[Dkt. Ent. 2]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

Leon Hinkle, Jr. :

: Civil No. 11-02345

Plaintiff, : 

:

v. :

: MEMORANDUM ORDER

United States of America, :

:

Defendant. :

:

 

BUMB, United States District Judge:

This matter comes before the Court upon a motion to dismiss

for failure to state an actionable claim and for lack of subjectmatter jurisdiction, pursuant to Federal Rules of Civil Procedure

12(b)(1) and (6), by defendant United States of America

(“Defendant”). Plaintiff Leon Hinkle, Jr., proceeding pro se,

sued federal employee Leslie Peligan for defamation and lost

wages in New Jersey state court. The United States subsequently

substituted itself as defendant and removed the action to this

Court. For the foregoing reasons, the Court grants Defendant’s

motion to dismiss under Rule 12(b)(1).

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BACKGROUND

Plaintiff initiated this action with the filing of a

complaint against Peligan in the Superior Court of New Jersey,

Burlington County, on February 17, 2011. The Complaint provides

no description of the events giving rise to Plaintiff’s claims. 

Instead, Plaintiff merely lists his injuries as “lost wages”

(“Count 1") and “defermation [sic] of character” (“Count 2"). 

(Ntc. Rmvl. 11.) On April 25, 2011, Defendant removed the

Complaint to this Court and substituted itself as the sole

defendant in place of Peligan, pursuant to 28 U.S.C. §

2679(d)(2). Defendant’s Notice of Removal states: 1

Upon information and belief, Hinkle’s allegations arise

from his denial of access to Joint Base McGuire-DixLakehurst (“JBMDL”). Peligan is a Reports and Analysis

Manager with the 87 Security Forces Squadron, and th

part of her responsibilities include denial of access

 This statutory provision provides in relevant part: 1

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 . . . 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 . . . . 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 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.

28 U.S.C. § 2679(d)(2). Plaintiff did not object to this

removal or substitution. 

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to JBMDL to individuals that threaten the orderly

administration of the installation.

(Ntc. Rmvl. ¶ 3.) Defendant subsequently filed the instant

motion to dismiss. [Dkt. Ent. 2.] Plaintiff responded with a

one-page letter to the Court, dated May 15, 2011, which this

Court construes as an opposition to the motion to dismiss. 

Instead of addressing the merits of Defendant’s arguments,

however, Plaintiff merely stated the following:

Enclosed please find the documents I filed with the

state against Leslie Peligan. She caused great strain

with decisions she made. I wish to continue with this

matter. Im [sic] seeking employment pay I should have

had if this didnt [sic] occur. You will find the

incident was resolved prior to her office. She

reopened the matter and caused me my employment.

Seeking 2000.00 monthly for 12 months[.] 20 thousand

dollars plus damages you see fit.

(Pl.’s Opp. 1, Dkt. Ent. 3.) Plaintiff attached to this letter

various memoranda and correspondence, as well as paperwork

reflecting his pay records and an application for Social Security

benefits. (Id.) He also attached copies of the Summons and

Complaint and his filing fee waiver request. (Id.) While this

Court liberally construes Plaintiff’s filing, as it must, it 2

 The Court is mindful of the general notion that pro se filings 2

are held to a less stringent standard than filings made with the

benefit of a lawyer. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (holding a pro se complaint “to less stringent standards

than formal pleadings drafted by lawyers”); Giles v. Kearney, 571

F.3d 318, 322 (3d Cir. 2009) (“Where the plaintiff is a pro se

litigant, the court has an obligation to construe the complaint

liberally.”). 

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appears that Plaintiff has not responded to Defendant’s arguments

pursuant to Rules 12(b)(1) and (6). This motion is now ripe for

adjudication.

LEGAL STANDARD

Because this Court grants Defendant’s first motion pursuant

to Rule 12(b)(1), it need not reach Defendant’s concurrent motion

under Rule 12(b)(6). 

Rule 12(b)(1) motions may challenge subject-matter

jurisdiction based upon the face of the complaint or its

underlying facts. Common Cause of Pa. v. Pennsylvania, 558 F.3d

249, 257 (3d Cir. 2009); Pittman v. Metuchen Police Dept., No.

