                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
DANIEL MJEMA,                    )
                                 )
               Plaintiff,        )
                                 ) Civil Action No. 11-1244 (EGS)
               v.                )
                                 )
UNITED STATES OF AMERICA,        )
                                 )
               Defendant.        )
                                 )

                          MEMORANDUM OPINION

     This case is before the Court on defendant the United

States of America’s Motion to Dismiss for lack of subject matter

jurisdiction.   Plaintiff Daniel Mjema filed a complaint on July

7, 2011, alleging that he was injured when United States Postal

Service (“USPS”) employee Janet Binger acted negligently in

operating her motor vehicle during the course of her employment.

Defendant moved to dismiss, arguing that plaintiff’s failure to

file an administrative complaint within two years of the accrual

of his claim as required by the Federal Tort Claims Act (“FTCA”)

deprived this Court of subject matter jurisdiction.   Upon

consideration of defendant’s motion, the response and reply

thereto, the applicable law, the entire record, and for the

reasons set forth below, the Court hereby GRANTS defendant’s

motion to dismiss.
  I.      BACKGROUND

       On December 15, 2005, plaintiff and Ms. Binger were

involved in an automobile accident in Bedford, Virginia.      Compl.

¶¶ 5-8.    Plaintiff alleges that the accident was caused by the

negligence of Ms. Binger, who was at all times acting within the

scope of her employment for the United States Postal Service.

Id. ¶¶ 7-9.

       On October 15, 2007, plaintiff filed an action against Ms.

Binger in the Circuit Court for Bedford County, Virginia.      Pl.’s

Opp. to Def.’s Mot. to Dismiss (“Pl.’s Opp.”) at 3.      On August

27, 2009, the USPS sent a letter to plaintiff’s counsel stating

that Ms. Binger had been acting within the course and scope of

her federal employment as a rural mail carrier on December 15,

2005 and that, accordingly, the FTCA applied to plaintiff’s

case.    Pl.’s Opp. Ex. 1 at 1.    The USPS stated that the FTCA

required plaintiff to file a claim with the USPS within 2 years

of the alleged tort.    Id. at 2.    The USPS further stated that

the FTCA required plaintiff to name the United States, rather

than Ms. Binger, as defendant in the action.      Id. at 2 (citing

28 U.S.C. §§ 2675, 2679).      Because plaintiff had failed to do

either of these things, the USPS argued, plaintiff’s suit was

subject to dismissal.    Id.    The USPS requested that plaintiff

voluntarily dismiss the suit “or [the USPS] will be required to

remove the matter to federal court.”      Pl.’s Opp. Ex. 1 at 3.

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      Following his receipt of the USPS letter, nearly four years

after the alleged tort, plaintiff provided notice of his claim

to the USPS on November 13, 2009. 1   Compl. ¶ 12.   Plaintiff then

voluntarily dismissed the Virginia state court action on

November 30, 2009.    Pl.’s Opp. at 3.   On July 7, 2011, plaintiff

commenced this action.

    II.   LEGAL STANDARDS

    1. Standard of Review

      To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1), a plaintiff bears the burden of establishing

that the court has subject-matter jurisdiction to hear his

claims.    See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d

20, 24 (D.C. Cir. 2000).    A court has an “affirmative obligation

to ensure that it is acting within the scope of its

jurisdictional authority.”    Grand Lodge of Fraternal Order of

Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).     “For

this reason ‘the [p]laintiff’s factual allegations in the

complaint . . . will bear closer scrutiny in resolving a

1
  On August 16, 2011, the USPS informed plaintiff that the notice
of claim he filed on November 13, 2009 was denied because it was
filed beyond the 2-year statute of limitations for an action
brought under the FTCA. Def.’s Mot. to Dismiss (“Def.’s Br.”)
at Ex. 3. Under the FTCA, however, plaintiff’s administrative
claim was deemed administratively denied on May 13, 2009, six
months after he sent it to the USPS. 28 U.S.C. § 2675(a). The
timing of the denial of plaintiff’s administrative claim does
not affect the outcome of this motion.
                                  3
12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure

to state a claim.”   Id. at 13-14 (quoting 5A Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.

