United States District Court, N.D. Alabama, Southern Division
December 16, 2014
VERONICA EDWARDS HARRIS, Plaintiff,
UNITED STATES OF AMERICA, Defendant
Veronica Edwards Harris, Plaintiff, Pro se, Bessemer, AL.
For United States, Defendant: Jason R Cheek, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Birmingham, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Veronica Edwards Harris (" Harris") initiated this action against the United States alleging a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). (Doc. 1). The United States moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. (Doc. 7). The motion is fully briefed and ripe for review. (Docs. 7 & 9). For the reasons stated below, the undersigned recommends the United States' motion to dismiss, (doc. 7), be GRANTED.
I. Standard of Review
Federal courts are courts of limited jurisdiction, with the power to hear only cases authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). Under Federal Rule of Civil Procedure 12(b)(1), a party may move the court to dismiss a case if the court lacks jurisdiction over the subject matter of the case. Even when a party does not assert a jurisdictional challenge, " a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking." Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). Simply put, a federal court is powerless to act beyond its constitutional or statutory grant of subject-matter jurisdiction. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Regardless of how the issue came before the court, a plaintiff, as the party invoking jurisdiction, bears the burden of establishing the court's subject-matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
A challenge to a court's subject matter jurisdiction may come by way of a facial attack or a factual attack:
Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.
Garcia v. Copenhaver, Bell & Assocs., M.D.s, 104 F.3d 1256, 1261 (11th Cir. 1997) (citations omitted).
Because the United States relies on the attached administrative tort claim Plaintiff submitted to the Department of Veterans Affairs, (doc. 7-2), and other documents, which are outside of the pleadings, this challenge to the Court's subject-matter jurisdiction is a factual attack. Under such an attack, " no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam) (citation omitted). Indeed, " [i]n the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists."  OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002); Motta v. United States, 717 F.3d 840, 844 (11th Cir. 2013).
II. Factual Background
Harris, a veteran, received medical care at the Veterans Affairs Center in Birmingham, Alabama. (Doc. 1). In her complaint, Plaintiff alleges that " [o]n or about September 3, 1999 . . . during a Physical Therapy appointment, . . . Defendant felt, caressed, touched, massaged . . . both of the Plaintiff's breast[s]." (Doc. 1 at 2, 4). Plaintiff next alleges that " on or about 1999 - 2000 during a mental health appointment . . . the Plaintiff report[ed] the incident to mental health providers." (Doc. 1 at 5). Plaintiff further alleges " [o]n or about July 2001 [or 2007] . . . Plaintiff submitted . . . the complaint to [the] Patient Advocate Department . . . ." (Doc. 1 at 5). Because the complaint in this action is hand-written, it is unclear whether Harris alleges she sent this complaint in 2001 or 2007. ( See id.). A diligent manual search of the Patient Advocate Department files revealed no record of any correspondence from Harris (or an authorized representative) dated July 2001 or July 2007, alleging she suffered inappropriate touching at the VA. (Doc. 7-3).
On July 24, 2012, Harris sent a letter to Geneva Robinson, VA Patient Advocate, regarding the alleged inappropriate touching. (Doc. 7-3). Although the letter explains Harris went to the mental health department for assistance at the time, she further explains since then she has " for over 10 years . . . held this in my heart, mind, soul, and body with little hope." (Id. at 5).
On June 26, 2013, over a decade after the alleged incident, the Department of Veterans Affairs received Harris's administrative tort claim. (Doc. 7-2). By letter dated July 29, 2014, counsel for the VA informed Harris her FTCA claim was being denied as time-barred because it was not filed within two years of its accrual. (Doc. 1 at 3).
The Federal Tort Claims Act (" FTCA") provides the exclusive remedy for recovery against the United States for common law torts committed by federal employees acting within the scope of employment. 28 U.S.C. § 1346(b). Federal district courts have " exclusive jurisdiction of civil actions" filed pursuant to the FTCA. Id. As a waiver of sovereign immunity, the FTCA must be " construed strictly in favor of the sovereign." United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).
