Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JOHN A. FRALEY, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO J ) UNITED STATES OF AMERICA, ) HONORABLE JUDGE GIBSON ) Defendant. ) Electronically Filed DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT I. INTRODUCTION Plaintiff has filed a personal injury Complaint pursuant to the Federal Tort Claims Act, 28 U.S.C et seq. ( FTCA ). Plaintiff, a civilian bus driver, alleges that he was transporting members of the Pennsylvania Army National Guard back to Pennsylvania after they conducted relief operations in support of Hurricane Katrina. During a stop in Virginia, Plaintiff contends that an unidentified member of the Pennsylvania Army National Guard was chasing a loose dog on the bus when the member ran into Plaintiff, knocking him out of the bus and onto the pavement. As a result of this impact, Plaintiff claims that he suffered permanent injuries and impairment of certain bodily functions. However, Plaintiff did not properly exhaust administrative remedies because he failed to present a proper administrative claim to the appropriate agency within the FTCA's two-year statute of limitations. Accordingly, Plaintiff's Complaint must be dismissed for lack subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

2 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 2 of 13 II. FACTS On August 29, 2005, Hurricane Katrina landed on the Gulf Coast of the United States with 130 mph winds and water surge that measured as high as 27 feet in certain places. See The Federal Response to Hurricane Katrina: Lessons Learned (February 2006) at p. 1 (located at This hurricane was catastrophic with a devastating path of damage that spread over 93,000 square miles of the Gulf Coast. Id. The human suffering was tremendous - over 1,300 people lost their lives. Id. Hurricane Katrina was considered the most destructive natural disaster in American history. Id. A major disaster emergency for the impacted areas was declared, and the governors from the states affected by Hurricane Katrina requested aid from various states. Attachment ("Att.") A at 1-3, 4-5. In response, Governor Edward G. Rendell mobilized 2,500 members of the Pennsylvania Army and Air National Guard ("the PA National Guard") to support disaster relief operations along the Gulf Coast. id. at 4-5; see also 51 Pa. C.S.A. 508(a) & (b) (PA Governor's mobilization authority); 35 Pa. C.S.A (Emergency Management Assistance Compact). Among the units mobilized were various troops from the 2/104th Calvary in Reading and Easton, Pennsylvania. Att. A at 4-5. The PA National Guard was initially mobilized to state active duty. Id. at 1-5. However, on September 7, 2005, federal authorities determined that National Guard personnel should be deployed in a federally-funded status pursuant to 32 U.S.C. 502(f). See Complaint at Ex. A; Att. A at The mobilization for the troops of the 2/104th Calvary lasted approximately 30 days. They returned to Pennsylvania on a bus driven by Plaintiff, John Fraley, a civilian bus driver employed by the Fullington Auto Bus Company. Complaint at 5. On or about October 6, 2005, the unit 2

3 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 3 of 13 was at a truck stop in Raphine, Virginia. Id. at 9. Plaintiff alleges that he was standing next to his driver's seat when an unidentified member of the PA National Guard knocked him out of the bus and onto the pavement. Id. 9, 12. Plaintiff claims the guardsman was chasing after a stray dog that was running loose on the bus. Id. 12. As a result of this impact, Plaintiff suffered multiple injuries for which he now seeks compensation. Id Nearly two years after the accident, Plaintiff filed an administrative tort claim (SF-95) with the Federal Emergency Management Agency (FEMA) in Washington, DC. Att. A at The claim is dated September 24, 2007, and was received by FEMA on October 1, Id. at 16, 19. In a letter dated November 7, 2007, FEMA returned the administrative claim to Plaintiff's attorney and indicated that it was "not properly presented" because it had several defects. Id. at 19. Specifically, the administrative claim failed to provide documentation memorializing the representative capacity of Plaintiff's attorney and failed to include a "sum certain" in the damages section of the claim. Id. Additionally, FEMA informed the attorney that the administrative claim was filed with the wrong agency, that no FEMA employee was even involved, and that Plaintiff should direct his claim to the PA National Guard. Id. Plaintiff's counsel responded to FEMA in a letter dated November 26, Att. A at This letter provided documentation regarding the representation capacity of the attorney and clarified the total amount of damages requested in the administrative claim. Id. However, Plaintiff's counsel voiced confusion over the federalization of the National Guard troops and requested that FEMA continue adjudicating the administrative claim. Id. There is no evidence that Plaintiff ever filed an administrative claim with the PA National Guard. 3

