govinfo:USCOURTS-okwd-5_25-cv-01152-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA 
 
GAGE BEA VERS, ) 
 ) 
 Plaintiff, ) 
 ) 
v . ) C a s e N o . C I V - 2 5 - 1 1 5 2 - D 
 ) 
UNITED STATES OF AMERICA, ) 
 ) 
 Defendant. ) 
 
ORDER 
 
 Before the Court is Defendant’s Motion to Dismiss with Brief in Support [Doc. 
No. 7]. Plaintiff filed a response and affidavit [Doc. Nos. 9, 10], to which Defendant replied 
[Doc. No. 13]. The matter is fully briefed and at issue. 
BACKGROUND 
In his Complaint [Doc. No. 1], Plaintiff alleges that he was driving his vehicle on I-
235 in Oklahoma City, Oklahoma, when a vehi cle driven by a United States Department 
of Agriculture (USDA) employee collided with Plaintiff’s vehicle, injuring Plaintiff. 
Plaintiff further alleges that, at the time of the collision, the USDA employee (Eric Cowan) 
was acting within the course and scope of his employment with the USDA. Thereafter, 
Plaintiff initiated this neglig ence action against Defendant, pursuant to the Federal Tort 
Claims Act, 28 U.S.C. §§ 2671-2690 (FTCA). 
In its Motion to Dismiss [Doc. No. 7], Defendant seeks dismissal of this action under 
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant first 
contends that this Court does not have subjec t matter jurisdiction over this action due to 

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Plaintiff’s failure to present his claim to the USDA prior to bringing suit, as required by the 
FTCA. Defendant further contends that Plain tiff has not sufficiently alleged that Mr. 
Cowan was acting within the scope of his empl oyment with the USDA at the time of the 
collision. 
STANDARD OF DECISION 
I. Federal Tort Claims Act 
The FTCA is a limited waiver of so vereign immunity making the federal 
government liable to the same extent as a private party for certain torts of federal employees 
acting in the scope of their employment. United States v. Orleans , 425 U.S. 807, 813 
(1976). “[A]s a prerequisite to suit under the [FTCA,] … the claim [must] first be presented 
to the appropriate federal agency and be finally denied by the agency. This requirement is 
jurisdictional and cannot be waived.” Koch v. Potter, 177 F. App’x 785, 786 n.1 (10th Cir. 
2006) (unpublished) 1 (quoting Three-M Enters., Inc. v. United States , 548 F.2d 293, 294 
(10th Cir. 1977)). 
Federal courts have jurisdiction over FTCA claims if they are “actionable” under 28 
U.S.C. § 1346(b), which occurs when a claim is: 
(1) against the United States, (2) for money damages, … (3) 
for injury or loss of property, or personal injury or death (4) 
caused by the negligen t or wrongful act or omission of any 
employee of the Government (5) while acting within the scope 
of his office or employment, (6) under circumstances where the 
United States, if a private pe rson, would be liable to the 
claimant in accordance with the law of the place where the act 
or omission occurred. 
 
