Brown v . Colantuono, et a l . 05-CV-125-SM 06/15/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Edward-Lewis: Brown and Elaine-Alice: Brown,
v. Civil N o . 05-cv-125-SM Opinion N o . 2005 DNH 093 Thomas P. Colantuono, William E . Morse, James P. John and John J. Hickey,
O R D E R
Plaintiffs, Edward-Lewis: Brown and Elaine-Alice: Brown,
bring this action against four employees of the federal
government. The Browns seek damages for alleged state common law
torts they say were committed during the course of a search of
their property. The Browns originally filed their complaint in
the Grafton County (New Hampshire) Superior Court, but defendants
removed the action to this court. Defendants now move the court
to substitute the United States as the defendant to all claims
advanced in the Browns’ complaint. And, say defendants, once the
United States is substituted as the proper party to this action,
the court should dismiss all of the Browns’ claims for lack of
subject matter jurisdiction. The Browns have not objected. Background
The Browns are apparently the subject of an ongoing grand
jury investigation. As part of that investigation, federal
agents, including Special Agent James John of the Internal
Revenue Service and Postal Inspector John Hickey, executed a
search warrant (issued by a United States magistrate judge) at
Half Hollow Dental Center, a business owned and/or operated by
the Browns. But, because the Browns do not recognize the
validity or the authority of the federal government, they seem to
suggest that the search was conducted without a warrant and claim
the agents who conducted the search were acting “without
jurisdiction.” Complaint at paras. 11 and 15. 1
Accordingly, say the Browns, the agents who executed the
search warrant (as well as those who sought and/or obtained the
1 In their complaint, the Browns point out that they are “natural-born living souls, living in a state of nature, and in a quasi-state of society, under contract, State citizens, of these united [sic] States of America, not UNITED STATES citizens, domiciled in the state of New Hampshire.” Complaint at para. 2 . They also assert that there “is no federal jurisdiction (in any of the fifty union states of these united [sic] States of America, a guaranteed republic), by these de facto UNITED STATES agents [i.e., the individually named defendants].” Id. at para. 4.
2 warrant) committed numerous state common law torts, including
trespass, reckless endangerment, and false imprisonment. Their
complaint does not advance any federal causes of action and, in a
pleading filed with the state superior court, the Browns made
clear that “[a]ll charges listed are civil tort charges, under
the jurisdiction of the state. There are no federal decisions to
be made in this case.” Attachment 1 to Declaration of Judith
Northrup Prindville (document n o . 3 ) , Motion to Remain Civil
Action in State Court, at paras. 1-2.
Discussion
I. The Federal Tort Claims Act.
The Court of Appeals for the First Circuit has provided the
following brief overview of the Federal Tort Claims Act (“FTCA”):
The FTCA waives the sovereign immunity of the United States with respect to tort claims, see 28 U.S.C. § 2674, and provides the exclusive remedy to compensate for a federal employee’s tortious acts committed within his or her scope of employment. See 28 U.S.C. § 2679. In order to bring a tort claim against the United States under the FTCA, a claimant must first file an Administrative Claim with the appropriate federal agency within two years of the accrual of the claim and then file a tort claim against the United States within six months after a denial of (or failure to act upon) that claim by the administrative agency. See 28 U.S.C. §§ 2401(b), 2675. In addition, the FTCA requires that
3 the named defendant in an FTCA action be the United States and only the United States. 28 U.S.C. §§ 1346(b), 2674, 2679(a).
Roman v . Townsend, 224 F.3d 2 4 , 27 (1st Cir. 2000)(emphasis
supplied). See also Dynamic Image Techs., Inc. v . United States,
221 F.3d 3 4 , 39 (1st Cir. 2000).
II. The United States is the Proper Defendant.
The Browns’ complaint names as defendants Thomas P.
Colantuono and William Morse, employees of the United States
Department of Justice, James P. John, an employee of the United
States Department of the Treasury, and John J. Hickey, an
employee of the United States Postal Service. All claims in the
complaint arise out of the execution of a federal search warrant
and the Browns’ subsequent (failed) efforts to unseal the
affidavit submitted in support of that warrant. Thus, the Browns
seek damages for actions defendants undertook while acting within
the scope of their federal employment. See Exhibit B to
Declaration of Judith Northrup Prindville, Certification of
Joseph LaPlante, Acting United States Attorney for the District
of New Hampshire.
