Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-15-2009
Vernell Sebrell v. US Postal Ser
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4159
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Recommended Citation
"Vernell Sebrell v. US Postal Ser" (2009). 2009 Decisions. Paper 1358.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1358
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CLD-175 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4159
___________
VERNELL L. SEBRELL,
Appellant
v.
THE UNITED STATES POSTAL SERVICE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:08-cv-04532)
District Judge: Honorable John P. Fullam
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
April 30, 2009
Before: RENDELL, HARDIMAN AND ALDISERT, Circuit Judges
(Opinion filed May 15, 2009)
_________
OPINION
_________
PER CURIAM
Appellant Vernell L. Sebrell appeals from a District Court order dismissing her
complaint sua sponte for lack of subject matter jurisdiction, pursuant to Federal Rule of
Civil Procedure 12(h)(3). We will grant Appellee’s motion for summary action, vacate
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the District Court’s order, and remand the matter for further proceedings. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
On September 17, 2008, Sebrell initiated an action against the United States Postal
Service by filing a motion to proceed in forma pauperis (“IFP”), accompanied by a
complaint alleging interference with the delivery of her mail and damage to her property.
Before the Government was required to submit a responsive pleading, the District Court
entered an order granting Sebrell’s IFP motion, but concluding that the District Court
lacked subject matter jurisdiction over the complaint. Specifically, the District Court
concluded that Sebrell was attempting to bring claims pursuant to the Federal Tort Claims
Act, 28 U.S.C. §§ 2671 et seq., which requires exhaustion of administrative remedies
prior to filing a complaint. 28 U.S.C. § 2675(a). The District Court found that Sebrell
did not adequately allege that she had exhausted her administrative remedies, and
therefore dismissed the complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(h)(3).
We exercise plenary review over the District Court’s order. See Growth Horizons,
Inc. v. Delaware County, 983 F.2d 1277, 1280 (3d Cir. 1993). On November 3, 2008, the
Government filed a motion for summary action, explaining that Sebrell had exhausted her
administrative remedies prior to filing her complaint, and advising that it would not have
raised failure to exhaust administrative remedies as an affirmative defense if it had filed a
responsive pleading. The Government requested that the matter be remanded to the
District Court for further proceedings.
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There appears to be no dispute that Sebrell exhausted her administrative remedies
prior to filing her complaint. Indeed, as the Government notes, Sebrell at least alleged
exhaustion of her property damage claim in the first paragraph of her complaint. Thus,
the District Court should not have dismissed Sebrell’s complaint sua sponte for lack of
subject matter jurisdiction on the grounds that Sebrell failed to exhaust her administrative
remedies. We will therefore grant the Government’s unopposed motion for summary
action, vacate the District Court’s order, and remand the matter for further proceedings.
See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We express no opinion as to whether the District
Court has subject matter jurisdiction, or whether dismissal for any reason may or may not
ultimately be warranted.
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