08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29, 2009) (citing

James Wm. Moore, 2 Moore's Federal Practice § 12.30[4] (3d ed.

2007)). A facial attack questions the sufficiency of the

pleading, and requires the trial court to accept the allegations

in the complaint as true. Common Cause of Pa., 558 F.3d at 257;

Pittman, 2009 WL 3207854, *1. A factual attack, by contrast,

calls upon the court to weigh the evidence. Pittman, 2009 WL

3207854, *1. Here, the Court will presume the truth of

Plaintiff's allegations, since the motion challenges only the

sufficiency of the Complaint. 

DISCUSSION

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Generally, claims against the United States are barred by

the doctrine of sovereign immunity, unless the immunity is

waived. United States v. White Mountain Apache Tribe, 537 U.S.

465, 472 (2003); United States v. Mitchell, 445 U.S. 535, 538

(1980), reh’g den’d, 446 U.S. 992 (1980); see also, F.D.I.C. v.

Meyer, 510 U.S. 471, 475 (1994). Absent a specific waiver of

sovereign immunity, courts lack subject matter jurisdiction over

claims against the federal government. See Mitchell, 445 U.S. at

538. Thus, if a claim against the United States is not waived by

statute or otherwise, a court must dismiss the claim for lack of

subject-matter jurisdiction. Id.; White-Squire v. U.S. Postal

Service, 592 F.3d 453, 456 (3d Cir. 2010). 

The Federal Tort Claims Act (“FTCA” or the “Act”), 28 U.S.C.

§§ 1346, 2671-80 operates as a limited waiver of federal

sovereign immunity and permits suit against the United States for

alleged negligence by federal employees. White-Squire, 592 F.3d

at 456; 28 U.S.C. § 1346(b)(1). Specifically, the FTCA gives

federal courts jurisdiction over torts committed by “any employee

of the Government while acting within the scope of his office or

employment . . . .” 28 U.S.C. § 1346(b)(1). An “employee of the

government” includes officers or employees of any federal agency,

members of the military, and persons acting on behalf of a

federal agency in an official capacity. 28 U.S.C. § 2671. 

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Courts have recognized that, under the statutory language,

Congress intended the FTCA to impose liability on the federal

government for the negligent wrongs of its employees under the

common law principle of respondeat superior. See, e.g., Laird v.

Nelms, 406 U.S. 797, 801 (1972), reh’g den’d, 409 U.S. 902

(1972); United States v. Becker, 378 F.2d 319, 321 (9th Cir.

1967).

When bringing suit under the FTCA, a plaintiff must comply

with the Act’s procedural requirements, which are strictly

construed. White-Squire, 592 F.3d at 456 (“Because the Federal

Tort Claims Act constitutes a waiver of sovereign immunity, the

Act’s established procedures have been strictly construed.”). 

 In its Notice of Removal, Defendant asserts that the FTCA

applies to Plaintiff’s claims. Plaintiff does not dispute this. 3

While the facts before this Court are limited, it appears that

Plaintiff seeks money damages for lost wages against Peligan, a

federal official, whom he alleges acted negligently or wrongfully

 Claims against the United States are cognizable under the FTCA 3

if they are: (1) against the United States, (2) for money

damages, (3) for injury or loss of property, (4) caused by the

negligent or wrongful act or omission of any employee of the

federal government, (5) while acting within the scope of the

employee’s office or employment, (6) under circumstances where

the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or

omission occurred. Deutsch v. United States, 67 F.3d 1080, 1091

(3d Cir. 1995) (citing 28 U.S.C. § 1346(b); FDIC, 510 U.S. at

476).

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within the scope of her employment by denying him access to his

place of employment at JBMDL. Thus, the Court finds it

appropriate to consider Plaintiff’s claims under the framework of

the FTCA. See, supra, n.3.

Lost Wages Claim

The FTCA bars a claimant from bringing suit in a district

court unless he has first exhausted administrative remedies. See

28 U.S.C. § 2675(a); see also McNeil v. United States, 508 U.S.

106, 113 (1993); Deutsch, 67 F.3d at 1091. Specifically, 28

U.S.C. § 2675(a) provides:

An action shall not be instituted upon a claim against

the United States for money damages . . . 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.4

These procedures “were intended to ensure that meritorious claims

can be settled more quickly without the need for filing suit and

possible expensive and time-consuming litigation.” Pascale v.

