is not suing Wingett in his personal capacity.
It is well-established that the United States "is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. Testan, 424 U.S. 392, 399 (1976). A court does not have jurisdiction over a suit without such a waiver of sovereign immunity. Id.; see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (concluding that consent to be sued is a "prerequisite for jurisdiction"). The waiver must be in the form of specific statutory consent, and no officer of the United States can confer jurisdiction by his or her actions. United States v. Shaw, 309 U.S. 495, 501 (1940). Moreover, the burden is on the plaintiff to make a showing that the government's sovereign immunity has been expressly waived and that the court has jurisdiction over the suit. Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995). If a plaintiff cannot fit his or her claim against the United States within a waiver of sovereign immunity, the court must dismiss the action for lack of jurisdiction. United States v. Dalm, 494 U.S. 596, 608 (1990).
Dengler does not fit his claim against Wingett and the Disabled American Veterans within a waiver of sovereign immunity. Dengler did not indicate the jurisdictional basis for his claim in the complaint he filed in Sonoma County Superior Court or in his response to Defendants' motion to dismiss. It is the plaintiff's burden to identify a waiver of statutory immunity and Dengler has not met this burden.
B. Dengler Has Not Exhausted His Administrative Remedies under the Federal Tort Claims Act.
The FTCA provides for a limited waiver of sovereign immunity where there is injury caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b), 2679(a). In this limited waiver, the FTCA requires that before filing an action, "the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency." 28 U.S.C. § 2675(a). Thus, as a prerequisite to suit under the FTCA, Dengler must first file an administrative claim with the appropriate federal agency and exhaust his administrative remedies. See Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir. 1983) (per curiam). The evidence in the record shows that Dengler has not filed an administrative tort claim with the VA, and therefore has not met a prerequisite for the maintenance of a FTCA lawsuit.
The administrative claim requirements of § 2675(a) are jurisdictional and must be pleaded and proven by the FTCA claimant. Meridian, 939 F.2d at 743. Thus, without Dengler filing an administrative claim and exhausting his administrative remedies, the Court is without jurisdiction for Dengler's claim, and the Defendants' motion to dismiss for lack of jurisdiction is GRANTED.
CONCLUSION
The Court finds that Dengler's complaint is without subject matter jurisdiction because he does not fit his claim against Wingett and the Disabled American Veterans within a waiver of sovereign immunity. The FTCA is not available as a basis for jurisdiction because Dengler has not exhausted his administrative remedies. For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).