Augustine v. U.S., No. 80-5472

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore KENNEDY, PREGERSON, and REINHARDT; REINHARDT
Citation704 F.2d 1074
Decision Date26 April 1983
Docket NumberNo. 80-5472
PartiesRichard AUGUSTINE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Page 1074

704 F.2d 1074
Richard AUGUSTINE, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 80-5472.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 12, 1981.
Decided April 26, 1983.

Page 1075

Gary E. Donahoe, Robbins & Green, P.A., Phoenix, Ariz., for plaintiff-appellant.

Paul A. Katz, Asst. U.S. Atty., Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before KENNEDY, PREGERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Plaintiff Richard Augustine brought an action for damages under the Federal Tort Claims Act (FTCA) 1 for the alleged malpractice of Air Force dental surgeons. The Government filed a motion to dismiss for lack of subject matter jurisdiction based on Augustine's alleged failure to comply in a timely manner with the administrative claim requirement of 28 U.S.C. Sec. 2401(b) (1976). 2 The district court granted the motion and dismissed the action. 3 We reverse.

Page 1076

I. FACTS

In September 1975, Augustine was examined by Lieutenant Colonel Wysocki, a United States Air Force dentist, for the purpose of having a dental plate constructed. An impression of Augustine's mouth was made at that time. When Augustine returned to Dr. Wysocki on October 14, 1975, Dr. Wysocki informed him that the partial plate could not be made until he had a bump on his upper left palate treated. Dr. Wysocki referred Augustine to Major Peter Allen, an Air Force oral surgeon, for an examination of the bump. Augustine testified in a deposition that at that time the bump was no bigger than a pinhead, that he experienced no pain unless pressure was applied to the area, and that it had been there for some time.

Dr. Allen examined Augustine on November 13, 1975. During the visit Dr. Allen examined the problem area, made a radiograph of Augustine's palate, and performed a needle aspiration on the bump. According to Augustine, Dr. Allen stated that he could not make a diagnosis at that time and told Augustine to return the next day.

Augustine stated that he returned to the base the next day as requested and that Dr. Allen again said that he did not know what the problem was. Augustine also stated that Dr. Allen did not perform any further tests, did not schedule an appointment for him at the Ear, Eye, Nose and Throat (EENT) clinic, and did not express any concern that the bump reflected a potentially serious medical problem. Augustine's medical records do not indicate this second visit to Dr. Allen, nor does the doctor recall such a visit. Augustine also testified that he made various unsuccessful attempts in November 1975, December 1975, January 1976, and February 1976 to get an appointment at the EENT clinic. The Government contends that Augustine did not seek further medical help until November of 1977.

In November 1977, Augustine told Dr. Gordon Young about the bump during a routine physical examination. Dr. Young referred Augustine to Dr. Nowak, who determined that the growth was cancerous. On November 16, 1977, Dr. Nowak operated on Augustine to remove the cancerous growth. In August 1980, Augustine underwent further surgery to remove additional cancerous material. It was discovered that Augustine had developed metastatic spread of the cancer.

Augustine filed his administrative claim on April 17, 1978, more than two years after the Air Force dentists allegedly failed to diagnose his condition. On December 14, 1978, Augustine filed his complaint under the Federal Tort Claims Act, 28 U.S.C. Sec. 2674 (1976). He sought damages for the alleged medical malpractice of the Air Force dentists based on their failure to do the following: (1) to diagnose the potential hazards and possible cancerous nature of the growth; (2) to treat properly the potential hazards and possible cancerous nature of the growth; (3) to explain to him the potential hazards of such growth; (4) to explain to him the possible cancerous nature of the growth; and (5) to place him in the care of someone having the expertise to treat and diagnose the growth properly.

The government answered the complaint on April 26, 1979. Thereafter, on March 20, 1980, it filed a motion to dismiss for lack of subject matter jurisdiction. The government alleged that Augustine had not timely complied with the administrative claim requirement of section 2401(b)--which requires that a claim be filed within two years after the "accrual" of the injury--and that such compliance is a prerequisite to the subject matter jurisdiction of federal courts in FTCA cases. In support of its motion to dismiss, the government relied on various statements made by Augustine in a deposition and an exhibit attached to the deposition. The government argued that the actions of the Air Force dentists were sufficient to put Augustine on notice of the seriousness of his condition and thus that

Page 1077

his claim accrued immediately upon the discovery of the bump by the Air Force dentists.

In response to the motion to dismiss, Augustine argued that the Air Force dentists were negligent in failing to advise him of the potential seriousness of the bump and in failing to arrange follow-up medical treatment. Augustine also argued that the government's reliance on material outside of the pleadings converted the motion to dismiss into a motion for summary judgment under the provisions of Rule 12(b).

The motion to dismiss was granted by the district court. Within ten days of the dismissal, Augustine filed a motion for reconsideration to which he attached the affidavit of Dr. Nowak, the doctor who discovered that the bump had developed into metastatic cancer. The motion for reconsideration was denied.

II. DISCUSSION

Timely compliance with section 2401(b) is a jurisdictional prerequisite to maintenance of a FTCA suit. Blain v. United States, 552 F.2d 289, 291 (9th Cir.1977). The defense of lack of subject matter jurisdiction cannot...

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735 practice notes
  • Pub. Lands For People Inc. v. United States Dep't of Agriculture, No. CIV. S-09-1750 LKK/JFM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 5, 2010
    ...regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983); Thornhill, 594 F.2d at 733. "In such circumstances '[n]o presumptive truthfulness attaches to plaintiff's allegat......
  • Plum Creek Timber Co., Inc. v. Trout Unlimited, No. CV02-365-C-EJL.
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    • United States District Courts. 9th Circuit. District of Idaho
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    ...jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) (citing Thornhill, 594 F.2d at 733). "[N]o presumptive truthfulness attaches to plaintiffs allegations, and the existe......
  • Gaede v. U.S. Forest Serv., CASE NO. CV F 12-0468 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...cert. denied, 493 U.S. 993, 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings......
  • Villarino v. Comm'r: Soc. Sec. Admin., CASE NO. CV F 12-1225 LJO BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 3, 2012
    ...cert. denied, 493 U.S. 993, 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings......
  • Request a trial to view additional results
731 cases
  • Pub. Lands For People Inc. v. United States Dep't of Agriculture, No. CIV. S-09-1750 LKK/JFM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 5, 2010
    ...regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983); Thornhill, 594 F.2d at 733. "In such circumstances '[n]o presumptive truthfulness attaches to plaintiff's allegations,......
  • Plum Creek Timber Co., Inc. v. Trout Unlimited, No. CV02-365-C-EJL.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • March 31, 2003
    ...regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) (citing Thornhill, 594 F.2d at 733). "[N]o presumptive truthfulness attaches to plaintiffs allegations, and the existe......
  • Gaede v. U.S. Forest Serv., CASE NO. CV F 12-0468 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...cert. denied, 493 U.S. 993, 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings to r......
  • Villarino v. Comm'r: Soc. Sec. Admin., CASE NO. CV F 12-1225 LJO BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 3, 2012
    ...cert. denied, 493 U.S. 993, 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings to r......
  • Request a trial to view additional results

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