Wang v. United States of America

Filing 13

ORDER: Defendant United States of America's Motion to Dismiss (Doc. # 6 ) is granted. This case is dismissed with prejudice. The Clerk is directed to terminate all pending motions and deadlines, and thereafter close the case. Signed by Judge Virginia M. Hernandez Covington on 11/7/2016. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DARSAN WANG,
Plaintiff,
v.

Case No. 8:16-cv-2050-T-33AAS

UNITED STATES OF AMERICA,
Defendant.
_______________________________/
ORDER
This cause is before the Court pursuant to Defendant
United States of America’s Motion to Dismiss (Doc. # 6), filed
on September 19, 2016. Pro se Plaintiff Darsan Wang failed to
file a response in opposition to the Motion pursuant to the
local rules and the time to do so has now passed. For the
reasons that follow, the Motion is granted.
I.

Background
The following factual allegations are taken as true from

Wang’s Complaint (Doc. # 1) for the purposes of resolving
this Motion to Dismiss. Stephens v. Dep’t of Health & Human
Servs., 901 F.2d 1571, 73 (11th Cir. 1990). From July of 1991,
until his retirement in 2011, Wang was an employee at the
United States

Department of Agriculture, Forest Service.

(Doc. # 1 at 4). As a federal employee, Wang was eligible for

life insurance through the Office of Personnel Management’s
(OPM) Federal Employees’ Group Life Insurance (FEGLI). (Id.)
On July 18, 1991, Wang elected “basic” life insurance coverage
by completing the FEGLI election form, Standard Form 2817.
(Id. at 4, 16). Then on August 24, 1992, Wang completed a new
SF-2817 to add Option B coverage, which increased his coverage
to five times his annual pay. (Id. at 4, 17). A human
resources officer then signed the new SF-2817, certifying
Wang’s

eligibility.

(Id.

at

17).

The

premiums

for

this

increased coverage were deducted from Wang’s pay from August
of 1992 until April of 2004 when Wang executed a third SF2817 to remove the additional insurance provided by Option B
and maintain only basic coverage. (Id. at 12).
On May 15, 2015, Wang filed a complaint against OPM and
FEGLI in the United States District Court for the Eastern
District of Wisconsin. (Id. at 1). Wang filed the claim
seeking money damages under the Federal Tort Claims Act, 28
U.S.C. § 2675(a). In his previous complaint, Wang contended
that he was ineligible to elect the increased

Option B

coverage because an employee can only elect to make changes
to their coverage within the first 60 days of employment. (Id.
at 4). Therefore, Wang alleges the agency was negligent in
allowing him to increase his level of coverage. (Id.) The
2

Eastern District of Wisconsin dismissed Wang’s claim without
prejudice

because

he

failed

to

exhaust

administrative

remedies under the FTCA before filing suit in federal court.
(Id. at 10).
Subsequently, in 2015, Wang moved to and became a legal
resident of Florida. (Id. at 1). Then on April 12, 2016, Wang
filed an administrative tort claim with the OPM. (Id. at 13).
On May 2, 2016, the agency denied Wang’s claim, finding that
he “failed to state a cognizable claim of action against OPM,
. . . upon which relief can be granted under the FTCA.” (Id.
at 14).
As a consequence of the administrative denial, Wang
filed this Complaint in this Court against the Government for
money

damages

increased
Dismiss,

under

premiums
the

the

and

Government

FTCA,

other

in

order

damages.

argues

that

to

In

recover

the

Wang’s

the

Motion

to

Complaint

is

subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(1),
(b)(2), (b)(4), (b)(5), and (b)(6). (Doc # 6 at 1).

The

Motion is unopposed and ready for the Court’s consideration.
II.

Legal Standard
Federal

courts

are

courts

of

limited

jurisdiction.

“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
3

zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001). The party invoking jurisdiction bears
the burden of demonstrating that the matter falls within the
court’s subject matter jurisdiction. Curry v. High Springs
Family Practice & Diagnosis Ctr., No. 1:08–cv–00008–MP–AK,
2009 WL 3163221, at *2 (N.D. Fla. Sept. 30, 2009).
Motions

to

dismiss

for

lack

of

subject

matter

jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1)

may

attack

jurisdiction

facially

or

factually.

Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir.
2003). When the jurisdictional attack is factual, as in the
instant case, the Court may look outside the four corners of
the complaint to determine if jurisdiction exists. Eaton v.
Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982). In
a factual attack, the presumption of truthfulness afforded to
a plaintiff under Rule 12(b)(6), Fed. R. Civ. P., does not
attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)
(citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990)).

