Fuller v. Daniel

• Decision Date: 28 October 1977
• Docket Number: Civ. A. No. 77-L-0921-NE.
• Citation: 438 F. Supp. 928
• Parties: Doyle FULLER, Plaintiff, v. Margie DANIEL, Defendant.
• Court: U.S. District Court — Northern District of Alabama

438 F. Supp. 928

Doyle FULLER, Plaintiff, v. Margie DANIEL, Defendant.

Civ. A. No. 77-L-0921-NE.

United States District Court, N. D. Alabama, Northeastern Division.

October 28, 1977.

Miles T. Powell, Decatur, Ala., for plaintiff.

J. R. Brooks, U. S. Atty., Ann C. Robertson, Asst. U. S. Atty., Birmingham, Ala., and Carl H. Harper and J. Diane Everett, Dept. of HEW, Atlanta, Ga., for defendant.

MEMORANDUM OPINION

LYNNE, Senior District Judge.

Plaintiff, Doyle Fuller, initiated this action in state court against the individual defendant Margie Daniel, seeking damages for personal injuries proximately resulting from defendant's negligent operation of a motor vehicle. Apparently, at the time plaintiff brought suit, he was not aware that defendant was an employee of the United States. Thereafter, the United States Attorney removed the case to federal court, certifying under 28 U.S.C. § 2679 (1976) that defendant was acting within the scope of her employment as an employee of the United States at the time of the incident.

The United States has moved that it be substituted as defendant and that the cause be dismissed for lack of jurisdiction because plaintiff has not exhausted administrative remedies. Both motions are due to be granted.

The Court is of the opinion that the United States should be substituted as defendant. In petitioning for removal of this case from state court to federal court, the United States Attorney certified that the defendant Margie Daniel was acting as an employee of the United States at the time of the occurrence which is the basis of this action. Plaintiff has not controverted the fact of defendant Daniel's agency. Therefore, this proceeding is deemed a tort action against the United States in accordance with 28 U.S.C. § 2679(d) (1976).¹ The remedy afforded by the Federal Tort Claims Act is exclusive of any other proceeding against the employee, 28 U.S.C. § 2679(b) (1976),² and the United States should be substituted as the real party in interest. Fed.R.Civ.P. 17(a).

The foregoing circumstances present a question which is of first impression in this Court: whether, following substitution of the United States as defendant, the requirement of filing an administration claim is a prerequisite to federal jurisdiction. The United States' motion to dismiss for lack of jurisdiction presents an anomalous situation. The United States has invoked this Court's jurisdiction by removing the action from state court; now the United States asserts that this Court does not have jurisdiction because plaintiff has not exhausted administrative remedies.

The Court has serious doubts about the fairness of this procedure. Where a plaintiff files suit against an individual, having no knowledge that the individual is an employee of the United States, it is manifestly unjust to dismiss the claim for failure of the plaintiff to exhaust administrative remedies. Until the United States Attorney petitioned to remove the case to federal court, this plaintiff apparently had no reason to suspect that any administrative remedies were available to him.

Nevertheless, the Court is of the opinion that this action must be dismissed for lack of jurisdiction. As discussed above, this cause is deemed a tort action against the United States. Exhaustion of the statutory administrative claim procedure is a prerequisite to suit on the claim. 28 U.S.C. § 2675(a) (Supp. 1977).³ Courts have uniformly held that exhaustion is a jurisdictional requirement and cannot be waived. Best Bearing v. United States, 463 F.2d 1177 (7th Cir. 1972); accord Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974); Melo v. United States, 505 F.2d 1026 (8th Cir. 1974).

Substantial authority demonstrates that the peculiar facts of the instant situation do not present an exception to the exhaustion requirements. The leading case is Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970). That court rejected plaintiff's contention that 28 U.S.C. § 2675(a) required exhaustion as a jurisdictional predicate only where suit is originally brought against the government. The court affirmed dismissal of the action despite the fact that plaintiff had brought the suit in state court against an individual defendant. Central to the court's reasoning was the language of 28 U.S.C. § 2679(b) that proceedings against a government driver are "deemed a tort action brought against the United States under the provisions of this title Tort Claims Act and all references thereto." 435 F.2d at 1222. The Court interpreted the plain language of the statute to require that such proceedings be deemed a tort action against the government for all purposes of the Tort Claims Act, regardless of whether plaintiff named the United States as a defendant in his complaint. See also Montalvo v. Graham, 390 F.Supp. 533 (E.D.Wis.1975); Smith v. United States, 328 F.Supp. 1224 (W.D.Tenn.1971).

The facts of Meeker are analogous to the case at bar, with one exception. In Meeker, the truck driven by defendant was painted and lettered in the traditional manner of Post Office vehicles, so as to make it evident that it was either owned by or under the control of the government. 435 F.2d at 1220, n. 1. In the instant case the government has adduced no evidence that plaintiff had any reason to know at the time she brought suit that Margie Daniel was an employee of the United States.

Basic principles of fairness would suggest that the exhaustion requirement should not be applied where the plaintiff brought suit without knowledge that the defendant was a government employee. However, accepting the Meeker holding that the claim is deemed a tort claim against the United States for all purposes, the statute provides no basis for such...