Barnett v. Okeechobee Hosp.
| Citation | 283 F.3d 1232 |
| Decision Date | 25 February 2002 |
| Docket Number | No. 00-13222.,00-13222. |
| Parties | Charles BARNETT, Plaintiff-Appellant, v. OKEECHOBEE HOSPITAL d.b.a. Raulerson Hospital, Defendant-Appellee, Bernard Kruszel, M.D., Department of Veterans Affairs, an agency of the United States of America, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Anne Ruth Schultz, Laura Thomas Rivero, Lisa A. Hirsch, Miami, FL, for Defendants-Appellees.
Janis Brustares Keyser, Gay, Ramsey & Warren, P.A., West Palm Beach, FL, for Okeechobee Hosp.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT and WILSON, Circuit Judges, and RESTANI,* Judge.
In this case, Charles Barnett sued the U.S. Department of Veterans Affairs (the "VA") for medical malpractice under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 (1994).1 The district court dismissed Barnett's complaint, concluding that Barnett failed to comply with the notice requirements of 28 U.S.C. § 2675(a). In this appeal, he challenges the court's conclusion. We reverse.
On August 28, 1998, Scott Leeds, counsel for Charles Barnett, sent a letter by certified mail to "Department of Veterans Affairs, Office of Regional Counsel," expressing Barnett's intent "to initiate negligence litigation against [the] Veterans Administration Medical Center of Miami" for allegedly negligent treatment in July 1997 that led to the amputation of Barnett's lower right leg.2 Leeds indicated in his letter that it was being sent "pursuant to the requirements of Florida Statute § 766.106 and Rule 1.650 of the Florida Rules of Civil Procedure." In a response letter dated September 1, 1998, Steve McCormack, a staff attorney with the Office of Regional Counsel, informed Leeds, however, that "any and all claims of negligence involving medical care or treatment provided by employees of the Department of Veterans Affairs (VA), part of the executive branch of the United States government, are governed by the Federal Tort Claims Act (FTCA) rather than state law." Consequently, with his letter, McCormack enclosed a Standard Form 95 ("SF95") — which he described as "the appropriate method of filing an administrative tort claim against the VA" — with his letter.
Barnett filled out the SF95 and mailed it, along with a cover letter from Leeds dated September 8, 1998, to "Department of Veteran Affairs, VA Medical Center" using a postage-paid "business reply mail" envelope that McCormack had mailed to Leeds along with the SF95. Then, in October 1999 — over a year after the SF95 was mailed — Barnett filed a complaint in the Circuit Court of Okeechobee County, Florida against Okeechobee Hospital, Dr. Bernard Kruskel, and the VA, in which he certified that he had "complied fully with all of the requirements of the Federal Tort Claims Act vis-a-vis Defendant VA prior to filing this action." The case was removed to the district court on November 19, 1999.
On January 14, 2000, the VA filed a motion to dismiss, in which it asserted first, that "[a] tort claim against the United States is barred unless an administrative claim, in writing, was presented to the appropriate agency within two years of the date the claim accrued," and second, that Barnett failed to file such a claim. As support for the latter assertion, the VA submitted affidavits from K. Sue Meyer, the VA's Regional Counsel in Bay Pines, Florida, and Steve McCormack and Margaret Adams, two members of her staff. All three claimed that, other than the initial letter Leeds mailed to the Office of Regional Counsel on August 28, 1998, their office never received any other written communication from Barnett regarding an FTCA administrative claim — including the SF95 he purportedly mailed in September 1998. Consequently, the VA asked the district court to dismiss Barnett's suit for lack of subject matter jurisdiction.
