IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

NATHAN C. BELL, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 1:06-cv-644-WKW

)

UNITED STATES OF AMERICA, )

)

Defendant. )

MOTION TO DISMISS

Come now Defendants, by and through Leura G. Canary, United States Attorney

for the Middle District of Alabama, and pursuant to Rule 12(b)(1) move for the dismissal

of the above-styled cause as this Court lacks subject matter jurisdiction. In support of this

motion Defendant states as follows:

I. Introduction

The plaintiff’s complaint appears to assert two possible causes of action: 1)

conversion, or 2) a denial of benefits under a program administered by the Department of

Veterans Affairs. Regardless of the cause of action, it is subject to dismissal as this Court

lacks subject matter jurisdiction over either claim.

II. The Court lacks subject matter jurisdiction over the plaintiff’s FTCA claim Due

To his failure to exhaust administrative remedies. Accordingly, his claim is due

to be dismissed.

With the United States of America substituted as the proper defendant for the

common law tort actions, the FTCA claims are due to be dismissed because plaintiff has

failed to exhaust administrative remedies as required by the FTCA. Plaintiff’s failure to

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 1 of 8
 The administrative claim must: (a) be in writing; (b) state a sum certain; and (c) provide 1

sufficient information to enable the agency to investigate. The claimant must put a monetary

value on the claim, and the amount set forth in the administrative claim sets the upper limit on

the ad damnum which can be sought in the suit, unless the additional amount sought is based on

newly discovered evidence which could not reasonably be discovered at the time the

administrative claim was presented, or on the allegation and proof of intervening facts. 28

U.S.C. § 2675(b);. See Kielwien v. United States, 540 F.2d 676 (4th Cir.), cert. denied, 429 U.S.

979 (1976).

Page 2 of 8

satisfy the exhaustion requirement deprives this Court of subject matter jurisdiction of his

FTCA claims.

Although the United States of America, as sovereign, is immune from claims

arising from its negligence, United States v. Testan, 424 U.S. 392, 399 (1976), the FTCA

represents a limited waiver of this immunity. United States v. Kubrick, 444 U.S. 111, 117

(1979). The FTCA is explicit in the requirements for invoking the Court's jurisdiction to

hear personal injury claims against the United States. 28 U.S.C. § 2675(a) provides in

pertinent part: 

An action shall not be instituted upon a claim against the

United States ... [for] personal injury ... caused by the

negligent or wrongful act ... of an employee of the

government while acting within the scope of his ...

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 ... 

(emphasis added).

Consequently, in order for the waiver of immunity to occur, it is mandatory under the

FTCA that a written claim be presented to the Federal agency whose activities gave rise

to the claim. 28 U.S.C. §§ 2401, 2671, 2675(a) (1978 & Supp. 1991). 1

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 2 of 8
 The statute expressly requires that the presentation of the administrative claim precede 2

the commencement of the suit. Gregory v. Mitchell, 634 F.2d 199 (5th Cir. 1981) (holding that

suit must be dismissed if administrative claim was presented after date on which suit was filed).

Page 3 of 8

According to established principles of statutory construction, the FTCA must be

literally construed. Tort claims against the United States are barred unless first presented

in writing to the appropriate Federal agency. 28 U.S.C. §§ 2401(b), 2675. The 2

Government's waiver of immunity, and all conditions of that waiver, must be strictly

observed and should not be implied or extended by the courts beyond that which

Congress intended. United States v. Kubrick, 444 U.S. at 118; Soriano v. United States,

352 U.S. 270, 276 (1957).

The mandatory language of the statute does not confer discretion upon the court to

excuse noncompliance, nor does it permit the parties to waive the requirement. Bialowas

v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). Under the law, failure to timely file

an administrative claim deprives Federal courts of subject matter jurisdiction. Jackson v.

United States, 730 F.2d 808 (D.C. Cir. 1984); Richman v. United States, 709 F.2d 122

(1st Cir. 1983); In re Agent Orange Product Liability Litigation, 818 F.2d 194 (2d Cir.

1987); Tucker v. U.S. Postal Service, 676 F.2d 954 (3d Cir. 1982); Plyler v. United

States, 900 F.2d 41 (4th Cir. 1989); Cook v. United States, 978 F.2d 164 (5th Cir. 1992);

Allen v. United States, 517 F.2d 1328 (6th Cir. 1975); DeLoria v. Veterans

Administration, 927 F.2d 1009 (7th Cir. 1991); Sanders v. United States, 760 F.2d 869

(8th Cir. 1985); Jerves v. United States, 966 F.2d 517 (9th Cir. 1992); Cizek v. United

States, 953 F.2d 1232 (10th Cir. 1992); Tidd v. United States, 786 F.2d 1565 (11th Cir.

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 3 of 8
 The underlying purpose of requiring an administrative claim is "to ease court congestion 3

and avoid unnecessary litigation, while making it possible for the Government to expedite the

fair settlement of tort claims asserted against the United States." S. Rep. No. 1327 at 2515-16;

see also Davis v. Marsh, 807 F.2d 908 (11th Cir. 1987); Adams v. United States, 615 F.2d 284,

289 (5th Cir. 1980). The filing of the claim gives the agency an opportunity to investigate the

claim and to either pursue settlement or prepare a defense. 28 U.S.C. § 2672 (1965 & Supp.

1991); Tucker v. United States Postal Service, 676 F.2d 954, 958 (3d Cir. 1982) (citing S. Rep.

