Opinion
3:22-cv-00697-SB
01-27-2023
DAMIAN EARLEY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, United States Magistrate Judge
Damian Earley (“Earley”) suffered meniscus and anterior cruciate ligament (“ACL”) tears in his left knee when he was previously in the custody of the Federal Bureau of Prisons (“BOP”). Earley filed this negligence action against the United States of America (the “Government”), alleging that BOP employees negligently delayed the care and treatment of his knee injury.
The Court recently dismissed, without prejudice and with leave to refile in another jurisdiction, Earley's claim against the other defendant named in his complaint. (ECF Nos. 29, 38.)
The Government moves to dismiss Earley's complaint on the ground that the Court lacks subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). The parties have not consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge grant the Government's motion to dismiss.
DISCUSSION
The Government disputes Earley's jurisdictional allegation that he exhausted his administrative remedies under the Federal Tort Claims Act (“FTCA”), and therefore moves to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(1) for lack of subject matter jurisdiction. (See Compl. ¶¶ 6, 9, ECF No. 1, alleging that the BOP was negligent and Earley “exhausted his administrative remedies by filing grievances . . . [and] a tort claim notice with BOP on or about January 18, 2022”); cf. Brunson v. Kijakazi, No. 21-16380, 2023 WL 166425, at *1 (9th Cir. Jan. 12, 2023) (holding that “[t]he district court did not err in holding that it had no jurisdiction, as [the plaintiff] failed to allege that she exhausted her administrative remedies as required under the [FTCA]”).
As explained below, the FTCA bars a claimant from bringing suit in federal court unless he has first exhausted his administrative remedies. Contrary to the FTCA's requirements, Earley filed suit before he exhausted. Accordingly, the Court recommends that the district judge grant the Government's motion to dismiss.
I. APPLICABLE LAW
The Ninth Circuit has explained that “[t]o contest a plaintiff's showing of subject matter jurisdiction, a defendant may file two types of Rule 12(b)(1) motions[.]” Bedwell v. TBLBEnters. LLC, No. 21-56245, 2022 WL 3083320, at *1 (9th Cir. Aug. 3, 2022). Specifically, a defendant may file “a facial attack, which challenges jurisdiction ‘facially,' by arguing that the allegations . . . are insufficient on their face to invoke federal jurisdiction, or a ‘factual' attack, which presents extrinsic evidence . . . disputing the truth of the allegations of the complaint that would otherwise invoke federal jurisdiction.” Id. (citing Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)).
Defendant's Rule 12(b)(1) motion presents a factual attack because it disputes the truth of Earley's allegations that he exhausted his administrative remedies under the FTCA, and relies on extrinsic evidence. (See Def.'s Mot. Dismiss Pl.'s Compl. (“Def.'s Mot.”) at 2, 5, ECF No. 22, arguing that Earley has not exhausted his administrative remedies and relying on the BOP's records (citing Decl. Danielle Rogowski Supp. Def.'s Mot. Dismiss (“Rogowski Decl.”), ECF No. 23))); cf.Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) (reviewing “a dismissal for lack of subject matter jurisdiction under the FTCA,” and observing “the United States mounted a factual attack when it filed declarations and affidavits challenging [certain] allegations”).
Where, as here, “the moving party converts ‘the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.'” Wolfe, 392 F.3d at 362 (quoting Safe Air for Everyonev. Meyer, 373 F.3d 1035 (9th Cir. 2004)). Earley has filed declarations and exhibits in support of his opposition to the Government's motion. (See Decl. Tran (“Tran Decl.”), ECF No. 25; Decl. William Macke (“Macke Decl.”), ECF No. 26.) The parties dispute whether Earley's declarations and exhibits are sufficient to satisfy his burden of establishing subject matter jurisdiction.
B. FTCA
“Sovereign immunity is an important limitation on the subject matter jurisdiction of federal courts.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). “An action can be brought by a party against the United States only to the extent that the Federal Government waives its sovereign immunity.” Esquivel v. United States, 21 F.4th 565, 572 (9th Cir. 2021) (quoting Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996)). The FTCA “waives the sovereign immunity of the United States for certain torts committed by federal employees under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Vacek, 447 F.3d at 1250 (quoting Smith v. United States, 507 U.S. 197, 201 (1993)); see also 28 U.S.C. § 1346(b)(1).
The FTCA, however, “provides that an ‘action shall not be instituted upon a claim against the United States for money damages' unless the claimant has first exhausted administrative remedies.” Vacek, 447 F.3d at 1250 (quoting 28 U.S.C. § 2675(a)). It is well settled that “[a] claimant must present a claim for administrative review to the appropriate federal agency within two years after the claim accrues.” Gilliam v. United States, No. 3:22-cv-01269-HZ, 2023 WL 136538, at *2 (D. Or. Jan. 9, 2023) (citing 28 U.S.C. §§ 2401(b), 2675(a)). Thereafter, “if the agency denies the claim in writing or fails to make a final decision within six months, the claimant may file suit [in federal court].” Id. (citing 28 U.S.C. § 2675(a)). Notably, as the district judge assigned to this case recently observed, “[b]oth the Supreme Court and the Ninth Circuit have strictly interpreted the requirement that the claimant present a claim for administrative review before filing suit.” Id. (citing McNeil v. United States, 508 U.S. 106, 1113 (1993) and Vacek, 447 F.3d at 1250)).
