Opinion
Civil No. 06-1391 (JAF).
September 28, 2006
OPINION AND ORDER
Plaintiffs, Hiram Reyes Sierra ("Reyes"), Luz C. Rosario, and their conjugal partnership, bring this tort action under Puerto Rico law, 31 L.P.R.A. § 5141 (2004) ("Article 1802") and 31 L.P.R.A. § 5142 (2004) ("Article 1803"). Defendant Social Security Administration now moves to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Docket Document No. 8-1. Plaintiffs have not opposed the motion.
I. Factual and Procedural History
Plaintiff Reyes receives a monthly check from the Social Security Administration (SSA) for $419.70. Docket Document 5-3. In January and February 2006, SSA withheld $54.50 from Reyes' checks and sent these amounts to ASUME for Héctor Escribano, whom SSA mistakenly believed to be Reyes' biological son. Id. Plaintiffs promptly informed both SSA and ASUME of the error and in March 2006, SSA effectively terminated the garnishment. Docket Document 8-2. Reyes has received the full amount of his monthly checks since that date. Id. SSA has not reimbursed Reyes for the $109 withheld from his checks in January and February.
Plaintiffs filed a complaint in a local Puerto Rico court on March 15, 2006, requesting a permanent injunction prohibiting SSA from garnishing his future wages and $100,000 in damages. Docket Document 5-3. Plaintiffs have not filed an administrative claim with SSA. Docket Document 8-3.
Defendants removed the case to federal court on April 19, 2006, citing federal courts' jurisdiction over actions against United States agencies such as SSA. Docket Document No. 1-1.
Defendant SSA filed a motion to dismiss Plaintiffs' complaint on June 6, 2006, arguing that the court has no subject matter jurisdiction over the case because it is moot. Docket Document No. 8-1. Defendant also argues that Plaintiffs' complaint must be dismissed because: it is barred by sovereign immunity; it does not name the United States as a defendant; and Plaintiffs failed to exhaust administrative remedies as required by the Federal Tort Claims Act, 28 U.S.C. § 2671 (2006) (FTCA), the federal law that would govern this dispute were it properly pled. Id.
II. Motion to Dismiss Standard under Rule 12(b)(1)
Under Rule 12(b)(1), a defendant may move to dismiss an action against him for lack of federal subject matter jurisdiction.See Fed.R.Civ.P. 12(b)(1) (1992 Supp. 2004). The party asserting jurisdiction has the burden of demonstrating its existence. See Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)).Rule 12(b)(1) is a "large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction," including ripeness, mootness, the existence of a federal question, diversity, and sovereign immunity. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). A moving party may mount a "sufficiency challenge," taking the plaintiff's "jurisdictionally-significant facts as true" and requiring the court to "assess whether the plaintiff has propounded an adequate basis for subject-matter jurisdiction." Id. at 363. Alternatively, when the jurisdictional facts are distinct from the case's merits, a moving party can bring a "factual challenge," in which case the court addresses "the merits of the jurisdictional claim by resolving the factual disputes between the parties." Id.
III. Analysis
Defendant argues that Plaintiffs' complaint should be dismissed as moot. Docket Document No. 8-1. Under Article III, Section 2 of the U.S. Constitution, federal courts lack jurisdiction to consider the merits of a case or controversy that is not live. Powell v. McCormack, 395 U.S. 486, 486 (1969). We agree that Plaintiffs' request for an injunction has become moot as a result of the actions already taken by SSA to correct their error. This leaves only the question of tort damages requested by Plaintiffs in the amount of $100,000.Plaintiffs' complaint suffers from three fatal flaws: (1) it fails to plead a claim under a federal law that waives sovereign immunity; (2) it does not name the United States as a defendant; and (3) Plaintiffs did not exhaust their administrative remedies with the appropriate federal agency before filing suit.
Defendant correctly states that the United States cannot be sued under local law without its consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). Failure to plead a federal law waiving the United States' sovereign immunity mandates dismissal. Carter v. Soc. Sec. Field Office, 2004 U.S. Dist. LEXIS 4693 at *6 (N.E.D. Ill.) (citing Macklin v. United States, 300 F.3d 814, 819 (7th Cir. 2002)). As Plaintiffs make no allegation of consent in this case, the court could dismiss on the basis of sovereign immunity alone. However, we are inclined to agree with Defendant's suggestion that the complaint be construed as a tort claim brought under the FTCA, which provides for a waiver of immunity under certain circumstances. Therefore, we proceed to consider whether Plaintiffs have properly pled an FTCA claim.
The FTCA provides a waiver of immunity for tort claims that are: (1) against the United States; (2) for money damages; (3) for injury or loss of property; (4) caused by the negligent or wrongful act or omission of any government employee; (5) acting within the scope of his office or employment; (6) "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Plaintiffs' complaint fails to meet the first requirement that it must name the United States and not a particular agency thereof, such as SSA, as defendant. Docket Document 5-3. This error constitutes the second possible grounds for dismissal.FDIC v. Meyer, 510 U.S. 471, 476 (1994).
The fact that we have singled out one element of an FTCA claim that Plaintiffs have not satisfied should not be construed to mean that we believe that Plaintiffs have properly pleaded the other necessary elements.
Finally, we observe that although Plaintiffs could amend their complaint to name the proper defendant, the FTCA's preliminary requirement that plaintiffs exhaust administrative remedies with the appropriate federal agency before filing suit also precludes recovery in this case. 28 U.S.C. § 2675. ("An action shall not be instituted . . . against the United States for money damages or loss of property . . . unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency"); see also Kokaras v. United States, 980 F.2d 20, 22 (1st Cir. 1992) Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir. 1991).
IV. Conclusion
In accordance with the foregoing, we GRANT Defendant's motion to dismiss Plaintiff's complaint in its entirety for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1).
After dismissing the claim against the federal defendant, no independent grounds for federal jurisdiction remain in this case. We, therefore, REMAND that part of the complaint against ASUME and Departamento de la Familia to the Puerto Rico Court of First Instance, Superior Court, Caguas, Puerto Rico, as Civil EPE-2006-0126 (611).
Case closed by judgment of dismissal as to SSA and by remand as to the remaining defendants.
IT IS SO ORDERED.