Campeau et al v. United States of America
OPINION AND ORDER that the Defendant's 14 Motion to Dismiss the Complaint for lack of subject matter jurisdiction is DENIED. IT IS FURTHER ORDERED that Plaintiff's 17 Motion for Oral Argument on the Motion to Dismiss is DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 7/21/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter is before the Court on the United States of America’s
(“Defendant”) Motion to Dismiss the Complaint for lack of jurisdiction , and
Stephanie Campeau’s (“Plaintiff”) Motion for Oral Argument .
On August 7, 2010, Brian R. Campeau died at the Atlanta Department of
Veterans Affairs Medical Center (“VA Medical Center”) as a result of
complications from electroconvulsive treatment (“ECT”). On July 2, 2012,
lawyers for Brian R. Campeau’s mother, Maryellen C. Campeau
(“Administrator”), filed an administrative claim form (“the Form”) on her behalf as
the “Administrator of the Estate of Brian R. Campeau.” The Form described the
time, place, and manner of Brian R. Campeau’s death at the VA Medical Center in
a comprehensive manner, and stated in a section entitled “personal injury/wrongful
death” that negligence by the VA caused Brian Campeau’s death. Maryellen C.
Campeau, as the mother of the decedent and the Administrator of his estate, and
Stephanie L. Campeau, as the widow of Brian R. Campeau, were listed as
witnesses in connection with the claim described on the Form. The section entitled
“Amount of Claim” stated $5 million as the amount claimed for personal injury,
“N/A” was written underneath the wrongful death section, and the total amount of
the claim was stated as $5 million. Brewster R. Rawls signed the SF-95 Form, as
“attorney for [the] claimant.” Attached to the Form were attested authorizations of
legal representation signed by the Administrator and Stephanie Campeau, an Order
from the Probate Court of Fulton County appointing the Administrator of Brian R.
Campeau’s estate, and a letter from the attorney for the Administrator and
Stephanie Campeau to the Office of Region Counsel at the Department of Veterans
Affairs (“VA”) requesting confirmation of the employment status of certain health
care providers at the VA Medical Center.
On December 10, 2012, the Administrator’s attorney submitted an Amended
SF-95 Form (“the Amended Form”)1 that was identical in all respects to the Form,
except that the $5 million amount claimed on the Amended Form was listed under
the section entitled “wrongful death,” and the space for personal injury damages
was left blank.
On April 15, 2013, the VA denied the Administrator’s personal injury claim
on the merits, stating that its investigation “did not find any negligent or wrongful
act or omission on the part of a [VA] employee acting within the scope of his or
her employment that caused personal injury to, or resulted in the death of Brian
Campeau, at [the VA Medical Center] following elective ECT treatment.” See Ex.
D., attached to Pl.’s Response in Opp. to Mot. to Dismiss at 2.
38 C.F.R. § 14.604 provides that a claim presented to a federal agency that
provides written notification of the incident and a claim for damages, in a sum
certain, “may be amended by the claimant at any time prior to final [VA] action or
prior to the exercise of the claimant’s option under 28 U.S.C. 2675(a).” It further
provides that “upon the timely filing of an amendment to a pending claim, the
[VA] shall have 6 months in which to make a final disposition of the claim as
amended and the claimant’s option under 28 U.S.C. 2675(a) shall not accrue until
6 months after the filing of amendment.” Section 2675(a) provides that a wrongful
death or personal injury lawsuit cannot be brought against the United States unless
the claim was first presented to the appropriate federal agency, and the claim was
finally denied by the agency in writing and sent by certified or registered mail or
the agency failed to make a final disposition of a claim within six months after it
was filed thereby allowing the claimant to file suit in federal court.
In the April 15, 2013 letter, the VA also denied the wrongful death claims
asserted by the Administrator in the Form and Amended Form stating:
It is also our determination that “Maryellen C. Campeau, as
Administrator of the Estate of Brian R. Campeau” is not a proper
party claimant to file a wrongful death claim under Georgia law, and
therefore, to the extent that the claim dated July 2, 2012 attempted to
assert a wrongful death claim (noting that the claim form indicated
“Wrongful Death N/A”) or the later received claim dated December
10, 2012 asserted a wrongful death claim, denial is also made on the
grounds that same were filed by an individual who is not a proper
party claimant. Additionally, the wrongful death claim dated
December 10, 2012, and received by VA on December 13, 2012, is
denied as untimely, and barred by the two year statute of limitations
applicable to FTCA claims.
