Shekh v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ADIL SHEKH,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE,
Defendant.
8:25CV535
MEMORANDUM
AND ORDER
Pro se plaintiff Adil Shekh (“Shekh”) originally filed this action in the County Court
of Lancaster County, Nebraska on August 7, 2025 (Filing No. 1-1). 	He alleges that on
June 25 , 2025, a United States Postal Service vehicle struck his car’s back-quarter panel on
the passenger side while he was driving. Defendant USPS removed the case to this Court
on September 4, 2025, under 28 U.S.C. § 1441. 	See also 	28 U.S.C. § 1442(a)(1)
(authorizing removal of a civil action against an officer or agency of the United States).
On September 29, 2025, USPS moved to substitute the United States of America
(the “government”) as the proper defendant and to dismiss Shekh’s claims for lack of
subject-matter jurisdiction (Filing No. 8). See Fed. R. Civ. P. 12(b)(1). More than twenty-
one days have passed, and Shekh has not responded. 	See NECivR 7.1(b)(1)(B) (stating
that a brief opposing a motion to dismiss “must be filed and served within 21 days after the
motion and supporting brief are filed and served”).1 	For the reasons that follow, the
government’s motion will be granted.
1 Under the local rules, Shekh’s “[f]ailure to file an opposing brief is not considered
a confession of a motion” but it does “preclude [Shekh] from contesting [the government’s]
statement of facts.” NECivR 7.1(b)(1)(C).
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I. 	DISCUSSION
A. 	The Motion to Substitute
As an initial matter, the government argues that it should be substituted as the proper
defendant in place of USPS (Filing No. 9). The United States is immune from suit, except
to the extent that it has waived immunity. Mader v. United States, 654 U.S. 794, 797 (citing
Beers v. State, 61 U.S. 527, 529 (1857). Congress waived the sovereign immunity of the
United States for certain torts committed by federal employees through the Federal Tort
Claims Act (“FTCA”). 	F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). 	The FTCA is the
exclusive remedy for tort claims against the federal government. Id. at 476 (noting that if
“a suit is ‘cognizable’ under [the FTCA], the FTCA remedy is ‘exclusive’”); accord 28
U.S.C. § 2679; see also 28 U.S.C. § 1346 (providing the federal courts “have exclusive
jurisdiction of civil actions on claims against the United States . . . for injury or loss of
property”).
In any civil action where the Attorney General certifies the defendant employee was
acting within the scope of his employment when the alleged incident occurred, “the United
States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d). The United States
is also the proper defendant in FTCA lawsuits naming federal agencies as the defendant.
Meyer, 510 U.S. at 476; see also 28 U.S.C. § 2679(a) (“The authority of any federal agency
to sue and be sued in its own name shall not be construed to authorize suits against such
federal agency [under the FTCA].”). And although USPS is an “independent establishment
of the executive branch,” 39 U.S.C. § 201, because the FTCA applies equally to USPS, it
cannot be sued in its own name, see 28 U.S.C. § 2679(a). Accordingly, the Court grants
the government’s motion to substitute the United States as the defendant in this matter.
B. 	The FTCA’s Exhaustion Requirement
The government next argues the Court lacks subject-matter jurisdiction because
Shekh failed to exhaust his administrative remedies before filing suit. 	Before filing an
FTCA action in federal court, the claimant must present an administrative claim to the
appropriate federal agency, and the claim must be “finally denied by the agency in writing.”
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28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 111 (1980) (upholding a
district court’s dismissal of an FTCA claim for lack of subject-matter jurisdiction because
the claimant filed suit in federal court before receiving a final agency denial, even though
the claimant received such denial early in the litigation). Final denial of an administrative
claim is a jurisdictional prerequisite that must be established by the FTCA claimant. See,
e.g., McNeil, 508 U.S. at 111; King v. United States, 3 F.4th 996, 999 (8th Cir. 2021). As
the plaintiff, Shekh bears the burden of proof to show that presentment was properly made.
See Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993). He has not done so.
What is more, the government has submitted a declaration from Kimberly Herbst,
the manager of the Tort Program and Adjudication at the United States Postal Service
National Tort Center in St. Louis (Filing No. 8-1). She declares that she did not discover
any record of any administrative tort claims filed by or on behalf of Shekh after conducting
a search of two separate databases. Absent any evidence to the contrary, the Court finds
that Shekh has failed to exhaust his administrative remedies under the FTCA. Accordingly,
this Court does not have subject-matter jurisdiction over Shekh’s FTCA claim.
IT IS ORDERED:
1. 	The United States of America is substituted as defendant.
2. 	Defendant United States of America’s Motion to Dismiss for lack of subject-
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) (Filing
No. 8) is granted.
3. 	This case is dismissed without prejudice.
4. 	A separate judgment will issue.
Dated this 9th day of January 2026.
BY THE COURT:
Robert F. Rossiter, Jr.
Chief United States District Judge
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