Gibson v. U.S.A, CIVIL ACTION NO. 3:11-0001
| Decision Date | 22 March 2011 |
| Docket Number | CIVIL ACTION NO. 3:11-0001 |
| Parties | WILLIAM TODD GIBSON, Plaintiff, v. UNITED STATES OF AMERICA, RONALD D. BOWE, M.D., and ALLEN J. HOLMES, M.D., Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
This is an action filed under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, for alleged injuries caused by an employee of a community health center covered under the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233(g). Pending before the Court is the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction. [Doc. 6] For the following reasons, the Court GRANTS the motion, and DISMISSES the complaint against the United States.
The plaintiff William Todd Gibson ("Plaintiff) filed this action on January 3, 2011, claiming that he was injured by various acts of medical malpractice dating back to 2007. The named defendants in this case are the United States, Dr. Allen Holmes, and Dr. Ronald Bowe. Because this case has a history in this Court predating the instant action, the procedural facts warrant some discussion.
Plaintiff originally filed a civil action in the Circuit Court of Cabell County, West Virginia, alleging medical malpractice by Dr. Tamara Aman that occurred on November 29, 2007. The case was removed to this Court on December 18, 2009. See Gibson v. Bowe, No. 3:09-cv-01525 (S.D. W. Va. Dec. 18, 2009) (notice of removal) ("Gibson I"). On motion, the parties agreed that the United States should be substituted for Ms. Aman based on the fact that she had been acting within the scope of her employment as a federal employee under the United States Department of Health and Human Services ("DHHS") when the alleged injury occurred.1 See id. (agreed order).
That case was dismissed on January 5, 2010, after the parties submitted an agreed order stipulating that Plaintiff had failed to exhaust his administrative remedies for purposes of asserting a claim against the United States as the substituted party under the terms and conditions of §§ 1346(b) and 2671-2680 of the FTCA. See id. The Court then dismissed Gibson I for lack of subject matter jurisdiction, and remanded the case back to the Cabell County Circuit Court. Id.
Plaintiffs current action concerns the same facts as Gibson I—albeit with the United States substituted for Dr. Aman.2 After Gibson I was voluntarily dismissed, Plaintiff sent an SF-95 claim form to the DHHS by letter dated March 29, 2010. Def.'s Mot. to Dismiss Ex. 1, No. 6. The UnitedStates now claims that Plaintiff has failed to satisfy applicable post-dismissal procedural requirements in that he failed to properly present his administrative claim to the DHHS within 60 days after Gibson I was dismissed as required by the provisions of the FTCA. See 28 U.S.C. § 2679(d)(5).
The United States contends that Plaintiff failed to timely present his administrative tort claim to the appropriate governmental agency. It thus moves to dismiss this action for lack of subject matter jurisdiction.
Federal courts possess "only the jurisdiction authorized them by the United States Constitution and by federal statute." United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). Federal Rule of Civil Procedure 12(b)(1) permits a party to move for dismissal for lack of subject matter jurisdiction. In such cases, the Fourth Circuit has explained that the plaintiff has the burden of establishing a factual basis for jurisdiction. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In ruling on a 12(b)(1) motion, the court may consider the pleadings' allegations as jurisdictional evidence. Id. (citing Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558-59 (9th Cir. 1987)).
The Federal Employees Liability and Reform and Tort Compensation Act of 1988 (the "Westfall Act") created a mechanism for transforming tort claims against federal employees into claims against the United States under the FTCA. See 28 U.S.C. 2679. "It thus subjected them to the FTCA's requirement that claims be initially presented to the responsible agency within two years after the claim accrued, and filed in court within six months after denial by the agency." Mittlemanv. United States, 104 F.3d 410, 412 (D.C. Cir. 1997) (citing 28 U.S.C. §§ 2401(b), 2675(a)). The FTCA further contains a special provision protecting plaintiffs who fail to properly present an administrative claim prior to instituting a civil action where the United States is substituted as a defendant pursuant to 28 U.S.C. § 2679(d)(1) and the case is dismissed for failure to exhaust administrative remedies. Under these circumstances, the plaintiff is given a second chance to assert his claim. 28 U.S.C. § 2679(d)(5). Pertinently, § 2679(d)(5) provides:
Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if-
(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and
(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.
