United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
appearing pro se, filed a complaint in the Superior
Court of the District of Columbia, alleging that he was
falsely arrested, charged with impersonating a police
officer, and deprived of his property. The complaint lists
the defendants as “U.S. White House, U.S. Secret
Service White House Police, Police Officer Adelsperger Badge
# 0572” and “Second District Police, Station
Property Unit,” and it demands a judgment of
$190,000,000 [Dkt. # 1-1 at 2]. The United States Secret
Service removed the case to this court pursuant to 28 U.S.C.
§§ 1442(a)(1) and 1446. See Not. of Removal
are the Secret Service’s motion to dismiss [Dkt. # 7]
and plaintiff’s motion for a writ of attachment [Dkt. #
9]. Although plaintiff was informed about the negative
consequences of failing to respond to a motion to dismiss,
see Nov. 17, 2017 Order, he has not filed an
opposition. In support of dismissal, the Secret Service
asserts (1) that plaintiff failed to exhaust his
administrative remedies under the Federal Tort Claims Act
(FTCA), and (2) that the remainder of the complaint is
“legally incoherent.” Mot. at 1. Failure to
exhaust a claim under the FTCA is a jurisdictional defect.
So, for the reasons explained below, the Court will grant the
Secret Service’s motion, deny plaintiff’s motion,
and dismiss this case without prejudice.
Complaint filed on May 1, 2017 [Dkt. # 1-1 at 2], plaintiff
alleges in a single paragraph that when defendant Adelsperger
asked him “for ID for the Law Enforcement Holy War
Special Agent Shield” he was wearing, he gave the
officer “all the ID he needed” but was arrested
nonetheless on a misdemeanor charge of impersonating a police
officer, in violation of D.C. Code § 22-1406.
Plaintiff’s shield and ID were taken “for
evidence.” He “was released the next day, no
arrest report attached to defendant’s motion identifies
the arresting officer as Aaron Adelsperger of the U.S. Secret
Service, adds that the incident occurred on April 28, 2017,
“in close vicinity to the White House,” and
confirms that no charges were filed against plaintiff.
Def.’s Ex. A [Dkt. # 7-2].
the doctrine of sovereign immunity, “the United States
may not be sued without its consent and . . . the existence
of consent is a prerequisite for jurisdiction.”
United States v. Mitchell, 463 U.S. 206, 212 (1983).
The FTCA waives the United States’ immunity from suit
for certain torts. See 28 U.S.C. §§
2679-80. Before bringing suit, however, a plaintiff must
first exhaust administrative remedies by presenting a timely
claim in writing “to the appropriate Federal
agency” and either obtaining a final denial of the
claim or waiting six months without a final action. 28 U.S.C.
§§ 2401(b), 2675(a).
administrative exhaustion requirement can be jurisdictional
or it can be non-jurisdictional. Avocados Plus Inc. v.
Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004).
Non-jurisdictional exhaustion refers to “a judicially
created doctrine requiring parties who seek to challenge
agency action to exhaust available administrative remedies
before bringing their case to court.” Id. With
jurisdictional exhaustion, “Congress requires [the
plaintiff to] resort to the administrative process as a
predicate to jurisdictional review.” Veneman,
370 F.3d at 1247. There is a presumption that exhaustion is
non-jurisdictional “unless ‘Congress states in
clear, unequivocal terms that the judiciary is barred from
hearing an action until the administrative agency has come to
a decision.’ ” Id. at 1248, quoting
I.A.M. Nat'l Pension Fund Benefit Plan C v. Stockton
Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984). But
where “Congress requires resort to the administrative
process as a predicate to judicial review . . . a court
cannot excuse it.” Id. at 1247.
D.C. Circuit has “treated the FTCA’s requirement
of filing an administrative complaint with the appropriate
agency prior to instituting an action as
jurisdictional.” Simpkins v. District of
Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997); see
accord Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C. Cir.
2011) (“[W]e view the failure to exhaust administrative
remedies [under the FTCA] as jurisdictional.”)
(citation and internal quotation marks omitted; alteration in
original)). This Court must follow suit.
has not disputed that he failed to present a tort claim to
the Secret Service for the alleged misconduct. See
Decl. of Lanelle Hawa [Dkt. # 7-1]. Therefore, the Court
lacks the power to hear the claim against the United States
at this time, and “[w]ith the case in this posture, the
court [can] no more rule in favor of the government than
against it.” Simpkins, 108 F.3d at 371.
Accordingly, this case will be dismissed. An order will issue
 Section 1442(a)(1) states in relevant
part: “A civil action . . . that is commenced in a
State court and that is against or directed to [the United
States, its agencies, and officers or employees] may be
removed by them to the district court . . . embracing the
place where it is pending[.]” ...