Holmes v. United States ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 HAROLD HOLMES, Case No.: 2:23-cv-01487-APG-MDC 4 Plaintiff Order Granting Defendant’s Motion to Dismiss 5 v. [ECF No. 13] 6 UNITED STATES OF AMERICA, 7 Defendant 8 Harold Holmes and Seth James Brown were in a car accident while Brown was acting 9 within the scope of his employment as a United States Air Force officer. Holmes filed suit 10 against Brown, but because Brown was acting in his official capacity and within the scope of his 11 employment, the United States was substituted in as the defendant. ECF No. 11. Holmes sues 12 under the Federal Tort Claims Act (FTCA) for damages arising out of the accident, alleging 13 negligence and negligence per se. 14 The government moves to dismiss for lack of subject matter jurisdiction, arguing that 15 Holmes did not administratively exhaust his claim. Holmes responds that because he still had 16 time to exhaust when the government moved to dismiss, I should deny the motion and allow him 17 to exhaust and file an amended complaint as dismissal would be inefficient. The government 18 replies that inefficiency does not excuse a lack of jurisdiction so the case must be dismissed. I 19 agree and dismiss the case because Holmes failed to exhaust administrative remedies. 20 I. ANALYSIS 21 The government argues that dismissal is appropriate because Holmes’ failure to exhaust 22 means I do not have jurisdiction to hear Holmes’ claims. It argues that Holmes needed to 23 exhaust before filing suit, so amendment would be futile. Holmes responds that he did not 1 initially know he needed to file an administrative claim because he was unaware Brown was 2 working within the scope of his federal employment at the time of the accident. He asserts that 3 he still had time to file an administrative claim when the government moved to dismiss. He 4 contends he is now in the process of exhausting his claim so I should allow him to amend his 5 complaint after exhaustion. He argues this is more efficient than dismissing and forcing him to 6 refile. The government replies that a lack of subject matter jurisdiction cannot be waived, so I 7 must dismiss. 8 The United States is immune from suit unless it waives its sovereign immunity. F.D.I.C. 9 v. Meyer, 510 U.S. 471, 475 (1994). The FTCA provides a limited waiver of the United States’ 10 sovereign immunity for suits alleging certain common law torts committed by federal officials 11 acting within the scope of their employment. 28 U.S.C. §§ 2674, 2679(d)(1); F.D.I.C, 510 U.S. 12 at 475-76. However, “[t]he FTCA bars claimants from suing the government until they have 13 exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). 14 Exhaustion requires a claimant to “first present[] the claim to the appropriate Federal agency” 15 and that agency to finally deny the claim. 28 U.S.C. § 2675(a). A failure of the agency to 16 respond within six months is considered a final denial. Id. 17 Exhaustion under the FTCA’s claims procedures “is a prerequisite to district court 18 jurisdiction.” Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983); see also Jerves v. 19 United States, 966 F.2d 517, 519 (9th Cir. 1992) (stating that a tort claimant must first exhaust 20 administrative procedures under the FTCA before suing the government, and this requirement is 21 a non-waivable jurisdictional limitation). “Jurisdictional requirements cannot be waived or 22 forfeited, . . . [and] do not allow for equitable exceptions.” Boechler, P.C. v. Comm’r of Internal 23 1 Revenue, 596 U.S. 199, 203 (2022). Thus, the failure to administratively exhaust is grounds for 2 dismissal. McNeil, 508 U.S. at 113. 3 To administratively exhaust his claim under the FTCA, Holmes needed to file an 4 administrative claim with the Air Force and wait for it to be denied or expire after six months. 5 Only after this process does a federal court have subject matter jurisdiction to hear his claims. 6 Even though Holmes did not initially know he needed to exhaust when he sued Brown, this does 7 not change the FTCA’s jurisdictional requirements. See Gonzalez v. Univ. Med. Ctr. of S. Nev., 8 No. 2:21-cv-02238-JAD-BNW, 2022 WL 2373671, at *3 (D. Nev. June 30, 2022) (dismissing a 9 complaint for lack of subject matter jurisdiction where the plaintiff failed to exhaust because she 10 did not know the defendant was a federal employee until the government removed the case from 11 state court). I must dismiss the complaint instead of allowing amendment because exhaustion of 12 FTCA claims is a prerequisite to jurisdiction in this court. McNeil, 508 U.S. at 112-13 (“The 13 most natural reading of the statute indicates that Congress intended to require complete 14 exhaustion of Executive remedies before invocation of the judicial process.” (emphasis added)). 15 Holmes argues that dismissing his complaint and forcing him to refile is inefficient, but 16 inefficiency is not an exception to a jurisdictional requirement. Holmes relies on Kwai Fun 17 Wong v. Beebe, arguing that efficiency warranted equitable tolling of the FTCA’s requirements 18 in Kwai Fun Wong and should apply here. 732 F.3d 1030, 1053 (9th Cir. 2013) (en banc). But 19 Kwai Fun Wong holds that the FTCA’s two-year limitations period in 28 U.S.C § 2401(b) may 20 be tolled, and in doing so it reaffirmed that the exhaustion requirement in § 2675(a) “is tied by 21 explicitly statutory language to jurisdiction” and thus is jurisdictional. Id. at 1047. The issue 22 here is not whether to toll the limitations period under § 2401(b). Rather, the issue is that 23 1) Holmes did not exhaust his administrative remedies under § 2675(a). Kwai Fun Wong therefore of no assistance to Holmes. 3 Because administrative exhaustion is required under the FTCA, and Holmes did not exhaust, this court does not have subject matter jurisdiction over Holmes’ claims. Without subject matter jurisdiction, I must dismiss the complaint, regardless of whether Holmes initially knew about the need to exhaust or still had time to do so when the government moved to dismiss. 7 Il. CONCLUSION 8 I THEREFORE ORDER that the United States’ motion to dismiss (ECF No. 13) is 9] GRANTED. 10 DATED this 19th day of April, 2024. 1] ge— 2 ANDREWP.GORDON. SOS B UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23