                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-11140            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          AUGUST 31, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                               D.C. Docket No. 1:10-cv-00501-KD-N

ALVIN LEE MARTIN,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff,

CHERYL MARTIN,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff - Appellant,

                                                versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Alabama
                                  ________________________

                                           (August 31, 2011)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Cheryl Martin appeals the district court’s dismissal of her tort claim against

an employee of the United States Postal Service (“USPS”). On December 4, 2006,

Martin was involved in a car accident with Sherry Lynn Harris, a USPS employee

acting in the scope of her employment. On December 2, 2008—two days before

the statute of limitations would bar suit—Martin sued Harris in state court.

Approximately nine months later, Martin filed an administrative claim for relief

with the USPS, and, in February 2010, she filed a voluntary notice of dismissal of

the state court action. Accordingly, the state court dismissed the suit on March 2,

2010. The USPS constructively denied Martin’s claim for administrative relief in

March 2010, which led her to file the instant lawsuit in federal court. The district

court dismissed the suit as time-barred. After review of the parties’ briefs and the

record, we affirm.

                                        I.

      “In reviewing the district court’s decision to grant the motion to dismiss

pursuant to [Federal Rule of Civil Procedure] 12(b)(1), lack of subject matter

jurisdiction, this Court reviews the legal conclusions of the district court de novo.”

McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty, 501 F.3d 1244, 1250

(11th Cir. 2007).

      “[A] waiver of the Government’s sovereign immunity will be strictly

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construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S.

187, 192, 116 S. Ct. 2092 (1996). The Federal Tort Claims Act (“FTCA”)

abrogates the United States’ sovereign immunity and allows the federal

government to be held liable to the same extent as a private individual for certain

torts committed by federal employees acting within the scope of their employment.

See Sosa v. Alvarez-Machain, 542 U.S. 692, 700, 124 S. Ct. 2739 (2004); 28

U.S.C. § 1346(b)(1). The FTCA requires a potential plaintiff to submit a claim to

the appropriate agency prior to filing suit against the government.1 The claim

must be filed “within two years after [it] accrues . . . .” 28 U.S.C. § 2401(b).

Only after agency denial—explicitly or after six months of non-action—is a



       1
           Specifically, it states:

                 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. The provisions of this
                 subsection shall not apply to such claims as may be asserted under the
                 Federal Rules of Civil Procedure by third party complaint,
                 cross-claim, or counterclaim.

28 U.S.C. § 2675(a).

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judicial remedy available. Id. at § 2675(a). Before administrative exhaustion, a

district court lacks jurisdiction to hear an FTCA claim. See Burchfield v. United

States, 168 F.3d 1252, 1254–55 (11th Cir. 1999).

      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 the 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 to be 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 after dismissal of the civil
                   action.

§ 2679(d)(5). Therefore, in limited circumstances, FTCA claims that did not

originally satisfy the time constraints for filing an administrative claim will not be

dismissed.

                                          II.

      Martin concedes that her suit is timely only if she satisfies § 2679(d)(5).

She argues that her situation is the exact circumstance that the provision exists to



                                          4
rectify. Specifically, she filed a timely suit in state court—prior to exhausting

administrative remedies—and chose to dismiss it to pursue her administrative

remedies. Martin believes that the government erred by failing to substitute the

United States as the defendant, pursuant to § 2679(c) and (d)(2),2 before her

voluntary dismissal. She repeatedly emphasizes that the failure of USPS counsel

to notify the Attorney General of the claim left her without recourse. We disagree

and determine that the district court’s ultimate conclusion was correct.

      The relevant provision unquestionably includes a threshold condition,

namely 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. § 2679(d)(5). Here, Martin quite


      2
          Section 2679(d)(2) states, in relevant part:

               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
               or proceeding commenced upon such claim 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 for the district and
               division embracing the place in which the action or proceeding is
               pending. 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 all references thereto, 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.



                                                  5
clearly fails to meet that condition. The United States was never substituted as the

defendant in the state court action. Instead, Martin voluntarily dismissed that suit

while Harris remained the only defendant. Plaintiff’s counsel could have quite

easily satisfied § 2679(d)(5)’s requirement by declining to voluntarily dismiss the

lawsuit and forcing the government to substitute the United States as the defendant

in place of Harris. If that had been done, Martin would not be facing the problem

she encounters today. As the clear language of § 2679(d)(5) requires the United

States to be a party defendant, we conclude that Martin’s claim cannot be saved by

that exception. Therefore, her administrative claim, filed more than two years

after the claim arose, is time-barred. Because Martin failed to satisfy the

administrative exhaustion requirement, the district court lacked jurisdiction to hear

her claim. Accordingly, we affirm.

      AFFIRMED.




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