II. ANALYSIS
The Government argues that the Court should grant its motion to dismiss Earley's complaint because Earley failed to exhaust his administrative remedies under the FTCA before he filed this suit on May 12, 2022. (Def.'s Mot. at 2.) In support, the Government submits evidence reflecting that the BOP received Earley's Standard Form 95 (“SF-95”) on May 11, 2022, the day before he filed suit, not January 18, 2022, the day Earley references in his complaint. (See id. at 2, 5-6, citing Compl. at 3 and Rogowski Decl. Ex. 1 at 1; see also Rogowski Decl. ¶¶ 4-7.)
“A Standard Form 95 is the standard form used to file a claim against the government under the FTC.” Dalrymple v. United States, 460 F.3d 1318, 1322 n.3 (11th Cir. 2006) (citation omitted).
Earley responds that he timely submitted an SF-95 in “both January and May 2022.” (Resp. Def.'s Mot. Dismiss (“Pl.'s Resp.”) at 1, ECF No. 24.) In support of this assertion, Earley submitted a declaration and exhibits from his counsel's former legal assistant. These submissions reflect that (1) Earley's counsel employed the legal assistant “during December 2021 and January 2022,” (2) on December 28, 2021, Earley's counsel emailed the legal assistant a “[s]ignature page for the Earley tort claim,” and stated that the legal assistant “need[ed] to print out the claim and get it mailed,” (3) “[c]onsistent with the email exchange,” the legal assistant mailed a SF-95 to the BOP “[o]n or about December 28, 2021,” and (4) the legal assistant represents that the initial SF-95 was addressed to “320 First Street NW, Washington, DC 20534” (i.e., the same address Earley used to mail an SF-95 to the BOP in May 2022) and “not returned to [Earley's counsel's] office as undeliverable.” (Tran Decl. ¶¶ 1-4; id. Exs. 1-2; cf. Rogowski Decl. Ex. 2 at 1.)
The Government claims that it is “meaningless” whether Earley mailed the SF-95 on or about December 28, 2021 or January 18, 2022, because the mailing of a claim alone is not “sufficient to meet the requirement that a claim be ‘presented'” to the agency, and the BOP did not receive the SF-95 until May 11, 2022. (See Def.'s Mot. at 6, quoting Bailey v. United States, 642 F.2d 344, 346-47 (9th Cir. 1981).) The Government argues that the Ninth Circuit's decision in Bailey controls here. (Def.'s Reply Supp. Mot. Dismiss & Suppl. Mot. Dismiss (“Def.'s Reply”) at 3, ECF No. 33.)
in Bailey, an individual who worked at an Air Force gunnery died due to an explosion in May 1975. 642 F.2d at 345. The same law firm represented the decedent's heirs and two injured co-workers in “asserting tort claims against the United States for alleged negligence in connection with the accident.” Id. In mid-August 1975, the firm mailed the co-workers' claims to the Air Force's claims office, and the claims officer in charge promptly acknowledged receipt of the claims. Id. The firm did not file a claim on behalf of the decedent's heirs at that time because it was awaiting the appointment of a personal representative, but it “did notify the claims officer that such a claim would be forthcoming and that [it] would be representing the [decedent's] heirs.” Id. The firm and Air Force exchanged “several letters” over the next thirteen months, including letters about the decedent's autopsy report, earnings, dependents, and funeral bills, and in mid-September 1976, the firm mailed the decedent's “claim forms . . . to the Air Force claims officer.” Id. at 346. Despite doing so, the Air Force never received the cover letter and claim forms. Id.
In mid-June 1977, the firm received notice that the Air Force denied one of the decedent's co-workers' claims, and as a result, inquired about the status of the decedent's claim. Id. The Air Force informed the firm that it “had no record of receiving a claim form from [the decedent's] estate.” Id. The firm “immediately sent copies of the claim, but the Air Force refused to consider it for failure to file within two years of the accident as required by 28 U.S.C. §§ 2401(b), 2675(a) and regulations implementing these statutory provisions[.]” Id. (citations omitted).
On appeal, the Ninth Circuit affirmed the district court's grant of the government's motion to dismiss for lack of jurisdiction. Id. The Ninth Circuit explained that § “2675(a) requires, as a prerequisite to suit, that the claimant shall have first presented the claim to an appropriate Federal agency,” that § “2401(b) requires that the claim be presented in writing within two years after such claim accrues,” and that the implementing regulations provide that a “claim shall be deemed to have been presented when a Federal agency receives . . . [an SF-]95 or other written notification of an incident, accompanied by a claim for money damages[.]” Id.(simplified). The Ninth Circuit held that the decedent's “claim was not ‘presented,' i.e., ‘received' by the agency, as the statute and the regulation require, within two years.” Id. In so holding, the Ninth Circuit emphasized, among other things, that the plaintiffs and their counsel did “not claim ignorance of the statutory and regulatory requirements,” had “notice [via the regulations] that a claim is not presented until it is received,” took no action “for the better part of eight months” (i.e., “[c]ounsel mailed [the decedent's] claim [in September 1976, about] eight months before the [two-year] statutory deadline”), and did “not send [the claim] by certified or registered mail, a well known and easy way to establish receipt of the claim by the [agency].” Id.at 347.
