Opinion
CIVIL NO. CCB-08-2267.
July 7, 2009
MEMORANDUM
Now pending is a motion to dismiss filed by the United States in this case arising from a motor vehicle accident that occurred on March 11, 2005 in Anne Arundel County, Maryland. The government moves to dismiss the complaint based on the failure of the plaintiffs, Calvin Wayne Evans and Kathleen T. Evans, to file an administrative claim with the United States Navy, as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2401(b), 2675(a).
The plaintiffs filed their complaint in state court on January 30, 2008, against the original defendants in this action, Joseph P. Donohue and Apolonio B. Marcellana, Jr., both of whom were Chief Petty Officers with the United States Navy at the time of the accident. The United States removed the case to this court and moved to substitute itself for Marcellana, contending that he was acting within the scope of his employment with the United States Navy at the time of the accident. At the time the complaint was filed, Donohue had passed away from unrelated causes.
The initial motion to dismiss filed by the United States was denied without prejudice to permit the plaintiffs limited discovery on the issue of whether Marcellana and Donohue were acting within the scope of their employment at the time of the accident. The plaintiffs deposed Marcellana on March 30, 2009, and the government has produced relevant documents.
At the close of discovery, on May 26, 2009, the government filed the present motion to dismiss, again contending that the plaintiffs' failure to file an administrative claim strips this court of subject matter jurisdiction, and a motion to substitute the United States for Donohue. The plaintiffs have opposed both motions apparently on the grounds that more discovery is required to determine whether Marcellana and Donohue were acting within the scope of their employment.
ANALYSIS
Where, as here, FTCA subject matter jurisdiction is challenged under Federal Rule of Civil Procedure 12(b)(1), plaintiffs bear the burden of persuasion and must establish an unequivocal waiver of immunity with respect to their claims. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). Because the government challenges the factual basis for subject matter jurisdiction, "the court may consider exhibits outside the pleadings . . . [and] is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case" without converting the proceeding to one for summary judgment. Id. (internal citation and quotations omitted).
A. Scope of Employment
Federal employees enjoy absolute immunity from common law tort actions arising out of acts or omissions committed within the scope of their employment. See 28 U.S.C. § 2679(b); see also Jamison v. Wiley, 14 F.3d 222, 227 (4th Cir. 1994). Whether a federal employee was acting within the scope of his or her employment is determined by reference to the law of respondeat superior in the state where the alleged tort occurred. Maron v. United States, 126 F.3d 317, 323-24 (4th Cir. 1997); see also Lovelace v. Anderson, 785 A.2d 726, 742 (Md. 2001) (summarizing Maryland's law of respondeat superior); Sawyer v. Humphries, 587 A.2d 467, 470-72 (Md. 1991) (same).
The United States Attorney for the District of Maryland has certified that both Marcellana and Donohue were acting within the scope of employment at the time of the accident, and affixed to the government's current motion, in support of the certification, are Marcellana's affidavit and deposition testimony avowing that he and Donohue were on official travel orders at the time of the accident (Def's Mem. Ex. 1, 2), and travel reports indicating that they were scheduled to be on the last day of a six-day trip for the purpose of conducting a site visit ( id. Ex. 3). The government's evidence indicates that Marcellana and Donohue were acting in furtherance of the Navy's business and were authorized by the Navy to be engaged in such activity. See Sawyer, 587 A.2d at 470. In response, the plaintiffs have offered no evidence to refute the government's contention and, thus, have failed to meet their burden of proving by a preponderance of the evidence that Marcellana and Donohue were not acting within the scope of employment. See Maron, 126 F.3d at 323.
The plaintiffs have offered no rationale for why additional discovery is needed on this point.
Because Marcellana and Donohue were acting within the scope of employment as Navy officers, the United States is the proper defendant in this action. Accordingly, the government's motion to substitute itself as the defendant in place of Donohue is granted. See 28 U.S.C. § 2679(b)(1) (stating that suit against the United States shall be the exclusive remedy for persons claiming damages resulting from the negligent or wrongful acts or omissions of federal employees taken within the scope of their office or employment).
B. Administrative Filing Requirement
"As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity." Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005). The FTCA is one such waiver, and its limitations require a plaintiff to present a tort claim against the United States to the appropriate federal agency "within two years after such claim accrues" or that claim is forever barred. 28 U.S.C. § 2401(b); see also Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993).
The government contends that the plaintiffs' claims should be dismissed for lack of subject matter jurisdiction because the plaintiffs failed to file an administrative claim with the Navy within two years of the accrual of their cause of action. The FTCA's administrative filing requirement is of jurisdictional significance. See Kokotis v. United States Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000); Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). Thus, the plaintiffs' failure to comply with the filing requirement divests this court of jurisdiction over the present action, and, accordingly, the defendant's motion to dismiss will be granted. See Gould v. United States Dep't of Health Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) ( en banc) (noting that courts "with few exceptions have dismissed complaints where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiff's failure to submit a claim in a timely manner was the result of the plaintiff's ignorance of the defendant's status as a federal employee").
Affixed to the government's motion is a sworn declaration from the current director of the Navy's Claims and Tort Litigation Division averring that a search of the Navy's records revealed that the plaintiffs failed to file the requisite administrative claim. The plaintiffs do not dispute this evidence in their response, nor do they address the legal ramifications of their alleged failure to file.
The court notes, moreover, that because the plaintiffs filed the underlying civil action more than two years after the accident and, thus, outside of the FTCA's two-year limitation period, any attempt to pursue administrative remedies would be untimely. See 28 U.S.C. § 2679(d)(5) (containing a relation-back provision applicable where the government substitutes for an individual defendant only where "the claim would have been timely had it been filed on the date the underlying civil action was commenced"); see also Gould, 905 F.2d at 744-47 (explaining that a plaintiff's ignorance that a defendant is a federal employee acting within the scope of his employment generally will not toll the limitations period where the plaintiff has produced no evidence that, despite due diligence and reasonable investigation on his part, critical information as to defendant's federal employee status was undiscoverable).
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:1. the defendant's motion to substitute party (docket entry no. 37) is GRANTED;
2. the defendant's motion to dismiss (docket entry no. 38) is GRANTED;
3. this case is dismissed for lack of subject matter jurisdiction; and
4. the Clerk shall CLOSE this case.