On April 18, 2000, the district court granted the VA's motion and dismissed Barnett's complaint without prejudice.3 The court "granted [Barnett] ten (10) days in which to file an Amended Complaint together with documentation sufficient to support a finding that the appropriate notification of claim and sum certain was mailed to and received by the appropriate federal agency within the two year statute of limitations as required by 28 U.S.C. § 2675(a)." Barnett filed an amended complaint on April 28, 2000, in which he once again contended that he "complied with all of the conditions precedent and notice requirements set forth in the Federal Tort Claims Act necessary to bring this cause of action against Defendant VA." He posited two separate theories for this conclusion: first, that Leeds' August 28, 1998 Notice of Intent letter to the VA sufficed as administrative notice of his claim under 28 U.S.C. § 2675(a), and second, that Barnett "did send to Defendant VA a completed form 95 prior to the expiration of the two year limitation." To support this second contention, Barnett attached to his amended complaint the completed SF95 that he mailed, dated September 14, 1998; a cover letter that Leeds included with the SF95, dated September 8, 1998; and a copy of the postage-paid "business reply mail" envelope that Barnett used to mail the SF95.4
On May 19, 2000, the VA moved to dismiss the amended complaint for lack of subject matter jurisdiction. The VA argued that Barnett, in his amended complaint, "merely rel[ied] on the same arguments [for subject matter jurisdiction] previously stated in his Memorandum of Law in opposition to [its] original Motion to Dismiss the Complaint." The district court agreed. It found that Barnett "failed in his August 31, 1998 `Notice of Intent to Initiate Litigation' to place a value on his claim and to provide sufficient information from which the VA could establish the value of his claim" and "failed to attach any new documentation to his Amended Complaint to verify that a SF95 was ever actually mailed to and received by the [VA]." Consequently, on June 6, 2000, the district court dismissed Barnett's FTCA claim against the VA and remanded his remaining state law claims against Okeechobee Hospital and Dr. Kruszel to the state circuit court.
As we have noted elsewhere, "[t]he FTCA is a specific, congressional exception to the general rule of sovereign immunity [that] allows the government to be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government." Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994). As a result, courts must be careful to observe scrupulously the circumstances and conditions of this waiver. See id. One such condition, set forth in 28 U.S.C. § 2675(a), requires that the administrative agency being sued receive notice and an opportunity to resolve the dispute without litigation:
An action shall not be instituted 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 make final disposition of a claim within six months after it is filed 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). If the claim is not presented in writing to the agency within two years after it accrues, it is forever barred. 28 U.S.C. § 2401(b).
A claim is deemed to be presented "when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the accident." 28 C.F.R. § 14.2 (2001).5 Accordingly, Barnett must show either that his Notice of Intent letter met these two requirements — written notification and a claim for a sum certain — or that the VA received the SF95 he filled out. As we shall discuss, we find that Barnett fulfilled the prerequisites of 28 U.S.C. § 2675 via the latter approach — specifically, by creating a presumption, which the VA has failed to rebut, that the agency received his completed SF95.6
We cannot review the actions taken by Barnett to satisfy 28 U.S.C. § 2675 with a tabula rasa: We must first consider what deference, if any, we must give the order issued by the district court. As an initial step towards determining the order's weight, it is important to note that the district court must have dismissed Barnett's amended complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and not pursuant to Rule 12(b)(6), because the administrative notice requirement of 28 U.S.C. § 2765 "is jurisdictional and cannot be waived." Lykins v. Pointer Inc., 725 F.2d 645, 646 (11th Cir.1984); Employees Welfare Comm. v. Daws, 599 F.2d 1375, 1378 (5th Cir.1979). This distinction is important. When a defendant moves under 12(b)(6) to dismiss a complaint for failure to state a claim, the plaintiff is safeguarded by a presumption that the allegations in his complaint are true. A plaintiff does not necessarily have this same protection from a 12(b)(1) motion.
If the 12(b)(1) motion represents a facial attack on jurisdiction — that is, the facts as stated supposedly do not provide cause for federal jurisdiction — then the facts alleged by the plaintiff are given the same presumption of truthfulness as they would receive under a 12(b)(6) motion. See Williamson v. Tucker, 645 F.2d 404,...
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