United States District Court, D. New Hampshire
Janet M. Raymond
United States Department of Agriculture
M. Raymond, pro se
Michael T. McCormack, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
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.
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 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).
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
considering a Rule 12(b)(1) motion, the court
“accept[s] as true all well-pleaded facts and
indulge[s] all 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.
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.
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.
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 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.
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 the FTCA
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
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 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 ...