United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PATTI B. SARIS CHIEF U.S. DISTRICT JUDGE.
case involves a bizarre dispute between the Plaintiff Heather
Astaneh and the defendant the United States Postal Service.
Plaintiff brought this action in state court against letter
carrier Alan Hodgkins, alleging he was harassing her.
Defendant removed the action to federal court and filed this
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1),
12(b)(6), 12(c) and 12(h)(3), arguing, among other things,
that the suit is barred by the doctrine of sovereign immunity
and that this Court lacks subject matter jurisdiction because
Plaintiff failed to exhaust her claim under the Federal Tort
Claims Act (“FTCA”). The Court ALLOWS
the Defendant's motion to dismiss for failure to exhaust.
Hodgkins is a letter carrier who delivers mail on the street
behind Plaintiff's residence in Arlington, Massachusetts.
He does not deliver mail to Plaintiff's house. Plaintiff
alleges that Hodgkins was harassing her.
8, 2017, Green filed a form complaint against Hodgkins
seeking a Harassment Prevention Order pursuant to Mass. Gen.
L. ch. 258E in Cambridge District Court. In an attached
affidavit, she alleged that the letter carrier photographed
her in her house, looked in her window, and parked his car in
the back of her house and in front of a park that she
frequents. She reported these encounters to his supervisor.
The state district court issued an order barring Hodgkins
from being within 100 yards of Plaintiff expiring on May 18,
2017. On May 16, 2017, she obtained an extension of the
Harassment Prevention Order in Cambridge District Court until
May 31, 2017.
Postal Service has submitted affidavits hotly disputing these
factual allegations. In its view, plaintiff has been the one
harassing Hodgkins and previous letter carriers by
videotaping them and yelling at them. It also contends that
the order interfered with Hodgkins' official route as a
10, 2016, Lauren Thomas, Counsel to Heather Green and Amin
Astaneh, sent a letter to the United States Postal Service
which was “intended to serve as notice of a formal
complaint under the Federal Tort Claims Act.” Dkt No.
29-1. Her letter alleged that the Postal Service infringed on
her and her husband's First Amendment right of free
speech, violated the right to the use and enjoyment of their
property, and discriminated based on Astaneh's national
origin. She alleges that the First Amendment right to look
out her window and record was abridged. Specifically, she
contends that a previous carrier, Sharon A. Demiridjian,
harassed her and failed to provide proper services. The
letter does not mention Hodgkins. The written notification
submitted to the Postal Service by the Plaintiff included a
number of requested actions such as timely delivery of mail,
timely processing of outgoing mail, investigation into
criminal mail tampering or other criminal charges, and
removal of Demiridjian from her service route. The letter
does not contain a claim for money or damages or any sum
March 9, 2017, the Tort Claims Examiner responded that
Plaintiff's letter did not constitute a valid claim under
the Federal Tort Claims Act and could not be reviewed by the
office because it did not contain a “sum certain”
amount in injuries and losses. Dkt No. 5-3.
30, 2017, the government removed the case to this Court
pursuant to 28 U.S.C. § 1442(a)(1)(the federal officer
removal provision). On May 31, 2017, the state court extended
the order for one year, until May 31, 2018. On June 2, 2017,
the government wrote to the state court judge, notifying her
of the removal. After removal to the federal court, the state
court vacated the order. Plaintiff does not challenge the
government argues that Plaintiff has failed to exhaust her
administrative remedies under the FTCA, and that sovereign
immunity precludes the Court from exercising subject-matter
jurisdiction over a suit seeking injunctive relief against
the Postal Service. Plaintiff argues that the sovereign
immunity clause does not insulate the government from the
intentional torts of its employees “while they are
engaged in the course of their employment”. Dkt No. 29.
Although she initially sought to have the case remanded to
state court, she dropped that challenge and appears now to
acknowledge that Hodgkins was acting within the scope of his
FTCA waives immunity for certain government torts including
“injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope
of his office or employment.” 28 U.S.C. §§
1346(b), 2674. Certain intentional torts are not covered by
the waiver of sovereign immunity in the FTCA. 28 U.S.C.
§ 2680(h). If an employee is acting within the scope of
his employment, he is not subject to suit: “if he is
outside the line, he is personally answerable.”
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 423
(1995). The agency's certification of scope of employment
is subject to judicial review. Id.
the FTCA the United States may not be sued unless a plaintiff
has “first presented the claim to the appropriate
Federal agency and his claim [has] been finally denied by the
agency in writing and sent by certified or registered
mail.” 28 U.S.C. § 2675(a). See McNeil v.
United States, 508 U.S. 106, 113 (1993); Barrett ex
rel. Estate of Barrett v. United States, 462 F.3d 28, 37
(1st Cir. 2006). It is “essential” that claims
include a “demand for money damages in a sum
certain.” Holloway v. United States, 845 F.3d
487, 489 (1st Cir. 2017) (internal quotations omitted);
Kokaras v. United States, 980 F.2d 20, 22 (1st Cir.
1992) (“This court has consistently held that a
timely-presented claim stating a sum certain is necessary for
a court to have jurisdiction to entertain a suit against the
United States under the FTCA.”). See 28 C.F.R.
§ 14.2 (“For purposes of the provisions of 28
U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to
have been presented when a Federal agency receives from a
claimant . . . or legal representative . . . written
notification of an incident, accompanied by a claim for money
damages in a sum certain for injury to or loss of property,
personal injury, or death alleged to have occurred by reason
of the incident.”).
circuits have held that relief under the FTCA is limited to
“money damages.” § 1346(b)(1). Estate of
Trentadue ex rel. Aguilar v. United States, 397 F.3d
840, 863 (10th Cir. 2005); Redland Soccer Club, Inc. et
al. v. Dep't of Army of U.S., 55 F.3d 827, 848 n.11
(3d Cir. 1995); Talbert v. United States et al., 932 F.2d
1064, 1066 (4th Cir. 1991); Birnbaum v. United
States, 588 F.2d 319, 335 (2d Cir. 1978) (abrogated on
other grounds). But cf. Weldon v. United States, 70 F.3d 1, 4
(2d Cir. 1995) (holding FTCA also permits equitable ...