1987)).   Additionally, unlike with a motion to dismiss under

Rule 12(b)(6), the Court “may consider materials outside the

pleadings in deciding whether to grant a motion to dismiss for

lack of jurisdiction.”   Jerome Stevens Pharms., Inc. v. FDA, 402

F.3d 1249, 1253 (D.C. Cir. 2005); see Herbert v. Nat’l Acad. of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (holding that on a

motion to dismiss under Rule 12(b)(1), a court may consider the

facts alleged in the complaint, supplemented by undisputed facts

evidenced in the record, and disputed facts in the record that

have been resolved by the district court).

  2. Federal Tort Claims Act

     The FTCA, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b) and 2671-

80, waives the United States’ sovereign immunity with regard to

certain types of tort claims and is the exclusive remedy in

personal injury cases arising from the negligence of federal

employees acting within the scope of their employment.   28

U.S.C. § 2679(b)(1).   The Act requires plaintiffs to exhaust

their administrative remedies by first presenting their claims

to the appropriate federal agency before instituting a civil

action.   Specifically, it states that:



                                 4
     An action shall not be instituted upon a claim against
     the United States for money damages for injury or loss
     of property or personal injury or death caused by the
     negligent or wrongful act or omission of any employee
     of the Government while acting within the scope of his
     office or 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 and sent by certified or
     registered mail. 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.

28 U.S.C. § 2675(a).   The Act carries a two-year statute of

limitations and states that “[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 . . . . ”   28 U.S.C. § 2401(b).

     In limited circumstances, an FTCA claim that is not filed

with the appropriate administrative agency within the two-year

limitations period may nonetheless be timely pursuant to 28

U.S.C. § 2679(d)(5).   That section provides:

     Whenever an action or proceeding in which the United
     States is substituted as a party defendant under this
     subsection is dismissed for failure first to present a
     claim pursuant to [the administrative exhaustion
     requirement], such a claim shall be deemed timely
     presented . . . if –
     (A) the claim would have been timely had it been
          filed on the date the underlying civil action was
          commenced, and
     (B) the claim is presented to the appropriate Federal
          agency within 60 days of the dismissal of the
          civil action.




                                 5
28 U.S.C. § 2679(d)(5).   As the statute makes clear, four things

must occur for the exception to apply: 1) a plaintiff must file

a civil action within two years of the alleged tort; 2) the

United States must be substituted as the defendant; 3) the case

must be dismissed for failure to present the tort claim to the

administrative agency; and 4) the claim must be presented to the

administrative agency within 60 days of the dismissal of the

case.

  III. DISCUSSION

     Defendant argues that plaintiff’s complaint must be

dismissed because plaintiff filed his tort claim with the USPS

nearly four years after the alleged tort occurred, exceeding the

statute of limitations by nearly two years.   Def.’s Br. at 4.

Defendant further argues that the exception set forth in Section

2679(d)(5) does not apply to the plaintiff for two reasons.

First, the United States was never substituted as the defendant

in the underlying action.   Second, the action was not dismissed

for failure to exhaust administrative remedies, but rather due

to the voluntary dismissal of the suit by plaintiff.    Defendant

argues that plaintiff’s failure to satisfy these requirements

bars plaintiff from bringing his claim in this Court.

     In his opposition to defendant’s motion to dismiss,

Plaintiff concedes that his suit can only be deemed timely filed

under the FTCA if he satisfies the requirements of Section

                                 6
2679(d)(5).   Pl.’s Opp. at 3.   Recognizing that he did not meet

the exact requirements of that provision, plaintiff argues that

he “substantially and essentially performed” its requirements.

Id.   Plaintiff asserts that he was “more diligent than required”

by the statute, and that he “voluntarily dismissed the case to

achieve the result dictated by 28 U.S.C. § 2679(d)(5) more

quickly and efficiently, and without any prejudice to the USPS

or any other party.”   Id. at 4.    Plaintiff argues that the

defendant’s motion should be denied on those grounds.        Id. at 5.

