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Burke v. Veolia Energy Co.

United States District Court, E.D. Pennsylvania

February 1, 2017

BETZAIDA BURKE, et al.
v.
VEOLIA ENERGY COMPANY, et al.

          MEMORANDUM

          Juan R. Sánchez, J.

         Plaintiffs Betzaida and Joseph Burke, husband and wife, bring claims for negligence and loss of consortium against Veolia Energy Philadelphia, Inc., [1] 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.

         FACTS[2]

         On October 23, 2014, [3] 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.[4] Ms. Burke sustained significant orthopedic injuries as a result of her fall.

         Sometime in 2015, [5] 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 remains pending.

         On 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 Defendants.

         Although 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.

         DISCUSSION

         The FTCA requires a claimant to exhaust administrative remedies before bringing suit against the United States, providing, in relevant part:

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 section.

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.

         As 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.

         Under 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.

         In 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. ΒΆ 6. In ...


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