DANIEL P. JORDAN, III, District Judge.
This case is before the Court on the motions of Defendant United States of America seeking dismissal of the named federal agencies and unnamed federal employee Defendants for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [110], and seeking dismissal for failure to exhaust administrative remedies or, in the alternative, summary judgment [114]. Plaintiff Carl Fox III, proceeding pro se, opposes the motion [129, 130, 131, 132]. The Court, having considered the parties' submissions and applicable authority, finds Defendant's motion to dismiss for lack of subject-matter jurisdiction is granted in part and denied in part, and Defendant's motion to dismiss for failure to exhaust administrative remedies or for summary judgment is granted in part and denied in part. Fox's Motion to Deny Defense's Docket No. 110 and 114 [132] is denied as moot.
Fox filed this action on February 25, 2010 [1] for claims arising, in part, from medical treatment he received at the Veterans' Administration Medical Center (VAMC) in Jackson, Mississippi.
Fox premises his claims on the Federal Tort Claims Act (FTCA); the United States Constitution; "U.S.C. title 18 Crimes and Criminal Practice"; "U.S.C. title 24 Hospitals and Asylums"; "U.S.C. title 38 Veterans' Benefits"; the Civil Rights Act of 1964; 42 U.S.C. § 1983; the Health Insurance Portability and Accountability Act (HIPAA); the Age Discrimination in Employment Act (ADEA); the Americans with Disabilities Act (ADA); the "Civil Rights Act of 1991 (Intentional Employment Discrimination)"; the Civil Rights of Institutionalized Persons Act; and the Rehabilitation Act of 1973. See "More Definite Statement" [86] at 77-78. After a status conference, the magistrate judge filed a Report and Recommendation concluding that Fox premised his claims on the FTCA, § 1983, the ADA and HIPAA. The Court adopted that recommendation, and all other claims are dismissed.
After the dismissal of some defendants earlier in these proceedings, the remaining defendants include the United States of America; several federal agencies, including the Department of Justice, the Veterans Administration, and the Veterans Administration Medical Center (VAMC) in Jackson, Mississippi; and several known and unknown VAMC employees. The United States now moves for dismissal of all FTCA claims against any defendant except the United States [110]. The United States further moves for dismissal of Fox's FTCA claims arising from events in 1998 and 2003 as time barred and those from 2009 for failure to administratively exhaust those claims. The United States filed these motions [110, 114] in March 2011. Because Plaintiff Fox failed to respond timely to these motions or seek more time to respond, the Court entered an Order to Show Cause [123] on July 28, 2011, ordering Fox either to respond to the motion or advise he intended to confess them. Fox responded to the motions and to the Order to Show Cause in the filings docketed at 129, 130, 131, and 132. While Fox clearly opposes the motions, he does not substantively address the United States's legal arguments. To the extent his responses seek more time to respond to Defendant's motions, the request is denied.
The United States argues that it is the only proper defendant under the Federal Tort Claims Act and seeks dismissal of the following federal agencies and unnamed federal employees who are currently defendants, arguing lack of subject-matter jurisdiction: the Veterans Administration; U.S. Department of Veterans Affairs; Veterans Administration, Washington, DC; Veterans Administration Medical Center, Jackson, Mississippi; Veterans Administration Medical Center, Birmingham, Alabama; "Unnamed Nasrala, Past Chief of Neurologists, VAMC, Jackson, MS"; "Unknown Defendant Chief of Staff (August, 1998)"; "Unknown Parties, V.A. Employees, VAMC, Jackson, MS"; "Unknown Physician, Past Chief of Cardiologist (1998)"; "Unknown Physician, Current Chief of Cardiologist, VAMC, Jackson, MS"; and "Unknown Physician, who sent Carl Fox home originally from the Emergency Room, around March 17, 2006." See Def.'s Mem. [111] at 1, 5.
The FTCA grants federal district courts "exclusive jurisdiction of civil actions on claims 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." 28 U.S.C. § 1346(b). The FTCA waives the United States' sovereign immunity from tort suits and is the exclusive remedy for damages arising from the tortious acts of federal agencies or their employees. McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998) (citing 28 U.S.C. §§ 2674, 2679). It is well settled that the United States, and not the responsible agency or employee, is the sole proper defendant in an FTCA action. Id. (citing Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954, 957 (5th Cir. 1991)); Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988). "[A]n FTCA claim against a federal agency or employee as opposed to the United States itself must be dismissed for want of jurisdiction." Galvin, 860 F.2d at 183 (citing Gregory v. Mitchell, 634 F.2d 199, 204-205 (5th Cir. 1981); Carr v. Veterans Admin., 522 F.2d 1355, 1356 (5th Cir. 1975)). Thus, the Court lacks subject-matter jurisdiction over Fox's FTCA claims against the named federal agencies and unnamed federal employee Defendants.
Though far from clear, Fox's Complaint [1] and his subsequent "More Definite Statement" filing [86] are liberally construed to include additional claims under the ADA, HIPAA, and § 1983. Report & Recommendation [90] at 3, adopted at Order [94]. The United States' motion [110] seeks dismissal of all named federal agencies and entities and unnamed federal employees without addressing Fox's non-FTCA claims. Accordingly, and out of caution, the motion is denied without prejudice with respect to non-FTCA claims included in Fox's pleadings.
The United States seeks dismissal of Fox's FTCA claims based on incidents allegedly occurring in 1998, 2003 and 2009, arguing Fox failed to file an administrative tort claim concerning these events in a timely manner.
