Chancey v. The United States of America

Filing 14

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,
deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION NO.
1:13cv604-MHT
(WO)

OPINION AND ORDER
This cause is before the court on plaintiff Ruby
Chancey’s motion to reinstate her case.

Chancey first

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

under

42

U.S.C.

§

233(g)

and

a

federal

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

Chancey’s

claims

jurisdiction.

simultaneously
for

lack

moved
of

to

dismiss

subject-matter

The government argued, and Chancey did

not dispute, that Chancey had failed to exhaust her
administrative

remedies,

any FTCA claim.
granted

the

a

required

prerequisite

See 28 U.S.C. § 2675(a).

government’s

motion,

dismissed

for

This court
the

case

without prejudice, and closed the case.
Chancey

then

filed

an

administrative-tort

claim

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.
§ 2675(a).

2

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
thing

that

would

change

is

that

would be paid by the Plaintiff.”
12), at 2.

another

filing

fee

Plf. Brief (doc. no.

She makes two arguments in support of her

motion: first, that the court’s previous judgment was
not

final;

economy

and,

weigh

government

second,
against

opposes

that

interests

filing

the

a

motion.

new
For

of

judicial

case.
the

The
reasons

discussed below, Chancey’s reinstatement motion will be
denied.
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,

22

Cir.

F.3d

1064,

“[s]overeign

1065

immunity

(11th
can

be

1994).

waived

only

Because
by

the

sovereign, ... the circumstances of its waiver must be
3

scrupulously
courts.”

observed,

and

not

expanded,

by

the

Id.

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
the

appropriate

agency.”

Id.;

see

also

McNeil

v.

United States, 508 U.S. 106, 107 (1993) (“The Federal
Tort Claims Act (FTCA) provides that an ‘action shall
not

be

instituted

upon

a

claim

against

the

United

States for money damages’ unless the claimant has first
exhausted

his

administrative

U.S.C. § 2675(a)).

remedies.”)

(citing

28

Section 2675 “is more than a mere

statement of procedural niceties.

It requires that

jurisdiction must exist at the time the complaint is
filed.”
Cir.

Gregory v. Mitchell, 634 F.2d 199, 204 (5th

Jan.

1981).1

Because

this

court

lacked

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
banc).
4

subject-matter jurisdiction over the suit when it was
first

removed

dismissed.

to

federal

court,

it

was

properly

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
court

lacks

prematurely

subject

matter

filed

jurisdiction

suits.”);

see

over
also

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
pursued

her

administrative

claims.2

Exhausting

her

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
(continued...)
5

administrative

remedies

does

not

cure

the

jurisdictional defect, because the court never had, and
still does not have, power to hear the case.

“[L]ower

federal courts are empowered to hear only cases for
which

there

has

been

a

congressional

grant

of

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).
her

administrative

jurisdiction
Chancey

is

in
not

this

remedies
court;

precluded

does

rather,

from

filing

Exhausting

not
it

create

means

her

that

claim

in

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
exhaustion.
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
administrative remedies).
6

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.
judgment

was

final,

and

the

The court’s previous

case

was

closed.

See

Catlin v. United States, 324 U.S. 229, 233 (1945) (“A
‘final

decision’

generally

is

one

which

ends

the

litigation on the merits and leaves nothing for the
court to do but execute the judgment.”).

While parties

can move for relief from a final judgment pursuant to
Federal

Rule

of

Civil

Procedure

60(b),

Chancey’s

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;
(2)

newly

discovered

evidence;

(3)

fraud,

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
longer

equitable;

or

(6)
7

any

other

reason

that

justifies relief.

Fed. R. Civ. P. 60(b).

Because

provisions (1)-(5) do not apply here, Chancey’s relief
must be sought pursuant to Rule 60(b)(6).

However,

Chancey’s basis for relief--to avoid paying the filing
fee--is not sufficient to overcome the high bar set for
that

provision

within

the

Eleventh

Circuit.

See

Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th
Cir.

1984)

(“[R]elief

under

[Rule

60(b)(6)]

is

an

extraordinary remedy which may be invoked only upon a
showing

of

exceptional

circumstances.

The

party

seeking relief has the burden of showing that absent
such relief, an extreme and unexpected hardship will
result.”) (internal citations omitted).
Therefore,

because

the

court

does

not

have

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
motion

to

instead,

reinstate
begin

a

must

“fresh

be

denied.

suit.”

Chancey

McNeil

v.

States, 508 U.S. at 110 (citing lower court).
8

must,
United
To the

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
in

District

Court

without

Prepaying

Fees

or

Costs”

(www.almd.uscourts.gov/forms/generic_complaint_format.p
df) at 4-5.

* * *

Accordingly,

it

is

ORDERED

that

plaintiff

Ruby

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