Opinion
2:21-cv-01826-HL
02-07-2022
MONIQUE TRAMMELLE and H.T., minor child, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiffs Monique Trammelle and H.T., self-represented litigants, filed a small claims action against Stephen Legler, the Postmaster and an employee of the United States Postal Service. Plaintiffs seek to recover $10,000 after the United States Postal Service failed to deliver mail-which included a driver's license renewal and two COVID-19 stimulus checks-to 1 Plaintiffs' post office box. Notice Removal, Ex. 2 (“Compl.”), ECF 1-2. The United States then removed Plaintiffs' small claims case to federal court. Notice Removal, ECF 1. In removing this case to federal court, the United States was substituted as the Defendant pursuant to 28 U.S.C. § 2679(d)(1). See Notice Removal ¶¶ 4-5, ECF 1.
This case now comes before the Court on the United States' Motion to Dismiss for lack of subject matter jurisdiction. Def.'s Mot. Dismiss, ECF 3. Plaintiffs' initial deadline to file a response was on January 10, 2022. Plaintiffs did not file a response. Subsequently, the Court sua sponte provided an extension of time to allow Plaintiffs fourteen additional days, until February 1, 2022, to respond to the motion. January 18, 2022, Order, ECF 6. Plaintiffs never filed a response. Pursuant to Local Rule 7-1(d)(1), the Court resolved this motion without oral argument. For the reasons that follow, the United States' Motion to Dismiss should be granted.
LEGAL STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure governs motions to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When a party challenges subject matter jurisdiction, the burden of proof is on the party asserting that jurisdiction exists. See Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists”) (citations omitted). “In evaluating the Rule 12(b)(1) motion to dismiss, the district court [may] consider[] affidavits furnished by both parties. This is proper because Rule 12(b)(1) attacks on jurisdiction can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). “Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert [his] claims in a competent court.” 2 Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988). However, if there is no possibility of curing the jurisdictional defect, dismissal with prejudice is proper. Id.
When reviewing the sufficiency of a complaint filed by a self-represented litigant, the court must liberally construe the pleading and accept as true all factual allegations contained therein. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Defendant makes two arguments in support of its motion to dismiss: (1) Plaintiffs' claims are barred by sovereign immunity; and (2) Plaintiffs failed to exhaust their administrative remedies. The Court agrees on both grounds.
I. Sovereign Immunity
First, Plaintiffs' claim should be dismissed because their claim is barred by sovereign immunity. The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., “provides a limited waiver of sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment.” Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). But the FTCA also expressly preserves sovereign immunity over certain claims enumerated in 28 U.S.C. § 2680. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004) (“[T]he [FTCA] also limited its waiver of sovereign immunity in a number of ways.”). Specifically, the FTCA does not apply to “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). If a claim falls within any of the § 2680 exclusions, then the court lacks subject matter jurisdiction over the claim. Nurse, 226 F.3d at 1000.
Here, Plaintiffs allege that their mail “disappeared” and was “never received.” Compl. 1. They do not allege whether Defendant lost the mail or intentionally converted it-although 3 Plaintiffs' allegations regarding identify theft and a hate crime would suggest the latter. See Compl. at 1-2. This distinction is not material, however, because the § 2680(b) loss of mail exclusion applies regardless whether Plaintiffs allege loss due to negligence or an intentional tort. Dolan v. U.S. Postal Serv., 546 U.S. 481, 487 (2006) (“[M]ail is lost if it is destroyed or misplaced.”); see Lum v. Americas' Collectibles Network, Inc., No. SACV1001269AGSSX, 2011 WL 13225124, at *3 (C.D. Cal. Sept. 19, 2011) (“Because stolen mail is ‘lost' mail, the postal matter exception to the FTCA is not limited to negligence torts.”) (citing Levansseur v. United States Postal Serv., 543 F.3d 23, 24 (1st Cir. 2008)).
Because the United States has not waived sovereign immunity for claims concerning lost mail, Plaintiffs' claim should be dismissed as being barred by sovereign immunity pursuant to 28 U.S.C. § 2680(b). Moreover, no amendments could cure this defect given the broad scope of the § 2680(b) exception, so Plaintiffs' claim should be dismissed with prejudice. See Frigard, 862 F.2d at 204.
II. Exhaustion of Administrative Remedies
Second, even if Plaintiffs could assert a claim under the FTCA, Plaintiffs' claim should be dismissed because Plaintiffs failed to exhaust their administrative remedies before filing this action. Under the FTCA, a party cannot assert an action against the United States “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.” 28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 112 (1993); Gillepsie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (“The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA, and, as such, should be affirmatively alleged in the complaint.”). The administrative exhaustion requirement is 4 “jurisdictional in nature and may not be waived.” Vacek v. Postal Serv., 447 F.3d 1248, 1253 (9th Cir. 2006) (citation and quotation marks omitted).
In this case, Plaintiffs do not allege in their complaint that they have filed an administrative claim with the United States Postal Service. The United States submitted a declaration from a Tort Claims Examiner/Adjudicator with the United States Postal Service Law Department, establishing that Plaintiffs did not file an administrative claim with the United States Postal Service. See Decl. Kimberly A. Herbst ¶¶ 4, 6, ECF 4. Indeed, Plaintiffs have not filed a response to the present motion or produced any evidence demonstrating that they have filed an administrative claim. Accordingly, even if Plaintiffs could bring suit under the FTCA, Plaintiffs' claim should be dismissed for lack of subject matter jurisdiction.
RECOMMENDATION
The United States' Motion to Dismiss, ECF 4, should be GRANTED. This case should be DISMISSED with prejudice.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately 5 appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment. 6