The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff brings this personal injury action pursuant to the Federal Torts Claims Act ("FTCA" or the "Act"), 28 U.S.C. §§ 2671, et seq. (2000) for injuries sustained as a result of the alleged negligence of the defendants. Currently before the Court is the United States' Motion to Dismiss ("Def.'s Mot.") [D.E. # 16] pursuant to Federal Rule of Civil Procedure 12(b)(1). For the following reasons, the Court grants the motion to dismiss due to the absence of subject matter jurisdiction.
The adult plaintiffs, Patricia Cronauer and Christian Moreau, bring suit both individually and as parents of their two minor children, Andre and Isabella Moreau. Complaint ("Compl.") ¶ 1. The plaintiffs initially sued several other defendants, however, the only remaining defendants are the United States, the District of Columbia and 555 Pennsylvania Ave. N.W., LLC. Compl. ¶¶ 3-7.*fn1 The circumstances that resulted in the filing of this lawsuit are the following. On or about August 11, 2001, the children plaintiffs, Andre, who was ten years old at the time, and Isabella, who was twelve years old at the time, were walking with their mother between the 500 and 600 blocks of Pennsylvania Avenue in Northwest Washington, D.C. Compl. ¶¶ 8-10; Defendant's Reply in Support of Motion to Dismiss ("Def.'s Reply"), Exhibit ("Ex.") 1 (Letter from Paul F. Figley, DOJ Acting Director, Torts Branch, Civil Division to George N. Barclay and Sharon Roach, GSA Acting Attorney General Counsel and Regional Counsel dated August 13, 2003) ("Figley Letter").*fn2 The plaintiffs allege that when the children were walking over a sidewalk manhole, their legs were severely burned by unusually hot steam that was emanating from the manhole. Id. ¶¶ 10-13. The children were taken to Washington Adventist Hospital for treatment and Andre was referred to the burn unit at Children's Hospital Center where he underwent surgery for his burns. Compl. ¶¶ 13-14. The plaintiffs have brought this action against the defendants claiming that they negligently owned, operated or maintained the equipment and apparatus underneath the manhole, and that they were negligent in failing to alert pedestrians of the danger. Compl. ¶ 21. In addition to seeking damages for the minor plaintiffs' physical injuries, medical bills and emotional distress, the children's mother is also seeking damages for negligent infliction of emotional distress. Compl. ¶¶ 15-19.
Before filing this action, the plaintiffs filed two administrative claims with the Torts Division of the Department of Justice ("DOJ") on August 11, 2003, exactly two years after the date of the injuries.*fn3 Plaintiffs' Opposition to Defendant United States of America's Motion to Dismiss ("Pls.' Opp'n") at 1; Def.'s Reply at 1, Ex. A (Letter from Jane Carol Norman to Jeffrey Bucoltz dated of August 11, 2003). However, the DOJ was not the proper federal agency to process the plaintiffs' claims, and it therefore forwarded the claims to the proper agency, the General Services Administration ("GSA"). Def.'s Reply, Ex. 1 (Figley Letter). The claims were received by the GSA on August 14, 2003. Def.'s Reply, Ex. 2 (Letter from Wanda Alston, GSA Administrative Officer to Jane Carol Norman dated August 27, 2003) ("Alston Letter"). Later, on March 30, 2004, the GSA sent a letter to the plaintiffs denying their claims on the grounds that they had been untimely filed and because of the lack of any evidence of negligence on the part of the GSA. Def.'s Reply, Ex. 2 (Letter from Sharon A. Roach to Jane Carol Norman of March 30, 2004) ("Roach Letter"). After the denial of their claims by the GSA, the plaintiffs filed this action on August 11, 2004. Defendant United States has now moved to dismiss the plaintiff's complaint, arguing that this Court lacks subject matter jurisdiction or supplemental jurisdiction pursuant to the FTCA. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 1. The motion is opposed by the plaintiffs. The issue for the Court is whether the plaintiffs have properly exhausted their administrative remedies as required by the FTCA, which is determinative of whether this Court has subject matter jurisdiction to entertain this case.
