                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-2009

Vernell Sebrell v. US Postal Ser
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4159




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Recommended Citation
"Vernell Sebrell v. US Postal Ser" (2009). 2009 Decisions. Paper 1358.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1358


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CLD-175                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4159
                                      ___________

                                VERNELL L. SEBRELL,
                                                            Appellant

                                            v.

                      THE UNITED STATES POSTAL SERVICE
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:08-cv-04532)
                        District Judge: Honorable John P. Fullam
                      ____________________________________

                 Submitted for Possible Summary Action Pursuant to
                      Third Circuit LAR 27.4 and I.O.P. 10.6
                                   April 30, 2009
         Before: RENDELL, HARDIMAN AND ALDISERT, Circuit Judges

                              (Opinion filed May 15, 2009)
                                      _________

                                         OPINION
                                        _________

PER CURIAM

       Appellant Vernell L. Sebrell appeals from a District Court order dismissing her

complaint sua sponte for lack of subject matter jurisdiction, pursuant to Federal Rule of

Civil Procedure 12(h)(3). We will grant Appellee’s motion for summary action, vacate

                                             1
the District Court’s order, and remand the matter for further proceedings. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.

       On September 17, 2008, Sebrell initiated an action against the United States Postal

Service by filing a motion to proceed in forma pauperis (“IFP”), accompanied by a

complaint alleging interference with the delivery of her mail and damage to her property.

Before the Government was required to submit a responsive pleading, the District Court

entered an order granting Sebrell’s IFP motion, but concluding that the District Court

lacked subject matter jurisdiction over the complaint. Specifically, the District Court

concluded that Sebrell was attempting to bring claims pursuant to the Federal Tort Claims

Act, 28 U.S.C. §§ 2671 et seq., which requires exhaustion of administrative remedies

prior to filing a complaint. 28 U.S.C. § 2675(a). The District Court found that Sebrell

did not adequately allege that she had exhausted her administrative remedies, and

therefore dismissed the complaint for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(h)(3).

       We exercise plenary review over the District Court’s order. See Growth Horizons,

Inc. v. Delaware County, 983 F.2d 1277, 1280 (3d Cir. 1993). On November 3, 2008, the

Government filed a motion for summary action, explaining that Sebrell had exhausted her

administrative remedies prior to filing her complaint, and advising that it would not have

raised failure to exhaust administrative remedies as an affirmative defense if it had filed a

responsive pleading. The Government requested that the matter be remanded to the

District Court for further proceedings.

                                              2
       There appears to be no dispute that Sebrell exhausted her administrative remedies

prior to filing her complaint. Indeed, as the Government notes, Sebrell at least alleged

exhaustion of her property damage claim in the first paragraph of her complaint. Thus,

the District Court should not have dismissed Sebrell’s complaint sua sponte for lack of

subject matter jurisdiction on the grounds that Sebrell failed to exhaust her administrative

remedies. We will therefore grant the Government’s unopposed motion for summary

action, vacate the District Court’s order, and remand the matter for further proceedings.

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We express no opinion as to whether the District

Court has subject matter jurisdiction, or whether dismissal for any reason may or may not

ultimately be warranted.




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