United States District Court, N.D. Alabama, Southern Division
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 ...