The FTCA requires a plaintiff to meet several condition precedents before maintaining suit against the United States. This includes the FTCA mandate that " an action shall not be initiated upon a claim against the United States for money damages" unless the claimant first exhausts his or her administrative remedies by filing a tort claim with the agency which caused the alleged tort. 28 U.S.C. § 2675(a). It is well-settled that a plaintiff's failure to exhaust administrative remedies deprives the district court of subject-matter jurisdiction under the FTCA. E.g., Martinez v. Minnis, 257 Fed.Appx. 261, 263-64 (11th Cir. 2007); Lykins v. Pointer, Inc., 725 F.2d 645, 647 (11th Cir. 1984); Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981).
Additionally, the FTCA places a time limitation on when an administrative tort claim must be filed with the agency, stating " [a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues. . . ." 28 U.S.C. § 2401(b). The claim must be " 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). " When the sum certain is omitted, the administrative claim fails to meet the statutory prerequisite to maintaining a suit against the government and leaves the district court without jurisdiction to hear the case." Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994) (citing Tidd v. United States, 786 F.2d 1565, 1567 (11th Cir. 1986)). Because 28 U.S.C. § 2401 is a condition to the waiver of sovereign immunity, it constitutes a prerequisite to recovery and therefore an issue of subject-matter jurisdiction. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).
" Generally, an FTCA claim 'accrues' for purposes of the FTCA 'at the time of the plaintiff's injury.' More specifically, the claim 'accrues' when the plaintiff is 'armed with the facts about the harm done to him, [and] can protect [her]self by seeking advice . . . .'" Trupei v. U.S. Dept. of Justice, 239 Fed.Appx. 489, 492 (11th Cir. 2007) (citations omitted). Plaintiff alleges the inappropriate touching occurred on or about September 3, 1999. (Doc. 1 at 2, 4). At this time, she knew or had reason to know the alleged tortious injury had occurred. Therefore, Harris must have presented her FTCA claim, within the meaning of 28 U.S.C. § 2401(b), before approximately September 3, 2001.
Harris's allegations regarding reporting the incident " on or about 1999-2000" do not meet the requirements of § 2401(b) because, inter alia, there is no allegation or evidence this was in writing or included a claim for a sum certain. Harris next alleges she submitted a complaint via certified mail to the patient advocate in either July 2001 or July 2007. (Doc. 1 at 5). Assuming Harris alleges she sent this complaint in July 2001,  there is no record of this complaint and there is a declaration from the patient advocate stating she found no such complaint in the department records. (Doc. 7-3). Furthermore, even if the undersigned were to assume everything Harris alleges is true, she fails to allege or establish the complaint included the required claim for money damages in sum certain. ( See docs. 1 & 9). Without this, Harris fails to demonstrate she timely satisfied the FTCA's administrative tort claim prerequisite to suit. As a result, this Court lacks subject-matter jurisdiction,  and this action is due to be dismissed.
There are no other jurisdictional grounds for this action. Harris lists 42 U.S.C. § 1343 and 42 U.S.C. § 1983 at the top of her complaint, presumably as bases for her claim. ( See doc. 1 at 1). Although 42 U.S.C. § 1343 is not a valid statute in the current U.S. Code, she may be attempting to refer to 28 U.S.C. § 1343, which provides district courts with jurisdiction over certain civil rights matters. Harris cannot sue the United States under this provision because it does not waive the United States' sovereign immunity. Aloupis v. United States, 149 Fed.Appx. 889, 891 (11th Cir. 2005). As to 42 U.S.C. § 1983, this is a substantive statute, not one conferring jurisdiction. Hagans v. Lavine, 415 U.S. 528, 535, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Moreover, the United States is not a " person" and cannot be sued under § 1983. See Hoffman v. HUD, 519 F.2d 1160, 1165 (5th Cir. 1975). Accordingly, any alleged civil rights claims are also due to be dismissed.
Based on the foregoing, the undersigned RECOMMENDS the United States' motion to dismiss, (doc. 7), be GRANTED and this action be DISMISSED WITH PREJUDICE.
V. Notice of Right to Object
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b)(2), Fed. R. Civ. P., any party may file specific written objections to this report and recommendation within fourteen (14) days from the date it is filed in the office of the Clerk. Failure to file written objections to the proposed findings and recommendations contained in this report and recommendation within fourteen (14) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal. Written objections shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.