Opinion
Civil Action No. 04-4502.
January 21, 2005
ORDER — MEMORANDUM
AND NOW, this 21st day of January, 2005, upon consideration of Defendant's uncontested Motion to Dismiss (Docket No. 3), IT IS HEREBY ORDERED that the Motion is GRANTED. IT IS FURTHER ORDERED that this case is DISMISSED in its entirety. The Clerk shall close this case statistically.
Plaintiff James E. Stumpp has brought this action, pro se, against Defendant Secretary of the United States Department of Housing and Urban Development ("HUD"). The Complaint consists of one paragraph which states as follows:
Secretary of Housing and Urban Development was aware of a City Code violation at the property of 6315 Algard St. (Defective water lateral) and Failed [sic] to disclose this imformation [sic] before selling the property to James E. Stumpp. The cost of repairs were [sic] $3,175.00.
(Compl.) Defendant has moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because Plaintiff's claim is barred by the doctrine of sovereign immunity and because Plaintiff failed to file an administrative claim prior to bringing suit against HUD.
Defendant has also moved, in the alternative, for summary judgment. As the Court has granted Defendant's Motion to Dismiss, the Court need not reach Defendant's alternative motion for summary judgment.
Since the Government has made a factual challenge to the Court's subject matter jurisdiction over Plaintiffs' misrepresentation claim, the Court is not "confined to the allegations in the complaint . . . and can look beyond the pleadings to decide factual matters relating to jurisdiction."Cestonara v. United States, 211 F.3d 749, 752 (3d Cir. 2000).
"It is a `well-settled principle that the federal government is immune from suit save as it consents to be sued.'" Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996) (quoting FMC Corp. v. United States Dep't. of Commerce, 29 F.3d 833, 839 (3d Cir. 1994) (in banc)). Federal agencies and instrumentalities, as well as federal employees acting in their official capacities within their authority, are similarly immune from suit. Federal Housing Admin. v. Burr, 309 U.S. 242, 244 (1940). Congress's waiver of sovereign immunity must be explicit and unequivocally expressed in statutory text. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). Where a suit has not been consented to by the United States, dismissal of the action is required. See United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of such consent is a prerequisite for jurisdiction.")
The federal government has waived its immunity pursuant to the Federal Tort Claims Act ("FTCA") "for injuries `caused by the negligent or wrongful act or omission of any employee of the Government . . . 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.'"In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 361-62 (3d Cir. 2001) (quoting 28 U.S.C. § 1346(b)(1)). However, this waiver of sovereign immunity does not apply to claims arising out of misrepresentation or deceit. 28 U.S.C. § 2680(h);see also Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91, 96 (3d Cir. 1995) (agreeing with the conclusion of the district court that section 2680(h) of the FTCA "specifically preserves the sovereign immunity of the United States with respect to claims `arising out of . . . misrepresentation [or] deceit'") (quoting 28 U.S.C. § 2680(h)). Section 2680(h) applies to claims for negligent as well as willful misrepresentation.United States v. Neustadt, 366 U.S. 696, 702 (1961).
The Complaint, viewed in the light most favorable to Plaintiff, asserts a claim for misrepresentation against the Government. The Court finds, therefore, that Plaintiff's claim is barred by the doctrine of sovereign immunity.
The Government also argues that the Complaint should be dismissed because Plaintiff failed to comply with the requirements of the FTCA prior to filing suit. "Pursuant to the Federal Tort Claims Act, a party may not maintain an action against the United States of America `unless the claimant shall have first presented the claim to the appropriate Federal agency.'" McNiff v. Asset Mgmt. Specialists, 337 F. Supp. 2d 685, 692 (E.D. Pa. 2004) (quoting 28 U.S.C. § 2675(a)). The requirement that a party file an administrative claim is an absolute prerequisite to the filing of a civil action against the United States. Id. (citation omitted). "This requirement is jurisdictional and cannot be waived." Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). Defendant has submitted the Declaration of Thomas Rodick, Acting Regional Counsel for the New England Region of HUD. (Def.'s Ex. E.) He is responsible for "supervising the review and processing of all tort claims filed with [HUD]." (Id. ¶ 3.) A search of his files has indicated that Plaintiff has not filed a claim with HUD. (Id. ¶ 4.) The Court finds that Plaintiff has failed to comply with the requirement that he file an administrative claim with HUD pursuant to 28 U.S.C. § 2675(a) prior to filing this action. Consequently, even if Plaintiff's claim were not barred by the doctrine of sovereign immunity, this Court would not have subject matter jurisdiction over Plaintiff's claim because Plaintiff failed to file an administrative claim pursuant to the FTCA prior to filing suit. Defendant's Motion to Dismiss is, therefore, granted.