4 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 4 of 13 III. ARGUMENT PLAINTIFF'S TORT CLAIM IS BARRED DUE TO HIS FAILURE TO PROPERLY EXHAUST ADMINISTRATIVE REMEDIES. A. Applicable Legal Principles. The federal government and its agencies are shielded from tort actions for damages unless sovereign immunity has been waived. United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA is a limited statutory waiver of sovereign immunity for tort claims against the federal government. Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). Because the FTCA is a waiver of sovereign immunity, strict compliance with its terms is required. Livera v. First Nat'l Bank, 879 F.2d 1186, 1194 (3d Cir. 1989). As a prerequisite to suit under the FTCA, a party must present an administrative claim with the appropriate federal agency. See Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995). This requirement is set forth at 28 U.S.C. 2675(a) which provides: 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 of 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. 28 U.S.C. 2675(a) (emphasis added). The FTCA's statute of limitations provides that an administrative claim must be filed within two years of the claim's accrual. 28 U.S.C. 2401(b); Miller v. Philadelphia Geriatric Center, 463 F.3d 266, 270 (3d Cir. 2006). A claim "accrues" when an injured party knows of the existence and cause of the injury. United States v. Kubrick, 444 U.S. 111 (1979). 4

5 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 5 of 13 The failure to present the administrative claim within the two-year statutory time period is a jurisdictional requirement that cannot be waived. See Livera, 879 F.2d at 1194 (3d Cir. 1989) ("this is a jurisdictional requirement not subject to waiver by the government."); see also Massieu v. Reno, 91 F.3d 416, 419 (3d Cir. 1996) (stating that when a statute requires exhaustion, the failure to do so deprives the court of jurisdiction.). B. Discussion. 1. National Guard personnel serving under Title 32 are "employees of the government" for FTCA purposes. Because the FTCA is a limited waiver of sovereign immunity for actions attributed to federal agencies and employees, it must first be determined whether the PA National Guard, under the circumstances of this case, can be considered federal government employees for purposes of the FTCA. The National Guard is a dual federal and state program. See Perpich v. United States th Dept. of Defense, 880 F.2d 11, (8 Cir. 1989) (explaining relationship between State and Federal National Guard Programs). In Pennsylvania, the PA National Guard may be called to state active duty by the governor in order to respond to "in-state" emergencies or to requests for assistance from other states. 51 Pa.C.S. 508(a) & (b); 35 Pa.C.S Additionally, the PA National Guard may be activated solely in a federal status. See, e.g., 10 U.S.C (President may activate 200,000 National Guard members "to augment active forces for any operational mission."). There is also a hybrid status - known as "Title 32 Status" - whereby the National Guard may receive federal funding but remain under the control of their governor. 32 U.S.C. 502(f); see also CRS Report for Congress: Hurricane Katrina: DOD Disaster 5

6 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 6 of 13 Response, (Sept. 19, 2005) at pp. 6-9 (explaining the different status for National Guard service) (available at In this case, the PA National Guard was placed in Title 32 Status pursuant to a directive issued by the Acting Secretary of Defense on September 7, Complaint at 7; Att. A at The explicit language of the FTCA provides that members of the National Guard are "employee[s] of the [Federal] government" when they are "engaged in training or duty" under 32 U.S.C See 28 U.S.C. 2671; Matlack v. Treadway, 729 F. Supp. 1574, 1576 (S.D. W. Va 1990) ("The FTCA was amended in 1981 to afford protection from liability for negligent conduct to 'members of the National Guard while engaged in training or duty under section of Title 32' and to make the United States government liable for such conduct."). Accordingly, because they were engage in duty under Title 32, the PA National Guardsman in this case may be considered as employees of the federal government for FTCA 1 purposes. 2. Due to several defects, Plaintiff's administrative claim was not properly exhausted and must be dismissed. As stated above, prior to bringing a lawsuit under the FTCA, a party must present an administrative claim to the appropriate federal agency. See Deutsch, 67 F.3d at The proper presentation of an administrative claim is detailed in 28 C.F.R. 14.2(a) as follows: [A] claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agency or legal representative, an executed Standard Form 95 or other written notification of an accident, accompanied by a claim for money damages in a sum certain for injury 1 In making this statement, Defendant does not waive any other jurisdictional defenses that may be present including whether or not the PA National Guardsman at issue was acting within the scope of his employment at the time of this incident. 6