The Ninth Circuit also held that the circumstances presented did “not warrant equitable relief, if indeed such relief [was] available,” rejected the plaintiffs' assertion that “mailing alone [was] sufficient to meet the requirement that a claim be ‘presented,'” and found that any purported presumption of receipt was “amply rebutted by the [claims officers'] affidavits presented to the district court by the government,” which confirmed the untimely receipt. Id. at 346-47.
Earley argues that Bailey is distinguishable. (Pl.'s Resp. at 2.) In support, Earley emphasizes that in Bailey, the Ninth Circuit “noted that [the appellants] waited more than eight months until they were notified by the government that the claim had not been received,” whereas here, Earley “followed up on his own [SF-95] within five months and arguably, with application of the discovery rule, within two-years of discovery of his injuries.” (Id., citing Bailey, 642 F.2d at 346-47.) However, the Ninth Circuit was clear in Bailey that a claimant does not present his claim until the agency receives the claim, and that no equitable relief is available for a claimant who attempted to but did not appropriately present his claim. See Bailey, 642 F.2d at 346-47.
Therefore, regardless of whether Earley mailed his SF-95 in or around late December 2021 or mid-January 2022 (see Tran Decl. ¶¶ 1-4; Compl. at 3), the Government did not receive Earley's SF-95 until May 11, 2012, the day before he filed suit. See Bailey, 642 F.2d at 346 (observing that the government “admitted for purposes of its motion to dismiss in this case that the claim forms had indeed been mailed,” and “presented the affidavits of four claims officers all stating that the [decedent's] claim had not been received until after the two year limitation period had elapsed”); (cf. Rogowski Decl. ¶¶ 2-7; id. Ex. 2 at 1, reflecting that an attorney advisor, who is familiar with the BOP's administrative tort claims database, has declared under penalty of perjury that the BOP received Earley's initial SF-95 on May 11, 2022, and the SF-95 was in an envelope “postmarked May 4, 2022”).
Earley alternatively argues that the FTCA's exhaustion requirement is now moot because the BOP denied his claim while his case was pending in this court. (Pl.'s Resp. at 2, citing Macke Decl. Ex. 1 at 1.) Earley, however, fails to address the fact that “the Supreme Court [has] clarified that a prematurely filed FTCA claim must be dismissed even if the plaintiff ultimately exhausts his administrative remedies before ‘substantial progress' has occurred in the [federal court] case.” D.L. ex rel. Junio v. Vassilev, 858 F.3d 1242, 1245 (9th Cir. 2017) (quoting McNeil, 508 U.S. at 113). The McNeil plaintiff “filed an FTCA claim against the United States in federal court before exhausting his administrative remedies,” and later “notified the district court that his administrative claim had been denied.” Id. at 1246. The Supreme Court affirmed the district court's grant of the government's “motion to dismiss [the] plaintiff's complaint as premature due to the failure to exhaust before filing,” and in doing so, “settl[ed] a circuit split over whether a premature FTCA complaint could survive dismissal if administrative exhaustion occurred before ‘substantial progress' had been made in the federal litigation.” Id. (quoting McNeil, 508 U.S. at 110-13).
Consistent with Bailey and McNeil, the Court recommends that the district judge (1) grant the Government's motion to dismiss for lack of subject of matter jurisdiction because Earley failed to exhaust his administrative remedies before filing suit, and (2) enter judgment dismissing this case without prejudice. See Wiggins v. U.S. Gov't, 859 Fed.Appx. 52, 52-53 (9th Cir. 2021) (affirming the dismissal of a self-represented litigant's FTCA “claim for lack of subject matter jurisdiction because [he] failed to exhaust his administrative remedies,” and noting that “the FTCA bars a claimant from bringing suit in federal court unless the claimant has first exhausted administrative remedies” (citing McNeil, 508 U.S. at 113)); Harned v. United States, No. 3:21-cv-00878-AR, 2022 WL 3153998, at *1 (D. Or. Aug. 8, 2022) (granting a motion to dismiss for lack of jurisdiction due to the failure to exhaust and dismissing without prejudice the plaintiff's action against the United States).
During oral argument, the Government withdrew its statute of limitations argument and represented that it is now seeking dismissal without prejudice. Cf. Tunac v. United States, 897 F.3d 1197, 1201 (9th Cir. 2018) (stating that “a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction” and “a judgment based on the statute of limitations is a judgment on the merits,” and thus holding that “we must determine whether we have jurisdiction over this complaint before we can reach the government's argument that [the plaintiff]'s complaint is barred by the [FTCA's] statute of limitations”) (simplified). If Earley elects to refile in this court, Earley's civil cover sheet should identify the refiled action as related to this case.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT the Government's motion to dismiss (ECF No. 22), and enter judgment dismissing this action without prejudice.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.