Gable v. United States
| Decision Date | 21 March 2013 |
| Docket Number | Civil Action No. 12–1634 (RMC). |
| Parties | Richard Maurice GABLE, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Richard Maurice Gable, Mechanicsville, MD, pro se.
Peter Rolf Maier, Alan R. Burch, U.S. Attorney's Office, Washington, DC, for Defendant.
Plaintiff Richard Maurice Gable, proceeding pro se, is a Vietnam War veteran who alleges that the Veterans Administration Medical Center in Washington, D.C. was negligent in treating him for what should have been a routine replacement of his left knee. According to Mr. Gable, he contracted an infection and required additional surgeries, including amputation of his left leg without his consent. Mr. Gable filed suit in the United States Court of Federal Claims, which transferred the case to this Court. The United States moves to dismiss for lack of subject matter jurisdiction. For the following reason, the Court denies the motion to dismiss.
The Court of Federal Claims succinctly summarized the facts underlying Mr. Gable's claim as follows:
In January 2006, Mr. Richard M. Gable, a veteran of the Vietnam War, entered the Department of Veterans Affairs (“DVA”) Medical Center in Washington, D.C. (the “VA Medical Center”) for replacement of his left knee. After his initial knee surgery, Plaintiff “came down with a very serious staph infection, which placed him in critical care[.]”
On August 23, 2006, a DVA doctor amputated Plaintiff's left leg, allegedly without consent. Because of the alleged negligence, two additional surgeries were required. The VA Medical Center also allegedly was negligent in providing Plaintiff with medical care and necessary medication. Moreover, Plaintiff allegedly was “tied to a bed, drugged, and not on the proper mental health medication[;]” denied “a shower or bath for ten months and 19 days[;]” and “placed in a recovery room without wheelchair access.”
Plaintiff remained hospitalized until October 2006, when he was discharged from the VA Medical Center.
On September 16, 2008, Plaintiff filed an administrative claim with the DVA, pursuant to the Federal Tort Claims Act, Pub. L. No. 79–601, §§ 401–24, 60 Stat. 812 (1946) (“FTCA”). On September 30, 2011, the DVA [Office of General Counsel] sent Plaintiff a Response to Request for Reconsideration, denying his claims for a lack of evidence and as untimely, under 28 U.S.C. § 2401(b) (2006) ().
The September 30, 2011 Decision advised Plaintiff that: “a tort claim that is administratively denied may be presented to a Federal district court for judicial consideration” and “such a suit must be initiated ... within 6 months after the date of mailing of this notice of final denial.”
On March 29, 2012, Plaintiff filed a Complaint in the United States Court of Federal Claims that alleges claims of negligent infliction of severe emotional distress, medical malpractice, gross negligence, and unauthorized medical treatment. The Complaint also alleges a claim under the Sixth Amendment of the United States Constitution and a violation of the Americans with Disabilities Act of 1990, Pub. L. No. 101–336, 104 Stat. 327 (“ADA”). To redress these alleged injuries, the Complaint requests that the court award Plaintiff monetary damages in the amount of $5,000,000.00.
Gable v. United States, 106 Fed.Cl. 294, 295–96 (Fed.Cl.2012) ().
The United States filed a motion to dismiss in the Court of Federal Claims, arguingthat the Court of Federal Claims lacked subject matter jurisdiction over all of Mr. Gable's claims due to that court's limited jurisdiction under the Tucker Act, 28 U.S.C. § 1491. The United States also asserted that the Court of Federal Claims should not transfer the case to a United States District Court because Mr. Gable's “claims would be untimely under the FTCA's statute of limitations for tort actions against the United States.” Gable, 106 Fed.Cl. at 297. Mr. Gable did not respond to that motion. Id.
The Court of Federal Claims agreed that it lacked jurisdiction under the Tucker Act, id. at 297–98, but found that a transfer to this Court was in the interest of justice under 28 U.S.C. § 1631, id. at 298–300. In doing so, the Court of Federal Claims rejected the United States's argument that Mr. Gable's filing of a complaint in the Court of Federal Claims did not satisfy the requirement that a person aggrieved by an agency's denial of a tort claim file suit within six months. Id. at 299 (); see28 U.S.C. § 2401(b) ().
Importantly for purposes of the instant motion, the Court of Federal Claims declined to address the United States's argument that Mr. Gable's claim was untimely because—as the DVA had held—he had not sought administrative review from DVA within two years of his injury under 28 U.S.C. 2401(b). See Gable, 106 Fed.Cl. at 299 n. 4. The Court of Federal Claims opined:
The DVA's September 30, 2011 Decision determined that Plaintiff's FTCA claim was untimely under the two year statute of limitations set forth in 28 U.S.C. § 2401(b). It reasoned that Plaintiff was “fully informed of [his] medical situation” on September 5, 2006, but failed to file his FTCA claim until September 16, 2008, i.e., slightly more than two years later. The March 29, 2012 Complaint, however, appears to allege ongoing medical malpractice and gross negligence up until Plaintiff's October 2006 discharge from the VA Medical Center. Accordingly, the district court may determine that Plaintiff's administrative claim before the DVA stated a claim for injuries suffered during the two years preceding Plaintiff's September 16, 2008 administrative FTCA claim. See Cedars–Sinai Medical Center v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) . This court, however, is in no position to conduct such a jurisdictional inquiry since FTCA claims are clearly outside our jurisdiction. It is best left to a court with appropriate jurisdiction to engage in further jurisdictional fact finding if necessary.
Gable, 106 Fed.Cl. at 299 n. 4.
The case was docketed in this Court on October 2, 2012. See [Dkt. 1] (copy of Complaint and Court of Federal Claims records). At an initial scheduling conference held on January 4, 2013, counsel for the United States stated that it wished to file a motion to dismiss based on timeliness grounds before the case proceeded any further, and the Court granted that request. On January 23, 2013, the United States filed its Motion to Dismiss, arguing that this Court lacks subject matter jurisdiction because Mr. Gable's claims are barred by the statute of limitations for seeking review of a tort claim from an agency. [Dkt. 13]. On January 29, 2013, the Court apprised Mr. Gable of the consequences of his failure to respond. See Fox v. Strickland, 837 F.2d 507 (D.C.Cir.1988). Mr. Gable has filed three responses to the motion. See [Dkts. 15, 16, & 17]. The United States did not file a timely reply.
When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C.Cir.2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008).
The United States, construing Mr. Gable's Complaint to allege only a claim under the Federal Tort Claims Act, argues that “[i]t is undisputed that the injuries [Mr.] Gable alleges occurred no later than the end of August 2006” and that “[Mr.] Gable knew that the VA Medical Center staff had amputated his leg without permission on August 23, 2006 when the operation occurred.” Mot. Dismiss at 6; see also id. at 8 (). Because Mr. Gable “only filed his claim with the VA on September 28, 2008, 25 months later”—outside the jurisdictional two-year statute of limitations for FTCA claims under 28 U.S.C. § 2401(b)—the United States argues that this Court lacks subject matter jurisdiction. Mot. Dismiss at 6. The gravamen of Mr. Gable's responses to the United States is that, as the Court of Federal Claims noted, his “[m]edical treatment was still ongoing throughout October 2006,” meaning that he timely filed his claim with DVA on September 28, 2008. See, e.g., Pl. Opp. [Dkt. 17] at 2.
It is “axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,...
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