Kraft v. Office of Chief Counsel North Atlantic District-North

Filing 17

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/13/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALFONSO DOUGLAS KRAFT,
Plaintiff,
Civil Action No. 16-1186-RGA

v.

OFFICE OF CHIEF COUNSEL
DIVISION OF VETERANS AFFAIRS
NORTH ATLANTIC DISTRICT-NORTH,:
Defendant.

Alfonso Douglas Kraft, Smyrna, Delaware; Pro Se Plaintiff.
David C. Weiss, United States Attorney and Laura D. Hatcher, Assistant United States
Attorney, District of Delaware, Wilmington, Delaware; Counsel for Defendant.

MEMORANDUM OPINION

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March
2018
Wilmington, Delaware

Plaintiff Alfonso Douglas Kraft, who proceeds pro se, filed this action on
December 14, 2016. (D.I. 1). Before the Court is Defendant's Motion for Summary
Judgment. 1 (D.I. 6). Briefing on the matter is complete.

BACKGROUND
On February 2, 2016, Plaintiff filed an action in this Court against the VA Hospital
in Elsmere, Delaware, Kraft v. VA Hosp., Civ. No. 16-060-SLR ("Civ. No. 16-060-SLR").
The Complaint, dated February 1, 2016, was filed on a Standard Form 95 - Claim for
Damage, Injury, or Death ("SF-95"), a form used to lodge an administrative tort claim
against a federal agency under the Federal Tort Claims Act ("FTCA"). Civ. No. 16-060SLR at D.I. 1. It alleged Plaintiff was injured on February 4, 2014, during his
hospitalization at the VA Hospital. Civ. No. 16-060-SLR was dismissed on May 31,
2016, after Plaintiff failed to comply with an order to file a responsive brief to the VA
Hospital's motion to dismiss. See Civ. No. 16-060-SLR at D.I. 7.
Plaintiff commenced this action on December 14, 2016. (D.I. 1). It appears that
Plaintiff reasserts his claim for injuries as a result of the February 4, 2014 incident at the
VA Hospital pursuant to the FTCA, similar to the claim raised in Civ. No. 16-060-SLR.

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On February 9, 2018, the Court granted Defendant's Motion to Dismiss as it related to
Plaintiff's claim for review of a change to, or denial in, veterans benefits. (D.1. 11, 12).
To the extent Plaintiff attempted to assert tort claims under the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b), 2674, 2675(a), the Court converted the Motion to Dismiss,
pursuant to Fed. R. Civ. P. 12(d), to a Motion for Summary Judgment given that
Defendant submitted matters outside the pleadings. (See D.I. 11 at p.6, D.I. 12). The
parties were given additional time to submit argument and evidence why summary
judgment should not be granted based on a time bar. (D.I. 12).

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In support of its motion, Defendant filed the declaration of Paul L. Kranick whose
duties include oversight and administration of tort claims filed against the United States
Department of Veterans Affairs with the Philadelphia Office of District Counsel. (D.I. 61). Kranick reviewed the agency's administrative tort claim files which include any
claims filed against the Wilmington VA Medical Center. (Id. at~ 3). Kranick states that
Plaintiff did not file an SF-95 for any alleged injury sustained at any time at the
Wilmington VA Medical Center prior to filing the complaint in Civ. No. 16-060-SLR. (Id.)
Nor did Plaintiff submit an SF-95 to the Department of Veterans Affairs once Civ. No.
16-060-SLR was dismissed on May 31, 2016. (Id.).
On February 10, 2016, the United States Attorney's Office for the District of
Delaware wrote to Plaintiff to advise him that it had learned from the Civ. No. 16-060SLR Court docket that Plaintiff had filed an SF-95 form on February 2, 2016, and that it
was docketed as a "Complaint." (D.I. 16 at Ex. A). The letter advised Plaintiff that he
could serve the SF-95 on the VA by delivering it to the VA hospital in Elsmere, if he
wished to initiate its administrative consideration of his claim, but that the SF-95 must
be timely presented. (Id.). On an unknown date, but sometime after Plaintiff
commenced Civ. No. 16-060-SLR on February 2, 2016, the United States Attorney's
Office for the District of Delaware forwarded the SF-95 form (dated February 1, 2016)
filed as the complaint in Civ. No. 16-060-SLR, to the United States Department of
Justice, Civil Division, Torts Branch, Federal Tort Claims Act Staff in Washington, D.C.
It received the SF-95 form on March 6, 2016. (D.I. 6-2). On April 7, 2016, the Civil
Division Torts Branch of the U.S. Department of Justice sent Plaintiff a letter informing