United States, 998 F.2d 186, 188 (3d Cir. 1993) (internal

quotations and citations omitted). 

Section 2675(a) also includes a “deeming” provision, which 4

permits a claimant to treat the agency’s failure to act as a

final denial of the claim:

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. 

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A tort claim against the United States is also time-barred

unless a claimant (1) presents the claim in writing to the

appropriate federal agency within two years after the claim

accrues, and (2) files the action in the district court within

six months after a final decision of the claim by the agency to

which it was presented. See 28 U.S.C. § 2401(b); Pascale, 998

F.2d at 188. The requirements that a claimant timely present his

or her claim to the appropriate agency and that he or she do so

in writing for a sum certain are jurisdictional prerequisites to

a suit in the district court. Deutsch, 67 F.3d at 1091.

In this case, Defendant submitted an affidavit with its

motion to dismiss from Jeremy L. Mooney, a Claims Attorney at the

Air Force Office of the Staff Judge Advocate at JBMDL. (Mooney

Aff., Apr. 29, 2011, Dkt. Ent. 2-2.) Mooney avers that he

personally searched the tort claim records in his possession as

well as the Armed Forces Claims Information Management System, an

Air Force information management system that contains information

on all claims filed against the Air Force within any

jurisdiction. He confirmed that Plaintiff has never presented

the Air Force with an administrative tort claim in connection

with lost wages and defamation. (Id.) Plaintiff did not dispute

Mooney’s averments in his opposition brief. Indeed, Plaintiff

has not alleged any facts indicating that he has presented any

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possible claims to the appropriate federal agency. Since failure

to exhaust administrative remedies is a jurisdictional bar to

suit under the FTCA, the Court dismisses the Complaint without

prejudice.5

Defamation Claim

The FTCA provides only a limited waiver of the United

States’ sovereign immunity. White-Squire, 592 F.3d at 456

(citing Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003),

cert. den’d, 543 U.S. 874 (2004)). It expressly exempts from

this waiver certain intentional torts, such as “libel, slander,

misrepresentation, [and] deceit”. 28 U.S.C. § 2680(h). 

Defamation suits against the United States are thus prohibited,

and a plaintiff who is defamed by a federal employee acting

within the scope of his or her employment has no remedy under the

FTCA. See Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir.

2000), cert. den’d, 532 U.S. 958 (2001); Izzo v. U.S. Gov’t, 138

Fed. Appx. 387, 389 (3d Cir. 2005) (“Defamation is not included

in the list of actions for which the United States has waived

immunity under the Federal Tort Claims Act”). This Court

 It appears that the two-year statutory period for Plaintiff to 5

present his claim to the appropriate agency under the FTCA may

not have run as of this date. Thus, Plaintiff may choose to

pursue his claims in this Court after first exhausting his

administrative remedies as required by the FTCA.

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therefore lacks jurisdiction to hear Plaintiff’s claim for

defamation and, accordingly, dismisses that claim with prejudice.

Rule 12(b)(6) Motion

Furthermore, the Complaint would easily fail under Rule

12(b)(6), due to Plaintiff’s failure to allege any facts to

establish a plausible claim for relief. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“While a complaint attacked by

a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of

his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of a cause of action’s

elements will not do.”) (internal citations and quotations

omitted). Since the Court grants Defendant’s motion to dismiss

under Rule 12(b)(1), it does not reach this issue, and thus

dismisses this motion as moot.

ACCORDINGLY, IT IS on this 7th day of July 2011, hereby:

ORDERED that Defendant’s motion to dismiss pursuant to Rule

12(b)(1) [Dkt. Ent. 2] is granted; and it is further

ORDERED that Count 1 for lost wages is dismissed without

prejudice, and Count 2 for defamation is dismissed with

prejudice; and it is further

ORDERED that Defendant’s motion to dismiss pursuant to Rule

12(b)(6) is dismissed as moot; and it is finally

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ORDERED that the Clerk of the Court shall close this file.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE 

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