1 Unpublished opinions are cited pursuant to FED. R. APP. P. 32.1(a) and 10th Cir. R. 32.1(A). 

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Brownback v. King, 592 U.S. 209, 212 (2021) (citing F .D.I.C. v. Meyer, 510 U.S. 471, 477 
(1994)); see also 28 U.S.C. § 1346(b). 
“[I]n the unique context of the FTCA, all el ements of a meritorious claim are also 
jurisdictional. … So even though a plaintiff need not prove a § 1346(b)(1) jurisdictional 
element for a court to maintain subject matter jurisdiction ov er his claim, … a plaintiff 
must plausibly allege all six FTCA elements not only to state a claim upon which relief can 
be granted but also for a court to have subject-matter jurisdiction over the claim.” 
Brownback, 592 U.S. at 217 (citation omitted). 
As the party asserting federal jurisdiction, Plaintiff bears “the burden of alleging the 
facts essential to show jurisdiction.” U.S. ex rel. Stone v. Rockwell Int’l Corp. , 282 F.3d 
787, 797-98 (10th Cir. 2002) (internal quotations omitted). “[W]hen a defendant asserts 
that the [FTCA] complaint fails to allege sufficient facts to support subject matter 
jurisdiction, the trial court must apply a sta ndard patterned on Rule 12(b)(6) and assume 
the truthfulness of the facts alleged.” Garling v. U.S. Env’t Prot. Agency, 849 F.3d 1289, 
1293 n.3 (10th Cir. 2017) (internal quotations and citation omitted). 
II. Federal Rules of Civ il Procedure 12(b)(1), (6) 
Pursuant to FED. R. CIV. P. 12(b)(1), a motion to dismiss for lack of subject matter 
jurisdiction takes one of two forms: a facial attack or a factual attack. Pueblo of 
Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack questions 
the sufficiency of the complaint’s allegations. Pueblo of Jemez , 790 F.3d at 1148 n.4. In 
reviewing a facial attack, a district court must accept the allegations in the complaint as 

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true. Id. In a factual attack, the moving party ma y go beyond allegations contained in the 
complaint and challenge the facts upon which subject matter jurisdiction depends. Id. 
When reviewing a factual attack on subject matter jurisdiction, a district court may 
not presume the truthfulness of th e complaint’s factual allegations. Id. Instead, the court 
has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing 
to resolve disputed jurisdictional facts. Id. Here, Defendant presents a factual attack 
because it challenges the facts upon which Plaintiff bases subject matter jurisdiction. 
Specifically, Defendant argues that Plaintiff is barred from pursuing an action for damages 
under the FTCA because Plaintiff failed to comp ly with the jurisdicti onal prerequisite of 
presenting his claim to the USDA prior to filing suit. See Koch, 177 F. App’x at 786 n.1. 
For its Rule 12(b)(6) motion, Defendant al so argues that Plaintiff has failed to 
plausibly allege that Mr. Cowan was within the scope of his employment at the time of the 
collision. To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 
content that allows the court to draw the reasonable inference that the defendant is liable 
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint 
states a plausible claim for relief will … be a context-specific task that requires the 
reviewing court to draw on its judicial experience and common sense.” Id. at 679; see also 
Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir. 2008). 
 

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ANALYSIS 
I. Presentment of FTCA Claim (Exh austion of Administrative Remedies) 
As stated above, Plaintiff was required to present his FTCA claim to the USDA prior 
to bringing suit. Pursuant to 28 U.S.C. § 2675(a): 
An action shall not be institu ted upon a claim 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, unless the 
claimant shall have first presented the claim to the appropriate 
Federal agency and his claim shall have been finally denied by 
the agency in writing and sent by certified or registered mail. 
The failure of an agency to ma ke final disposition of a claim 
within six months after it is f iled shall, at the option of the 
claimant any time thereafter, be deemed a final denial of the 
claim for purposes of this section. 
 
28 U.S.C. § 2675(a). 
In the present motion, Defendant contends that Plaintiff’s claim must be dismissed 
because “the USDA, which is the appropriate federal agency for this claim, did not receive 
Plaintiff’s claim.” [Doc. No. 7, at 6]. In support of its factual attack on Plaintiff’s failure to 
present his FTCA claim, Defendant attaches the Affidavit of Lisa Hames [Doc. No. 7-1]. 
Ms. Hames is a Legal Administrative Specialist with the Animal Health Enforcement and 
Tort Claims Branch of the Animal and Plant Health Inspection Service (APHIS), which is 
an agency with in the USDA. Id. at 1. Ms. Hames outlines APHIS’ process for receiving 
and documenting tort claims, usua lly upon receiving a SF-95 form. Id. at 2. Ms. Hames 
provides that if an SF-95 form is mailed to the USDA Office of General Counsel, “the 
standard practice is for that location to s can the document(s) and email a copy of the 

