Chancey v. The United States of America
OPINION AND ORDER directing that plaintiff Ruby Chancey's motion to reinstate case to active docket (doc. no. 10 ) is denied, as further set out. Signed by Honorable Judge Myron H. Thompson on 12/31/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
RUBY CHANCEY, as personal
representative of the
estate of James L. Chancey,
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
OPINION AND ORDER
This cause is before the court on plaintiff Ruby
Chancey’s motion to reinstate her case.
named Dr. Richard L. Bendinger as a defendant in an
Alabama state court, alleging medical malpractice and
wrongful death in tort.
She alleged that her husband
died as a result of Bendinger’s alleged breach of care.
Because Bendinger was deemed a Public Health Service
employee for the purposes of the Federal Tort Claims
Act (FTCA), 28 U.S.C §§ 2671-2680, the United States
substituted itself as party defendant for Bendinger and
removed the case to federal court pursuant to 28 U.S.C
§§ 2679(d)(2) and 1346(b)(1) and 42 U.S.C. § 233.
The government argued, and Chancey did
not dispute, that Chancey had failed to exhaust her
any FTCA claim.
See 28 U.S.C. § 2675(a).
without prejudice, and closed the case.
with the Department of Health and Human Services, and
the claim was denied.
For the purposes of her FTCA
claim, this denial was final, and her administrative
remedies were now exhausted.
Chancey can bring her
claim to federal court in accordance with 28 U.S.C.
Chancey has now filed a motion to reinstate her
case in this court.
She seeks to reinstate her old
case, rather than file a new case, because “the only
would be paid by the Plaintiff.”
12), at 2.
Plf. Brief (doc. no.
She makes two arguments in support of her
motion: first, that the court’s previous judgment was
discussed below, Chancey’s reinstatement motion will be
The FTCA is a “specific, congressional exception to
the general rule of sovereign immunity.
It allows the
government to be sued by certain parties under certain
circumstances for particular tortious acts committed by
employees of the government.”
Suarez v. United States,
sovereign, ... the circumstances of its waiver must be
Under 28 U.S.C. § 2675(a), a federal court “may not
exercise jurisdiction over a suit under the FTCA unless
the claimant first files an administrative claim with
United States, 508 U.S. 106, 107 (1993) (“The Federal
Tort Claims Act (FTCA) provides that an ‘action shall
States for money damages’ unless the claimant has first
U.S.C. § 2675(a)).
Section 2675 “is more than a mere
statement of procedural niceties.
It requires that
jurisdiction must exist at the time the complaint is
Gregory v. Mitchell, 634 F.2d 199, 204 (5th
1. The Eleventh Circuit has adopted as precedent
all decisions of the former Fifth Circuit rendered
prior to October 1, 1981. See Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
subject-matter jurisdiction over the suit when it was
See Turner v. United States, 514 F.3d 1194,
1200 (11th Cir. 2008) (“Because the FTCA bars claimants
from bringing suit in federal court until they have
exhausted their administrative remedies, the district
Fed. R. Civ. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”).
Therefore, the court is not able to ‘reinstate’ the
case, as Chancey requests, because the court never had
subject-matter jurisdiction over the suit in the first
place, nor did it retain jurisdiction while Chancey
2. While at one time a circuit split existed as to
whether a prematurely filed FTCA claim may proceed in
the same case after administrative remedies were
exhausted, former Fifth Circuit precedent was clear
that administrative exhaustion is a “jurisdictional
jurisdictional defect, because the court never had, and
still does not have, power to hear the case.
federal courts are empowered to hear only cases for
jurisdiction, and once a court determines that there
has been no grant that covers a particular case, the
court’s sole remaining act is to dismiss the case for
lack of jurisdiction.”
Morrison v. Allstate Indemnity
Co., 228 F.3d 1255, 1261 (11th Cir. 2000).
prerequisite” and that district courts were not
“allow[ed]... to stay or hold in abeyance” the claim
pending exhaustion. Gregory, 634 F.2d at 204.
The Supreme Court resolved the split in McNeil,
holding that suits are “properly dismissed” when they
are filed in federal court prior to administrative
See McNeil, 508 U.S. at 110 (affirming
dismissal of an FTCA claim that had been prematurely
filed because, as the circuit court explained, “the
suit did not linger” while the plaintiff exhausted his
federal court generally.
Moreover, even if the court did retain jurisdiction
over the case, Chancey does not meet the procedural
requirements to reopen the case.
The court’s previous
Catlin v. United States, 324 U.S. 229, 233 (1945) (“A
litigation on the merits and leaves nothing for the
court to do but execute the judgment.”).
can move for relief from a final judgment pursuant to
request does not warrant relief under that rule.
Rule 60(b) sets out several circumstances in which
a court may relieve a party from a final judgment: (1)
mistake, inadvertence, surprise, or excusable neglect;
misrepresentation, or misconduct of the opposing party;
(4) the judgment is void; (5) the judgment has been
satisfied, reversed, or applying it prospectively is no
Fed. R. Civ. P. 60(b).
provisions (1)-(5) do not apply here, Chancey’s relief
must be sought pursuant to Rule 60(b)(6).
Chancey’s basis for relief--to avoid paying the filing
fee--is not sufficient to overcome the high bar set for
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th
extraordinary remedy which may be invoked only upon a
seeking relief has the burden of showing that absent
such relief, an extreme and unexpected hardship will
result.”) (internal citations omitted).
jurisdiction over the case and because there would be
no procedural ground on which the court could reopen
the case even if it did retain jurisdiction, Chancey’s
States, 508 U.S. at 110 (citing lower court).
extent that Chancey cannot pay the new filing fee, she
can seek leave to proceed in forma pauperis by filing a
motion to that effect along with her new complaint, and
attaching the sworn affidavit provided by the clerk of
court. See, e.g., Form AO 240, “Application to Proceed
df) at 4-5.
* * *
Chancey’s motion to reinstate case to active docket
(doc. no. 10) is denied.
DONE, this the 31st day of December, 2014.
/s/ Myron H. Thompson _
UNITED STATES DISTRICT JUDGE
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