United States District Court, S.D. Texas, Victoria Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
the Court is the defendant's, United States of America,
motion to dismiss the named defendant, the National Resource
Conservation Service (“NRCS”) [DE 13] as a party,
and the plaintiff's, Larry Landgraf, response [DE 14].
After a review of the documents on file, a telephonic
conference and an examination of the applicable law, the
Court concludes that the motion to dismiss should be granted.
plaintiff filed suit against the NRCS contending that it
contracted with a third party to conduct mechanical brush
control on certain properties near the plaintiff's
property. The treatment applied required the contractor to
“grub” to a depth of 14 inches below the surface
and uproot any trees below the “bud zone”. The
work specified was completed. However, the brush, plants and
extracted trees were left in place on the land. On or about
August 25, 2017, Hurricane Harvey made landfall near the
plaintiff's property and with high wind speeds, pushed
the debris from the host property onto the plaintiff's
property causing, according to the plaintiff, substantial
damage. A later removal of the debris did not satisfy the
plaintiff and this lawsuit followed.
undisputed that the United States, and not any of its
agencies or employees, is the appropriate party defendant in
a suit brought pursuant to the Federal Tort Claims Act
(“FTCA”). See 28 U.S.C. § 1346(b).
Specifically, § 1346, entitled “United States as
defendant, ” provides that the FTCA confers upon the
district courts “exclusive jurisdiction of civil
actions on claims against the United States, for
money damages . . . for 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, under
circumstances where the United States, if a private person,
would be liable to the claimant.” 28 U.S.C. §
1346(b) (emphasis added).
FTCA further provides that “[t]he 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
on claims which are cognizable under [this tort claims
provision].” 28 U.S.C. § 2679(a) (1982). Rather, a
suit against the United States is the exclusive remedy for
tort claims arising from the negligent or wrongful actions of
government agencies and/or their employees brought pursuant
to the FTCA. Id.
this statutory background, the Fifth Circuit has held that a
federal agency cannot be sued eo nomine under the
FTCA. See Galvin v. Occupational Safety & Health
Admin., 860 F.2d 181, 183 (5th Cir. 1988). Therefore,
any suit commenced against a federal agency, and/or any
subdivision thereof, must be dismissed for lack of
case, the NRCS is an agency of the United States Department
of Agriculture and is not a juridical person, since it is
neither an individual nor a corporation. See United
States Dep't of Agric. v. Hunter, 171 F.2d 793, 794
(5th Cir. 1949) (citing United States Dep't of Agric.
v. Remund, 330 U.S. 539, 541, 67 S.Ct. 891, 91 L.Ed.
1082 (1947)). In fact, it is a governmental agency,
“not empowered to sue, or to be sued in evasion of
sovereign immunity.” Id. In other words, the
United States is the sole proper defendant under the FTCA-not
any of its agencies or subdivisions thereof.
Court is further of the opinion that were the United States
properly listed as the defendant, the plaintiff,
nevertheless, would not be able to recover. In order for the
plaintiff to maintain a suit against the United States, he
must assert a “basis for the Court's jurisdiction
and a specific statute containing a waiver” of
governmental immunity. See Swift v. U.S. Border
Patrol, 578 F.Supp. 35, 37 (S.D. Tex. 1983),
aff'd 731 F.2d 886 (5th Cir. 1984). The
plaintiffs pleadings fail in both respects.
Rules of Civil Procedure, Rule 12(b)(1) mandates dismissal of
a case where the Court lacks jurisdiction. While the United
States has waived immunity when a claim arises under the
Federal Torts Claim Act for loss of property, that Act does
not apply here. The alleged negligence asserted against the
United States arises from conduct of a third party aided by
an “act of God”. It was the storm surge from
Harvey that pushed the debris from the Hawes' property
onto the plaintiffs property. See McWilliams v.
Masterson, 112 S.W.3d 314, 320 (Tex. App.-Amarillo,
2003, pet. Denied).
the United States was not the party that caused or
participated in the removal of the debris onto the plaintiffs
property, the FTCA waiver of immunity is inapplicable and the
Court lacks subject matter jurisdiction. Therefore, the