In considering whether the Court has subject matter jurisdiction, Federal Rule of Civil Procedure (12)(b)(1) "imposes on the [C]court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Fowler v. District of Columbia, 122 F. Supp. 2d 37, 40 (D.D.C. 2000) (citation omitted). It is the plaintiff who bears the burden of demonstrating that the court has jurisdiction. Id. at 39-40 (citing D.C. Ret. Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987). Moreover, the Court can consider matters outside of the allegations in the pleadings (the complaint)*fn4 to resolve a motion to dismiss for lack of jurisdiction. See Fowler, 122 F. Supp. 2d at 40; see also Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002). "The court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the court does not need to accept as true the plaintiff's legal conclusions." Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 168 (D.D.C. 2003) (citing Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999)).
One limitation on a court's authority to hear a case is the doctrine of sovereign immunity, which shields the United States from being sued. See, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980). "It is elementary that '[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Without a congressional waiver of sovereign immunity, a court will not have jurisdiction to hear a suit brought against the United States. Mitchell, 445 U.S. at 538 (citing Sherwood, 312 U.S. at 587-88). The FTCA provides such a waiver. See United States v. Kubrick, 444 U.S. 111, 117 (1979); Loughlin v. United States, 393 F.3d 155, 155 (D.C. Cir. 2004); GAF Corp. v. United States, 818 F.2d 901, 903 (D.C. Cir. 1987). The District of Columbia Circuit has explained that "[t]he [FTCA] is a limited waiver of the United States' sovereign immunity and renders the Federal Government liable to the same extent as a private party for certain torts of its employees . . . ." GAF Corp., 818 F.2d at 903. Because the FTCA waives the government's sovereign immunity, the Act "gives district courts jurisdiction over civil actions on claims against the United States . . . ." Loughlin, 393 F.3d at 155 (citing 28 U.S.C. §§ 1346(b), 2671-2680 (2000)).
In its motion to dismiss, the United States argues that the Court should dismiss the plaintiffs' claims because there has been no waiver of sovereign immunity in situations where the plaintiffs have "failed to comply exactly with the provisions governing administrative tort claims . . . ." Def.'s Mem. at 3. The United States initially stated in its motion that the "[p]laintiffs have not alleged that they presented administrative claims to any federal Department or Agency." Id. However, in the United States' reply to the plaintiffs' opposition, the government's primary assertion is that the plaintiffs did not timely file their claims with the appropriate government agency prior to filing suit in this Court as required by the FTCA. Def.'s Reply at 1. Specifically, the United States declares that the plaintiffs' administrative claims were filed "with the wrong agency, the Department of Justice, on the last possible day before the two year statute of limitations expired for the alleged tort." Id. (citing Ex. 1 (Declaration of Paula J. DeMuth dated January 4, 2004 ("DeMuth Decl.")) ¶ 2.*fn5 The United States relies on 28 U.S.C. § 2401(b) (2005), which 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 . . . ." See Def.'s Reply at 3. The United States posits that the GSA is the appropriate federal agency, and that the GSA did not receive the plaintiffs' claims until August 14, 2003, which was more than two years after the plaintiffs' claims accrued.*fn6 Def.'s Reply at 4. The United States emphasizes that although the plaintiffs timely filed their claims with the DOJ, this was not in compliance with the FTCA because the DOJ was not the appropriate agency, and that sections 2401(b) and 2675(a) of the Act require that the claims be presented to the "appropriate Federal agency." Id. at 3-4. The United States also asserts that filing of the plaintiffs' administrative claims with the DOJ should not be regarded as constructive filing with the GSA. Id. at 4. Hence, the United States concludes that the plaintiffs' tort claims should be dismissed because the plaintiffs' "failure to properly adhere to the FTCA's administrative claim presentment requirement is fatal" to their ability to pursue their claims. Def.'s Mem. at 3.
