Porter v. Zimcosky

MOTION to Dismiss for Lack of Jurisdiction Defendant United States' Motion to Dismiss for lack of Subject Matter Jurisdiction

W.D. Tex.March 9, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION BILLY JULIUS PORTER, JR., Plaintiff, Civil Action No. 5:17-cv-146-DAE V. UNITED STATES OF AMERICA1 Defendant § DEFENDANT UNITED STATES'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: I. ISSUE PRESENTED Plaintiff's tort claim for defamation is governed by the Federal Tort Claims Act, 28 U.S.C. §§1346(b)(1), 2671-2680 ("FTCA"). The FTCA has a jurisdictional requirement that a person seeking monetary damages from the United States must first submit an administrative claim to the relevant agency before filing a complaint in court. Plaintiff has failed to fully exhaust his administrative claim under 28 U.S.C. § 2675 prior to filing suit and, therefore, lacks subject matter jurisdiction. Moreover, the claim of defamation is an exception to the FTCA that precludes subject matter jurisdiction, which mandates that it should be dismissed on those grounds. II. PLAINTIFF'S CLAIM IS GOVERNED BY THE FTCA Plaintiff expressly brings a defamation claim in this case, based upon a tort. See plaintiff's Petition, attached to this motion as Exhibit A and incorporated herein by reference. As established in the United States' Notice of Substitution and Application for Order Thereon' (Dkt. No. 2), tort 1 It is anticipated the United States will be substituted for Ronald Zimcosky a/k/a Ronald V. Zimcosky, Jr. pursuant to 42 U.S.C. 233 (c). Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 1 of 13 claims such as the one before the Court may only be brought by the mechanism of the FTCA, as it is the sole remedy for claims for personal injury or damage to property "arising or resulting from the [allegedly] 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. § 2679(b)(1). The FTCA operates as a waiver of the sovereign immunity of the United States for tort claims. McGuire v. Turnbo, 137 F. 3d 321, 324 (5th Cir. 1998); Atone Air, Inc. v. FAA, 942 2d 954, 958 (5th Cir. 1991); 28 U.S.C. § 2674. Further, because the FTCA is the exclusive remedy for tortious acts of an employee or agency of the United States, the only proper defendant in an FTCA case is the United States, and not a federal employee or agency. Kennedy v. Texas Utilities, 179 F. 3d 258, 261 n. 5 5( th Cir. 1999); McGuire, 137 F. 3d at 324; Atone Air, Inc. 942 at 957. Further, a case against a federal employee which has been removed based upon a certification of employment "shall be deemed to be an action or proceeding brought against the United States under the provisions of this [FTCA] title and all references thereto." 28 U.S.C. § 2679(d)(2). III. PLAINTIFF HAS FAILED TO FOLLOW FTCA STATUTORY PROCEDURES, RESULTING IN A LACK OF SUBJECT MATTER JURISDICTION A, When no Administrative Claim is Filed before the Complaint is Filed, the Court lacks Subject Matter Jurisdiction. In order for the United States to be subject to suit pursuant to the FTCA, Plaintiff must follow the statutory procedures set up by the FTCA and related jurisdictional provisions. Otherwise, the Court lacks subject matter jurisdiction over the plaintiff's complaint. The FTCA strictly and expressly requires that no lawsuit may be filed against the United States for monetary damages related to a tort claim unless the FTCA plaintiff's claim was 'first presented to the appropriate Federal agency and his [administrative] claim shall have been finally denied by the agency in writing and sent by certified mail", or six months have passed since the administrative Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 2 of 13 demand was made. See 28 U.S.C. § 2675(a) (emphasis added). "[S]trict adherence to the procedural requirements specified by the legislature" is necessary in the application of the FTCA's rule that the administrative claim must be made first, then followed by the complaint. McNeil, 508 U.S. at 113 (citation omitted). "Persons seeking recovery under the FTCA must first present their 'claim to the appropriate Federal agency,' and such claim must be 'finally denied by the agency' before suit may be brought in Federal Court." Saunders v. Bush, 15 F. 3d 64, 66 (5th Cir. 1994); cert. denied, 512 U.S. 1207 (1994) (citing 28 U.S.C. §§ 2675(a), 2671, et seq. 2680(h)). The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. McNeil v. United States, 508 U.S. 106, 113 (1993) (involving premature filing of complaint). As a matter of law, the statutory procedure set up by the FTCA requires that: one who wishes to bring an action against the government pursuant to the FTCA must first present an administrative claim to the appropriate federal agency. No action may be brought against the government until that agency has finally denied the claim in writing. Once the agency's final, written denial has been sent to the claimant2, the claimant has six months within which to bring his FTCA action against the government. Unless he does so, his action is forever barred. Reynolds v. United States, 748 F. 2d 291, 292 (5th Cir. 1984) (involving prematurely filed complaint); accord, Employees Welfare Committee v. Daws, 599 F. 2d 1375, 1378 (5th Cir. 1979); see also Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3658 p. 603 (3d Ed. 1998) ("the [FTCA] plaintiff is required to file an administrative claim as a prerequisite to bringing suit under the Federal Tort Claims Act"). The failure to comply with the requirements in the statute results in a lack of subject matter jurisdiction. Reynolds, 748 F. 2d at 292; accord, Daws, 599 F. 2d at 1378. The failure to file an administrative claim prevents the application of the FTCA to Plaintiff's claims. Egorov, Puchinsky, Afanasiev & ,htring v. Terriberry, Carroll & Yancey, 183 F. 3d 453, 457 (5th Cir. 1999). The requirement that an administrative claim be filed 2 Or six months has passed since the making of the Administrative demand, see 28 U.S.C. 2675(a). Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 3 of 13 before pursuing a remedy in federal court is unambiguous, and courts are not allowed to rewrite the text of the statute. McNeil, 508 U.S. at 111. When applied to the facts of the case at hand, the language of the FTCA and the cases applying it require a dismissal of this case for lack of subject matter jurisdiction. B. Plaintiff's Failure to Follow FTCA Procedures Results in Lack of Subject Matter Jurisdiction Over His Claim Because Plaintiff filed his Petition in the Texas state court Small Claims Court before filing any administrative claim, his removed Petition in this case must be dismissed for want of subject matter jurisdiction. Evidence attached to this motion establishes that Plaintiff Porter did not file an administrative demand or claim with the United States Department of Veterans Affairs, the pertinent federal agency, prior to filing his Petition in state court in this case. See Declaration of E. Douglas Bradshaw, attached to this motion as Exhibit "B" and incorporated herein by reference. As established above, unless an FTCA plaintiff first timely files an administrative claim, he may not pursue a claim that is within the scope of the FTCA (such as in this case) in federal court. 28 U.S.C. § 2675. Moreover, "[e]xhaustion of administrative remedies is a jurisdictional prerequisite to suit under the FTCA, and absent compliance with the statute's requirement the district court is without jurisdiction." Johnson v United States, 502 F. App'x 412, 420 (5th Cir. 2012) (quoting McAfee v. 51h Cir, Judges, 884 F. 2d 221, 222-23 (5t11 Cir. 1989)) (internal alterations omitted); see also, Fiory v. United States, 138 F. 3d 157, 159 (5t11 Cir. 1998) (failure to comply with the guidelines of the FTCA creates a jurisdictional defect and deprives the Court of subject matter jurisdiction). Plaintiff has thereby failed to comply with the jurisdictional requirements of the FTCA, the unambiguous statutory language of 28 U.S.C. § 2675, and the cases interpreting the statute. For this reason, the case must be dismissed for want of subject matter jurisdiction. 28 U.S.C. § 2675; Saunders, 15 F. 3d at 66 (claim held properly dismissed for lack of subject matter Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 4 of 13 jurisdiction). C. Even if the plaintiff had filed an administrative claim prior to filing a federal lawsuit, the United States asserts that 28 U.S.C. § 2680(h), the libel/slander (i.e. defamation) exception to the waiver of sovereign immunity precludes the existence of subject matter jurisdiction and would also mandate the dismissal of Plaintiffs claim. The Federal Tort Claims Act (FTCA) is set out under 28 U.S.C. §§ 1346(b)(1), 2671-2680. Under the listed 'Exceptions' section, 28 U.S.C. § 2680(h) states that the Federal Tort Claims Act's waiver of sovereign immunity does not apply to "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). The exception under Section 2680(h) specifically lists claims for libel, slander and misrepresentation, which courts have found to include claims for "defamation." See Johnson v. Sawyer, 47 F. 3d 716, 732 (5th Cir. 1995)(a claim for "defamation" is exempted from the FTCA"); Williams v. United States, 71 F. 3d 502, 507 (5th Cir. 1995)(affirming dismissal of defamation claim because a defamation action is not permissible under the Federal Tort Claims Act; Mourad v. Fleming, 2004 WL 2866975, * 3 (N.D. Tex. 2004)(internal citations omitted)("the FTCA does not provide a remedy for claims arising out of defamation"); Hasan v. Glickman, 1999 WL 38169 *3 (E.D. La. 1999)("a defamation claim against the United States is not cognizable under the FTCA"); Walker v. United States, 1998 WL 637360, *8 (E.D. La. 1998)("the intentional torts alleged by the plaintiffs- specifically, defamation (libel and slander), false imprisonment, and interference with contractual rights- are specifically excluded from the FTCA'); Brown v. United States, 1998 WL 292828 *2 (N.D. Tex. 1998)("it is clear that defamation does not constitute an actionable claim under the FTCA"); Walker v. United States, 1996 WL 200284, *1 (E.D. La. 1996)("Defamation ...is expressly excluded from the FTCA"). Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 5 of 13 Therefore, based on the above support, 28 U.S.C. § 2680(h) expressly precludes Plaintiff from bringing suit against the United States under the Federal Tort Claims Act for defamation. The United States retains its sovereign immunity in regards to Plaintiff's defamation claim, and accordingly Plaintiffs claim for defamation must be dismissed for lack of subject matter jurisdiction. WHEREFORE, PREMISES CONSIDERED, the United States respectfully requests the Court to carefully consider its Motion to Dismiss for Lack of Subject Matter Jurisdiction, that the Court dismiss Plaintiffs claim with prejudice, that the Court grant its costs incurred, and that the Court grant the United States such other and further relief, both legal and equitable, to which it may show itself to be justly entitled Respectfully submitted, RICHARD L. DURBIN, JR. United States Attorney By: /b/c2ame6nr. Si/Asan JAMES F. GILLIGAN Assistant United States Attorney State Bar No. 07941200 U.S. Attorney's Office 601 N.W Loop 410, Suite 600 San Antonio, Texas 78216-5597 Tel: (210) 384-7325 Fax: (210) 384-7312 ATTORNEYS FOR DEFENDANT, UNITED STATES OF AMERICA Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 6 of 13 CERTIFICATE OF SERVICE I hereby certify on the 9th day of March, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system and hereby certify that I have sent this filing by certified mail, return receipt requested, through the United States Postal Service to the following non- CM/ECF participants. BILLY J. PORTER, JR., Pro Se 113 Brook Bend Cibolo, Texas 78108 Certified Mail Read Receipt Requested No. 92147969009997901006249844 /.61 Saineb Silliscut JAMES F. GILLIGAN Assistant United States Attorney Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 7 of 13 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION BILLY JULIUS PORTER, JR., Plaintiff, Civil Action No. 5:17-cv-146-DAE V. UNITED STATES OF AMERICA3 Defendant ORDER ON DEFENDANT UNITED STATES' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION On this day came on to be considered the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction. After careful consideration, the Court is of the opinion that the motion should be granted. IT SHALL BE ORDERED that the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED. It is further Signed this day of , 201 DAVID A. EZRA SENIOR U.S. DISTRICT JUDGE 3 It is anticipated the United States will be substituted for Ronald Zimcosky a/k/a Ronald V. Zimcosky, Jr. pursuant to 42 U.S.C. 233 (c). Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 8 of 13 Exhibit A Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 9 of 13 731 lk 111115 PLAINTIFF v. ActOt ilia, K1 /4t DEFENDANT CAUSE NO. fl O1 IN THE JUSTICE COURT PRECINCT NO. 3 GUADALUPE COUNTY, TEXAS PETITION: SMALL CLAIMS CASE Defendant(s) address: (c) I Ob DaVc e:AVA i SA.; ic•c_, b -.1-r4eyerndkrkce,i 0 t-t. COMPLAINT: The basis for the claim which entitles Plaintiff to seek relief against Defendant is: RELIEF: Plaintiff seeks: damages in the amount of $ ttO),D return of personal property as described as follows (be specific): w ich has a value of $ . Additionally, Plaintiff seeks the following: sc-c,e_5 alt4 Fe-ZS SERVICE OF CITATION: Service is requested on Defendant(s) by: o personal service at home or work, o registered mail, o certified mail, return receipt requested. If required, Plaintiff requests alternative service as allowed by the Texas Rules of Civil Procedure. Other addresses where Defendant(s) may be served are: 1 hereby request a jury trial. The fee is $22 aid must be paid at least 14 days before trial. Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 10 of 13 o I hereby consent for the answer and any other motions or pleadings to be sent to my email address as follows: 1 Li Plaintiffs Printed Name Defendant's Information (if known): Date of birth: Last three digits of Driver License: Last three. di4its of Soc. Sec. No,: Phone No.: (_21-t (0") 4-41- csbr3 C f Signature of P1 intil or Plaintiffs Attorney 1 C-5 eYto V, le,,_c, Address of Plaintiff o klaintifrs Attn vioc‘ A 0.10 , ic City State Zip (21 0) 'Zig- Tk Phone & Fax No. of Plaintiff or Plaintiffs Attorney Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 11 of 13 Exhibit B Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 12 of 13 DECLARATION OF E. DOUGLAS BRADSHAW I, E. Douglas Bradshaw Jr., hereby declare and state the following: 1. I am the Chief Counsel, Torts Law Group, Department of Veterans Affairs, Office of General Counsel, 2. Pursuant to 38 C.F.R § 14.602, I am responsible for the investigation and adjudication of administrative tort claims for money damages presented to the Department of Veterans Affairs pursuant to Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., relating to tortious acts or omissions alleged to have occurred within the United States by employees of the Department of Veterans Affairs. 3. I have access to all records and indexes of administrative tort claims for money damages presented to the Department of Veterans Affairs. 4. I have made a diligent search of said records and indexes of all administrative tort claims for any such claims heretofore filed by or on behalf of Billy Porter. There is no record of any such administrative claims having been presented to the agency by Mr. Porter through this date. 5. I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct. Executed this 9th day of March, 2017. E. Douglas Bradshaw, Jr. Chief Counsel, Torts Law Group U.S. Department of Veterans Affairs Case 5:17-cv-00146-DAE Document 5 Filed 03/09/17 Page 13 of 13