United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
L. Wright Allen United States District Judge.
matter is before the Court on Defendant United States of
America's Motion to Dismiss for lack of jurisdiction,
pursuant to Federal Rule of Civil Procedure 12(b)(1). See
generally Mot. Dismiss (ECF No. 4.) Plaintiff Rosalyn
Mayfield's claim arises from a motor vehicle accident
that occurred between herself and an employee of the United
States Navy, Charles Castorina, on December 3, 2012.
See Compl. (ECF No. 1-1.) Because Mr. Castorina was
acting within the scope of his federal employment, the Court
grants Defendant's Motion to Dismiss without
November 21, 2014, Ms. Mayfield filed a Complaint in the City
of Chesapeake Circuit Court, alleging that on December 3,
2012 Mr. Castorina negligently operated a motor vehicle,
injuring Ms. Mayfield. Ms. Mayfield never served that
Complaint. On December 2, 2015, the state court issued a
notice that there had been no service within a year. Ms.
Mayfield accepted an elective non-suit and filed a new
Complaint on May 2, 2016.
April 7, 2017, the United States Attorney for the Eastern
District of Virginia invoked the Federal Tort Claims Act
("FTCA"), and certified that Mr. Castorina was
acting within the scope of his federal employment at the time
of the accident. See Certification (ECF No. 1-2);
see also 28 U.S.C. § 2679.
United States of America was substituted for Mr. Castorina.
See Notice of Substitution (ECF No. 3.) Defendant
removed the action to this Court, and filed a Motion to
Dismiss asserting that Ms. Mayfield failed to exhaust her
administrative remedies. See Notice of Removal;
see also Mot. Dismiss; Mem. in Support (ECF No. 5.)
Ms. Mayfield responded, challenging the Certification that
Mr. Castorina was acting within the scope of his federal
employment. See Resp. (ECF No. 7.)
whether the FTCA confers jurisdiction over an action against
the United States may occur in a motion to dismiss pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
See Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995). The plaintiff bears the burden of showing subject
matter jurisdiction by alleging supportive facts. See id;
see also McNutt v. Gen. Motors Acceptance Corp. oflnd,
298 U.S. 178, 189 (1936). The court may also consider facts
and exhibits outside of the pleadings without converting the
motion to dismiss into a motion for summary judgment. See
Williams, 50 F.3d at 304.
federal court must have subject matter jurisdiction over a
lawsuit; otherwise the court lacks the power to award relief.
See First Am. Nat'l Bank v. Straight Creek Processing
Co., 756 F.Supp. 945, 946 (E.D.Va. 1991). The United
States is entitled to sovereign immunity and cannot be sued
without its consent. See FDIC v. Meyer, 510 U.S.
471, 475 (1994). Accordingly, the court's jurisdiction
over claims against the United States is limited to the terms
of the United States' consent to be sued. See id; see
also Lehman v. Nakshian, 453 U.S. 156, 160 (19.81). The
FTCA provides a limited waiver of sovereign immunity for
torts committed by agents or employees of the United States
acting within the scope of their employment. See
Williams, 50 F.3d at 305. As a waiver of immunity, the
FTCA is to be "strictly construed, and all ambiguities [
] resolved in favor of the sovereign." Robb v.
United States, 80 F.3d 884, 887 (4th Cir.1996)
determine if Ms. Mayfield's claim falls under the FTCA,
the Court must evaluate whether Mr. Castorina was acting
within the scope of his federal employment at the. time the
claim arose. See 28 U.S.C. § 2679(b)(1). Ms.
Mayfield admits that she failed to exhaust all administrative
remedies, but explains that this failure occurred because she
did not realize Mr. Castorina was a federal employee.
See Resp. at 2, 8. Additionally, Ms. Mayfield
challenges the Government's Certification that Mr.
Castorina was acting within the scope of his federal
employment at the time of the accident. This would excuse her
from the exhaustion requirement. Although Ms. Mayfield
acknowledges that the Certification provides prima
facie evidence that Mr. Castorina was acting within the
scope of his employment at the time of the accident, she
requested limited discovery to evaluate this Certification.
Defendant's Reply provided documentation that resolved
Ms. Mayfield's proffered questions regarding scope of
employment. Therefore, limited discovery is unnecessary.
See Reply at 7; see also ECF Nos. 8-1, 8-2.
case presenting similar issues, a federal employee serving
aboard a ship undergoing repairs in Massachusetts was on
temporary travel orders to drive to Norfolk to deliver items
associated with the ship. See Wilkinson v. Gray, 523
F.Supp. 372 (E.D. Va. 1981), aff'd, Wilkinson v.
United States, 611 F.2d 998 (4th Cir. 1982). The
employee was on a per diem allowance covering mileage,
lodging, and meals. He was in an accident on his way to
dinner. The district court held that because the employee was
on temporary travel orders that included transportation,
lodging, and meals, the employee was within the scope of his
employment at the time of the accident. See Id. at
Mr. Castorina was on temporary travel orders to Norfolk to
assist with repair of a ship. See ECF Nos. 8-1, 8-2.
The Navy paid for Mr. Castorina's lodging, and Mr.
Castorina was traveling to dinner at the time of the
accident. See Id. As with the employee in
Wilkinson, the Navy provided Mr. Castorina with a
rental car and a per diem allowance. Therefore, this Court
concludes that Mr. Castorina was acting within the scope of
his employment at the time of the accident.
Mr. Castorina was acting within the scope of his employment,
Ms. Mayfield must exhaust all administrative remedies before
advancing a FTCA claim. See 28 U.S.C. § 2401(b)
(requiring presentation in writing to appropriate federal
agency within two years of claim's accrual); Gould v.
United States Dept. of Health & Human Servs., 905
F.2d 738, 742 (4th Cir. 1990) (The FTCA "specifically
requires an initial presentation of a claim to the
appropriate federal agency within two years of the accrual of
the cause of action and a final denial by that agency as a
jurisdictional prerequisite to suit under the Act.") The
FTCA is a limited waiver of sovereign immunity, and no
immunity is waived "unless the ...