United States District Court, District of Columbia
ZAFARAH I. BEY, Plaintiff,
SHANIA FENNELL et al., Defendants.
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
appearing pro se, filed a lawsuit in the Superior
Court of the District of Columbia against two employees of
the Court Services and Offender Supervision Agency for the
District of Columbia (“CSOSA”). She accuses
defendants of “false accusations, false arrest,
invasion of privacy, malicious interference, abuse of
process, assault and battery and deceit.” Complaint
[Dkt. 1-1]. Since CSOSA is a federal entity, see
D.C. Code § 24-133(a), defendants removed the case to
this court pursuant to 28 U.S.C. §§ 1442(a)(1) and
1446. See Not. of Removal [Dkt. #1].
Shortly after, on September 21, 2018, the Chief of the Civil
Division of the United States Attorney for the District of
Columbia certified that the named defendants “were
acting within the scope of their employment as employees of
the United States at the time of the alleged
incidents.” Certification [Dkt. # 3-2 at 21].
Accordingly, this action is “deemed to be . . . brought
against the United States . . . and the United States [is]
substituted as the party defendant.” 28 U.S.C. §
is Defendant's Motion to Dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) or, in the alternative, for failure to state a claim
under Rule 12(b)(6). See Mem. of P. & A. in
Support of Def.'s Mot. to Dismiss (“Mem.”) at
2. On September 25, 2018, plaintiff was ordered to respond to
defendant's motion by October 31, 2018, and warned of the
possible consequence of dismissal if the motion was not
opposed. Plaintiff has neither filed an opposition nor
requested additional time to file. So, the court will resolve
the motion without plaintiff's input.
asserts, among other grounds for dismissal, that plaintiff
has failed to exhaust her administrative remedies.
See Mem. at 5-6. Under 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. § 2680. Before bringing suit,
however, a plaintiff must first exhaust administrative
remedies by presenting her 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 judicial review.” Id. 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.” Veneman, 370 F.3d 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 she failed to present a tort claim to
CSOSA for the alleged misconduct. See Decl. of
Marigold Henderson [Dkt. # 3-2 at 18-19]. 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 separately.
 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 wherein it is pending[.]” ...