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Parents of dead man filed claim before they were executors.

Byline: Virginia Lawyers Weekly

Where the parents of a man killed by police officers filed an administrative claim before they were appointed their son's executors, they failed to exhaust their remedies and their wrongful death suit is dismissed for lack of subject matter jurisdiction.

Background

On Nov. 17, 2017, Bijan Ghaisar fled the scene of a traffic accident on George Washington Memorial Parkway in Virginia. Plaintiffs James Ghaisar and Kelara Ghaisar, his parents, allege that two United States Park Police officers began pursuing Bijan's vehicle after he fled the scene. A Fairfax County police officer joined the pursuit and turned on his dashboard video camera.

Plaintiffs allege that Bijan stopped three times while being followed by police. The first two times, they allege Bijan drove away slowly after stopping. However, on the third time, plaintiffs allege that the officers blocked Bijan's vehicle, approached him with guns, and fired nine shots into his car, four of which struck him. Bijan was taken to a hospital and remained in a coma for 10 days until he died on Nov. 27, 2018.

Plaintiffs subsequently filed a complaint against the United States alleging wrongful death, negligence, assault and battery, false arrest and imprisonment, initial infliction of emotional distress and negligent infliction of emotional distress. On Dec. 17, 2018, the United States moved to dismiss for lack of subject matter jurisdiction and a hearing was held on the motion on Jan. 18, 2019.

Analysis

Plaintiffs' complaint fails to allege sufficient facts and claims to establish subject matter jurisdiction. First, it is well established that the United States and its agencies enjoy sovereign immunity from lawsuits unless Congress has explicitly waived such immunity. Thus, this court's jurisdiction over matters concerning the United States and its agents as defendants are limited to the small number of exceptions Congress has granted to sovereign immunity.

One way in which Congress has abrogated immunity is through the Federal Torts Claims Act, which authorizes tort actions against the United States. However, the FTCA conditions this court's jurisdiction over any claim brought pursuant to its provisions on presentment of an administrative claim to the allegedly responsible agency and final denial of that claim by the agency.

In this case, plaintiffs have failed to properly exhaust their administrative tort claims with the Department of Interior, the responsible agency in this matter. FTCA regulations state that any claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable state law.

Plaintiffs submitted an administrative tort claim to the department on Jan. 24, 2018, before they had been appointed representatives of Bijan's estate. As such, when Bijan's parents submitted the administrative claim, they lacked authority to do so. Thus, all claims which seek recovery for wrongful death must be dismissed for lack of subject matter jurisdiction.

Nevertheless, plaintiffs also assert claims for personal injury, include severe emotional distress, suffered on their own behalf, rather than on behalf of Bijan's estate. Plaintiffs argue that they did not need to have been appointed personal representatives of Bijan's estate to present these claims to the department, and, as such, they properly exhausted their administrative remedies for these claims, giving this court subject matter jurisdiction. It remains uncertain, however, whether plaintiff made clear that they were making these claims on behalf of themselves, rather than on behalf of the estate, at the time they presented them to the department. As such, plaintiffs have failed to demonstrate that they exhausted their administrative remedies and this court lacks subject matter jurisdiction over their complaint.

Motion to dismiss granted.

Ghaisar v. United States, Case No. 1:18-cv-1296, Jan. 30, 2019. EDVA at Alexandria (Hilton). VLW 019-3-052. 6 pp

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Title Annotation:Ghaisar v. United States, U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Mar 3, 2019
Words:635
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