Opinion
Civil Action No. 03-5367.
June 28, 2004
MEMORANDUM AND ORDER
Plaintiffs Barbarette and Derry Cudjoe, individually and as natural guardians and next friends of Derryen Cudjoe (collectively, "Plaintiffs"), filed the instant action against Defendants Department of Veterans Affairs ("Veteran Affairs"), Anthony J. Principi ("Principi"), Secretary of Veteran Affairs, and Roger W. Robert ("Robert") (collectively, "Defendants"), alleging that Defendants violated the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4851 et seq. and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. by failing to notify Plaintiffs of the possibility of lead paint in their rental apartment located at 197 East 18th Street in Chester, Pennsylvania. Plaintiffs also bring pendant state law claims sounding in negligence, negligent misrepresentation and omission and intentional misrepresentation and omission against Robert. Veteran Affairs and Principi (collectively, "Federal Defendants") move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on Plaintiffs' failure to file an administrative claim as required by the Federal Tort Claims Act, 28 U.S.C. § 2675(a).
Robert filed a counterclaim against Barbarette and Derry Cudjoe and a cross-claim against Veteran Affairs and Principi, alleging negligence. Both of these claims are based on state law.
Federal Rule of Civil Procedure 12(b)(1) governs challenges for want of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). There are two types of Rule 12(b)(1) motions: (1) a facial attack, which challenges only the court's subject matter jurisdiction; and (2) a factual attack, which allows the court to question the plaintiff's facts after the defendant files an answer. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). As Federal Defendants have not filed an answer, their motion is necessarily a facial attack.
It is unclear what standard of review governs facial attacks made under Rule 12(b)(1). The Third Circuit has "cautioned against treating a Rule 12(b)(1) motion as a Rule 12(b)(6) motion and reaching the merits of the claims" because "the standard for surviving a Rule 12(b)(1) motion is lower than that for a 12(b)(6) motion." Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citation omitted). The Third Circuit has also held that, when considering a facial attack under Rule 12(b)(1), "the trial court must accept the complaint's allegations as true." Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 n. 4 (3d Cir. 2002) (citing NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 n. 7 (3d Cir. 2001)). Rule 12(b)(6) requires that a court considering a motion to dismiss draw all reasonable inferences in favor of the plaintiff. Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). Because Rule 12(b)(6) has a more lower standard of review than that for Rule 12(b)(6), it follows that a court should also draw all reasonable inferences in the plaintiff's favor when considering a Rule 12(b)(1) defense.
It is axiomatic that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, waives the United States' immunity to suit. See U.S. v. Bein, 214 F.3d 408, 412 (3d Cir. 2000). "`[W]aivers of the Government's sovereign immunity, to be effective, must be "unequivocally expressed,'" and any such waiver must be construed strictly in favor of the sovereign." Id. (quoting U.S. v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992). "[W]hen the Government does consent to be sued, `the terms of [the] waiver of sovereign immunity define the extent of the court's jurisdiction.'" Id. (citing U.S. v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986).
Plaintiffs proceed under two statutes: (1) the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4851et seq.; and (2) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. Neither of those statutes, however, provide a waiver of sovereign immunity to allow private plaintiffs to sue the United States for money damages. The Residential Lead-Based Paint Hazard Reduction Act is void of any waiver much less the express waiver required. See generally 42 U.S.C. § 4851 et seq. And the waiver of sovereign immunity in the Toxic Substances Control Act merely subjects the United States to federal, state and local requirements regarding lead-based paint and permits judicial and administrative imposition of civil penalties against the United States for lead-based paint violations at federal facilities. See 15 U.S.C. § 2688.
The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., is the proper vehicle for relief. See Wallace v. United States, Civ. A. No. 00-179S, 2004 WL 63503 (D.R.I. Jan. 8, 2004); Suro v. United States, 107 F. Supp.2d 206 (E.D.N.Y. 2000); Lancaster v. United States, 927 F. Supp. 887 (D. Md. 1996); Angle v. United States, 931 F. Supp. 1386 (W.D. Mich. 1994); Pierre v. United States, 741 F. Supp. 306 (D. Mass. 1990); Bledsoe v. Dep't of Hous. and Urban Dev., 398 F. Supp. 315 (E.D. Pa. 1975). The Federal Tort Claims Act waives the sovereign immunity of the United States in civil actions for money damages arising from the negligence or a wrongful act of an employee of the United States acting within the scope of his or her employment. See Bradley v. United States, 856 F.2d 575, 577-78 (3d Cir. 1988); Anderson v. United States, 744 F. Supp. 641, 643 (E.D. Pa. 1990). The Act requires any claimant to file an administrative claim with the appropriate federal agency before filing suit in court. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 107, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 21, 25 (1993) (An action may not be commenced under the Federal Tort Claims Act unless the claimant has first exhausted his administrative remedies prior to filing suit.). The requirement is jurisdictional and cannot be waived by the government. See Livera v. First Nat'l Bank, 879 F.2d 1186, 1194 (3d Cir.) cert. denied, 493 U.S. 937, 110 S.Ct. 332, 107 L.Ed.2d 322 (1989). Thus, a plaintiff's failure to exhaust administrative remedies must result in a dismissal.
Plaintiffs have not honored this requirement. They have made no attempt to file an administrative claim with the appropriate federal agency before seeking relief in federal court. See Affidavit of Jose H. Lopez ¶¶ 4, 5. Plaintiff's failure to exhaust their administrative remedies deprives the Court of jurisdiction to hear this case. Accordingly, Count I of the Complaint is dismissed.
The Court now turns to Plaintiffs' pendant state law claims and Robert's counterclaim and cross-claim. A district court may exercise "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). This provision requires the following: "(1) [t]he federal claims must have substance sufficient to confer subject matter jurisdiction; (2) [t]he state and federal claims must derive from a common nucleus of operative facts; and (3) the plaintiff's claims [must be] such that [s/]he would ordinarily be expected to try them all in one judicial proceeding." Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 275 (3d Cir. 2001). Moreover, "where federal claims are dismissed before trial, the court `must decline to [exercise supplemental jurisdiction]' unless considerations of judicial economy, convenience and fairness to the parties provide an affirmative justification for doing so.'" Bonenberger v. Plymouth Township, 132 F.3d 20, 23 (3d Cir. 1997) (quotingBorough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). Because the Court does not have jurisdiction over Plaintiffs' lead paint claims for want of jurisdiction, it declines to exercise supplemental jurisdiction over Plaintiffs' state law claims and Roger's counterclaim and cross-claim. Counts II, III and IV of the Complaint are therefore dismissed, along with Robert's counterclaim and cross-claim.
ACCORDINGLY, this 28th day of June, 2004, upon consideration of the Motion to Dismiss of Defendants Department of Veterans Affairs and Anthony J. Principi, Secretary of Veterans Affairs (Dkt. No. 7), and the response thereto of Plaintiffs Barbarette and Derry Cudjoe, individually and as natural guardians and next friends of Derryen Cudjoe, IT IS HEREBY ORDERED that said Motion is GRANTED. The clerk is directed to statistically close this matter.