Raymond v. USDA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Janet M. Raymond
v. 	Case No. 18-cv-114-PB
United States Department of Agriculture
REPORT AND RECOMMENDATION
Proceeding pro se, Janet M. Raymond filed an action in
state court seeking to stop the United States Department of
Agriculture (“government” or “USDA”) from foreclosing on her
property in Claremont, New Hampshire. 	See doc. no. 1-1. 	The
government removed the action to this court (doc. no. 1) and
timely answered the complaint (doc. no. 3). 	On March 27, 2018,
Ms. Raymond filed a “Motion to Stop House Auction and Filing
Tort Act.” 	See doc. no. 4. 	In that motion, Ms. Raymond sought
to stop a foreclosure sale scheduled for April 2018 and
suggested that the government’s actions constituted negligent or
fraudulent misrepresentation.
Construing Ms. Raymond’s motion as one for preliminary
injunctive relief, the district judge referred it to the
undersigned magistrate judge for report and recommendation. 	See
March 28, 2018 Endorsed Order. 	The government, in response,
indicated that it would postpone any foreclosure sale until this
litigation was resolved. 	See doc. no. 5. 	On this basis, the
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 1 of 8

2
undersigned recommended that Ms. Raymond’s motion be denied
without prejudice to the extent it sought to stop the
foreclosure sale. 	See April 5, 2018 Report and Recommendation
(doc. no. 6). 	The district judge approved that recommendation.
See May 10, 2018 Order (doc. no. 12).
Because it did not pertain to the request for injunctive
relief, the undersigned did not address in the report and
recommendation Ms. Raymond’s suggestion that the government’s
actions constituted a negligent or fraudulent misrepresentation.
The government now contends that to the extent this suggestion
might be construed as a claim for relief, it must be dismissed
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction. 	See doc. no. 10. 	Ms. Raymond
objects. 	See doc. no. 13. 	The district judge referred this
matter to the undersigned for report and recommendation.
Concluding that Ms. Raymond did not exhaust her administrative
remedies as required by the Federal Tort Claims Act (FTCA), the
court recommends that the district judge grant the government’s
motion.
Standard of Review
When considering a Rule 12(b)(1) motion, the court
“accept[s] as true all well-pleaded facts and indulge[s] all
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 2 of 8

3
reasonable inferences in the plaintiff[’s] favor.” 	Reddy v.
Foster, 845 F.3d 493, 497 (1st Cir. 2017) (brackets, ellipsis,
internal quotation marks, and citations omitted). 	The court may
also consider other materials in the record, “whether or not the
facts therein are consistent with those alleged in the
complaint.” 	Id. (citation omitted). 	This standard informs the
following analysis.
Discussion
In deference to Ms. Raymond’s pro se status, the court will
briefly explain at the outset why Rule 12(b)(1), and not the
more commonly invoked Rule 12(b)(6), applies under the present
circumstances. 	A motion brought under Rule 12(b)(6) asserts
that even when construed in the light most favorable to the
plaintiff, the facts alleged in a complaint do not state a
plausible claim for relief. 	See Foley v. Wells Fargo Bank,
N.A., 772 F.3d 63, 71 (1st Cir. 2014). 	Thus, when ruling on a
Rule 12(b)(6) motion, the court focuses on the legal sufficiency
of the plaintiff’s factual allegations. 	In contrast, a Rule
12(b)(1) motion challenges the court’s subject-matter
jurisdiction over the dispute, i.e., whether the complaint
alleges a “case” or “controversy” a federal court is permitted
to consider under Article III of the United States Constitution.
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 3 of 8

4
See Reddy v. Foster, 845 F.3d 493, 499 (1st Cir. 2017). 	Because
this analysis focuses on whether a court may adjudicate a
dispute in the first place, it may not require that the court
consider the merits of the specific facts alleged in the
complaint.
Under New Hampshire law, claims for negligent or fraudulent
representation sound in tort. 	See Wyle v. Lees, 162 N.H. 406,
410 (2011) (negligent misrepresentation); Tessier v.
Rockefeller, 162 N.H. 324, 334 (2011) (fraudulent
misrepresentation). 	There is an added wrinkle in this case,
however, because Ms. Raymond seeks to bring these claims against
the United States, and “[f]ederal courts lack jurisdiction over
claims against the United States unless the Government has
waived its sovereign immunity.” 	Sanchez v. United States, 740
F.3d 47, 50 (1st Cir. 2014). 	The FTCA serves as a limited
waiver of that immunity for torts committed by government
employees acting within the scope of their employment. 	See id.;
see also 28 U.S.C. § 1346(b)(1). 	But the FTCA does not waive
sovereign immunity unless a plaintiff first exhausts her
administrative remedies by “presenting” her claim to the
appropriate administrative agency. 	See 28 U.S.C. § 2675(a).
The First Circuit has held that “the FTCA’s exhaustion
requirement is . . . jurisdictional.” Acosta v. U.S. Marshals
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 4 of 8