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him that his "administrative tort claim dated February 1, 2016, which [he] submitted to
the Department of Justice" had been forwarded to the Department of Veterans Affairs,
the appropriate agency. (D.I. 6-2). The Department of Veterans Affairs received the
letter on April 12, 2016. (See D.I. 6-1

at~

4; 6-2). On May 3, 2016, the Department of

Veterans Affairs acknowledged receipt of Plaintiff's administrative claim and advised
Plaintiff that it would be processed under the provisions of the FTCA. (D.I. 8 at p.22).
Plaintiff commenced this action on December 14, 2016.
STANDARDS OF LAW
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). When determining whether a genuine issue of
material fact exists, the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in that party's favor. Scott v.
Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
A dispute is "genuine" only if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 247-49
(1986).
DISCUSSION
Defendant moves for summary judgment on the grounds that the claim is timebarred if Plaintiff seeks to recover for injuries he sustained in February 2014 when he
was hospitalized at the VA Hospital. (D.I. 6). Plaintiff submitted his voluminous medical
record in opposition to Defendant's motion and argues that the documents are

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verification that the VA Elsmere did not investigate his case correctly and gave an
unjust ruling on his case. (0.1. 13, 14). Plaintiff states that he "sent all proper forms to
them and they lied." (Id.) Plaintiff's opposition does not address whether he timely
submitted his administrative claim.
To the extent Plaintiff renews the claim for injuries he sustained while
hospitalized at the VA Hospital in February 2014, the claim is governed by the FTCA,
which allows a plaintiff to seek damages from the United States for certain torts
committed by federal employees. See 28 U.S.C. §§ 1346(b), 2674, 2675(a). The FTCA
requires a claimant to first file an administrative claim with the relevant federal agency
and have his claim denied or deemed denied before the claimant is permitted to file suit
in court. See 28 U.S.C. §§ 2674, 2675(a). The FTCA provides that "a tort claim against
the United States shall be forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim accrues or 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.

§ 2401(b).
Plaintiff was injured on February 4, 2014 and, by statute, was required to present
his claim to the Department of Veterans Affairs on or before February 4, 2016. As set
forth in Kranick's declaration, Plaintiff never filed an SF-95 form for the injuries he
sustained at the VA Hospital in February 2014. (0.1. 6-1 ). Instead, Plaintiff filed a civil
action in this Court on February 2, 2016, using the SF-95 form. That SF-95 form was

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forwarded 2 by the United States Attorney's Office for the District of Delaware to the
United States Department of Justice, Civil Division, Torts Branch, Federal Tort Claims
Act Staff in Washington, D.C. who received the SF-95 form on March 6, 2016. In turn,
the Civil Division Torts Branch of the U.S. Department of Justice forwarded the form to
the Department of Veterans Affairs. It received the SF-95 form on April 12, 2016.
The undisputed evidence of record is that, rather than present his administrative
claim to the appropriate federal agency, or even to an inappropriate federal agency,
Plaintiff commenced a civil action in this Court. Plaintiff's failure to present his
administrative claim is fatal to this action. Under the FTCA, prior to bringing suit,
claimant must first timely present an administrative claim to the appropriate federal
agency and that claim must be fully exhausted. 28 U.S.C. § 1675(a); see also Deutsch
v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995). Plaintiff made no timely

administrative claim.
I cannot consider this Court to be a "federal agency." The judicial and legislative
branches do not fall within the scope of the term as used in the FTCA's implementing
regulations. See 28 C.F.R. §14.1 ("These regulations shall apply only to claims

The docket in Civ. No.16-060-SLR does not show any service on any party. It is
unclear from the docket in that case how anyone received notice of the lawsuit. It
appears, though, from a letter written on February 10, 2016, that the United States
Attorney's Office had learned of the lawsuit by that date. (D.I. 16 at Ex. A). The letter
suggests, but does not expressly state, that it was not because that Office had actually
been served with the lawsuit. There is a letter dated February 17, 2016, in which
Plaintiff suggests that the lawsuit was going to be served on the VA on February 3,
2016, but Plaintiff provided nothing, expressly or under oath, stating that any such
service was actually made. (Id. at Ex. C). Because there is nothing in this record and
Plaintiff did not file a return of service of summons in Civ. No. 16-060-SLR, the Court
cannot determine when, or if, the VA Hospital was served in Civ. No. 16-060-SLR.