7 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 7 of 13 to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative. Moreover, "[a] claim shall be presented to the Federal agency whose activities gave rise to the claim." Id. at 14.2(b). In this case, Plaintiff's administrative claim was not properly "presented" to the appropriate Federal agency. The actions giving rise to this Complaint occurred on October 6, Complaint at 9. Plaintiff waited until October 1, 2007 to present his administrative tort claim. Att. A at 19; Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985) (stating that "[m]ailing is not presenting; there must be receipt."). This was just five days prior to the end of the two-year statute of limitations period for filing administrative claims. 28 U.S.C. 2401(b). Once received, the administrative claim was recognized as having several defects. First, the administrative claim failed to contain a "sum certain." A sum certain value is critical because it enables the head of the federal agency to determine "whether the claim falls within the jurisdictional limits of his exclusive authority to process, settle, or to properly adjudicate the claim." Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). Numerous courts have held that the failure to include a "sum certain" in an administrative claim filed pursuant to the FTCA requires dismissal of the federal lawsuit. See, e.g., id., at 1050 (concluding that the jurisdictional prerequisites of the FTCA were not satisfied where the administrative claim failed st to include a sum certain); Kokaras v. United States, 980 F.2d 20, 22 (1 Cir. 1992) ("This court has consistently held that a timely-presented claim stating a sum certain is necessary for a court to have jurisdiction to entertain a suit against the United States under the FTCA."). 7

8 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 8 of 13 Second, Plaintiff's administrative claim failed to include documentation memorializing the authority of Plaintiff's attorney to represent him. This is a specific requirement mandated by 28 C.F.R. 14.2(a), and the failure to comply can lead to rejection of the claim. Finally, Plaintiff's administrative claim was not presented to the appropriate federal agency as required by 28 C.F.R (b). The appropriate federal agency is the "agency whose activities gave rise to the claim." In this case, that agency is the PA National Guard as the facts in Plaintiff's own Complaint clearly indicate. See Complaint at FEMA had nothing to do with the supervision, control, or direction of the PA National Guard on the date of this incident. There was no excuse for Plaintiff's failure to properly file with the appropriate federal agency. Plaintiff could have easily have conducted minimal research or inquired with the PA National Guard to realize that all claims against the National Guard are processed according to 2 Army Regulation Chapter 6 of this regulation clearly indicates that National Guard claims, such as Plaintiff's, will be processed under the FTCA through an area claim office of the National Guard unit at issue. See Army Regulation at Chapters. 6 & 2. Plaintiff's counsel had at least some idea that the appropriate agency in this case was the PA National Guard. In his letter dated September 27, 2007, Plaintiff's attorney indicates that he sued the PA National Guard by filing suit in Blair County, Pennsylvania. Att. A at 15. However, there is no indication that Plaintiff filed an administrative claim with the PA National Guard. As a result, he failed to properly follow the administrative claims process that was mandated prior to filing this lawsuit in Federal Court. 2 This regulation may be accessed at 8

9 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 9 of 13 Due to these defects, Plaintiff failed to present a proper administrative claim to the appropriate federal agency within the two-year statute of limitations time period. Proper presentation is a critical step in the administrative process because it "provide[s] enough information to permit the agency to conduct an investigation and to estimate the claim's worth." Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998). Where, as here, a plaintiff has failed to file a timely and proper administrative claim, any subsequent FTCA lawsuit must be dismissed for lack of subject matter jurisdiction. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("The FTCA bars claimants from bringing suit in [F]ederal court until they have exhausted their administrative remedies. Because petitioner failed to heed that clear statutory command, the [d]istrict [c]ourt properly dismissed his suit. ); Livera, 879 F.2d at 1194 (explaining that exhaustion "is a jurisdictional requirement not subject to waiver by the government."); Tucker v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir. 1982) ("Noncompliance with section 2675 deprives a claimant of federal court jurisdiction over his or her claim."). 3. Plaintiff's administrative claim was not "constructively filed." In certain limited cases, administrative claims that are presented to the wrong federal agency may still survive. Pursuant to the tort claim transfer regulation, 28 C.F.R. 14.2(b)(1), "[w]hen a claim is presented to [an improper Federal agency], that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim, and advise the claimant of the transfer." Under these circumstances the administrative claim will be deemed "constructively filed", and the case will proceed through the administrative process. See, e.g., Greene v. United States, 872 F.2d 236 (8th Cir. 1989); Bukala v. United States, 854 F.2d 201 (7th Cir. 1988). 9

