Hassay v. Department of the Army

Filing 12

ORDER DISMISSING ACTION WITHOUT LEAVE TO AMEND. Signed by Judge Joseph C. Spero on October 10, 2017. (jcslc1S, COURT STAFF) (Filed on 10/10/2017) (Additional attachment(s) added on 10/10/2017: # 1 Certificate/Proof of Service) (klhS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AARON MICHAEL HASSAY, Case No. 17-cv-03556-JCS Plaintiff, 8 v. ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND 9 10 DEPARTMENT OF THE ARMY, Defendant. United States District Court Northern District of California 11 12 13 Mr. Hassay, who is proceeding in forma pauperis, asserts negligence claims against the 14 Army under the Federal Tort Claims Act (FTCA) based on alleged errors in processing paperwork 15 related to a determination that he was medically unqualified for service. According to Mr. Hassay, 16 as a result of the error he lost certain disability benefits to which he would have been entitled. The 17 Court reviewed Mr. Hassay’s complaint under 28 U.S.C. § 1915 and concluded that Mr. Hassay’s 18 claims were barred under the Feres doctrine because the alleged wrongful conduct was “incident 19 to service.” See Docket No. 9 at 7-8. The Court noted in a footnote, however, that under the 20 Tucker Act, 28 U.S.C. § 1491(a), the United States has waived sovereign immunity in the Federal 21 Court of Claims as to challenges to the military’s administration of the Disability Evaluation 22 System under 10 U.S.C. § 1203. Id. at 8 n. 3. The Court explained that such claims are subject to 23 a six year limitation period but that that period does not begin to run until the plaintiff becomes 24 aware of the claim – a requirement that may be satisfied where the injury was “inherently 25 unknowable.” Id. The Court did not reach the question of whether Mr. Hassay’s allegations are 26 sufficient to state a claim under 10 U.S.C. § 1203 or whether such claims would be timely if filed 27 in the Federal Court of Claims. 28 The Court gave Mr. Hassay leave to amend his complaint and he filed an amended 1 complaint on September 11, 2017. In his amended complaint, Mr. Hassay asserts that his injury 2 was inherently unknowable because he was not educated about and had never heard of PTSD at 3 the time of his injury. He further alleges that the Army’s negligent conduct was concealed from 4 him and that he only learned about it when he filed a FOIA request in 2016. These allegations go 5 to the question of when any claim he may have under the Tucker Act and 10 U.S.C. § 1203 6 accrued and whether those claims are timely. Those are questions that can only be addressed in 7 the United States Court of Federal Claims, however, and not by this Court. If Mr. Hassay wishes 8 to file a complaint in that court, he will find information explaining how to file a complaint on that 9 court’s website, www.uscfc.uscourts.gov, which includes a link to a manual for pro se plaintiffs 10 United States District Court Northern District of California 11 (under the “Filing a Complaint” link) entitled A Guide for Self-Representation. Because Mr. Hassay has not cured the shortcomings in his complaint identified by the 12 Court in its prior order, this action is dismissed without prejudice. The Clerk is instructed to close 13 the file in this case and enter judgment in favor of Defendant on the basis that this Court lacks 14 jurisdiction over Mr. Hassay’s claims. 15 IT IS SO ORDERED. 16 17 18 Dated: October 10, 2017 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 19 20 21 22 23 24 25 26 27 28 2

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