FILED
Aus 1a zane

Clerk, U.S. District and
'Bankruptcy Courts

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

David E. Henders0n,
Plaintiff,

v. Civil Action No.

09 1554

Lt. General Alexander, Director,
National Security Agency,

S€\I\o*\J€€\r"v/é

Defendant.

MEMORANDUM OPINION

This matter is before the court on plaintiffs application to proceed in forma pauperis and
a pro se complaint. The court will grant the application and dismiss the complaint.

The plaintiff alleges that the defendant, without proper legal authorization, has caused
plaintiff’ s residential telephone line to be wire-tapped, and that the unauthorized invasion has
continued from 1998 to 2008. Complaint ("Compl.") at l-2. "In damages plaintiff requests nine
million dollars [apparently under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et
seq.],‘ trebled for punitive damages for 27 million dollars trebled by RICO [the Racketeer
influenced and Corrupt Organizations Act] for total monetary damages of 81 million dollars."
Id. at 10. The plaintiff also seeks injunctive relief.

Because the defendant is sued in his official capacity, this suit is the equivalent of a suit
against the United States. Kentuc/cy v. Graham, 473 U.S. 159, 165-66 (1985). The United States
enjoys sovereign immunity from suit except where Congress has expressly waived that

immunity. United States v. Mz'tchell, 4445 U.S. 535, 538 (1980). The United States has not

l See Compl. Ex. (Letter to Gen. Alexander, July 12, 2009), at 1 (referring to a claim
under the FTCA).

expressly waived immunity from suit for treble damage claims brought under RlCO. N0rris v.
Dep ’t of Defense, 1997 WL 362495 (D.C. Cir. 1997). Thus, the RICO claim must be dismissed
for want of jurisdiction.

While the United States may be sued, in some circumstances, under the FTCA, a
condition of this waiver of sovereign immunity is the timely presentation of a claim to the
appropriate federal government agency. See United States v. Kubrick, 444 U.S. 111, 117 (1979).
Thus, the filing of an administrative claim with the appropriate agency is a mandatory
prerequisite to the filing of a lawsuit against the United States; without it, the Court lacks
jurisdiction to entertain a claimant's tort claims. See Jackson v. United States, 730 F.2d 808, 809
(D.C. Cir. 1984); Stokes v. United States Postal Service, 937 F.Supp. ll, 14 (D.D.C. 1996). "A
tort claim against the United States shall be forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b) (emphasis
added). An FTCA claim accrues once the injured party knows both the fact of his injury and its
cause. See Kubrick, 444 U.S. at 122; Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir.
1987). lt is clear from the plaintiffs prior suit against this same defendant regarding these same
allegations, that the plaintiff was aware, at least three years ago, of his cause of action regarding
the alleged unauthorized wire-tapping. Yet here, as in the prior case, the plaintiff does not allege
or provide evidence that he exhausted his administrative remedies before filing this suit. See
Complaint, Henderson v. Alexander, Civil Action No. 06-245 (D.D.C. Feb. 10, 2006). Thus, for

the same reasons as those stated in the memorandum opinion in the prior case, see Mem. Op.,

_2_

Civil Action No. 06-245 (D.D.C. Dec. 15, 2006), the claim under the FTCA also will be
dismissed for lack of subject matter jurisdiction. Moreover, because the failure to file a claim
with the appropriate agency within two years of the accrual of the claim carmot now be cured, the
claim is dismissed with prejudice.

The plaintiff also seeks injunctive relief. However, the complaint does not allege facts
that would support injunctive relief. The complaint alleges only that the allegedly unauthorized
wire-tapping continued into 2008. Thus, the plaintiff has failed to state a claim upon which
injunctive relief could be granted. Accordingly, on its authority under 28 U.S.C.

§ 1915(e)(2)(B)(ii), this last claim will also be dismissed.

A separate order accompanies this memorandum opinion.

r/§/@é/

Date: w /L") / /#0<97 finite S(ates District Judge

