Wojton v. U.S., C-3-00-259.

• Decision Date: 04 March 2002
• Docket Number: No. C-3-00-259.,C-3-00-259.
• Citation: 199 F.Supp.2d 722
• Parties: Eugene WOJTON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Ohio

199 F.Supp.2d 722

Eugene WOJTON, Plaintiff, v. UNITED STATES of America, Defendant.

No. C-3-00-259.

United States District Court, S.D. Ohio, Western Division.

March 4, 2002.

COPYRIGHT MATERIAL OMITTED

Edward J. McNelis, III, Rawls & McNelis, Richmond, VA, Elias Namanworth, Cincinnati, OH, for plaintiff.

Pamela M. Stanek, United States Attorney's Office, Gregory Gordon, Lockhart, Assistant U.S. Attorney, Dayton, OH, for defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT (DOC. # 15), CONSIDERED AS A MOTION CHALLENGING SUBJECT MATTER JURISDICTION UNDER FED. R. CIV. P. 12(b)(1); CONFERENCE CALL SET TO DETERMINE VIABILITY OF APRIL 1, 2002, TRIAL DATE

RICE, Chief Judge.

Plaintiff Eugene Wojton is a veteran of World War II. In his Complaint (Doc. # 1), he set forth four negligence causes of action against Defendant United States Department of Veterans Affairs ("VA"). The VA now moves to dismiss, or, alternatively, for summary judgment. (See Doc. # 15.)

I. Factual Background

Wojton served in the Pacific Theatre during World War II. (Wojton Aff., attached as Ex. A to Pl.'s Memo. in Opp. (Doc. # 17), ¶ 2.) He is the recipient of two purple hearts. (Id.) In 1947, after his return from service, he sought treatment from the VA at a Veterans Administration Medical Center ("VAMC"), and was diagnosed with a "nervous condition," for which he received medication. (Id. ¶ 4.) Subsequently, in the first half of the 1950s, the VA diagnosed him with schizophrenia. (Id. ¶ 5.) Pursuant to his diagnosis, Wojton was prescribed various "anti-psychotic" medications. (Id.) His treatment for schizophrenia, including his medication therapy, extended up to October of 1996. (Id.) That month, Wojton was diagnosed by a private physician as having Post Traumatic Stress Disorder ("PTSD"), and was told that he did not have, nor had he ever had, schizophrenia. (Id. ¶ 6.) He was told the PTSD was the result of his experiences in the Pacific Theatre. (Reff Aff., attached as Ex. B to Doc. # 17, ¶ 2.) As a result, he was taken off the schizophrenia medication and prescribed something new for his PTSD. (Id.)

The private physician who treated Wojton, Dr. Robert Reff, states that the medications Wojton had been taking prior to visiting him in October of 1996 were consistent with those typically prescribed to persons being treated for schizophrenia, and would not have been proper for treating PTSD. (Reff Aff. ¶ 3.) Furthermore, it is Dr. Reff's opinion, to a reasonable degree of medical certainty, that Wojton's long-term treatment with the schizophrenia medication is evidence of a clear breach of the proper medical standard of care for someone with PTSD. (Id. ¶ 4.) Furthermore, said treatment, in Dr. Reff's opinion, prevented Wojton from enjoying a sufficient cognitive ability to appreciate the alleged misdiagnosis. (Id. ¶ 5.)

Wojton alleges that the VA committed four acts of negligence, those being: 1) its wrongful diagnosis of schizophrenia; 2) its wrongful prescription of schizophrenia medication; 3) its failure to diagnose PTSD; and 4) its failure to prescribe PTSD medications. He seeks damages on a number of bases, including loss of statutory benefits for the service-related infliction of PTSD.

The VA argues that, 1) Wojton's cause of action is barred by the statute of limitations, 2) it is precluded by 38 U.S.C. § 511 3) it is precluded by the doctrine of sovereign immunity, 4) the Court lacks subject matter jurisdiction generally, 5) it is precluded by 28 U.S.C. § 1346(d), and 6) it is precluded on account of his having failed to exhaust his administrative remedies. Having considered the gravamen of these alternative bases for dismissal, the Court finds that they all go to subject matter jurisdiction, and that it is proper to construe the Motion in all respects as one brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

For the reasons stated below, the VA's Motion is SUSTAINED IN PART and OVERRULED IN PART.