4

The Court construes pro se pleadings liberally and holds
them to a less stringent standard than pleadings drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003) (quoting Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998)). This liberal construction “does not
give a court license to serve as de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to
sustain an action.” GJR Invs., Inc. v. Cty. of Escambia, 132
F.3d

1359,

1369

(11th

Cir.

1998)

(citation

omitted),

overruled in part on other grounds by Randall v. Scott, 610
F.3d 701, 709 (11th Cir. 2010). Additionally, pro se litigants
must follow all procedural rules. Id.
III.

Analysis
The Government moves to dismiss Wang’s Complaint on

three grounds. First, the Government asserts that this Court
lacks personal jurisdiction over the Government pursuant to
Rule 12(b)(2) because Wang's service of process on the United
States Attorney’s Office was insufficient pursuant to Rule
12(b)(4)–(5). Second, the Government asserts that the Court
should

dismiss

for

lack

of

subject

matter

jurisdiction

pursuant to Rule 12(b)(1) because Wang lacks Article III
standing. Third, the Government asserts that Wang’s claim is
well beyond any applicable statute of limitations.
5

As the Court finds that it lacks jurisdiction in this
case, the Court need not address the statute of limitations
of Wang’s claims.
A. Service of Process and Personal Jurisdiction
Rule 4(c), Fed. R. Civ. P., prescribes that the plaintiff
bears the responsibility of effecting service. “Service of
process

is

jurisdiction

a

jurisdictional
over

the

requirement:

person

of

a

a

court

defendant

lacks

when

that

defendant has not been served.” Pardazi v. Cullman Med. Ctr.,
896 F.2d 1313, 1317 (11th Cir. 1990). A defendant may assert
the defense of insufficient service of process by way of a
pre-answer motion. Fed. R. Civ. P. 12(b)(5).
The procedure for service of process upon the United
States is set forth in Rule 4(i), as follows:
(1) United States. To serve the United States, a
party must:(A)(i) deliver a copy of the summons and
of the complaint to the United States attorney for
the district where the action is brought—or to an
assistant United States attorney or clerical
employee whom the United States attorney designates
in a writing filed with the court clerk—or (ii)
send a copy of each by registered or certified mail
to the civil-process clerk at the United States
attorney's office; (B) send a copy of each by
registered or certified mail to the Attorney
General of the United States at Washington, D.C.;
and (C) if the action challenges an order of a
nonparty agency or officer of the United States,
send a copy of each by registered or certified mail
to the agency or officer.

6

Fed R. Civ. P. 4(i).
The Government asserts that Wang failed to properly
serve the U.S. Attorney’s Office because Wang did not obtain
issuance of a summons from the Clerk as to the Government,
meaning he could not have sent a copy to the Government. (Doc
# 6 at 22). As the Government notes, the docket indicates
that Wang did not acquire a summons in accordance with Rule
4(b). (Doc # 6 at 21). Next, the Government claims the service
of the Complaint itself was insufficient. (Id. at 22) In its
Motion, the Government states that Wang served the U.S.
Attorney’s Office with a draft of his Complaint prior to
filing the lawsuit, but never properly served a copy on the
U.S. Attorney’s Office after the lawsuit was filed. (Id.)
Therefore, Wang did not effect valid service of process
on the U.S. Attorney General under Rule 4(i). Consequently,
this Court lacks personal jurisdiction over the Government
and

the

Motion

to

Dismiss

is

granted

pursuant

to

Rule

12(b)(4)–(5) and Rule 12(b)(2).
If a defendant is not served within the time limit
prescribed in Rule 4(m), “the court——on motion or on its own
after

notice

without

to

prejudice

the

plaintiff——must

against

that

dismiss

defendant

or

the

action

order

that

service be made within a specified time.” Fed. R. Civ. P.
7

4(m). However, as the Court also finds that Wang lacks
standing to bring an FTCA claim, the case is dismissed with
prejudice.
B. Article III Standing
A party invoking federal jurisdiction, has the burden of
demonstrating his standing to sue. Mulhall v. UNITE HERE Local
355, 618 F.3d 1279, 1286 (11th Cir. 2010). “To do so, he must
show that: (1) he has suffered, or imminently will suffer, an
injury-in-fact; (2) the injury is fairly traceable to the
defendants’ conduct; and (3) a favorable judgment is likely
to redress the injury.” Id.
The

Government

asserts

that

Wang

lacks

Article

III

standing because he suffered no injury-in-fact. In order to
meet the first element for standing, a plaintiff “must have
suffered an injury-in-fact,” defined as “an invasion of a
legally

protected

interest

which

is

(a)

concrete

and

particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992).
Wang contends that he suffered an injury, in the form of
higher premium payments, when he elected to increase his life
insurance coverage because he was not eligible to do so.
Therefore, Wang asserts the agency for which he worked was
8

negligent in allowing him to increase his level of coverage.
(Doc

#

1

at

2–3).

