Liu v. Dicarlo

Background

Feng “Kevin” Liu brought the case without a lawyer against the United States and individual law-enforcement officers. He alleged malicious prosecution and negligence under the Federal Tort Claims Act, a federal law that permits certain lawsuits against the United States for torts committed by federal employees.

Liu alleged that the Depository Trust & Clearing Corporation terminated him after he sent work material to a personal cloud-storage account and reported the matter to the Federal Bureau of Investigation. He alleged that the FBI investigated him and communicated with several employers, after which those employers terminated him or he could not maintain employment. He alleged that he was never charged or arrested as a result of the investigation.

Liu alleged that he submitted an administrative tort claim, using Standard Form 95, to the Department of Justice on or about July 14, 2018. The Government stated that it had no record of receiving the claim. During the case, Liu did not file a timely opposition to the Government’s motion to dismiss. Although the court gave him additional time to find a lawyer and respond, and later ordered him to explain why the motion should not be treated as unopposed, he did not respond. The court therefore treated the motion as unopposed and fully submitted.

Legal Standard

The Government moved under Federal Rule of Civil Procedure 12(b)(1), which allows dismissal when the court lacks subject-matter jurisdiction—the power to hear the case. An FTCA plaintiff must prove jurisdiction, including that he exhausted required administrative remedies before filing suit.

The court explained that exhaustion requires the appropriate federal agency to actually receive a completed Standard Form 95 or other written notice of the incident. Mailing the form alone does not establish receipt because the common-law presumption that a properly mailed item was received does not apply to FTCA claims.

Court’s Analysis

The court relied on a Second Circuit decision holding that an FTCA plaintiff must show actual receipt of the administrative claim. Liu alleged that he mailed the form and attached a copy to his complaint, but he did not show that the appropriate agency received it.

The Government submitted declarations stating that the relevant Department of Justice and FBI records had been searched and contained no administrative claim from Liu. The court rejected Liu’s argument that the absence of the form from the records did not necessarily mean the form had not been received. Liu provided no update or proof showing that the Department of Justice’s Office of the Inspector General had received the form.

Ruling

Judge Andrew L. Carter, Jr. held that Liu had not shown that the appropriate federal agency received his completed Standard Form 95. The court therefore ruled that it lacked subject-matter jurisdiction over Liu’s FTCA claims.

The court dismissed Liu’s FTCA claims without prejudice and granted the Government’s motion to dismiss. The opinion explained that a dismissal for lack of subject-matter jurisdiction is not a decision on the merits and does not receive the same claim-preclusion effect as a merits judgment.