II. Analysis

In Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir.1990), the Sixth Circuit, at 325, laid out the procedural framework for motions brought under Rule 12(b)(1):

Rule 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties. A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. On the other hand, when a court reviews a complaint under a factual attack, as here, no presumptive truthfulness applies to the factual allegations. Such a factual attack on subject matter jurisdiction commonly has been referred to as a "speaking motion." See generally C. Wright & A. Miller, Federal Practice and Procedure § 1364, at 662-64 (West 1969). When facts presented to the district court give rise to a factual controversy, the district court must therefore weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist. In reviewing these speaking motions, a trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts. (Citations omitted.)

The National Life court went on to say that where the issue is whether the limitations period to file suit against the United States has run, it is a jurisdictional matter, and it is proper to treat a dismissal motion raising the issue as one coming under Rule 12(b)(1).¹ As is evident from the holding in that case, the fact that the Court may give consideration to certain evidence in order to make a determination as to its jurisdiction does not transform the VA's Motion into one for summary judgment.

A. Facial Attacks on Subject Matter Jurisdiction

Of the VA's six proffered grounds for dismissal, the Court finds that two can be characterized as a "facial attacks" on the Court's jurisdiction, and four can be characterized as "factual attacks." The Court will dispose of the two facial attacks, and then address the factual attacks.

To begin with, the VA's fourth argument for dismissal is that Wojton has failed to show, as is his burden, that this Court has subject matter jurisdiction to consider his claim. Its argument consists of a single boilerplate sentence proposing as much, and a citation to the National Life case for support. The Court construes this argument as a "facial attack" on the Court's subject matter jurisdiction.

Wojton's action is brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.² He avers that jurisdiction is proper under 28 U.S.C. § 1346(b), which grants the district courts jurisdiction to hear claims for damages against the United States arising from its alleged negligence.³ Rule 8 of the Federal Rules of Civil Procedure requires a plaintiff to set forth the grounds upon which this Court's jurisdiction exists. Wojton has done this. Taking the allegations in the Complaint as true, as National Life instructs it to do, the Court finds that the VA's fourth argument for dismissal is not well taken, and its Motion is OVERRULED with respect to this issue.

In its sixth argument, the VA moves to dismiss on the basis that Wojton's FTCA claim is precluded by 28 U.S.C. § 1346(d), a statute generally known as the Tucker Act. This is not the case. Section 1346(d) bars the district courts from taking jurisdiction of "any civil action or claim for a pension." In this instance, this argument also can be viewed as a facial attack on the Court's jurisdiction and can be resolved by looking at the face of Wojton's Complaint. As it is clear that Wojton is not seeking any pension benefits, it is equally clear that § 1346(d) is inapplicable.⁴ On this issue, too, the VA's Motion is OVERRULED.

B. Factual Attacks on Subject Matter Jurisdiction

The VA's primary argument is that Wojton's claim must fail because it was filed after the expiration of the limitations period. 28 U.S.C. § 2401(b) establishes a two-year limitations period for tort claims against the United States. Within that period of time, the claim must be presented "in writing to the appropriate Federal agency" which allegedly committed the tortious act. Id. Furthermore, if the claim is denied by the agency, the claimant has six months from the date of the mailing of the notice of denial to file in court. Id. Because the ability to file a tort suit against the United States arises by virtue of the Government's volitional waiver of its sovereign immunity, a failure to file such within the statutory period of limitations divests a district court of its subject matter jurisdiction. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Garrett v. United States, 640 F.2d 24, 26 (6th Cir.1981); National Life, supra; Johnson v. The Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999); Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990). Thus, as the Sixth Circuit did in National Life, the Court construes this limitations defense as a "factual attack" on the Court's subject matter jurisdiction.

Three matters must be discussed with respect to this issue. First, there is the question of whether Wojton filed a claim with the VA (i.e., "the appropriate Federal agency"). Second, provided he did file an appropriate administrative claim, there is the question of whether he filed his claim with the VA in a timely manner. Third, there is the question, not raised by parties, of whether Wojton filed his Complaint with this Court in a timely manner.

In his Complaint, Wojton alleges that he did file a claim with the VA, pursuant to 28 U.S.C. § 2675(a). (Compl. ¶ 2.) The VA...