                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                Aug. 1, 2008
                              No. 07-15801                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 05-21437-CV-SH

JAMES E. REED,


                                                            Plaintiff-Appellant,

                                   versus

UNITED STATES POSTAL SERVICE,
JOHN E. POTTER,
Postmaster General, et al.

                                                         Defendants-Appellees.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (August 1, 2008)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
       James E. Reed, proceeding pro se,1 appeals the dismissal of his claims for

lack of subject matter jurisdiction and failure to state a claim pursuant to Federal

Rules of Civil Procedure 12(b)(1) and (6). Reed argues that the district court erred

in dismissing his negligent hiring claim brought under the Federal Tort Claims Act

(“FTCA”) for lack of subject matter jurisdiction because the government waived

sovereign immunity for claims against law enforcement officers arising from abuse

of process, and, therefore, the court had subject matter jurisdiction over the claim.

He also argued that the district court erred in dismissing his claims under § 301 of

the Labor Management Relations Act for failure to state a claim because his claims

were not time barred because the applicable time limitations period was tolled

while he filed a complaint under Title VII of the Civil Rights act. After thorough

consideration, we conclude that neither argument is persuasive and, accordingly,

we affirm.

                                               I.

       We review dismissals for lack of subject matter jurisdiction de novo.

Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006) cert. denied 127 S. Ct.

2996 (2007). Factual findings concerning subject matter jurisdiction made by the



       1
         “Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).

                                               2
district court are overturned only if clearly erroneous. Barnett v. Okeechobee

Hosp., 283 F.3d 1232, 1238 (11th Cir. 2002).

      “Absent a waiver, sovereign immunity shields the Federal Government and

its agencies from suit.” JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d

1260, 1263 (11th Cir. 2000). The FTCA provides such a waiver of sovereign

immunity in limited circumstances. When the United States, if a private person,

would be liable to a claimant, the FTCA provides a limited waiver of sovereign

immunity to permit imposing liability on the government for an injury caused by

the negligent or wrongful act or omission of any government employee who is

acting within the scope of his office or employment. 28 U.S.C. § 1346(b).

      Congress has adopted a number of exceptions to the FTCA’s waiver of

sovereign immunity—all of which must be construed strictly in favor of the

government. JBP Acquisitions, LP, 224 F.3d at 1263. Among the claims

exempted from the waiver of sovereign immunity are those claims arising out of an

assault or battery. 28 U.S.C. § 2680(h). If the alleged conduct falls within one of

the excluded categories, the court lacks subject matter jurisdiction over the action.

JBP Acquisitions, 224 F.3d at 1263-64. There is an exception to the exemption,

however, and claims arising out of the intentionally tortious conduct of an

investigative or law enforcement officer of the United States may be brought under



                                           3
the FTCA. Id. For purposes of the exemption statute, a law enforcement officer is

any officer of the United States who is empowered by law to execute searches, to

seize evidence, or to make arrests for violations of federal law. Id.

      We have held that a plaintiff cannot avoid the § 2680(h) exclusions by

recasting a complaint in terms of a negligent failure to prevent assault or battery

because § 2680(h) bars any claim “arising out of” assault or battery, including

claims that sound in negligence but stem from a battery committed by a

government employee. Metz v. United States, 788 F.2d 1528, 1533 (11th Cir.

1986). “It is the substance of the claim and not the language used in stating it

which controls.” JBP Acquisitions, 224 F.3d at 1264 (quoting Gaudet v. United

States, 517 F.2d 1034, 1035 (5th Cir.1975)).

      In Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 2449 (1988), the

Supreme Court permitted plaintiffs to bring a negligence claim against the United

States when the government purportedly had been negligent in failing to prevent an

off-duty employee from leaving a government hospital intoxicated and with a

loaded weapon. The Court held that, although plaintiff’s injuries stemmed from

the battery committed by the employee, the negligence claim did not arise out of

the battery because the government’s duty was independent of any employment

relationship between the employee and the government. Id. at 401-402, 108 S. Ct.



                                           4
at 2455-2456. Regardless of the employment relationship, the government would

have owed a duty to the plaintiffs even if the employee had been a regular civilian.

Id. As such, the government could be liable for negligence because the

employment status of the offender had no bearing on the plaintiff’s claim for

damages. Id. at 403, 108 S. Ct. at 2456. The Court, however, did not address the

question of whether negligent hiring, negligent supervision, or negligent training

could ever provide the basis for liability under the FTCA for a foreseeable assault

or battery by a government employee because, in Sheridan, the offender’s

employment status was irrelevant to the negligence claim. Id. at 403 n.8, 108 S.

Ct. at 2456 n.8.

      Unlike Sheridan, the only basis here for liability to attach to the United

States as a result of Reed’s assailant’s actions would be via the employment

relationship itself. Were the government aware of the assailant’s purportedly

violent history, it would only be as a result of the knowledge it gained as his

employer and any liability on the part of the government would inure solely

because of its status as Reed’s and the assailant’s employer. Because Reed’s

negligent hiring claim arose from an assault and battery and he did not allege a

claim against a law enforcement officer, as defined by the statute, his claim was

barred by sovereign immunity and properly dismissed for lack of subject matter



                                           5
jurisdiction.

                                          II.

       We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6),

taking the factual allegations as true. Trawinski v. United Technologies, 313 F.3d

1295, 1297 (11th Cir. 2002). A plaintiff’s factual allegations, however, “must be

enough to raise a right to relief above the speculative level.” Bell Atlantic Corp.,

v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1965 (2007). An allegation must

plausibly suggest and not merely be consistent with a violation of the law. Davis

v. Coca-Cola Bottling Co., Consol., 516 F.3d 955, 974 n.43 (11th Cir. 2008).

       Under section 301 of the Labor-Management Relations Act, an employee

may bring a suit against an employer and the employee’s union for breach of duties

owed the employee under a collective bargaining agreement. 29 U.S.C. § 185(a).

Such a suit is called a § 301 hybrid claim. Coppage v. U.S. Postal Service, 281

F.3d 1200, 1203-1204 (11th Cir. 2002). A union, as an exclusive bargaining

representative of an employee, has a duty to fairly represent the employee in its

collective bargaining and its enforcement of the resulting collective bargaining

agreement. Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 909-910 (1967).

Under the doctrine of fair representation, the union must serve the interests of all

members of the union without hostility or discrimination toward any member, must



                                           6
exercise its discretion with complete good faith and honesty, and must avoid

arbitrary conduct. Id. at 177, 87 S. Ct. at 910. An employee may bring a suit

against both the employer and the union for breach of the collective bargaining

agreement and breach of the duty of fair representation. DelCostello v.

International Brotherhood of Teamsters, 462 U.S. 151, 163-164, 103 S. Ct. 2281,

2290 (1983).

       The applicable statute of limitations for a § 301 hybrid claim is six months.

Id. at 172, 103 S. Ct. at 2294. The Supreme Court has also held that claims under a

collective bargaining agreement and Title VII are independent, and, as such, filing

a claim under the former does not toll the running of the limitations period under

the latter. International Union of Elec., Radio and Mach. Workers, AFL-CIO,

Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236, 97 S. Ct. 441, 447 (1976).

       Because Reed’s § 301 hybrid claims were filed nearly a year and a half after

his arbitration decision became final—well beyond the six month limitations

period—and because his Title VII claim did not toll the statute of limitations, his

claims were properly dismissed as time-barred. Accordingly, the judgment of the

district is

       AFFIRMED.2



       2
           Appellant’s request for oral argument is denied.

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