4 Because the Browns seek damages for torts allegedly
committed by federal employees while acting within the scope of
their employment, the only proper defendant to this action is the
United States. See Roman, 224 F.3d at 2 7 . Accordingly,
defendants’ motion to substitute the United States as defendant
is granted and all claims against the individually named
defendants are dismissed.
III. The FTCA’s Exhaustion Requirement.
As noted above, before a party may file an FTCA claim
against the United States, that party must first present his or
her claim to the appropriate federal agency. Then, if the claim
is denied (or if no action is taken on the claim within 6
months), the party may bring an action against the United States.
See 28 U.S.C. § 2675(a). Here, perhaps because they say they do
not recognize the legitimacy of the federal government, the
Browns have not filed any administrative claims with regard to
the conduct underlying their lawsuit. Accordingly, they have
failed to exhaust their administrative remedies and this court
lacks jurisdiction over their tort claims. See, e.g., Cotto v .
United States, 993 F.2d 2 7 4 , 280 (1st Cir. 1993) (“Exhaustion of
5 plaintiffs’ administrative remedies is a jurisdictional
prerequisite to the prosecution of their FTCA claims.”).
IV. Federal Claims.
As noted above, the Browns have expressly denied advancing
any federal claims; they have specifically stated (in prior state
court filings) that their removed complaint raises exclusively
state common law claims. They are obviously aware that they
could have attempted to assert federal claims, but they have
consciously chosen not to do s o . They are certainly at liberty
to make that choice, and having made i t , further analysis of
potential federal claims is unnecessary.
Conclusion
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Brown v . Colantuono, et a l . 05-CV-125-SM 06/15/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Edward-Lewis: Brown and Elaine-Alice: Brown,
v. Civil N o . 05-cv-125-SM Opinion N o . 2005 DNH 093 Thomas P. Colantuono, William E . Morse, James P. John and John J. Hickey,
O R D E R
Plaintiffs, Edward-Lewis: Brown and Elaine-Alice: Brown,
bring this action against four employees of the federal
government. The Browns seek damages for alleged state common law
torts they say were committed during the course of a search of
their property. The Browns originally filed their complaint in
the Grafton County (New Hampshire) Superior Court, but defendants
removed the action to this court. Defendants now move the court
to substitute the United States as the defendant to all claims
advanced in the Browns’ complaint. And, say defendants, once the
United States is substituted as the proper party to this action,
the court should dismiss all of the Browns’ claims for lack of
subject matter jurisdiction. The Browns have not objected. Background
The Browns are apparently the subject of an ongoing grand
jury investigation. As part of that investigation, federal
agents, including Special Agent James John of the Internal
Revenue Service and Postal Inspector John Hickey, executed a
search warrant (issued by a United States magistrate judge) at
Half Hollow Dental Center, a business owned and/or operated by
the Browns. But, because the Browns do not recognize the
validity or the authority of the federal government, they seem to
suggest that the search was conducted without a warrant and claim
the agents who conducted the search were acting “without
jurisdiction.” Complaint at paras. 11 and 15. 1
Accordingly, say the Browns, the agents who executed the
search warrant (as well as those who sought and/or obtained the
1 In their complaint, the Browns point out that they are “natural-born living souls, living in a state of nature, and in a quasi-state of society, under contract, State citizens, of these united [sic] States of America, not UNITED STATES citizens, domiciled in the state of New Hampshire.” Complaint at para. 2 . They also assert that there “is no federal jurisdiction (in any of the fifty union states of these united [sic] States of America, a guaranteed republic), by these de facto UNITED STATES agents [i.e., the individually named defendants].” Id. at para. 4.
2 warrant) committed numerous state common law torts, including
trespass, reckless endangerment, and false imprisonment. Their
complaint does not advance any federal causes of action and, in a
pleading filed with the state superior court, the Browns made
clear that “[a]ll charges listed are civil tort charges, under
the jurisdiction of the state. There are no federal decisions to
be made in this case.” Attachment 1 to Declaration of Judith
Northrup Prindville (document n o . 3 ) , Motion to Remain Civil
Action in State Court, at paras. 1-2.
