Radford v. United States, Case No. 4:15 CV 1720 RWS
| Decision Date | 01 April 2016 |
| Docket Number | Case No. 4:15 CV 1720 RWS |
| Citation | 178 F.Supp.3d 784 |
| Parties | Ricky Warren Radford, et al., Plaintiffs, v. United States, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Ricky Warren Radford, St. Louis, MO, pro se.
Genevieve Rebecca Radford, St. Louis, MO, pro se.
Steven Kyle Luther, Office of U.S. Attorney, St. Louis, MO, for Defendants.
RODNEY W. SIPPEL
This matter is before me on the United States of America's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6)
for lack of jurisdiction and failure to state a claim.
Pro se plaintiff Ricky Warren Radford is a veteran and alleges a service-connected disability. He and his wife Genevieve Rebecca Radford allege that the Department of Veterans Affairs and its employees failed to adequately treat Mr. Radford, falsified and/or omitted information from his medical records in violation of his constitutional rights, and failed to properly diagnose him with traumatic brain injury
(TBI), leading to an improper determination that he was 70% disabled instead of 100% disabled. Mrs. Radford makes a separate claim for loss of consortium. Plaintiffs appear1 to allege violations of: the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.
; the Fourth, Fifth and Fourteenth Amendments; two criminal statutes (18 U.S.C. §§ 241 and 242 ); veterans' benefits statutes (38 U.S.C. §§ 1710, 1712A, and 7402 ); the Whistleblower Protection Program provisions in Section 1558 of the Affordable Care Act, 28 U.S.C. § 218c; various federal regulations and policy manuals; and, claims under several Missouri statutes. Plaintiffs have sued the United States of America and various other individual federal defendants,2 who may or may not have been properly served and who have not yet entered appearances in this case. However, as plaintiffs' claims against all defendants fail for the reasons set out below, the case will be dismissed in its entirety and I need not – and therefore do not – reach issues related to the sufficiency of service of process as to the individual defendants.
Federal Rule of Civil Procedure 12(b)(1)
provides that a party may move to dismiss an action based on lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) is appropriate when subject matter jurisdiction is successfully challenged on the face of the complaint or on the facts. Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir.1993). “Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction – its very power to hear the case – there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States , 918 F.2d 724, 730 (8th Cir.1990). Where the federal government seeks dismissal for lack of subject-matter jurisdiction, the burden of showing both a waiver of sovereign immunity and a grant of jurisdiction falls on the plaintiffs. V S Ltd. P's
hip v. Dep't of Housing and Urban Dev. , 235 F.3d 1109, 1112 (8th Cir.2000). The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal premises and deigned to fail, thereby sparing the litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles , 244 F.3d 623, 627 (8th Cir.2001). “To survive a motion to dismiss, a claim must be facially plausible, meaning that the ‘factual content...allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”’ Cole v. Homier Dist. Co., Inc. , 599 F.3d 856, 861 (8th Cir.2010) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). The Court must “accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” will not pass muster. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
The United States possesses sovereign immunity. United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)
. This immunity can be waived, but the waiver must be clear and unmistakable. United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). The Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. , was enacted by Congress as “a limited waiver of the United States's sovereign immunity, to permit persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court.” Mader v. United States , 654 F.3d 794, 797 (8th Cir.2011)
(en banc). “In relevant part, the FTCA's liability and jurisdiction-conferring language provides that federal district courts have 'exclusive jurisdiction' over claims against the United States for money damages for 'personal injury or death caused by the negligent or wrongful act or omission' of federal employees 'under certain circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”' Id. (quoting 28 U.S.C. § 1346(b)(1) ; 28 U.S.C. § 2674 ). “Thus, while the extent of the United States's liability under the FTCA is generally determined by reference to state law, the adjudicatory capacity over such claims is strictly limited to the various federal district courts.” Id. (internal quotation marks, citation, and alteration omitted). 28 U.S.C. § 2675(a) provides that “an [FTCA action] shall not be instituted upon a claim against the United States...unless the claimant shall first have presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.” The United States Supreme Court has recognized that “[t]he most natural reading of [§ 2675(a) ] indicated that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process.” McNeil v. United States , 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). “§ 2675(a)'s presentment requirement is a jurisdictional precondition to filing an FTCA suit in federal district court.” Mader , 654 F.3d at 805.
Here, Mr. Radford filed an administrative claim for the issues arising out of the amended complaint on September 28, 2015. The FTCA affords the Federal agency six months to review the claim and issue its response. 28 U.S.C. § 2675(a)
(). Plaintiffs filed this action on November 18, 2015, well before the six-month review period expired on March 26, 2016. As such, this Court lacks subject-matter jurisdiction over Mr. Radford's FTCA claims and they must be dismissed. That Mr. Radford now has a letter denying his administrative claim from the defendant United States [60] does not change this result, as the FTCA's exhaustion requirement is a “jurisdictional prerequisite to filing suit, and the Court is obligated to dismiss cases over which it lacks subject matter jurisdiction.” Taylor v. Clark , 821 F.Supp.2d 370, 374–75 (D.D.C.2011). “Under the FTCA, a court suit filed before exhaustion does not ripen but suit is barred.” Velez
–
States , 507 F.3d 717, 718 (1st Cir.2007) () (citing 28 U.S.C. § 2401(b) ). Mrs. Radford's loss of consortium claim must also be dismissed for lack of subject matter jurisdiction as she has not even filed an administrative claim. See
38 U.S.C. § 1710
(), § 1712A (), and § 7402 (qualifications of appointees); and, various federal regulations (38 C.F.R. §§ 3.103 and 3.105 ) and policy manuals (VA/DOD Clinicians Practice Guide and the VA/DOD Clinical Practice Guidelines for the Management of Concussion/Mild Traumatic Brain Injury ). These claims will be dismissed as plaintiffs have no private right of action under these statutes, regulations or guidebooks. See
Lundt v. Hodges , 627 F.Supp. 373, 375 (N.D.Iowa 1985) (); Abou
–
Hussein v. Gates , 657 F.Supp.2d 77, 81 (D.D.C.2009) (same); Armstrong v. Exceptional Child Center, Inc. , ––– U.S. ––––, 135 S.Ct. 1378, 1387, 191 L.Ed.2d 471 (2015) (); Syngenta Seeds, Inc. v. Bunge North America, Inc. , 773 F.3d 58, 63 (8th Cir.2014) () (citing Alexander v. Sandoval , 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ).
Plaintiffs cannot state a claim under the Whistleblower Protection Program provisions of the Affordable Care Act, 29 U.S.C. § 218c
, because it applies only to the discharge of an employee, and plaintiff...
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