Opinion
Civil Action 2:23-439
09-01-2023
NICHOLAS WEIR, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
COLVILLE, JUDGE.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Plaintiff's Letter Motion for Exception to Administrative Exhaustion (ECF No. 5) be denied.
II. Report
A. Introduction
Plaintiff Nicholas Weir commenced this action in which he asserts a number of claims against the United States and various federal agencies as well as various medical providers and other individuals.
With respect to the United States, the Federal Bureau of Investigation (“FBI”), the Central Intelligence Agency (“CIA”), the Department of Defense (“DOD”), the Office of Government Ethics (“OGE”) and the Food and Drug Administration (“FDA”) (collectively the “Federal Defendants”), Plaintiff makes wide ranging allegations. While not set forth here at length, this includes his assertion that they tried to “coerce [him] into join[ing] the military by sabotaging [his] career, professional network, jobs, social networks, marriage, relationship with spouse's family, and relationship with some of his family[,] as well as attacking [him] in both private and public spaces.” (ECF No. 4 ¶ 1.) Among the causes of action asserted against the United States, the FBI, the CIA and the DOD are claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (“FTCA”).
The Federal Defendants argue in their pending motion to dismiss that the “only proper defendant in an FTCA suit is the United States itself.” Feaster v. Fed. Bureau of Prisons, 366 Fed.Appx. 322, 323 (3d Cir. 2010). See 28 U.S.C. §§ 2674, 2679(a), (b)(1). Thus, they have moved to dismiss all of the federal agencies with prejudice based upon lack of jurisdiction.
Shortly after filing an Amended Complaint on March 15, 2023, Plaintiff filed a “Letter Motion for Exception to Administrative Exhaustion” (ECF No. 5). In this motion, Plaintiff seeks to avoid the application of the FTCA's exhaustion requirement. The Federal Defendants have filed a response in opposition to this motion (ECF No. 60) and Plaintiff has filed a reply brief (ECF No. 67).
For the reasons that follow, Plaintiff's motion should be denied.
B. Exhaustion Requirement
The United States may not be sued without its consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA provides a limited waiver of the United States' sovereign immunity for certain state law tort claims. See 28 U.S.C. § 1346(b). It “allows plaintiffs to bring claims based on the action of Government employees when private persons engaging in analogous behavior would be liable under state law.” CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008).
Waiver of the United States' sovereign immunity under the FTCA is subject to certain limitations, however. Specifically, the FTCA provides that:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.28 U.S.C. § 2675(a). See McNeil v. United States, 508 U.S. 106, 113 (1993) (the “FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”)
The Court of Appeals has held that a complaint filed prior to the time that administrative remedies have been exhausted is premature and must be dismissed. See Accolla v. United States Gov't, 369 Fed.Appx. 408, 410 (3d Cir. 2010) (dismissing complaint as premature because it was filed prior to exhaustion being completed; subsequent completion of exhaustion does not cure the defect); Hoffenberg v. Provost, 154 Fed.Appx. 307, 310 (3d Cir. 2005) (dismissing case despite plaintiff's amendment of complaint after exhaustion was completed because the date of the amended complaint could not serve as the date the federal suit was “instituted.”)
With respect to FTCA claims, “the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003). “As the party asserting jurisdiction, [Plaintiff] bears the burden of showing that its claims are properly before the district court.” Development Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995).
By his own admission, Plaintiff neither waited for a final denial from any federal agency nor did a period of six months elapse without receiving a final denial from any agency. Rather, he acknowledges that he mailed “A Notice of Claim (FTCA) to the FBI, CIA, and DOD” on March 7, 2023. (ECF No. 5 at 1.) Assuming his claim was properly made, those agencies would have until September 7, 2023 to deny his claim. However, he commenced this action a week later on March 14, 2023 against the Federal Defendants and others. Thus, the commencement of this action was premature.
Plaintiff argues that he should be excused from any exhaustion requirement, relying on McCarthy v. Madigan, 503 U.S. 140 (1992), in which the Supreme Court cited “three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion.” Id. at 146. Citing his health concerns and “broad and prolonged conspiracies against [him],” Plaintiff relies on the first and third circumstances, which are “undue prejudice to a subsequent assertion of a court action” and “the administrative body is shown to be biased or has otherwise predetermined the issue before it.” Id. at 147-48.
As the Federal Defendants note, however, the McCarthy case concerned claims brought under Bivens,and not claims under the FTCA. In addition, McCarthy is no longer good law, as it was superseded by statute in the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a). See Porter v. Nussle, 534 U.S. 516, 524 (2002) (“In 1996, as part of the PLRA, Congress invigorated the exhaustion prescription.”).
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Plaintiff also requests that the Court stay the FTCA claims until he has exhausted his administrative remedies. As explained above, however, a premature FTCA claim must be dismissed; subsequent completion of the exhaustion requirement does not cure the defect.
III. Conclusion
For these reasons, it is respectfully recommended that Plaintiff's Letter Motion for Exception to Administrative Exhaustion (ECF No. 5) be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by September 15, 2023. Any party opposing the objections shall file a response by September 29, 2023. Failure to file timely objections will waive the right of appeal.