The FTCA expressly preserves the United States’ immunity against tort liability for suits in excess of the amount claimed administratively, except in two circumstances, neither applicable here: Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. 28 U.S.C. § 2675(b). Thus, the “FTCA bars a Plaintiff from recovering an amount in excess of his administrative claim absent ‘newly discovered evidence’ or ‘intervening facts.

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 jurisdiction). Case 5:17-cv-00144-XR Document 6 Filed 03/09/17 Page 4 of 13 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 Plaintiff's claim.

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 jurisdiction). Case 5:17-cv-00145-XR Document 6 Filed 03/09/17 Page 4 of 13 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 Plaintiff's claim.

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.

Based on Plaintiffs’ failure to comply with the jurisdictional, non-waivable tort claim filing requirement under § 2675(a), their lawsuit must be dismissed for lack of subject matter jurisdiction. The United States also respectfully requests the Court to continue the November 29, 2016, Telephonic Scheduling Conference (ECF 4) until after the Court has had the opportunity issue a ruling on the subject matter jurisdiction issue raised by this motion.

This requirement flows from the statutory specification in 28 U.S.C. § 2675(b) that suit “shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency . . . .” 28 U.S.C. § 2675(b). The criteria for determining what constitutes an administrative claim for purposes of compliance with 28 U.S.C. § 2675 is set forth in 28 C.F.R. § 14.2(a), which provides: 3 In 28 U.S.C. § 2401(b), Congress provided that: “(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .” Case 2:16-cv-01640-KM-MAH Document 13-1 Filed 09/30/16 Page 11 of 14 PageID: 73 8 For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, 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 alleged to have occurred by reason of the incident . . . . 28 C.F.R. § 14.

Judicial economy warrants its dismissal. Plaintiffs, Angel Otero-Ortiz, Doris N. Del Valle-Cruz, Angel L. Otero-Del Valle and Randy L. Otero-Del Valle’s claim amounts contained in their Second Amended Complaint in excess of the administratively claimed five million dollars (45,000,000) and five hundred thousand dollars ($500,000) should be reduced pursuant to 28 U.S.C. § 2675(b) because they did not set forth any newly discovered evidence or intervening facts to merit an increase. Finally, Plaintiffs loss of benefits claim against the United States should be dismissed for lack of subject matter jurisdiction because the exclusive avenue for redress of veterans’ benefits determinations is an appeal to the Board of Veterans Appeals and from there to the United States Court of Appeals for the Federal Circuit, not Federal District Courts.

of Sheri Grier (FTC), at ¶ 6). Accordingly, Plaintiff has failed to exhaust administrative remedies as mandated by 28 U.S.C. § 2675(a), and the negligence claims against each Federal Defendant should therefore be dismissed. See Rule 12(b)(1); Shelton, 775 F.3d at 569 (stating that the FTCA’s requirement of administrative exhaustion is jurisdictional and cannot be waived).

The Ninth Circuit and district courts have overwhelmingly held the view that exhaustion of administrative remedies must be demonstrated in the original complaint. McNeil, 508 US at 113; Jerves, 966 F.2d at 521; Sparrow v. United States Postal Service, 825 F. Supp. 252, 254 (E.D. Cal. 1993) (“To permit the premature filing of an FTCA action to be cured by the filing of an amended complaint upon denial of the administrative claim would be inconsistent with both McNeil and the rationale behind the jurisdictional prerequisite mandated by the FTCA, 28 U.S.C. § 2675(a).”); Miller v. Mayers Memorial Hospital, 2009 WL 3048690 at *3 (E.D. Cal. 2009); Soto v. United States, 2007 WL 2601411 at *1 (E.D. Cal. 2007).

C 03-4006 JL, 2004 WL 422621, at *2 (N.D. Cal. Mar. 1, 2004). D. Leave to Amend the Complaint Would Be Futile “[Plaintiff] is precluded from pursuing claims arising out of negligently-handled mail, 28 U.S.C. § 2860(b), and [plaintiff] failed to exhaust her administrative remedies, as required by 28 U.S.C. § 2675(a). Based on the facts alleged, [plaintiff] cannot amend her complaint to demonstrate jurisdiction.