[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11140 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-00501-KD-N
ALVIN LEE MARTIN,
llllllllllllllllllllllllllllllllllllllll Plaintiff,
CHERYL MARTIN,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 31, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Cheryl Martin appeals the district court’s dismissal of her tort claim against
an employee of the United States Postal Service (“USPS”). On December 4, 2006,
Martin was involved in a car accident with Sherry Lynn Harris, a USPS employee
acting in the scope of her employment. On December 2, 2008—two days before
the statute of limitations would bar suit—Martin sued Harris in state court.
Approximately nine months later, Martin filed an administrative claim for relief
with the USPS, and, in February 2010, she filed a voluntary notice of dismissal of
the state court action. Accordingly, the state court dismissed the suit on March 2,
2010. The USPS constructively denied Martin’s claim for administrative relief in
March 2010, which led her to file the instant lawsuit in federal court. The district
court dismissed the suit as time-barred. After review of the parties’ briefs and the
record, we affirm.
I.
“In reviewing the district court’s decision to grant the motion to dismiss
pursuant to [Federal Rule of Civil Procedure] 12(b)(1), lack of subject matter
jurisdiction, this Court reviews the legal conclusions of the district court de novo.”
McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty, 501 F.3d 1244, 1250
(11th Cir. 2007).
“[A] waiver of the Government’s sovereign immunity will be strictly
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construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S.
187, 192, 116 S. Ct. 2092 (1996). The Federal Tort Claims Act (“FTCA”)
abrogates the United States’ sovereign immunity and allows the federal
government to be held liable to the same extent as a private individual for certain
torts committed by federal employees acting within the scope of their employment.
See Sosa v. Alvarez-Machain, 542 U.S. 692, 700, 124 S. Ct. 2739 (2004); 28
U.S.C. § 1346(b)(1). The FTCA requires a potential plaintiff to submit a claim to
the appropriate agency prior to filing suit against the government.1 The claim
must be filed “within two years after [it] accrues . . . .” 28 U.S.C. § 2401(b).
Only after agency denial—explicitly or after six months of non-action—is a
1
Specifically, it states:
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. The provisions of this
subsection shall not apply to such claims as may be asserted under the
Federal Rules of Civil Procedure by third party complaint,
cross-claim, or counterclaim.
28 U.S.C. § 2675(a).
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judicial remedy available. Id. at § 2675(a). Before administrative exhaustion, a
district court lacks jurisdiction to hear an FTCA claim. See Burchfield v. United
States, 168 F.3d 1252, 1254–55 (11th Cir. 1999).
In limited circumstances, an FTCA claim that is not filed with the
appropriate administrative agency within the two-year limitations period may
nonetheless be timely pursuant to 28 U.S.C. § 2679(d)(5). That section provides:
Whenever an action or proceeding in which the United
States is substituted as the party defendant under this
subsection is dismissed for failure first to present a claim
pursuant to [the administrative exhaustion requirement],
such a claim shall be deemed to be timely
presented . . . if—
(A) the claim would have been timely had it been
filed on the date the underlying civil action was
commenced, and
(B) the claim is presented to the appropriate Federal
agency within 60 days after dismissal of the civil
action.
§ 2679(d)(5). Therefore, in limited circumstances, FTCA claims that did not
originally satisfy the time constraints for filing an administrative claim will not be
dismissed.
II.
Martin concedes that her suit is timely only if she satisfies § 2679(d)(5).
She argues that her situation is the exact circumstance that the provision exists to
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rectify. Specifically, she filed a timely suit in state court—prior to exhausting
administrative remedies—and chose to dismiss it to pursue her administrative
remedies. Martin believes that the government erred by failing to substitute the
United States as the defendant, pursuant to § 2679(c) and (d)(2),2 before her
voluntary dismissal. She repeatedly emphasizes that the failure of USPS counsel
to notify the Attorney General of the claim left her without recourse. We disagree
and determine that the district court’s ultimate conclusion was correct.
The relevant provision unquestionably includes a threshold condition,
namely that there is “an action or proceeding in which the United States is
substituted as the party defendant” that “is dismissed for failure first to present a
claim” to the proper administrative agency. § 2679(d)(5). Here, Martin quite
2
Section 2679(d)(2) states, in relevant part:
Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose, any civil action
or proceeding commenced upon such claim in a State court shall be
removed without bond at any time before trial by the Attorney
General to the district court of the United States for the district and
division embracing the place in which the action or proceeding is
pending. Such action or proceeding shall be deemed to be an action
or proceeding brought against the United States under the provisions
of this title and all references thereto, and the United States shall be
substituted as the party defendant. This certification of the Attorney
General shall conclusively establish scope of office or employment
for purposes of removal.
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clearly fails to meet that condition. The United States was never substituted as the
defendant in the state court action. Instead, Martin voluntarily dismissed that suit
while Harris remained the only defendant. Plaintiff’s counsel could have quite
easily satisfied § 2679(d)(5)’s requirement by declining to voluntarily dismiss the
lawsuit and forcing the government to substitute the United States as the defendant
in place of Harris. If that had been done, Martin would not be facing the problem
she encounters today. As the clear language of § 2679(d)(5) requires the United
States to be a party defendant, we conclude that Martin’s claim cannot be saved by
that exception. Therefore, her administrative claim, filed more than two years
after the claim arose, is time-barred. Because Martin failed to satisfy the
administrative exhaustion requirement, the district court lacked jurisdiction to hear
her claim. Accordingly, we affirm.
AFFIRMED.
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