United States District Court, Eastern District of New York
October 31, 1991
RACHEL FILASKI, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Wexler, District Judge.
In the above-referenced action, Rachel Filaski ("plaintiff")
seeks damages arising out of an automobile accident with Angelo
Buonconsiglio, a revenue officer for the Internal Revenue
Service ("IRS"). Although plaintiff commenced a lawsuit against
Buonconsiglio individually in state court, the United States
("defendant") thereafter removed the action to this Court and
substituted itself as the party defendant. See 28 U.S.C. § 2679(d).
Currently before the Court is defendant's motion to
dismiss, pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, for failure to file an administrative claim.
See 28 U.S.C. § 2675(a). For the reasons stated below, the
motion is granted.
Plaintiff allegedly sustained injuries as a result of a car
accident with Angelo Buonconsiglio on June 15, 1990.
Thereafter, plaintiff commenced an action in state court
against Buonconsiglio. Upon certification by the United States
Attorney that Buonconsiglio was acting within the scope of his
employment at the time of the accident, the case was removed to
this Court and defendant was substituted as the sole defendant.
See 28 U.S.C. § 2679(d). To date, no administrative claims have
been filed by plaintiff. Based on that failure, defendant moves
In opposition to the motion to dismiss, plaintiff essentially
relies upon Kelley v. United States, 568 F.2d 259 (2d Cir.),
cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124
(1978). The Kelley court reasoned that a removed action need
not be dismissed for failure to file an administrative claim
where the statute of limitations for filing the claim had
already expired, but where the state suit had been filed within
the appropriate time frame. See id. Thus, the issue in the case
at bar can be stated simply, to wit: when a plaintiff commences
a tort action in state court against an individual, without
knowledge that the individual was a federal employee acting
within the scope of his employment, upon removal to federal
court and substitution of the United States as defendant is the
action subject to dismissal for failure to file an
administrative claim? In this Court's view,
for the reasons stated below the question must be answered in
Pursuant to the Federal Tort Claims Act, ("FTCA" or "the
Act"), the United States is subject to suit for, inter alia,
certain tort claims. See 28 U.S.C. § 1346(b), 2675(a).
However, as a condition of that waiver of sovereign immunity,
an administrative claim must be filed with the appropriate
agency and denied before a federal court may exercise subject
matter jurisdiction over the controversy. See 28 U.S.C. § 2675(a).
In other words, the filing of the administrative claim
is a jurisdictional prerequisite to bringing suit under the
Act. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 194,
196 (2d Cir. 1987).
As noted briefly above, plaintiff herein argues that under
Kelley, where a plaintiff brings a state court action against a
federal employee, "in good faith, his action may not be
dismissed after removal to Federal Court under 42 [sic] U.S.C.
§ 2679 because of that Plaintiff's failure to file a Notice of
Claim. . . ." See Plaintiff's Memo. at 2. However, this Court
agrees with defendant to the extent that the 1988 amendments to
the FTCA overrule the reasoning of Kelley. See
28 U.S.C. § 2679(d)(5), as amended by Pub.L. 100-694, 102 Stat. 4563
(1988); Egan by Egan v. United States, 732 F. Supp. 1248, 1249
Aside from her reliance on Kelley, plaintiff argues that it
would be unfair to impose the burden of an administrative claim
upon her since she never knew Buonconsiglio was a federal
employee. See Aff. of Stephen N. Strauss. However, pursuant to
§ 2675(a) of the Act:
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 . . . The failure of an
agency to make final disposition of a claim within
six months after it is filed shall, . . . be
deemed a final denial of the claim. . . .
28 U.S.C. § 2675(a). Thus, in the situation where a plaintiff
knows of the "federal identity" of a tortfeasor and proceeds
accordingly, the claim must first be filed with the appropriate
agency. Id. Denial of the claim in writing or a failure of the
agency to act within six months allows that plaintiff to
commence an action in district court. Id.
Pursuant to 28 U.S.C. § 2401(b), a tort claim against the
United States must be presented to the appropriate agency
within two years of the accrual of the claim. However, as to a
situation in which the United States is substituted as
defendant, like the case at bar, the FTCA provides protection
for the plaintiff who has no knowledge of the federal presence
in a case. More specifically, the Act states:
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 section
2675(a) of this title, such a claim shall be deemed
to be timely presented under section 2401(b) of
this title 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.
28 U.S.C. § 2679(d)(5) (emphasis added). Thus, plaintiff's
claim herein will not be time-barred even if dismissed provided
that she commenced her state court action within two years of
the date of the accident, which she appears to have done, and
provided that she present her claim to the appropriate federal
agency within sixty days from this dismissal. Id.
In Egan, the plaintiff had similarly commenced a state court
action against an individual federal employee, and the action
was similarly removed to federal court with
the United States substituted as defendant. See Egan, 732
F. Supp. at 1249. In addition, the plaintiff had not filed an
administrative claim. Id. After a comprehensive and insightful
analysis of the 1988 amendments to the FTCA, the court
determined that the complaint had to be dismissed without
prejudice to allow the plaintiff to present a claim within
sixty days to the appropriate agency. See id. at 1253-54.
Although neither party cited Egan, an identical result is
required herein. Accordingly, the complaint is dismissed
without prejudice. Plaintiff may, in accordance with the FTCA,
present a claim to the appropriate federal agency within sixty
days of the date of this Order. See 28 U.S.C. § 2679(d)(5)(B).
Upon a denial of the claim, or a failure of the agency to act
upon the claim within six months of its presentation, plaintiff
may serve an amended complaint including allegations of
compliance with § 2679(d)(5), and thereby restore the action.
For the reasons stated above, defendants' motion to dismiss,
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure, is granted. Accordingly, the complaint is dismissed
without prejudice consistent with the Court's reasoning in this
opinion. The Clerk of the Court is directed to close the file
in this case, subject to restoration as noted above.
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