Johnson v. McCool

• Court: District Court, District of Columbia
• Decided: August 14, 2012
• Docket: Civil Action No. 2011-0119
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DUANE J. JOHNSON, ) ) Plaintiff, ) ) v. ) Civ. Action No. 11-0119 (RMC) ) STEPHEN J. MCCOOL et al., ) ) Defendants. )

MEMORANDUM OPINION

In what remains of this civil action, the United States moves to dismiss plaintiff

Duane J. Johnson’s surviving claims of conversion and trover under Rules 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure or for summary judgment under Rule 56. Renewed Mot.

to Dismiss, or in the Alternative, Mot. for Summ. J. [Dkt. 39]. See Johnson v. McCool, 808 F.

Supp. 2d 304 (D.D.C. 2011) (substituting the United States and dismissing Mr. Johnson’s breach

of contract claim). Upon consideration of the parties’ submissions, and for the following

reasons, the Court will grant the United States’ motion to dismiss under Rule 12(b)(1) for lack of

subject matter jurisdiction.

The United States argues that this Court lacks jurisdiction over Mr. Johnson’s tort

claims because he failed to exhaust his administrative remedies under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. Mr. Johnson has not refuted the United

States’ argument for dismissal, see generally Mem. of P. & A. in Supp. of Pl.’s Opp’n to Def.’s

Mot. for Summ. J. [Dkt. 46], and an FTCA “action shall not be instituted . . . 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.” 28 U.S.C. 1 § 2675(a); see also § 2401(b) (“forever barr[ing]” tort claim that is not “presented in writing to

the appropriate Federal agency within two years after such claim accrues . . . ”). The exhaustion

of administrative remedies is a jurisdictional prerequisite to maintaining a lawsuit under the

FTCA. See GAF Corp. v. United States, 818 F.2d 901, 917-20 (D.C. Cir. 1987); McAlister v.

Potter, 843 F. Supp. 2d 117, 123 (D.D.C. 2012); see also Simpkins v. District of Columbia Gov’t,

108 F.3d 366, 371 (D.C. Cir. 1997) (explaining that since “[t]his court and the other courts of

appeals have treated the FTCA's requirement of filing an administrative complaint with the

appropriate agency prior to instituting an action as jurisdictional[,] . . . the [district] court could

no more rule in favor of the government than against it.”).

Since Mr. Johnson has not refuted the United States’ argument that he failed to

exhaust his administrative remedies under the FTCA with respect to his surviving claims of

conversion and trover, the Court finds that he has conceded that argument. See Hopkins v.

Women’s Div., Gen. Bd. Of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well

understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and

addresses only certain arguments raised by the defendant, a court may treat those arguments that

the plaintiff failed to address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C.

Cir. 1997)) (other citation omitted); Order (Feb. 2, 2012) [Dkt. 40] (advising Mr. Johnson about

responding to the United States’ dispositive motion). Hence, the Court, lacking subject matter

jurisdiction over Mr. Johnson’s unexhausted tort claims, must dismiss the case. See

Abdurrahman v. Engstrom, 168 F. App’x 445 (D.C. Cir. 2005) (per curiam) (“[T]he district court

properly dismissed case [based on unexhausted FTCA claim] for lack of subject matter

jurisdiction.”). A memorializing Order accompanies this Memorandum Opinion.

__________/s/______________ ROSEMARY M. COLLYER Date: August 14, 2012 United States District Judge 2