Discussion
I. The Federal Tort Claims Act.
The Court of Appeals for the First Circuit has provided the
following brief overview of the Federal Tort Claims Act (“FTCA”):
The FTCA waives the sovereign immunity of the United States with respect to tort claims, see 28 U.S.C. § 2674, and provides the exclusive remedy to compensate for a federal employee’s tortious acts committed within his or her scope of employment. See 28 U.S.C. § 2679. In order to bring a tort claim against the United States under the FTCA, a claimant must first file an Administrative Claim with the appropriate federal agency within two years of the accrual of the claim and then file a tort claim against the United States within six months after a denial of (or failure to act upon) that claim by the administrative agency. See 28 U.S.C. §§ 2401(b), 2675. In addition, the FTCA requires that
3 the named defendant in an FTCA action be the United States and only the United States. 28 U.S.C. §§ 1346(b), 2674, 2679(a).
Roman v . Townsend, 224 F.3d 2 4 , 27 (1st Cir. 2000)(emphasis
supplied). See also Dynamic Image Techs., Inc. v . United States,
221 F.3d 3 4 , 39 (1st Cir. 2000).
II. The United States is the Proper Defendant.
The Browns’ complaint names as defendants Thomas P.
Colantuono and William Morse, employees of the United States
Department of Justice, James P. John, an employee of the United
States Department of the Treasury, and John J. Hickey, an
employee of the United States Postal Service. All claims in the
complaint arise out of the execution of a federal search warrant
and the Browns’ subsequent (failed) efforts to unseal the
affidavit submitted in support of that warrant. Thus, the Browns
seek damages for actions defendants undertook while acting within
the scope of their federal employment. See Exhibit B to
Declaration of Judith Northrup Prindville, Certification of
Joseph LaPlante, Acting United States Attorney for the District
of New Hampshire.
4 Because the Browns seek damages for torts allegedly
committed by federal employees while acting within the scope of
their employment, the only proper defendant to this action is the
United States. See Roman, 224 F.3d at 2 7 . Accordingly,
defendants’ motion to substitute the United States as defendant
is granted and all claims against the individually named
defendants are dismissed.
III. The FTCA’s Exhaustion Requirement.
As noted above, before a party may file an FTCA claim
against the United States, that party must first present his or
her claim to the appropriate federal agency. Then, if the claim
is denied (or if no action is taken on the claim within 6
months), the party may bring an action against the United States.
See 28 U.S.C. § 2675(a). Here, perhaps because they say they do
not recognize the legitimacy of the federal government, the
Browns have not filed any administrative claims with regard to
the conduct underlying their lawsuit. Accordingly, they have
failed to exhaust their administrative remedies and this court
lacks jurisdiction over their tort claims. See, e.g., Cotto v .
United States, 993 F.2d 2 7 4 , 280 (1st Cir. 1993) (“Exhaustion of
5 plaintiffs’ administrative remedies is a jurisdictional
prerequisite to the prosecution of their FTCA claims.”).
IV. Federal Claims.
As noted above, the Browns have expressly denied advancing
any federal claims; they have specifically stated (in prior state
court filings) that their removed complaint raises exclusively
state common law claims. They are obviously aware that they
could have attempted to assert federal claims, but they have
consciously chosen not to do s o . They are certainly at liberty
to make that choice, and having made i t , further analysis of
potential federal claims is unnecessary.
Conclusion
As defendants correctly point out, the United States is the
proper defendant in this action. It has waived sovereign
immunity only as set out in the Federal Tort Claims Act, and is
not subject to suit in state court. To the extent plaintiffs
seek to sue federal agents for acts committed within the scope of
their employment, the United States must be substituted as the
proper party defendant. Accordingly, the Browns’ claims against
6 the individual defendants are dismissed and the United States
shall be substituted as defendant.
With regard to the Browns’ claims against the United States,
they too must be dismissed. The FTCA is a limited waiver of
sovereign immunity. Among other things, it provides that before
a party may bring a civil action against the United States,
seeking damages for alleged torts committed by a federal employee
acting within the scope of his or her federal employment, the
claimant must first file an administrative claim with the
appropriate federal agency(s). The FTCA’s administrative
exhaustion requirement is a jurisdictional prerequisite to suit
and cannot be waived. Here, because the Browns have failed to
exhaust the required administrative remedies, this court lacks
jurisdiction over their tort claims.
For the foregoing reasons, as well as those set forth in
defendants’ memorandum of law, defendants’ unopposed motion to
substitute the United States as defendant and to dismiss all
claims (document n o . 3 ) is granted. The Clerk of Court shall
enter judgment in accordance with this order and close the case.
7 SO ORDERED.
Steven J. McAuliffe Chief Judge
June 1 5 , 2005
cc: Edward-Lewis: Brown Elaine-Alice: Brown Gretchen L . Witt, Esq.