28 U.S.C. § 2401(b). A claim is "presented in writing" to the appropriate federal agency when the agency "receives from a claimant . . . 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 incident." 28 C.F.R. § 14.2(a).
The requirement that an administrative claim be filed before bringing suit is jurisdictional:
28 U.S.C. § 2675(a); see Gregory, 634 F.2d at 203-04 ("The requirement of exhaustion of administrative review is a jurisdictional requisite to the filing of an action under the FTCA."). Thus, if a plaintiff files an FTCA claim in federal court prior to exhausting his administrative remedies, the court does not have subject-matter jurisdiction to hear that claim. Id. at 204; see also McAfee v. 5th Circuit Judges, 884 F.2d 221, 222-23 (5th Cir. 1989).
While no provision of the FTCA states when a cause of action accrues, a tort claim under the FTCA generally accrues at the time of a plaintiff's injury. Johnson v. United States, 460 F.3d 616, 621 (5th Cir. 2006) (citing United States v. Kubrick, 444 U.S. 111, 120 (1979)). For medical malpractice cases under the FTCA, however, the Supreme Court "adopted a `discovery rule' for claim accrual, under which the time starts to run when the plaintiff has the information necessary to discover `both his injury and its cause.'" Id. (quoting Kubrick, 444 U.S. at 120). "This is because, where the injury or its cause may not be manifested to the plaintiff until many years after the event, the tort action should not accrue, for statute of limitations purposes, until the plaintiff is put on notice of the wrong." Id. (citation and quotation marks omitted).
Incidents 1 through 9 in Fox's "More Definite Statement" occurred in 1998 and 2003. According to the Government, these claims were not presented to the appropriate federal agency within two years after the alleged conduct occurred, but were included instead in a claim Fox filed with the U.S. Department of Veterans Affairs in March 2007. See Def.'s Motion [114] Ex. A, Fox's SF-95 Claim for Damage, Injury or Death.
More precisely, Incidents 1 through 8 in Fox's More Definite Statement [86], concern events occurring in July and August 1998, leading up to and including his first stroke. See More Definite Statement [86] at 1-16. The injuries allegedly resulting from these events are of the sort that would have been apparent at the time they occurred, and there is no allegation suggesting Fox became aware of these alleged injuries or their cause at a later date. See id. at 7, 8 (alleging fear and distress as damages), 11-13 (alleging stroke occurred in August 1998 as a result of alleged medical malpractice). Fox's response does not suggest otherwise. Thus, any FTCA claim arising from these events appears to have accrued in 1998, and the inclusion of such claim in Fox's March 2007 submission to the VA was untimely.
Fox's claim concerning Incident 9, a 2003 visit to a VA ophthalmologist, is different. In the 2007 administrative claim submitted to the VA, Fox describes alleged malpractice in 2006, stating that the practitioner in 2006 should have been aware from his medical file that in 2003 there was "an anomaly regarded within my brain, showed both eyes identically small blanked." Def.'s Mot. [114] Ex. A at 7. Fox elaborates in his More Definite Statement:
More Definite Statement [86] at 16 (Incident 9). As damages from this incident, Fox alleges "[s]ubsequent second stroke," which allegedly occurred on March 17, 2006. Id. at 17. Fox comes back to the 2003 incident later in his description of the second stroke (Incident 12):
Id. at 24. And again in Incident 13—describing his admission to the hospital for his second stroke— "Why had the ophthalmologists, under obviously brain problem, helped me in about 2003 doing nothing?" Id. at 28.
In summary, Fox alleges that malpractice in 2003 contributed to his second stroke in 2006. The United States has not challenged the factual basis of Fox's claim, merely arguing that, as stated, a claim based on the 2003 events is untimely. Def.'s Mot. [114] at 4. Based on the Court's liberal construction of Fox's pleadings, it is unclear whether Fox had the information necessary to discover both his injury and its cause in 2003 for purposes of accrual, or whether any claim based on alleged malpractice in 2003 accrued later when the second stroke occurred.
The United States likewise seeks dismissal of any FTCA claims arising from events in 2009, for failure to file any writing with the appropriate agency in order to exhaust these claims, as required prior to filing suit in court.
The question is whether these letters were sufficient to exhaust his claims arising from the 2009 incident. The United States contends that Fox's attempted amendment was not effective because it lacked reference to a "sum certain" as required under 28 C.F.R. § 14.2(a). But if this is truly an amendment—and the Government does not suggest otherwise—then the procedures are found in 28 C.F.R. § 14.2(c), which does not include the sum-certain language found in § 14.2(a).
As the matter now stands, there are too many unresolved issues to grant the Motion to Dismiss. For example, the United States does not contest that this was an attempted amendment, but it is not clear that § 14.2(c) can be used to add new and discrete claims as opposed to amending existing claims. If it can, then the United States has not cited any authority holding that an amendment under § 14.2(c) would require disclosure of a sum certain. It also appears that the VA received and took some action on the purported amendment which begs the question whether notice was lacking. In light of these unanswered questions, the Court finds that the motion should be denied without prejudice. The Court expressly reserves the right to reexamine the issue.
To the extent that Fox alleges non-FTCA claims arising from 1998, 2003 or 2009, the United Staes does not address the timeliness of those claims or whether the exhaustion requirements, if any, are met for these claims. As a result, this Order is limited to any FTCA claims by Fox.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
