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Souder v. U.S. Navy

United States District Court, D. Maryland, Southern Division

September 22, 2014

U.S. NAVY, et al., Defendants.


PAUL W. GRIMM, District Judge.

In early 2005, Plaintiff Frederick J. Souder, III suspected that his employer, the United States Navy, may have lost some of his employment records that documented training that he received. In late 2012, he filed an administrative claim regarding the purported loss of the records. When this claim did not redress his complaint, he filed this Federal Tort Claims Act action. I must determine whether Plaintiff's administrative claim was timely, despite this more than seven-year lapse.[1] I conclude that it was not, and consequently Plaintiff failed to exhaust his administrative remedies. Consequently, I will dismiss Plaintiff's Complaint.


Plaintiff "has been a Navy civilian employee for over 28 years helping and aiding the United States Military as a Naval ship, submarine and prototype model builder." Compl. ¶ 2, ECF No. 1.[3] During that time, "Mr. Souder received many commendations and certificates (apprenticeships etc.) of classroom completion in his field of U.S. Naval ship and prototype model building." Id. His personnel folder ("OPF") contained "all his pertinent job training and schooling documentation (two apprenticeships: a two year printing and a five year Modelmaking etc.) and training certificates." Id. ¶ 9.

He claims that "in 2004... he noticed his training records were missing" and he "made a request to look at his OPF [personnel folder]." Id. ¶ 8. Plaintiff learned from Lavern Gilchrist in human resources ("HR") that "personnel... had switched all employee training records over to an electronic database." Id. He emailed Gilchrist repeatedly about retrieving his records from the database, but she did not respond. Id.; Admin. Cl. Att. 2.[4] Plaintiff emailed Linda Florian in HR on March 23, 2005, stating that he "never got any reply[] from Ms. Gilchrist about the training record problem" and contending that Gilchrist "evidently lost [his] training records." Admin. Cl. Att. 1. Florian replied the next day, explaining, id.:

Your records were not lost. When we converted to the region (in 1999 I believe) everyone's OPFs [were] condensed and all training records were mailed to the employee. All HR folks (myself included) mailed all training records to employees. [S]ome employees lost them, some threw them away, etc. This did not however, remove them from the training database. Whatever training Carderock paid for, is in the system. I will request a training history for you and send it to you as soon as I get it.

Plaintiff claims that he "never heard anything back" until September 2010, when he filed a request for his "training records" on September 28, 2010, after learning via the Internet that "he could request copies of certain parts of his records from his personnel department." Compl. ¶¶ 8-9. In response to his request, he received an email dated September 30, 2010, in which Jacqueline Wourman from personnel informed him that "HRSC OPF room reviewed the file of Frederick Souder III. There is [sic] no training records in the file." Admin. Cl. Att. 4.

Souder asserts that "his worst fears hand [sic] been confirmed; all his pertinent job training and schooling documentation... and training certificates that had originally been in his OPF were missing." Compl. ¶ 9. He claims that, unlike other employees, he never received hard copies of his training records. Id. ¶ 10. Plaintiff filed suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, asserting the loss of his training records and alleging that "the negligent and wrongful acts and omissions of agents and employees of the United States Government" caused him "loss of job promotion, income, [and] salary increases, " as well as emotional distress. Id. ¶ 3. He claims that, by "timely serv[ing]... notice of his claim on the Office of the Secretary of the Navy at two locations... which were received September 25, and September 27, 2012, " he complied with the jurisdictional requirements of 28 U.S.C. § 2675, Compl. ¶¶ 5-6, which requires that a claimant "first present[] the claim to the appropriate Federal agency" and have the agency "make final disposition of [the] claim" before commencing an action "upon a claim against the United States for money damages for injury or loss of property... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, " 28 U.S.C. § 2675(a).

The Government moves to dismiss for lack of subject matter jurisdiction, arguing that, contrary to Plaintiff's assertion, he did not comply with 28 U.S.C. § 2675(a). Def.'s Mem. 6. According to the Government, "Mr. Souder had knowledge as early as late 2004 and early 2005 that his training records were lost, but he failed to pursue his administrative remedies until October 3, 2012, " well beyond the two-year statute of limitations provided in 28 U.S.C. § 2401(b) for filing an administrative claim. Id. at 2, 6.


When a defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting that "a complaint simply fails to allege facts upon which subject matter jurisdiction can be based, " as the Government does here for failure to exhaust administrative remedies, "the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a 12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see Lutfi v. United States, 527 F.Appx. 236, 241 (4th Cir. 2013); Fianko v. United States, No. PWG-12-2025, 2013 WL 3873226, at *4 (D. Md. July 24, 2013). Indeed, as "[i]t is today reasonably clear that a failure to exhaust administrative remedies based on untimely filings is not an issue of subject matter jurisdiction, " the proper framework for analyzing a motion to dismiss for untimeliness in pursuing administrative remedies is that provided by Fed.R.Civ.P. 12(b)(6). See Brown v. McKesson Bioservices Corp., No. DKC-05-0730, 2006 WL 616021, at *3 (D.Md. Mar. 10, 2006); Upshaw v. Tenenbaum, No. PWG-12-3130, 2013 WL 3967942, at *4 n.3 (D. Md. July 31, 2013). Thus, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); see In re KBR, Inc., Burn Pit Litig., 925 F.Supp.2d 752, 758 (D. Md. 2013) (quoting Kerns, 585 F.3d at 192). "[W]hen jurisdictional facts are inextricably intertwined with those [facts] central to the merits, the [district] court should resolve the relevant factual disputes only after appropriate discovery.'" Blitz v. Napolitano, 700 F.3d 733, 739 (4th Cir. 2012) (quoting Kerns, 585 F.3d at 193).

The Court must act "on the assumption that all the allegations in the complaint are true (even if doubtful in fact), " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations omitted), and must "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). That said, "factual allegations must be enough to raise a right to relief above a speculative level.'" Proctor v. Metro. Money Store Corp., 645 F.Supp.2d 464, 472-73 (D. Md. 2009) (quoting Twombly, 550 U.S. at 545). Particularly, the Court is not required to accept as true "a legal conclusion couched as a factual allegation, " Papasan v. Allain, 478 U.S. 265, 286 (1986), or "allegations that are merely conclusory, unwarranted deductions of fact or unreasonable inferences, " Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation omitted).

In reviewing a motion to dismiss, "[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed.R.Civ.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). Moreover, where the allegations in the complaint conflict with an attached written instrument, "the exhibit prevails." Fayetteville ...

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