Wang’s

argument

focuses

on

his

interpretation of the FEGLI policy election rule, which says
that a change in coverage can only occur in the “[f]irst 60
days as a new or newly eligible employee.” (Id. at 2).
However, Wang’s interpretation of the FEGLI election
rules is unsound. As stated in both the Government’s Motion
and the letter from the OPM, which Wang included with his
Complaint, there are three exceptions to the general 60-day
rule. (Doc. # 1 at 13; Doc. # 6 at 9). In its letter, OPM
lists the three opportunities that employees have to change
their election: “(1) during an Open Season; (2) by providing
medical information; or (3) by experiencing a life event.”
(Doc. # 1 at 13). When Wang increased his coverage, he
indicated code one on the FEGLI election form, SF-2817, which
reflects a change in coverage based on the employee providing
medical evidence to FEGLI. (Id. at 13, 17). This permitted
change is also codified in 5 C.F.R. § 870.506 (b)(2) which
states:
An employee who has Option B coverage of fewer than
five multiples of annual pay may increase the
number of multiples if at least 1 year has passed
since the effective date of his or her last election
of fewer than five multiples (including a reduction
in the number of multiples), and the employee

9

provides
satisfactory
insurability.

medical

evidence

of

Wang elected basic life insurance coverage on July 18, 1991
and then on August 24, 1992, more than a year after the
effective date of his last election, completed a new SF-2817
to add Option B coverage and increase his coverage to five
times his annual pay. (Doc # 1 at 12, 16, 17). The human
resources officer then signed the new SF-2817, certifying
Wang’s eligibility. (Id. at 17). Therefore, Wang was eligible
to increase his coverage, willingly did so by completing the
new SF-2817, and, as a result, “authorize[d] deductions to
pay the full cost” of the additional coverage. (Id.).
Wang’s change in coverage and premiums occurred because
he requested the increased coverage. Wang has failed to show
how allowing him to do so was an adverse action by the
Government or how it caused any concrete injury. The fact
that Wang paid higher premiums as a result of the voluntary
increase in coverage does not meet the definition of an
injury-in-fact.
eligible
instance,

to
if

Furthermore,

increase
he

did

his
not

even
life

provide

if

Wang

insurance
the

had

not

been

coverage—for

medical

evidence

required—the improper approval still benefitted Wang. While
the coverage remained in effect for twelve years, Wang’s

10

beneficiaries would have been able to receive the higher
death benefit if he had passed away despite the improper
approval.

See

5

C.F.R. § 870.104(a) (“If an individual

erroneously becomes insured, the coverage will remain in
effect

if

discovered,

at

least

and

if

2
the

years

pass

individual

before
has

the

paid

error

is

applicable

premiums during that time. . . .”).
Based upon the foregoing analysis, the Court finds that
Wang has not established an injury-in-fact. As this Court has
noted, “A plaintiff’s failure to establish one of the three
elements of Article III standing deprives federal courts of
jurisdiction to hear the plaintiff’s suit.” Winser v. Locke,
No. 8:11–cv–1283–T–33AEP, 2011 WL 6019933, at *8 (M.D. Fla.
Dec. 2, 2011) (quoting Delta Commercial Fisheries Ass'n v.
Gulf of Mexico Fishery Mgmt. Council, 364 F.3d 269, 273 (5th
Cir. 2004)). Thus, it is unnecessary to analyze the remaining
elements of standing. The Court finds that Wang lacks standing
and,

as

a

consequence,

this

Court

lacks

subject

matter

jurisdiction in this case. Therefore, Defendant's Motion to
Dismiss is granted pursuant to Rule 12(b)(1). See Fed. R.
Civ. P. 12(b)(1).

11

IV.

Conclusion
For

the

proceeding

reasons,

the

Court

grants

the

Government’s Motion to Dismiss (Doc. # 6). This case is
dismissed with prejudice for lack of standing pursuant to
Rule 12(b)(1).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant United States of America’s Motion to Dismiss
(Doc. # 6) is GRANTED.

(2)

This case is DISMISSED WITH PREJUDICE.

(3)

The Clerk is directed to terminate all pending motions
and deadlines, and thereafter CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th

day of November, 2016.

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