Cooper et al v. United States of America

Filing 27

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/3/2014. (JLC)

FILED
2014 Dec-03 AM 10:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LARRY COOPER, et al,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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) Case No.: 2:13-CV-1372-VEH
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MEMORANDUM OPINION
This civil action was filed on July 23, 2013, by Larry Cooper and Minnie
Cooper. All allegations of the complaint are brought pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) (the “FTCA”), and arise out of medical treatment
Larry Cooper received at the Veteran’s Administration Medical Center in
Birmingham, Alabama. (Doc. 1). On October 7, 2013, the plaintiffs filed a “First
Amended Complaint” wherein they substituted Erma Cooper “in all places in which
the said [p]laintiff Minnie Cooper’s name appears in the Complaint.” (Doc. 4 at 1).
The case comes before the court on the defendant’s motion, filed pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss this case for lack of
subject matter jurisdiction. (Doc. 23). On September 30, 2014, the court entered an

order which advised the parties, including the pro se plaintiffs, of the filing of the
motion, and the requirement that the parties comply with this court’s “Exhibit B,”
which was attached to that order. (Doc. 24 at 1-7). That same order also advised the
plaintiffs that their responsive submissions should be filed no later than October 20,
2014. (Doc. 24 at 1). To date, the plaintiffs have filed nothing in response to the
motion.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the
dismissal of an action where the court finds that it does not have subject matter
jurisdiction. It has been noted that
[u]nder a Rule 12(b)(1) motion, a claim may be challenged both facially
and factually. McMaster v. United States, 177 F.3d 936, 940 (11th
Cir.1999 ). According to the Eleventh Circuit, facial attacks “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”. Id. (punctuation omitted). Factual attacks, however,
“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.” Id. (punctuation omitted). The
Eleventh Circuit has instructed that “[i]n response to a factual attack, a
court should dismiss the complaint for lack of subject matter jurisdiction
where the federal claim is clearly immaterial or insubstantial.” Id.
(punctuation omitted). In factual subject matter jurisdictional attacks,
this Court need not take the allegations in the complaint as true. Odyssey
Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d
1159, 1169 (11th Cir.2011) cert. denied, ––– U.S. ––––, 132 S.Ct. 2379,
182 L.Ed.2d 1051 and cert. denied, 132 S.Ct. 2380 (U.S.2012) and cert.
denied. Rather, the Court may “independently weight the facts and is not
constrained to view them in the light most favorable to the non-movant.”
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Id.
Bohenkamp v. JT Private Duty Home Care, LLC, No. 2:14-CV-366-FTM-38CM,
2014 WL 6722505, at *1-2 (M.D. Fla. Nov. 28, 2014). The instant motion is a factual
attack.
The Eleventh Circuit has explained:
“The FTCA is a specific, congressional exception” to the United States'
sovereign immunity for tort claims, under which the government may
“be sued by certain parties under certain circumstances for particular
tortious acts committed by employees of the government.” Suarez v.
United States, 22 F.3d 1064, 1065 (11th Cir.1994) (per curiam).
However, this waiver “must be scrupulously observed, and not
expanded, by the courts.” Id. A federal court does not have “jurisdiction
over a suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency . . . within two years
from the time the claim accrues ... accompanied by a claim for money
damages in a sum certain.” Dalrymple v. United States, 460 F.3d 1318,
1324 (11th Cir.2006) (citing 28 U.S.C. §§ 2675, 2401(b); 28 C.F.R. §
14.2(a)). . . . Because “[t]he FTCA bars claimants from bringing suit in
federal court until they have exhausted their administrative remedies,”
the district court lacks subject matter jurisdiction over prematurely filed
suits. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993).
Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008). Even
if the claim is timely presented to the appropriate administrative agency, it is still
“forever barred unless action is begun within six months after the date of mailing, by
certified or registered mail, of notice of final denial of the claim by the agency to
which it was presented.” 28 U.S.C.A. § 2401(b).
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The defendant has presented evidence, in the form of the declaration of
Kathryn Simpson, Deputy Assistant General Counsel for the United States
Department of Veterans Affairs, that states: “After review, Mr. Cooper’s claim was
. . . denied1 by this office on December 6, 2012. The denial letter was sent by
certified mail to Mr. Cooper at [REDACTED] Birmingham, Alabama 35206, the
address he provided to the VA.” (Doc. 23-2 at 2). The declaration says nothing about
when this letter was mailed. The declaration references the denial letter, which is
dated December 6, 2012 (doc. 23-5 at 2), and a photocopy of the envelope addressed
to the plaintiff (doc. 23-5 at 3), neither of which indicate the date of mailing.
However, the declaration also states that “[o]n January 11, 2013, the letter was
returned to the VA, designated ‘Return to Sender Unclaimed Unable to Forward.’”
(Doc. 23-2 at 3). Accordingly, it is clear that the letter was mailed on or before
January 11, 2013.
The declaration states that, because the certified mail letter was returned, it was
re-sent, by regular mail, as an enclosure to another letter which advised the plaintiff
that he had six months from the date of the original letter, to file a lawsuit. (Doc. 232 at 3 (citing 23-7 at 2)). The declaration also notes that “[n]o claim was received

1

The declaration actually states the “claim was again denied,” since at that point the
claim was denied on reconsideration.
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from Erma Cooper, and her name does not appear on the [claim] filed by Mr.
Cooper.” (Doc. 23-2 at 2).
This lawsuit was filed on July 23, 2013. (Doc. 1). Assuming that the first
denial letter was sent as late as January 11, 2013, the date it was returned as
unclaimed, the suit was still filed more than six months after the date the denial letter
was mailed. For that reason, and because Erma Cooper never filed an administrative
claim, this court lacks subject matter jurisdiction over the claims in this case. The
motion to dismiss is therefore due to be GRANTED. A final order will be entered.
DONE and ORDERED this 3rd day of December, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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