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document(s) to the Animal Health Enforcement and Tort Claim Branch of APHIS” at an e-
mail address monitored by Ms. Hames. Id. Ms. Hames adds that—after searching the 
APHIS database and e-mail inbox for SF-95 forms—she “did not find any such document 
or other records relating to the Plaintiff concerning the alleged November 30, 2023 vehicle 
collision.” Id. 
In response, Plaintiff’s counsel persona lly attests to the details surrounding 
Plaintiff’s presentment of his tort claim to the USDA. In Sherman Reed’s Affidavit [Doc. 
No. 10], counsel provides that Plaintiff mailed via certified mail a written administrative 
claim to the USDA at 1400 Independence Avenue SW, Washington DC 20250. Id. at 2. The 
“claim included a cover letter, a completed federal Standard Form 95, and accompanying 
documentation concerning Plaintiff’s treatmen t for his injuries from the motor vehicle 
collision at issue.” Id. Counsel purports to provide a tr ue and correct copy of the package 
delivered to the USDA’s Washington DC address for the USDA Office of General Counsel. 
[Doc. No. 10-2]. The letter’s heading reflects a date of March 27, 2025, and the recipient 
address block indicates that it was sent to the USDA Office of Ge neral Counsel at 1400 
Independence Avenue SW in Washington, DC, via certified mail. [Doc. No. 10-2, at 1]. 
Stapled to the letter is a certified mail receipt with tracking # 7022 2410 0000 5596 6663. 
[Doc. No. 10-2, at 2]. The package also contains the SF-95 form, which identifies 
Plaintiff’s tort claim and damages in a sum certain2, enclosing the official collision report. 
[Doc. No. 10-2, at 3]. 
 
2 Defendant does not contend th at the SF-95 form—if properly presented to the USDA—is 
otherwise deficient to provide the USDA with sufficient notice of Plaintiff’s tort claim. Nor does 

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Plaintiff’s counsel also pr ovides the USPS tracking details page for the same 
certified mail tracking number shown above, which indicates that the package of materials 
left Oklahoma City on March 27, 2025 (the date of Plaintif f’s counsel’s letter) and was 
“delivered to an individual at the address at 1:19 p.m. on March 31, 2025, in Washington, 
DC 20250.” [Doc. No. 10-4, at 1]. Plaintiff’ s counsel further certifies that he “made 
multiple phone calls to the USDA” following the submission of the claim package, that he 
“was never able to reach any individual at the USDA,” and that “all of [his] messages left 
through voicemail went unanswered.” [Doc. No. 10, at 3]. 
Under these circumstances, Plaintiff conte nds that he has demonstrated that he 
presented his claim to the USDA in March 2025, and that he waited the requisite six months 
before filing this action. The Court agrees with Plaintiff. Although Defendant cites to 
several cases for the proposition that the federal agency must receive a plaintiff’s tort claim 
for presentment to be established, none of the cases cited by Defendant involved additional 
evidence from the plaintiff that the agency had received certified mail. See Payne v. United 
States, 10 F. Supp. 2d 203, 205 (N .D.N.Y . 1998) (finding that the plaintiffs had not 
presented sufficient evidence that they had complied with the filing requirements because 
the “[p]laintiffs [had] presented no evidence that the defendants actually received the notice 
such as a return receipt.”); Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1252 (9th Cir. 2006) 
(“Vacek’s counsel did not send the form by certified mail.”); Flores v. United States, 719 
 
Defendant assert that the March 31, 2025 presentment of the claim would be untimely, or that tort 
claims cannot be presented to the USDA Office of General Counsel. Simply put, Defendant’s only 
issue with Plaintiff’s presentment of his tort claim is that Ms. Hames has declared that she did not 
receive any tort claim notice from Plaintiff. 

