United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant United States'
Motion to Dismiss pursuant to Rule 12(b)(6) for failure to
state a claim.
James Ghaisar and Kelara Ghaisar, parents of Bijan Ghaisar,
bring this case alleging wrongful death and personal injury
against Defendant United States. Plaintiffs allege that on
November 17, 2017, 3ijan Ghaisar fled the scene of a traffic
accident on George Washington Memorial Parkway in Virginia.
Plaintiffs allege that two United States Park Police officers
began pursing Bijan's vehicle after he fled the scene of
the traffic accident. A Fairfax County, Virginia police
officer joined the pursuit and turned on his dashboard video
allege Bijan stopped on three different occasions while be
followed by police. Plaintiffs contend Bijan carefully and
slowly drove away from the officers the first two times he
stopped. Plaintiffs further allege that when Bijan stopped
the third time, the officers blocked his vehicle and
confronted him with guns. Plaintiffs assert that the officers
fired nine times into Bijan''s car, four of which
struck him. Bijan was taken to the hospital and remained in a
coma for 10 days until he died on November 27, 2018.
to the Plaintiffs, the Justice Department's Civil Rights
Division, the U.S. Attorney's Office in Washington, DC,
and the Federal Bureau of Investigation ("FBI") are
conducting a criminal investigation of Bijan's death.
filed its complaint in this court on October 16, 2018.
Plaintiffs bring this action, in their official capacity as
co-administrators and personal representatives of the Estate
of Bijan Ghaisar, alleging five claims against the United
States: 1} negligence (wrongful death action); 2) assault and
battery (wrongful death action); 3) false arrest and
imprisonment (wrongful death action); 4) initial infliction
of emotion distress; and 5} negligent infliction of emotional
United States filed its Motion to Dismiss under federal rule
of civil procedure 12(b)(6) for lack of subject matter
jurisdiction on December 17, 2018. Plaintiffs filed a
response in opposition and a hearing was held on January 18,
2019, in which the Court considered the United States'
Motion to Dismiss. The Court finds it lacks subject matter
jurisdiction as to Defendant United States.
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992}. In a Rule 12(b) (6) motion to
dismiss, the court must accept all well-pled facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint must provide a short and plain
statement showing that the pleader is entitled to relief,
Fed.R.Civ.P. 8(a)(2), and it must state a plausible claim for
relief to survive a motion to dismiss, Iqbal, 556
U.S. at 679. The court does not accept as true any
"unwarranted inferences, unreasonable conclusions, or
arguments." E. Shore Markets, Inc. v. J.D.
Associates Ltd., 213 F.3d 175, 180 (4th Cir. 2000). If
the complaint does not state a plausible claim for relief,
the court should dismiss the claim. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) .
s complaint fails to allege sufficient facts and claims to
establish subject matter jurisdiction of this Court as to
Defendant United States. First, it is well-established that
the United States and its agencies enjoy sovereign immunity
from lawsuits unless Congress has explicitly waived such
immunity. See FDIC v. Meyer, 510 U.S. 471, 475-76
(1994). This Court's jurisdiction over matters concerning
the United States and its agents as Defendants are limited to
the small number of exceptions Congress has granted to
sovereign immunity. See Medina v. U.S., 259 F.3d 220
223-24 (2002). One way in which Congress has abrogated
immunity is through the Federal Torts Claims Act
("FTCA"), which authorizes tort actions against the
United States. The FTCA conditions this Court's
jurisdiction over any claim brought pursuant to its
provisions on presentment of an administrative claim to the
allegedly responsible agency and final denial of that claim
by the agency. See 28 U.S.C. § 2675(a)
(requiring that a claimant exhaust administrative remedies
before bringing suit in federal district court); see also
McNeil v. U.S., 508 U.S. 106 (1993). To exhaust
administrative remedies, "an administrative claim must
be properly presented." Kokotis v. United States
Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000}.
case, Plaintiffs have failed to properly exhaust their
administrative tort claims with the Department of Interior,
the responsible agency in the matter. On January 24, 2018,
Bijan's parents submitted an administrative tort claim to
the Department of Interior for alleged torts committed by the
United States Park Police arising out of Bijan's death.
At the time, Bijan's parents were not appointed
representatives of Bijan's estate by a Virginia circuit
court as required by the Virginia Death by Wrongful Act
statute, Virginia Code § 8.01-50. Bijan's parents,
Plaintiffs in this case, were appointed representatives of
Bijan's estate on October 15, 2018 and filed suit in this
court the next day as representatives of his estate.
Bijan's parents submitted an administrative claim to the
Department of Interior in January 2018, they lacked any legal
authority to present such a claim on behalf of Bijan's
estate. The FTCA's regulations state that any "claim
based on death may be presented by the executor or
administrator of the decedent's estate, or by any other
person legally entitled to assert such a claim in accordance
with applicable State law." At the time the
administrative claim was submitted by Bijan's parents,
they did not meet these criteria for presenting a claim.
agree that claims I-III, all of which seek recovery for
wrongful death, should be dismissed for lack of subject
matter jurisdiction. However, Plaintiffs argue that claims IV
and V of the complaint seek recovery claims against the
United States for personal injury suffered on their own
behalf, rather than on behalf of Bijan's estate.
Plaintiffs argue that claims IV and V of the Complaint seek
recovery for "severe emotional pain and suffering"
suffered by Mr. and Mrs. Ghaisar as a result of the Park
Police officer's conduct, and these claims are not
tethered to Bijan's estate. They further contend that
they did not need to be appointed administrators of the
estate before seeking recovery for their own injuries.
Plaintiffs argue that because they made an administrative
filing on their own behalf for their personal injury claims,
the administration remedies were exhausted, and thus, this
Court has subject matter jurisdiction over claims IV and V.
argue they need not have been appointed as the personal
representatives of Bijan Ghaisar's estate in order to
assert personal injury claims. However, at the time
Plaintiffs presented claims IV and V to the Department of
Interior, it is uncertain that they made clear they were
making these claims on behalf of themselves, rather than on
behalf of the estate.
failed to exhaust their administrative remedies. Therefore,
under the FTCA this Court lacks subject matter ...