No. 1327, 89th Cong., 2d Sess. 6, reprinted in 1966 U.S.Code Cong. & Admin. News, 2515-16).

 As opposed to dismissal at this juncture, the Court should allow the plaintiff a reasonable 4

amount of time to demonstrate that he has complied with the administrative exhaustion

requirements. If, however, he fails to do so in the time allowed, an Order of dismissal would be

appropriate. See, Miller v. Stanmore, 636 F.2d 986, 991 (5 Cir. 1981). th

Page 4 of 8

1986).3

The plaintiff has not averred that he exhausted the administrative remedies which

are a prerequisite to filing suit against the United States under the FTCA. Thus the

complaint fails to demonstrate that he has complied with all administrative conditions

precedent to filing this lawsuit and this Court lacks subject matter jurisdiction.4

II. Subject matter jurisdiction over a complaint seeking to compel action of the

Secretary of the Department of Veterans Affairs is within the exclusive

jurisdiction of the Court of Appeals of Veterans Claims (CVA).

The United States retains sovereign immunity from lawsuits unless the government

has consented to suit. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961,

77 L.Ed.2d 580 (1983). Moreover, the United States has not waived its sovereign

immunity as to review of VA procedures by any court other than the Court of Appeals for

Veterans Affairs, Federal Circuit Court of Appeals, and the United States Supreme Court. 

In re Russell, 155 F.3d 1012, 1013 (8 Cir. 1998). th

In 1988, Congress enacted the Veterans Judicial Review Act of 1988, Pub.L. No.

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 As of March 1, 1999, the Court of Veterans Appeals is now the United States Court of 5

Appeals for Veterans Claims.

Page 5 of 8

100-687, Tit. III, 102 Stat. 4105, 4113-4122 (codified in sections scattered in 38 U.S.C.)

(“VJRA”), and established a multi-tiered framework for the adjudication of claims

regarding veterans benefits. The first step contemplated by the VJRA is the filing of a

claim for benefits with a regional office of the Department of Veterans Affairs. The

regional office is required to “decide all questions of law and fact necessary to a decision

by the Secretary under a law that affects the provision of benefits by the Secretary to

veterans.” 38 U.S.C. § 511(a). If dissatisfied with the conclusions of the regional office,

the claimant may then appeal to the BVA, which either issues the final decision of the

Secretary or remands the claim to the regional office for further development and

subsequent appeal. See 38 U.S.C. § 7104. See, Cheves v. Department of Veterans

Affairs, 227 F.Supp.2d 1237, 1241-1242 (M.D. Fla. 2002). If the veteran is ultimately

dissatisfied with the final action of the BVA, he may seek judicial review of his claim in

the Court of Appeals for Veterans Claims. 38 U.S.C. § 7252. Finally, the Court of

Appeals for the Federal Circuit has exclusive appellate jurisdiction over decisions of the

CVA. 38 U.S.C. § 7292. If necessary, a claimant may petition the United States Supreme

Court to review the decision of the Court of Appeals for the Federal Circuit. See 38

U.S.C. § 7291.

The VJRA vested exclusive jurisdiction over the appeal of any final decision of the

BVA in the Court of Veterans Appeals (“CVA”). The CVA is an Article I court 5

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 5 of 8
Page 6 of 8

established by Congress in 38 U.S.C. § 7252(a). Particularly: 

Congress gave the CVA two sources of power with which it

can remedy claims of unreasonable administrative delay or

inaction. First, the All Writs Act empowers “[t]he Supreme

Court and all courts established by Act of Congress to issue

all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. § 1651(a). Second, Congress specifically

empowered the CVA to “compel action of the Secretary

unlawfully withheld or unreasonably delayed.” 38 U.S.C. §

7261(a)(2). 

 Price v. United States, 228 F.3d 420, 421 (D.C.Cir.2000). In accord with the foregoing,

the Court of Appeals for Veterans Claims, “and not the district court, has jurisdiction to

compel an action of the Secretary ‘unlawfully withheld or unreasonably delayed.’” Frison

v. Principi, 2003 WL 22097797 (C.A.D.C. 2003) (unpublished opinion), quoting, 38

U.S.C. § 7261; citing, In re: Russell, 155 F.3d 1012 (8 Cir.1998); Beamon v. Brown,

th

125 F.3d 965, 974 (6 Cir.1997); also see, Cheves v. Department of Veterans Affairs, 227 th

F.Supp.2d at 1246 (“This Court simply lacks jurisdiction to review the VA's handling and

processing of the plaintiffs' benefit claims.”)

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 6 of 8
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Respectfully submitted this 18 day of October, 2006. th

LEURA G. CANARY

United States Attorney

 By: s/R. Randolph Neeley 

Assistant United States Attorney

Bar Number: #9083-E56R

Attorney for Defendant

United States Attorney’s Office

Post Office Box 197

Montgomery, AL 36101-0197

Telephone: (334) 223-7280

Facsimile: (334) 223-7418

E-mail: rand.neeley@usdoj.gov

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 7 of 8
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CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2006, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system, and I hereby certify that I have mailed,

by United States Postal Service, a copy of same to the following non-CM/ECF

participant:

Nathan C. Bell

1002 Williams Avenue

Dothan, AL 36303

s/R. Randolph Neeley 

Assistant United States Attorney

Case 1:06-cv-00644-WKW-SRW Document 7 Filed 10/18/2006 Page 8 of 8