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F. App’x 312 (5th Cir. 2018) (involving mail sent to th e wrong agency and ultimately 
received by the correct agency after the stat utory deadline for pres entment had expired); 
Lightfoot v. United States, 564 F.3d 625 (3d Cir. 2009) (finding insufficient the plaintiff’s 
allegation that he sent the request for reconsid eration to the federal agency via first class 
mail); Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993) (finding it undisputed 
that the tort claim notice was not mailed by certified mail and was not received by the 
federal agency); Drazan v. United States, 762 F.2d 56, 58 (7th Ci r. 1985) (“The plaintiff 
offered no evidence to contradict the govern ment’s affidavit that her claim was never 
received.”). 
Similarly, in Moya v. United States, the “[p]laintiff [did] not produce a certificate of 
mailing, a return receipt, a certified mail number or any acknowledgement by the defendant 
of having received the request.” 35 F.3d 501, 503 (10th Cir. 1994). In response to the 
defendant’s affidavits stating that the federa l agency had searched its files and found no 
record of the plaintiff’s request, the plain tiff provided “no independent evidence in the 
record indicating that [the] plaintiff’s request was ever sent, let alone received by [the] 
defendant.” Id. 
Here, Plaintiff has provided the certified mail number corresponding with the claim 
package addressed to the USDA Office of General Counsel, and tr acking details for the 
claim package that reflects its arrival in Wa shington, D.C. a few days after Plaintiff’s 
counsel sent the package via certified mail. Under these circumstances, the Court finds that 
Plaintiff has provided sufficient additional evidence reflecti ng Plaintiff’s presentment of 
his tort claim to the USDA, and the Court, therefore, declines to dismiss Plaintiff’s action 

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for failure to exhaust administrative remedies. Defendant’s motion to dismiss is denied on 
this point. 
II. Scope of Employment 
Defendant also moves to dism iss based on Plaintiff’s failure to sufficiently allege 
that Mr. Cowan was within the scope of his employment with the USDA at the time of the 
collision. As stated above, the FTCA pr ovides “a limited waiver making the Federal 
Government liable to the same extent as a private party for certain torts of federal 
employees acting within the scope of their employment.” Orleans, 425 U.S. at 813; see 28 
U.S.C. § 1346(b). Although Plain tiff alleges in his Complaint that Mr. Cowan, “while in 
the course and scope of his employment for the USDA,” was negligent and caused the 
collision with Plaintiff’s vehicle, the Cour t agrees with Defendant that additional 
allegations are needed to state a plausible claim under the FTCA. In his response and 
counsel’s affidavit [Doc. Nos. 9, 10], Plaintiff asserts that the subject collision occurred at 
2:52 p.m. on a Thursday and that the police report reflects that Mr. Cowan was driving a 
“USDA government vehicle” at the time of the collision. However, Plaintiff does not 
include in his Complaint these allegations or any other factual allegations related to scope 
of employment. Presently, Plaintiff’s sole allegation in his Complaint that Mr. Cowan was 
within the scope of his em ployment with the USDA when the co llision occurred is 
conclusory. 
Upon consideration, the Court finds that Plaintiff has not plausibly alleged that Mr. 
Cowan was acting in the scope of his employment with the federal government at the time 
of the collision. Defendant’s motion to dismiss is granted on this point. However, the Court 

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anticipates that Plaintiff may be able to supplement the a llegations of his Complaint to 
sufficiently state a FTCA claim, and the Cour t grants Plaintiff leav e to file an amended 
complaint to address this deficiency. 
CONCLUSION 
 For these reasons, Defendant’s Motion to Dismiss with Brief in Support [Doc. 
No. 7] is GRANTED in part and DENIED in part as set forth herein. Plaintiff may amend 
his Complaint within 21 days of the date of this Order. Should Plaintiff fail to amend his 
Complaint within 21 days, this action will be dismissed w ithout prejudice for lack of 
subject matter jurisdiction. 
IT IS SO ORDERED this 15th day of June, 2026. 
 
 
 
 
 
UNITED STATES DISTRICT JUDGE 

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