Opinion
Civil Action No. AW-01-323
April 13, 2001.
MEMORANDUM OPINION
Currently pending before the Court are Defendant's motion to substitute the United States as a party [6-1] and the United States' motion to dismiss the complaint [7-1]. Plaintiff has filed a response. The United States did not file a reply. No hearing is deemed necessary. See Local Rule 105.6. Upon consideration of the arguments made in support of, and opposition to, the respective motions, the Court makes the following determinations.
I. FACTUAL BACKGROUND
The undisputed facts are as follows. Plaintiff Timolin Shaia and Defendant Ellen Klein are employees of the Federal Aviation Administration (FAA). On November 14, 2000, Mrs. Shaia was looking at some vacation photos with a co-worker. Ms. Klein approached Mrs. Shaia and asked to look at the photos. Mrs. Shaia responded that Ms. Klein could view her pictures at a later time. Dissatisfied with this response, Ms. Klein took the photos from the co-worker. Upon viewing the photos, Ms. Klein made remarks concerning Mrs. Shaia's husband calling him a white man with a big belly. Insulted by the remark, Mrs. Shaia retrieved the photos and refused to talk to Ms. Klein. Ms. Klein responded by calling Mrs. Shaia "a prick." Upset by the remarks, Mrs. Shaia reported the incident to her manager which further escalated Ms. Klein's hostile remarks.
Eventually, Mr. Klein was reprimanded for the incident and Mrs. Shaia was transferred to another division of the FAA. On November 27, 2000, Mrs. Shaia filed suit against Ms. Klein for defamation, racial harassment and assault. The United States undertook Ms. Klein's defense and removed that action from state court.
II. DISCUSSION
A. Motion to Substitute the United States as a Party
The Attorney General has certified that Ms. Klein was acting within the scope of her employment as the time of the incident forming the basis of this action. Under the Federal Employees Liability Reform and Tort Compensation Act, tort actions brought against a federal employees are defended by the United States upon certification by the Attorney General that the federal employee was acting within the scope of their employment. 42 U.S.C. § 2679(d); Borneman v. United States, 213 F.3d 819 (4th Cir. 2000). Thus, the certification of Ms. Klein has the effect of substituting the United States for Mrs. Klein as the defendant. See Salazar v. U.S. Postal Service, 929 F. Supp. 966, 968 (E.D.Va. 1996). Accordingly, the Court grants the motion to substitute the United States as the defendant.
Certification under 28 U.S.C. § 2679(d) may be challenged and subjected to district court review. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). "When the certification is challenged, it serves as prima facie evidence and shifts the burden to the plaintiff to prove, by a preponderance of the evidence, that the defendant federal employee was acting outside the scope of his employment." Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997). As Mrs. Shaia has not challenged the certification, the Court will not address the merits of such a challenge to the instant case.
B. Motion to Dismiss
As the United States is now the defendant in Plaintiff's tort action, her claims are governed by the Federal Tort Claims Act (FTCA). "It is well established that the United States Government, as sovereign, is immune from suit unless it consents to be sued." Gould v. U.S. Dept. of Health Human Services, 905 F.2d 738, 741 (4th Cir. 1990). The FTCA provides a limited waiver of the United States' sovereign immunity, subject to certain terms and conditions prescribed by Congress. Id. A prerequisite to filing suit against the United States is the presentment of an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675. The United States maintains that Plaintiff's claim must be dismissed because she failed to present her claims to the FAA before initiating suit. Plaintiff claims that she submitted the required written documentation of her complaint. As support, she attached a document entitled "Record of Incident" which she states is a copy of the incident report submitted to the FAA Personnel Department. The incident report essentially recounts the above-stated facts. Mrs. Shaia maintains that her manager, Ellen Cook, reviewed the grievance and suggested that Mrs. Shaia return to her previous post. Mrs. Shaia states that she understood this communication to be the final denial of her claim.
"[I]n order to present a . . . claim to the appropriate administrative agency, the claimant must present it to the agency in writing by means of an SF 95 or an equivalent; the writing must include a claim for money damages in a sum certain; if the claimant is represented, the representative's authorization must be demonstrated; and these matters must be accomplished within two years of the incident." Ahmed v. United States, 30 F.3d 514, 517 (4th Cir. 1994)); 28 C.F.R. § 14.2(a) (providing that a claim is 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 a sum certain for injury to or loss of property, personal injury, or death."). A review of the incident report reveals that Mrs. Shaia's claim fails the second prong, the specification of a sum-certain value of the claim. "The sum-certain requirement is one of substantial importance, and even courts liberally construing the presentment requirement under the FTCA require that the claimant place a certain value on the claim." Ahmed, 30 F.3d at 517; see College v United States, 572 F.2d 453 (4th Cir. 1978). Mrs. Shaia's failure to include a sum-certain of the value of her claims means that she did not present the claim as required under the FTCA and, consequently, did not exhaust her administrative remedies. See Ahmed, 30 F.3d at 518. If an administrative claim has not been presented to the appropriate federal agency, in this case the FAA, the Court lacks subject matter jurisdiction and the case must be dismissed.
III. CONCLUSION
For the reasons stated above, the Court will grant Defendant's motion to substitute the United States as party and its motion to dismiss. An Order consistent with this Opinion will follow.
ORDER
For the reasons stated in the accompanying Memorandum Opinion dated April 13, 2001, IT IS this 13th day of April, 2001 by the United States District Court for the District of Maryland, hereby ORDERED:
1. That Defendant's Motion to Substitute the United States as a Party[6-1] BE, and the same hereby IS, GRANTED;
2. That Defendant United States' Motion to Dismiss the Complaint [7-1] BE, and the same hereby IS, GRANTED;
3. That the above captioned case BE, and the same hereby IS, CLOSED; and
4. That the Clerk of the Court mail copies of this order to all counsel of record.