Opinion
Case No. A2-99-90. Docket No. 16.
January 21, 2000.
Summary: Plaintiff asserted tort claims against the defendant relating to the release of plaintiff's and plaintiff's daughter's private medical records. Defendant moved for dismissal based on lack of subject matter jurisdiction as plaintiff had not filed an administrative claim. Court held that, under the Federal Tort Claims Act, presentment of an administrative claim was jurisdictional and must be pleaded and proven by the claimant. Failure to file an administrative claim deprived the court of jurisdiction. Case dismissed.
MEMORANDUM AND ORDER
I. Introduction
Defendant United States Air Force (USAF) has moved this court to dismiss the action against it for lack of subject matter jurisdiction. (doc. #7). Plaintiff opposes dismissal. (doc. #8). The court has reviewed the motion, the supporting and opposing briefs and affidavits, along with the entire file and finds that dismissal is appropriate. Therefore, the motion to dismiss (doc. #7) is hereby GRANTED for the reasons discussed herein.
II. Background
Plaintiff is the ex-wife of Technical Sergeant Michael Jago of the United States Air Force. Sergeant Jago was tried and acquitted by a general-court martial in June of 1997 for various charges including attempted rape, indecent acts, and indecent liberties of his minor step-daughter, Plaintiff's child. In preparation of trial, certain medical records were released by the Plaintiff to the defense. These medical records somehow got into the hands of Sergeant Jago's new wife, a civilian, who allegedly used pieces of confidential information in a mass letter writing campaign on her husband's behalf.
The Plaintiff brings suit claiming that the USAF violated the Privacy Act of 1974, 5 U.S.C. § 552. Plaintiff also brings claims of negligent infliction of emotional distress on behalf of herself and her daughter. Defendant contends that plaintiff never filed a Standard Form 95 for her claim, and it is undisputed that plaintiff did not file such a form with the Department of the Air Force. Thus, the USAF claims that this court lacks subject matter jurisdiction pursuant to 28 U.S.C. § 2675(a). Plaintiff counters, in essence, that although she did not file the Standard Form 95, the USAF had notice of her complaints. Plaintiff asserts that she made various contacts with different offices within the Department of the Air Force requesting information on her ex-husband's court martial, the letter written by Mrs. Jago, and all other relevant information; additionally plaintiff wrote a lengthy letter concerning her complaints to one MSGT Wright. Plaintiff admits that she never asserted a claim for damages during these contacts.
Additionally, Plaintiff alleges that she encountered many obstacles within the Department in obtaining information relative to her complaints. She was "pawned off" from one office to another and back to the first without ever receiving helpful information. The court understands plaintiff's allegations to mean that compliance with 28 U.S.C. § 2675(a) would have been futile.
III. Discussion
Plaintiff's claims, sounding in tort, implicate the sovereign immunity of the United States. This court is constrained to follow two well-settled principles: first, the United States is immune from suit unless it has waived its immunity and consented to suit; second, such waivers are narrowly construed. Price v. United States, 69 F.3d 46, 49 (5th Cir. 1995). The Federal Tort Claims Act (FTCA) provides a limited waiver of sovereign immunity which requires compliance with the conditions enacted by Congress.Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993).
One of these conditions is a requirement that before filing an FTCA action the plaintiff "present" an administrative claim requesting a sum certain in damages to the appropriate federal agency and that the claim be finally denied. Id. 28 U.S.C. § 2675(a).
Section 2675(a) of Title 28 of the United States Code provides in part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death 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, 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.
"Presentment of an administrative claim is jurisdictional and must be pleaded and proven by the FTCA claimant." Bellecourt, 994 F.2d at 430. Failure to follow the requirements of section 2675 routinely leads to dismissal by the district court. See Industrial Contractors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994); Bellecourt, 994 F.2d at 430; Manko v. United States, 830 F.2d 831, 840-41 (8th Cir. 1987); Borntrager v. Stevas, 772 F.2d 419, 421 (8th Cir. 1985). On this basis, defendant argues that the plaintiff's claims must be dismissed for failure to present an administrative claim.
Plaintiff offers two arguments. First, that the USAF had written notice of the substance of her claims through the many letters she wrote to individuals "in the top echelon of Air Force leadership." At this juncture, the court assumes, without deciding, that plaintiff's allegations are true; still the notice requirement has not been satisfied. "A claim is deemed presented when a federal agency receives from a claimant `an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in sum certain for injury to or loss of property, personal injury, . . . alleged to have occurred by reason of the incident.'" Industrial Contractors Corp., 15 F.3d at 967 (citing 28 C.F.R. § 14.2(a)) (emphasis added). Accord Farmers State Savings Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir. 1989). Plaintiff's own affidavit establishes that she never requested money damages. Thus, plaintiff cannot be deemed to have met the notice requirement.
Plaintiff's second argument seems to be that compliance with the notice requirement would have been futile considering the lack of cooperation she received from the USAF in investigating this matter. This argument is equally unavailing. Claims are consistently dismissed despite similar allegations that compliance with the section 2675(a) requirement would be futile. See Industrial Contractors Corp., 15 F.3d at 968 (holding that despite allegations of futility, failure to file an administrative claim prior to filing suit does not change the jurisdictional bar); Manko v. United States, 830 F.2d at 840 (noting that section 2675(a) does not contain an exception for futile claims and stating that such an exception would disrupt Congress' administrative claims procedure); Borntrager, 772 F.2d at 421 (holding that compliance with the requirement was jurisdictional and could not be waived despite claim of futility). In as much as plaintiff has failed to follow the requirements of the FTCA, this court lacks subject matter jurisdiction to entertain her claims.
IV. Conclusion
The defendant's motion to dismiss, (doc. #7), pursuant to Federal Rule of Civil Procedure 12(b)(1) and 28 U.S.C. § 2675(a) is GRANTED.
IT IS SO ORDERED.