United States District Court, N.D. West Virginia
ORDER GRANTING MOTION TO SUBSTITUTE THE UNITED STATES
(ECF NO. 2) AND REPORT AND RECOMMENDATION RECOMMENDING
DISMISSAL OF PLAINTIFF'S COMPLAINT
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
matter before the Court is pursuant to the United States of
America's “Motion to Dismiss” (ECF No. 6)
filed on December 27, 2017. District Court Judge Irene M.
Keeley entered an order on December 14, 2017, referring to
the undersigned, any motions filed in this case for written
orders or report and recommendations. (ECF No. 4).
April 5, 2017, Plaintiff Ayyakkannu Manivannan, filed a
pro se Complaint in the Magistrate Court of
Mongolian County, West Virginia, against Defendant, Dr. Grace
Bochenek, Director of National Energy Technology Laboratory.
In the Complaint, Plaintiff solely requests the Court to
“[h]elp [him] retrieve [his] personal belongings in
[his] former office. (ECF No. 1-1). Believing Plaintiff was
alleging tortious conduct on behalf of an employee of the
United States, the Attorney General for the Northern District
of West Virginia, provided the Court with a copy of the
Certification of Scope of Employment, certifying that Dr.
Bochenek was acting within the scope of her employment at the
time of the incident alleged in the Complaint, and filed a
Notice of Removal to the Northern District of West Virginia.
(ECF No. 1). On the same date the United States filed a
motion to substitute the United States as Defendant.
two weeks after filing the Notice of Removal, the United
States filed the pending motion to dismiss (ECF No. 6). The
undersigned held a hearing on the pending motion to dismiss
on February 8, 2018.
Defendant's Motion to Dismiss
moved that Plaintiffs Complaint be dismissed asserting that
claims against the United States for money damages or for
loss of property caused by the negligent or wrongful act or
omission of any federal employee comes within the provisions
of the Federal Torts Claim Act (hereinafter
“FTCA”), which requires a plaintiff to exhaust
his administrative remedies prior to filing suit. Defendant
argues that because Plaintiff failed to exhaust his
administrative remedies, this Court lacks subject matter
jurisdiction and Plaintiffs case should be dismissed.
response, Plaintiff asserts that from the middle of June
2016, the time when he initially requested the return of his
personal belongings, to date, the Department of Energy (DOE),
National Energy Technology Laboratory (NETL) has failed to
return his property, and at no point in time did the DOE/NETL
inform him that his request required him to complete a SF-95
form (the government's standard form for a claim for
damage, injury, or death). Plaintiff further asserts that
although the DOE/NETL has claimed to have returned his
property, DOE/NETL has failed to provide any evidence that
the requested property was in fact returned, explaining NETL
failed to respond to Plaintiffs former attorney's
requests for return of Plaintiff s property, NETL failed to
inform Plaintiffs attorney that it inventoried Plaintiffs
office on August 31, 2016, and NETL failed to answer
Plaintiff's FOIA request regarding his belongings. Based
on these facts, Plaintiff requests the Court not to dismiss
Substitution of the United States
initial matter, On December 14, 2017, the United States
Attorney for the Northern District of West Virginia removed
this action from the Magistrate Court of Monongalia County,
West Virginia, under the provisions of the Federal Tort
Claims Act, 28 U.S.C. §§ 1346; 2672-80. Pursuant to
the FTCA, the United States is the only proper Defendant in
an FTCA action, not a government agency or government
employee. “[O]nce the United States Attorney certifies
that the federal employee acted within the scope of his
employment, the plaintiff properly can proceed only against
the United States as a defendant.” Osborne v.
Haley, 549 U.S. 225, 238 (2007) (quoting 28 U.S.C.
§ 2679(d)(2)). On December 14, 2017, the United States
provided to the court certification that Defendant Bochenek
was acting within the scope of her employment at the time of
the incident alleged in the Complaint. Accordingly, pursuant
to the provisions of the FTCA, it is
that the United States is substituted as the Defendant in
place of ...