The opinion of the court was delivered by: Thomas F. Hogan Chief Judge
Pending before the Court is defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (1), (3), and (6), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. [dkt. 6] Plaintiffs bring suit pursuant to the Federal Torts Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), alleging that United States employees committed various torts. Upon careful consideration of defendant's motion, plaintiffs' opposition, and defendant's reply, the Court will grant defendant's motion because the preclusive effect of Judge Kessler's 1999 decision renders plaintiffs' current action untimely, and defendant is therefore entitled to summary judgment.
Plaintiffs owned and operated a farming operation in Arkansas in the 1980s. Plaintiffs secured loans from the Farmers Home Administration ("FmHA"), fell behind on payments, and as a result, the FmHA accelerated the loans on September 17, 1986. Litigation spanning approximately twenty years ensued.
In 1985, plaintiffs filed a Bivens action in the Western District of Arkansas, alleging constitutional, statutory, and regulatory violations regarding their application to FmHA for loans and services. Civ. Action No. 85-4120 (W.D. Ark.). All claims from this action were dismissed on June 5, 1989.
During the pendency of the Bivens action, plaintiffs obtained an additional loan secured by cattle and other chattel. After plaintiff Larry R. Williams sold the cattle pledged as security for these loans, a criminal trial for conversion and other counts ensued, resulting in a conviction that was upheld on appeal. In 1987, the United States Attorney for the Western District of Arkansas brought a foreclosure action and plaintiffs lost their farming operation. Civ. Action No. 87-4014 (W.D. Ark.).
In 1992, Plaintiffs filed a complaint in the District of Columbia alleging various common law torts, naming as defendants the United States and its employees in both their individual and official capacities. Civ. Action No. 92-2418 (NHJ). The government certified that the defendants acted within the scope of their authority as government employees. Accordingly, on January 11, 1994, the court substituted the United States as the sole defendant pursuant to 28 U.S.C. § 2679(d)(1), dismissed certain claims, and transferred those that remained to the Western District of Arkansas. On March 6, 1996, the Honorable Harry F. Barnes of the Western District of Arkansas dismissed the case for failure to exhaust administrative remedies. Civ. Action No. 94-4038. The Eighth Circuit Court of Appeals affirmed the dismissal. Civ. Action No. 94-4038, Dkt. No. 94). Thereafter, plaintiffs submitted administrative claims, which were denied, and on March 23, 1998, again filed suit in this court. The case was heard by the Honorable Gladys Kessler.
Before Judge Kessler, plaintiffs argued that, despite the substantial passage of time, their claims should be deemed timely under 28 U.S.C. § 2679(d)(5), which 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 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). Judge Kessler disagreed, finding that unlike the principle authority on which plaintiffs relied, Mittleman v. United States, 104 F.3d 410 (D.C. Cir. 1997), . . . the Plaintiffs here filed identical claims in 1992 against both individual defendants and the United States. Since Plaintiffs filed suit against the United States, they could not have been mistaken as to their obligation to file claims with the appropriate federal agencies in accordance with statute. They simply failed to do so. Therefore, they are not entitled to the exception in § 2679(d)(5).
Civ. Action No. 98-736, 7-8. Because § 2679(d)(5) could not save plaintiffs' time-barred claims, Judge Kessler dismissed the case as untimely. Id. Following dismissal, plaintiffs moved for reconsideration three times, each of which was denied. The United States Court of Appeals for the District of Columbia Circuit affirmed the decision, noting,
[o]ther than the bald assertion that they timely exhausted in the light of cases in which the United States is substituted as a defendant, they make no effort to show that the court erred in holding that § 2679(d)(5) does not govern the case because, despite a ...