5
Serv., 445 F.3d 509, 514 (1st Cir. 2006). 	This means a federal
court lacks subject-matter jurisdiction over an FTCA claim if it
was not first presented for administrative review.1
The government contends that is the case here. 	In support
of this contention, the government submits the affidavit of
Brian A. Mizoguchi, who serves as Acting Assistant General
Counsel in USDA’s General Law and Research Division. 	See doc.
no. 10-1 ¶ 1. 	Attorney Mizoguchi states that he conducted a
search for any administrative claims submitted by or on behalf
of Ms. Raymond under the FTCA. 	See id. ¶ 3. 	He indicates that
the USDA has no record of Ms. Raymond or someone operating on
her behalf having filed the standard claim form — Standard Form
95 — or any other written notification of the tort claim
asserted in this action. 	See id. ¶ 4. 	Based on these
representations, the government contends that Ms. Raymond never
presented her negligent or fraudulent misrepresentation claim as
1 In United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015),
the Supreme Court held that the FTCA’s statute of limitations is
not jurisdictional. 	See id. at 1633. 	In the wake of this
decision, the vast majority of courts have distinguished the
FTCA’s limitations period from its exhaustion requirement and
held that the latter remains a jurisdictional prerequisite. 	See
Rosario v. Brennan, 197 F. Supp. 3d 406, 411-12 (D. Conn. 2016)
(collecting cases). 	In this case, the government does not
contend that Ms. Raymond filed an untimely request for
administrative review, but rather that she never sought to
exhaust her remedies in the first place. 	Thus, Kwai Fun Wong
does not apply.
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 5 of 8

6
the FTCA requires.
Ms. Raymond does not allege in her complaint or subsequent
filings that she did in fact seek administrative review of her
tort claim. 	Nor has she presented any evidence to counter
Attorney Mizoguchi’s affidavit. 	Instead, Ms. Raymond requests
in her objection that the court not dismiss her
misrepresentation claim without first permitting discovery. 	See
doc. no. 13 at 2. 	Were the court assessing this claim on the
merits, Ms. Raymond’s request might have some force. 	But as
previously discussed, the court’s inquiry is limited to whether
it has jurisdiction to adjudicate the misrepresentation claim at
all. 	As the government has presented evidence that Ms. Raymond
failed to exhaust her administrative remedies, and Ms. Raymond
has failed to counter that evidence, the court concludes that it
does not.
It bears acknowledging, as the government does in its
motion, that Ms. Raymond did attach a Standard Form 95 to her
March 27 motion. 	See doc. no. 4-2. 	Yet despite receiving
multiple extensions to respond to the government’s motion, Mr.
Raymond neither argues that she submitted this form to the USDA
nor otherwise presents evidence suggesting that she did so. 	For
his part, Attorney Mizoguchi avers that he is “not aware of any
evidence that this document was sent by Ms. Raymond . . . to the
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 6 of 8

7
USDA’s Concord Office or any other USDA office.” 	Doc. no. 10-1
¶ 5. 	Under these circumstances, the court cannot reasonably
infer from the mere existence of this document in the record
that Ms. Raymond sought to exhaust her remedies here. 	And in
any event, the Standard Form 95 in question does not contain a
sum certain demand for damages, which the First Circuit has held
is an “essential element” of an administrative claim under the
FTCA. 	See Holloway v. United States, 845 F.3d 487, 489 (1st
Cir. 2017).
Conclusion
In sum, the court concludes that Ms. Raymond did not
exhaust her administrative remedies, and that the court
accordingly does not have subject-matter jurisdiction over her
negligent or fraudulent misrepresentation claim. 	The district
judge should therefore grant the government’s motion to dismiss
that claim (doc. no. 10).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 7 of 8

8
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 7, 2018
cc: 	Janet M. Raymond, pro se
Michael T. McCormack, Esq.
Case 1:18-cv-00114-PB Document 14 Filed 08/07/18 Page 8 of 8