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asserted under the Federal Tort Claims Act. The terms Federal agency and agency . ..
include the executive departments, the military departments, independent
establishments of the United States .... "). In the alternative, if I were to consider this
Court to be a federal agency, the Regulations provide that if an administrative claim is
presented to a federal agency whose activities did not give rise to the claim, that agency
shall transfer the claim forthwith to the appropriate agency if the agency can be
identified from the claim, or return the claim to the claimant if transfer is not feasible.

See 28 C.F.R. § 14.2(b)(1). Ahmed v. United States, 334 F. App'x 512, 513-14 (3d Cir.
2009). Under such circumstances a claim may be deemed "constructively filed." See

Greene v. United States, 872 F.2d 236, 237 (8th Cir. 1989); Bukala v. United States, 854
F.2d 201, 204 (?th Cir. 1988). "Courts permitting constructive filing in the FTCA context
have largely been resolving situations where the government's failure to transfer the
claim led to the claimant's failure to comply with the FTCA's statute of limitations."

Ahmed, 334 F. App'x at 514 (citing Bukala, 854 F.2d at 204 (permitting constructive
filing of complaint with wrong agency where agency did not transfer claim to appropriate
agency within the two-year statute of limitations)).
When construing the commencement of Civ. No. 16-060-SLR as a submission to
an improper agency, there is no evidence the government acted negligently in its
treatment of Plaintiff's claim. The record reflects that in an approximate one month
time-frame (during that time Civ. No. 16-060-SLR was filed and served upon the VA
Hospital), the United States Attorney's Office for the District of Delaware forwarded the
claim to the Civil Division Torts Branch of the U.S. Department of Justice who received

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it on March 6, 2016. By that time, the two year time-frame to file the administrative
claim had passed (i.e., February 4, 2016). "Where one agency of government attempts
in a dutiful and timely fashion to transfer a misdelivered claim to the appropriate federal
agency and despite due diligence the claim arrives at the proper agency after the two
year limitations period has run, the claim will be time-barred." Bukala, 854 F.2d at 204;
see also Hart v. Department of Labor ex rel. United States, 116 F.3d 1338, 1340 ( 1oth
Cir. 1997).
In addition, several appellate courts have determined that claimants who wait
until the "last minute" or the "eleventh hour" and file with the wrong agency cannot take
advantage of constructive filing. 3 See Motta ex rel. A.M. v. United States, 717 F.3d 840,
846 n.6 (11th Cir. 2013) (holding three days before was the "eleventh hour"); Hart, 116
F.3d at 1341 (holding "last possible day" was the "eleventh hour''); Bukala, 854 F.2d at
204 n.4; Flores v. United States,_ F. App'x _, 2018 WL 314876 (5th Cir. Jan. 5, 2018)
(four days before). Here, Plaintiff commenced Civ. No. 16-060-SLR on February 2,
2016, two days before the end of the two year time-frame to submit his administrative
claim. Numerous courts have held that claims filed with an inappropriate agency
insufficiently before the expiration of the limitations period were filed were time barred.
See Martinez v. Minnis, 257 F. App'x 261, 264 (11th Cir. 2007) (four days before);
Cronauer v. United States, 394 F. Supp. 2d 93, 101 (D.D.C. 2005) (day before);
Oquendo-Ayala v. United States, 30 F. Supp. 2d 193, 195-96 (D.P.R. 1998) (eight days
before); Johnson v. United States, 906 F. Supp. 1100, 1104 (S.D.W.Va. 1995) (last

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The United States Court of Appeals for the Third Circuit has not spoken to this issue.

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possible day); Massengale v. United States, 2006 WL 3220333, at *1-2 (D.D.C. Nov. 6,
2006) (twenty-three days before). In commencing Civ. No. 16-060-SLR in this Court a
mere two days before the expiration of the two year time-frame to submit an
administrative claim, Plaintiff took a risk that the claim would not be transferred to the
appropriate agency on time. When "a claimant waits until the eleventh hour to file ...
there is no compelling reason for allowing constructive filing." Hart, 116 F.3d at 1341.
Plaintiff's claim was untimely presented because it was not sent to an agency, much
less an improper agency, and it was filed too close to the end of the two year timeframe.
The undisputed facts leave no conclusion other than that Plaintiff failed to
present his administrative claim to the appropriate agency within two years of accrual of
his cause of action. The claim is barred, see 28 U.S.C. § 2401 (b), and, therefore, the
Court will grant Defendant's Motion for Summary Judgment as to the claims raised
under the FTCA.
CONCLUSION
Based upon the above discussion, the Court will grant Defendant's Motion for
Summary Judgment. (D.I. 6).
An appropriate order will be entered

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