1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PING KUNG,

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

 NO. C05-1850JLR

 ORDER

 

This matter comes before the court on the Government’s motion to dismiss (Dkt. # 5). 

Plaintiff Ping Kung originally sued the United States Postal Service and Jerry Jodock, the

Customer Service Supervisor at the Postal Service branch in the Wallingford neighborhood of

Seattle. Mr. Kung filed his suit as a small claim in Seattle Municipal Court, seeking $205.58

for damage that his postal carrier allegedly caused to a garden wall at a home that Mr. Kung

owns. The Government removed the case to this court. It then substituted the United States

as a Defendant in place of Mr. Jodock, pursuant to 28 U.S.C. § 2679(d)(1). It now moves to

dismiss the action.

The court notes that Mr. Kung has not opposed the motion to dismiss, and has not filed

any pleading in this action since the Government removed it to this court. The court also

notes that Mr. Kung is proceeding in this matter without an attorney. It is unfortunate if Mr.

Kung has chosen not to participate in this case because the Government removed it from the

Case 2:05-cv-01850-JLR Document 8 Filed 03/15/06 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

The United States Postal Service is not technically a United States agency. See 39 U.S.C.

§ 201. It is treated like an agency, however, for purposes of most tort claims. 39 U.S.C. § 409(c).

ORDER- 2

Municipal Court to this court. The court cannot provide as streamlined a forum as a

municipal small claims court, but it can most certainly provide a forum for a small claim.

Unfortunately for Mr. Kung, it is no simple matter to sue an agency of the United

States, especially when the Government insists on taking advantage of every procedural

roadblock. In this action, the roadblock is 28 U.S.C. § 2675(a). Because Mr. Kung has

brought a tort action against a United States agency,1

 the action is subject to the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. Section 2675(a) prohibits a plaintiff from

bringing suit until he has “presented the claim to the appropriate Federal agency” and the

agency either denies the claim or allows six months to pass without action. The court lacks

subject matter jurisdiction over any action that does not comply with § 2675(a), as the

statute’s requirements are conditions precedent to the Government’s waiver of sovereign

immunity. Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991). 

The Government contends that Mr. Kung has “filed no administrative claim with the

Postal Service.” Gov’t Mot. at 4. The record, however, reveals that Mr. Kung submitted a

request for reimbursement to the Postal Service (at its Wallingford branch) on July 13, 2005. 

The Government provides evidence from Steven Arstad, the tort claims coordinator for the

Seattle District of the Postal Service, that he has no record of the claim. The court notes that

the fact that Mr. Arstad never received a claim does not mean that Mr. Jodock never filed one. 

Indeed, the record shows that Mr. Kung did file a claim. Perhaps the Wallingford Postal

Service branch did not transmit it to Mr. Arstad. Perhaps it was lost in the mail.

Nonetheless, Mr. Kung filed his lawsuit in October 2005, less than six months after he

filed a notice of claim with the Postal Service, and before the Postal Service denied the claim. 

Case 2:05-cv-01850-JLR Document 8 Filed 03/15/06 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER- 3

The court must assess subject matter jurisdiction as of the day that the plaintiff files a lawsuit. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992). Because Mr. Kung filed his

lawsuit before the Postal Service had denied his claim, paid his claim, or ignored it for more

than six months, the court is without jurisdiction over this action. 

For the reasons stated above, the court GRANTS the Government’s motion to dismiss

(Dkt. # 5). The clerk shall enter judgment for the United States in accordance with this order. 

The court emphasizes to Mr. Kung that this order does not prevent him from continuing to

pursue his tort claim. If he chooses to renew his claim, he should be mindful of the

procedural requirements the court noted above, as well as any others that apply to his

claim. See, e.g., 28 C.F.R. § 14.2.

Dated this 15th day of March, 2006.

A 

JAMES L. ROBART

United States District Judge

Case 2:05-cv-01850-JLR Document 8 Filed 03/15/06 Page 3 of 3