Plaintiff's injury allegedly occurred on November 29, 2007, but he ultimately failed to present a written claim to the DHHS until March 29, 2010, well over two years later. Because Plaintiff's original State lawsuit was filed on November 11, 2009, before the end of the two-year presentation period elapsed, and because the United States substituted itself as a party defendant and moved to dismiss the underlying action once it was removed to federal court, Plaintiff's claim qualifies for application of the savings clause in § 2679(d)(5). The United States contends that Plaintiff failed to satisfy the requirements of § 2679(d)(5), however, in that he did not formally present his administrative tort claim to the DHHS within 60 days of dismissal of Gibson I.
Presentment of an administrative claim under the FTCA to the appropriate governmentagency is a jurisdictional requirement. See McNeil v. United States, 508 U.S. 106, 111-12 (1993). In this case, Plaintiff had a second opportunity to present his administrative claim to the DHHS under the provisions in § 2679(d)(5). He was required to do this within 60 days of dismissal of Gibson I. Instead, he filed a formal SF-95 with the DHHS on March 29, 2010.3 As Gibson I was dismissed on January 5, 2010, Plaintiff's claim was over 20 days late.
Plaintiff offers two excuses. First, he contends that, pursuant to West Virginia law, he sent a Notice of Claim and a Certificate of Merit to Dr. Aman on September 22, 2009. He claims that these documents outlined the facts in his case, and gave the United States actual notice of his claim. Second, he argues that the United States clearly had written notice of the claim because it was aware of Gibson I. After all, he submits, it was the United States who removed the case from Cabell County Circuit Court and moved to substitute itself for Dr. Aman. For these reasons, Plaintiff contends that he essentially satisfied the requirements of claim "presentment, " and that in any event, the United States was not prejudiced by his conduct. The Court addresses the arguments in reverse order.
Plaintiff cites no authority for his first assertion that merely providing informal notice to the United States of a potential claim constitutes proper presentment, and the Court does not find this position persuasive.4 As noted, the law simply states that a plaintiff asserting a claim against theUnited States under the FTCA must exhaust his administrative remedies by formally presenting the claim to the United States prior to initiating a lawsuit in the district court. See 28 C.F.R. § 14.2(a); see also Henderson v. United States, 785 F.2d 121, 125 (4th Cir. 1986) (); Plyer v. United States, 900 F.2d 41, 42 (4th Cir. 1990). This permits the government agency the first opportunity to assess the claim internally. Bare allegations of injury in a civil complaint cannot adequately inform an agency of a claim's factual predicate.
The FTCA constitutes a limited waiver of the sovereign immunity of the United States. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). Because all sovereign immunity waivers are strictly construed, "it is the plaintiffs burden to show that an unequivocal waiver... exists" and that no exceptions apply. Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005). Adopting Plaintiff's argument would inhibit the underlying purpose behind the exhaustion requirement. As one court put it:
The FTCA states that "an action shall not be instituted upon a claim against the United States [or its employees]... unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675(a) (emphasis added). Applying this "unambiguous" language in McNeil v. United States, the Supreme Court held that exhaustion of administrative remedies is a prerequisite under the FTCA to any "invocation of the judicial process." 508 U.S. 106, 111-13, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993). Since administrative exhaustion must come "first, " the initiation of a judicial proceeding cannot simultaneously serve to present an administrative claim, as required by the FTCA.
Guzman v. Adeleye, No. 09-c-514, 2010 U.S. Dist. LEXIS 24402, at *11 (N.D. Ill. March 16, 2010). When Gibson I was before this Court, the Court dismissed it because it had no jurisdiction due to the fact that Plaintiff had not yet exhausted his...
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