United States District Court, E.D. Pennsylvania
BETZAIDA BURKE, et al.
VEOLIA ENERGY COMPANY, et al.
R. Sánchez, J.
Betzaida and Joseph Burke, husband and wife, bring claims for
negligence and loss of consortium against Veolia Energy
Philadelphia, Inc.,  the City of Philadelphia, and the United
States of America, seeking damages for injuries they
sustained as a result of an accident in which Ms. Burke
tripped and fell on an uneven walking surface in front of a
federal building in Philadelphia. Plaintiffs' claims
against the United States are brought pursuant to the Federal
Tort Claims Act (FTCA), which grants the federal district
courts exclusive jurisdiction over civil actions against the
United States for money damages for personal injuries caused
by negligent or wrongful acts or omissions by Government
employees. See 28 U.S.C. § 1346(b)(1). The
United States moves to dismiss the Complaint for lack of
subject matter jurisdiction based on Plaintiffs' failure
to exhaust administrative remedies before filing the instant
lawsuit. Plaintiffs do not dispute that their claims against
the United States are premature, but urge the Court to stay
this action until Ms. Burke's administrative claim is
exhausted, which will occur as a matter of law in less than a
month. Because Plaintiffs' proposed approach is not
permitted, the United States' motion to dismiss will be
granted. As the denial of Ms. Burke's administrative
claim is not yet final, her negligence claim against the
United States will be dismissed without prejudice to refiling
after the claim has been properly exhausted. Because Mr.
Burke failed to timely present an administrative claim to the
General Services Administration (GSA), his loss of consortium
claim will be dismissed with prejudice.
October 23, 2014,  while walking on a sidewalk or walkway
adjacent to the federal building located in the 900 block of
Market Street in Philadelphia, Betzaida Burke tripped and
fell on an uneven walking surface consisting of broken
pavement adjacent to a wobbly and unsturdy manhole or steam
pipe cover. Ms. Burke sustained significant orthopedic
injuries as a result of her fall.
in 2015,  Ms. Burke submitted an administrative
claim to GSA, alleging she had been “caused to trip on
an uneven and broken pavement adjacent to a building owned by
the U.S. GSA, ” which “caused [her] to roll her
right foot and ankle causing a complete tear of the anterior
talofibular ligament.” Gov't's Mem. in Supp. of
Mot. to Dismiss Ex. A. The claim form lists the amount of the
claim as $250, 000 for personal injury. Id. GSA
received Ms. Burke's claim on December 24, 2015, see
id., and denied the claim by letter dated on June 30,
2016, see Id. Ex. B. On July 5, 2016, Ms. Burke
submitted a request for reconsideration of the denial, which
GSA received on August 9, 2016, see id., and which
October 21, 2016, Ms. Burke and her husband filed this
action, asserting, on behalf of Ms. Burke, claims for
negligence against Veolia as the owner of the manhole/steam
pipe cover, the City as the owner of the sidewalk/walkway
where the fall occurred, and the United States as the owner
of the real property and federal building adjacent to the
accident location. Plaintiffs also assert claims for loss of
consortium on behalf of Mr. Burke against all three
Veolia and the City have both answered the Complaint, the
United States filed the instant motion to dismiss, arguing
this Court lacks subject matter jurisdiction under the FTCA
because Plaintiffs failed to exhaust their administrative
remedies before initiating this federal court action.
FTCA requires a claimant to exhaust administrative remedies
before bringing suit against the United States, providing, in
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death 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,
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 in writing and sent by certified
or registered mail. The failure of an agency to make final
disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this
28 U.S.C. § 2675(a). Section 2675(a) requires
“complete exhaustion of Executive remedies before
invocation of the judicial process.” McNeil v.
United States, 508 U.S. 106, 112 (1993). “No claim
can be brought under the FTCA unless the plaintiff first
presents the claim to the appropriate federal agency
and the agency renders a final decision on the
claim.” Shelton v. Bledsoe, 775 F.3d 554, 569
(3d Cir. 2015) (emphasis added). In the Third Circuit, this
exhaustion requirement “is jurisdictional and cannot be
waived.” Id. at 569.
described above, Ms. Burke has made efforts to exhaust her
claim against the United States in this case by submitting an
administrative claim to GSA, which GSA later denied.
Notwithstanding GSA's denial of the administrative claim,
the Government argues Ms. Burke's claim remains
unexhausted because she subsequently filed a request for
reconsideration of the denial with GSA and that request
remains pending. The Court agrees.
applicable Justice Department regulations, a claimant has six
months from the date on which notice of the final denial of
an administrative claim is mailed to either file suit in
federal court or file a written request with the agency for
reconsideration. 28 C.F.R. § 14.9; see also
Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir.
2009). If a claimant timely files a request for
reconsideration, “the agency shall have 6 months from
the date of filing in which to make a final disposition of
the claim and the claimant's option under 28 U.S.C.
§ 2675(a)”-i.e., the option to treat the
administrative claim as finally denied if the agency fails to
make a final disposition within six months after the claim is
filed-“shall not accrue until 6 months after the filing
of a request for reconsideration.” 28 C.F.R. §
14.9(b). Here, GSA denied Ms. Burke's administrative
claim by letter dated June 30, 2016, and received Ms.
Burke's request for reconsideration less than six weeks
later, on August 9, 2016; hence, the reconsideration request
was timely, and GSA has until February 9, 2017, to make a
final disposition of Ms. Burke's claim. Because Ms. Burke
filed suit on October 21, 2016, before GSA issued a decision
on her request for reconsideration and before the six-month
period in which to make such a ruling expired, her claim
against the United States is not yet exhausted.
their opposition to the motion to dismiss, Plaintiffs concede
that, if Ms. Burke's request for reconsideration
“was properly received” and her claim “is
being reconsidered, ” then her claim against the United
State is premature. Pls.' Opp'n ¶ 3. At the time
Plaintiffs filed this action, however, they had not received
formal written confirmation that GSA had received Ms.
Burke's request for reconsideration. Moreover, the
two-year statute of limitations applicable to her claims
against Veolia and the City, which ran from the date of the
accident-October 23, 2014-was about to expire. See
Id. ¶ 6. In ...