Tucker

MEMORANDUM *

The estate of Thomas Tucker appeals the dismissal of his complaint initially brought against Richard Thatcher, manager of a Forestry Service nursery near Boise, Idaho. The original complaint, filed in state court, alleged a state law tort claim. On removal, the United States argued that the Federal Tort Claims Act (FTCA) pre-empted the estate’s state law tort claim and filed a motion to certify, asserting that under the Federal Employees Liability Reform and Tort Compensation Act (FELTRCA), 28 U.S.C. § 2679 (d)(1), the government, rather than Thatcher, was the appropriate defendant. The government simultaneously filed a motion to dismiss the claim under both Federal Rule of Civil Procedure 12(b)(1) (lack of subject-matter jurisdiction), and Rule 12(b)(6) (failure to state a claim), because of Tucker’s failure to file a timely administrative claim under the FTCA. The estate then amended its complaint to include a claim against Thatcher under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) alleging a violation of Tucker’s right to substantive due process. Thatcher moved to dismiss the Bivens…