In their opposition to the United States' motion to dismiss, the plaintiffs claim that "[t]o the extent that the United States is alleging that [the p]laintiffs did not file an administrative claim and exhaust their administrative remedies, this is simply incorrect." Pls.' Opp'n at 5. The plaintiffs further contend that their "[f]ederal [a]dministrative remedies were fully exhausted . . . ." Id. The plaintiffs acknowledge that the FTCA requires a party to file an administrative claim form and then, after the agency's final denial of the administrative complaint, to timely file a judicial complaint. Id. at 4-5 (citing 28 U.S.C. §§ 2675(a), 2401(b)). And, the plaintiffs contend that their complaint clearly alleges that they "made an administrative Form 95 claim with the United States and that the claim was rejected." Id. at 5. Additionally, the plaintiffs request leave to amend their complaint if the Court concludes that they should have provided greater specificity as to when they filed their administrative claims and the agency's rejection of the claims. Id. at 6.
In further response to the United States' allegation that the administrative claims were not timely filed, the plaintiffs contend that the "government should be estopped from taking this position . . . ." Pls.' Opp'n to Reply at 13. The plaintiffs opine that their claims should be considered timely filed with the appropriate agency because they allege that when their counsel called the Torts Division of the DOJ on August 11, 2004 to identify the appropriate federal agency, no one at the DOJ could provide plaintiffs' counsel with that information. Id. at 14. They contend that if the DOJ could not identify the agency responsible for their claims, then the plaintiffs should not be expected to have had this knowledge either. Id. Moreover, the plaintiffs assert that the "Justice Department could have faxed or otherwise forwarded the Form 95 to [the] GSA on [August 11, 2004,]" and that "[t]hey [could] not sit on them and then claim they are two days late[.]" Id.
Contrary to the United States' initial argument, it is clear that the plaintiffs did allege in their complaint that they filed administrative claims with the government prior to filing their complaint in this Court, Compl. ¶ 2, and that they filed their claims with the DOJ. Def.'s Reply, Ex. 1 (Figley Letter). Thus, the only issue remaining is whether these claims were filed timely with the appropriate agency, which as already noted is determinative of whether this Court has jurisdiction over the plaintiffs' claims. According to the United States, based on the documents presented to the Court, it is evident that the plaintiffs' administrative claims were not timely filed with the appropriate federal agency. Def.'s Reply, Ex. 2 (Roach Letter); Def.'s Reply, Ex. 1 (DeMuth Decl). In determining the appropriate federal agency for filing an FTCA claim, the Code of Federal Regulations provides that it is the agency "whose activities [give] rise to the claim." Def.'s Reply at 4 (quoting 28 C.F.R.§ 14.2(b)(1) (2004)). The Assistant Regional Counsel of the National Capital Region of the GSA stated in her declaration that the GSA is responsible for maintaining a tunnel through which steam pipes provide heat to buildings in the District of Columbia and that the manholes in question belong to the GSA. Def.'s Reply, Ex. 1 (DeMuth Decl.). She further declares that the GSA was the appropriate federal agency for the filing of the plaintiffs' administrative claims. Id.
With respect to the timeliness of the filing of their administrative claims, the plaintiffs allege that the children were injured on August 11, 2001. See Def.'s Reply, Ex. 1. Section 2401(b) of the FTCA provides that an administrative claim must be presented within two years from the time the claim accrues. 28 U.S.C. § 2401(b). And, as the defendant accurately points out, the Code of Federal Regulations specifies that the administrative claim shall be deemed presented as of the date the appropriate agency receives it. Def.'s Reply at 4 (citing 28 C.F.R.§ 14.2(b)(1)) (emphasis added). Here, the GSA did not receive the plaintiffs' administrative claims until August 14, 2003, three days after the two year statute of limitations period expired. Def.'s Reply, Ex. 2 (Roach Letter). The GSA also indicated in its letter to the plaintiffs that one of the reasons their administrative claims were denied was "because [they were] not timely filed." Id. Thus, because the GSA, which was ...