10 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 10 of 13 However, Plaintiff's claim should not be considered as "constructively filed." This benefit only works for those administrative claims that were properly "presented," albeit to the wrong federal agency, within the statute of limitations time period. The regulations clearly define what constitutes a properly "presented" claim. See 28 C.F.R. 14.2(a)("[A] claim shall be deemed to have been presented" when it contains a sum certain amount for damages and evidence of representative capacity) (emphasis added). In this case, Plaintiff's administrative claim was never "presented" when it was received by FEMA on October 1, 2007, because the sum certain value and evidence of representative capacity were lacking. See Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 271 (10th Cir. 1991) ("Failure to comply with the sum certain requirements results in the case being treated 'as if no administrative claim had ever been filed.'") (quoting Caidin v. United States, 564 F.2d 284, 287 (9th Cir. 1977)). FEMA returned the claim and notified Plaintiff of the deficiencies including the appropriate agency that would handle the claim. See Att. A at 19 ("Therefore, you will need to direct your claim to the Pennsylvania National Guard, if you have not already done so."). Under 28 C.F.R. 14.2(b)(1), FEMA is only obligated to transfer appropriately "presented" administrative claims. Because this claim was defective, transfer was not feasible and FEMA correctly returned the claim to Plaintiff. 28 C.F.R. 14.2(b)(1) ("If transfer is not feasible, the claim shall be returned to the claimant."). By the time Plaintiff corrected his administrative claim, November 27, 2007, and again sent it to the wrong agency, the statute of limitations had already run. Even assuming Plaintiff's claim had no defects and was improperly sent to FEMA on October 1, 2007 (still within the statute of limitations time period), constructive filing would not be permitted. Courts have universally held that "claimants who wait to the last minute or the 10

11 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 11 of 13 eleventh hour and file with the wrong agency cannot take advantage of constructive filing." Ortiz v. United States, 2007 WL at *11 (E.D. Ca. Feb. 2, 2007) (citing cases); see also Hart v. Dept. of Labor, 116 F.3d 1338, 1341 (10th Cir. 1997) ("If, however, as here, a claimant waits until the eleventh hour to file and, despite notification of the appropriate agency, the filing is misdirected, there is no compelling reason for allowing constructive filing."); Oquendo-Ayala v. United States, 30 F. Supp.2d 193, 195 (D. P.R. 1998) ("He who files at the last minute takes the risk that a misidentified claim will not be transferred to the appropriate agency on time."). In this case, Plaintiff's claim was received by FEMA on October 1, only five days prior to the expiration of the limitations period. Courts have held that administrative claims filed with an inappropriate agency anywhere from one to eighteen days prior to the expiration of the limitations period are considered "last minute" or "eleventh hour" claims and are therefore timebarred. Ortiz v. United States, 2007 WL at *11 (citing Cronauer v. United States, 394 F. Supp.2d 93, (D.D.C. 2005) (one day); Lotrionte v. United States, 560 F. Supp. 41, (S.D.N.Y. 1983) (eight days); Massengale v. United States, 2006 WL at *1-2 (D.D.C. Nov. 6, 2006) (eighteen days)). Accordingly, even if Plaintiff's administrative claim had no defects, the fact that it was filed with the wrong agency at the "last minute" or "eleventh hour" would have deprived him of the advantage of constructive filing. 11

12 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 12 of 13 IV. CONCLUSION For the reasons stated above, the Court should grant the instant Motion and dismiss the Complaint against the United States for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Federal Defendant, with prejudice. 3 Respectfully submitted, MARY BETH BUCHANAN United States Attorney s/paul D. Kovac PAUL D. KOVAC Assistant U.S. Attorney Western District of Pennsylvania U.S. Post Office & Courthouse 700 Grant Street, Suite 4000 Pittsburgh, PA Dated: September 8, 2008 (412) In his Complaint, Plaintiff has also demanded a jury trial. However, there is no right to a jury trial in FTCA actions. 28 U.S.C Accordingly, Plaintiff's demand for a jury trial should be stricken. 12

13 Case 3:08-cv KRG Document 12 Filed 09/08/2008 Page 13 of 13 CERTIFICATE OF SERVICE th I hereby certify that on this 8 day of September, 2008, I electronically filed and/or served via first-class U.S. Mail, a true and correct copy of the foregoing Defendant's Brief in Support of Motion to Dismiss Plaintiff's Complaint to the following: Michael J. Koehler, Esq. Nicholas, Perot, Smith, Koehler & Wall th 2527 West 26 Street Erie, PA s/paul D. Kovac PAUL D. KOVAC Assistant U.S. Attorney

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Raphael Theokary v. USA

2014 Decisions Opinions of the United States Court of Appeals for the Third Circuit 3-31-2014 Raphael Theokary v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 13-3143 Follow this and