      The Court disagrees.   Section 2679(d)(5) unquestionably

contains threshold requirements that apply in this case: that

there is “an action or proceeding in which the United States is

substituted as the party defendant” that “is dismissed for

failure first to present a claim” to the proper administrative

agency.   28 U.S.C. § 2679(d)(5).       Plaintiff clearly fails to

meet those conditions.   The United States was never substituted

as the defendant in the state court action and, as a result, the

case was not dismissed for failure to present a claim to the

USPS.   Rather, instead of requiring the government to substitute

the United States as the defendant in place of Ms. Binger,

plaintiff voluntarily dismissed the case.        Accordingly,

plaintiff has failed to meet the requirements of Section

2679(d)(5).



                                    7
     Although plaintiff does not argue that equitable tolling

should apply to his claim, 2 plaintiff argues essentially that

because he “substantially complied” with Section 2679(d)(5), his

case should not be dismissed.    The law, however, requires more

than substantial compliance.    “[A] waiver of the Government’s

sovereign immunity will be strictly construed, in terms of its

scope, in favor of the sovereign.”    Lane v. Pena, 518 U.S. 187,

192 (1996); see Seitu v. Rutherford, No. 96-cv-575, 1997 WL

122919, at *1 (D.D.C. Mar. 12, 1997) (“As a waiver of sovereign

2
  In its motion to dismiss, defendant argued that equitable
tolling should not apply to plaintiff’s claim. Def.’s Br. at 5.
Because plaintiff failed to respond to this argument in his
opposition to defendant’s motion to dismiss, it is deemed
conceded. “It is well understood in this Circuit that when a
plaintiff files an opposition to a motion to dismiss addressing
only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as
conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (citing FDIC
v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)). Even if
plaintiff had not conceded the argument, however, plaintiff has
failed to demonstrate, or even plead, that he exercised any
diligence in preserving his legal rights. See Norman v. United
States, 467 F.3d 773, 775 (D.C. Cir. 2006) (affirming denial of
equitable tolling in FTCA case and recognizing that such relief
is granted “only sparingly” and is generally denied “where a
plaintiff failed to exercise due diligence in preserving his
legal rights”). Plaintiff only alleges that he “first
discovered” that Ms. Binger was a federal employee on August 26,
2009, the day before he received the USPS letter. Compl. ¶ 11.
Plaintiff does not allege that he made any effort prior to or
during the state court action to identify Ms. Binger’s employer.
Where a plaintiff has failed to “make any effort – diligent or
otherwise” to identify defendant’s employer, equitable tolling
is not warranted. Norman, 467 F.3d at 776. Accordingly,
equitable tolling would not have been warranted in this case,
even if plaintiff had not conceded that issue by failing to
respond to defendant’s argument.
                                  8
immunity, the FTCA’s limitations and procedural requirements

must be strictly applied.”); see also Martin v. United States,

439 Fed. App’x 842, 844-845 (11th Cir. 2011) (strictly

construing Section 2679(d)(5) to affirm dismissal of FTCA claim

where plaintiff chose to voluntarily dismiss her first state

court suit and file an action in federal court rather than

substituting the United States as a defendant in her original

state court action).   Plaintiff cites no basis for the Court to

make an exception to the strict requirements of the FTCA in this

case.   By asserting that he dismissed the state court suit

deliberately, “to achieve the same result” as Section

2679(d)(5), (Pl.’s Opp. at 4), plaintiff demonstrates only that

he knew what the rules required, but declined to follow them.




                                 9
  IV.   CONCLUSION

     Because the clear language of Section 2679(d)(5) requires

the United States to have been substituted a party defendant in

the original action and also requires that the original action

be dismissed, rather than voluntarily withdrawn, plaintiff’s

claim cannot be saved by that exception.   Therefore, his

administrative claim, filed more than two years after his claim

arose, is time-barred.   Accordingly, this Court lacks

jurisdiction to hear plaintiff’s claim, and defendant’s motion

to dismiss is GRANTED.

     Signed:   Emmet G. Sullivan
               United States District Judge
               August 7, 2012




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