On April 23, 2013, Plaintiff’s attorney wrote a letter to the VA, and enclosed
a second amended SF-95 Form (“the Second Amended Form”). The letter stated
that since the VA did not address the merits of Stephanie Campeau’s wrongful
death claim, in her capacity as Brian R. Campeau’s spouse, “our understanding is
there has been no final disposition as to [her] claim as there has not been any final
agency action regarding that claim and we have not exercised our option to file suit
pursuant to 28 U.S.C. § 2675(a). For this reason, the claim remains pending and
amendable.” The Second Amended Form was identical to the Amended Form,
except that Stephanie Campeau was listed as the claimant.
On May 17, 2013, the VA acknowledged receipt of the Plaintiff’s Second
Amended Form, and concluded to treat it as a “new claim.” On May 22, 2013,
Plaintiff’s attorney sent another letter to the VA disputing the VA’s
characterization of the Second Amended Form as “new,” and stating that the April
23, 2013 submission, should be treated as an amendment to the Form filed on
behalf of the Administrator on July 2, 2012.
On November 7, 2013, Plaintiff and the Administrator filed a two (2) count
Complaint against the Defendant. In it, they alleged that Brian R. Campeau’s
death was proximately caused by the negligent medical care provided to him at the
VA Medical Center. In Count I of the Complaint, the Administrator asserted a
survival action on behalf of the estate seeking $1 million in compensation for (i)
the extreme pain and suffering suffered by Brian R. Campeau prior to his death,
(ii) funeral and burial expenses, and (iii) any other damages caused by the
Defendant’s alleged negligence. In Count II of the Complaint, Stephanie Campeau
asserted a wrongful death claim seeking $4 million in compensation for the “full
value” of Brian R. Campeau’s life, including pecuniary and intangible losses that
proximately resulted from his death, and were caused by the Defendant’s alleged
On January 1, 2014, Defendant moved to dismiss the Complaint for lack of
subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure. Defendant argues that Plaintiff and the Administrator failed to comply
with the jurisdictional time limits prescribed by 28 U.S.C. § 2401(b). Defendant
specifically argues that the Administrator’s personal injury claim was untimely
because the VA denied the personal injury claim on April 15, 2013, and the
Administrator failed to file suit, within six months,2 after the claim was denied on
the merits. Section 2401(b) provides that a tort claim against the United States
“shall be forever barred” unless the claimant files suit within six months after the
date of final agency denial. On January 27, 2014, the Administrator voluntarily
dismissed her claim in this matter, and on January 28, 2014, the clerk terminated
the Administrator as a party in this case.3
Defendant also argues that Plaintiff’s wrongful death action should be
dismissed as untimely because she did not submit her claim to the VA within two
years after the claim accrued. Defendant claims that the action was required, by
Section 2401(b), to be presented to the VA by August 7, 2012.
On January 27, 2014, Plaintiff replied to the Defendant’s Motion to Dismiss,
The filing deadline, according to Defendant, was October 15, 2013.
The Defendant’s Motion to Dismiss the Administrator’s claim is DENIED AS
MOOT because she is no longer a party to this action.
arguing that the Form filed on behalf of the Administrator on July 2, 2012, was
timely, and preserved both the Administrator’s personal injury claim asserted on
behalf of the estate, and the Plaintiff’s wrongful death action as the surviving
spouse of Brian R. Campeau. Also on January 27, 2014, Plaintiff filed her Motion
for Oral Argument on the Defendant’s Motion to Dismiss, asserting that
Defendant’s Motion raises disputed factual issues regarding the Court’s
jurisdiction. On February 14, 2014, the Defendant filed its reply in support of its
Motion to Dismiss, and opposed the Plaintiff’s Motion for Oral Argument. On
February 28, 2014, Plaintiff filed her reply in support of her Motion for Oral
A federal court must dismiss a case if it determines that it lacks subject
matter jurisdiction. Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331 n.6
(11th Cir. 2001). When considering a motion to dismiss for failure to allege
federal subject-matter jurisdiction, the Court construes the Complaint in the light
most favorable to the Plaintiff and accepts as true the facts alleged in the
Complaint. See World Holdings, LLC v. Fed. Republic of Germany, 613 F.3d
1310, 1312 n.1 (11th Cir. 2010). For fact-based attacks on subject-matter
jurisdiction, facts outside the pleadings may be considered and the allegations in
the complaint are not required to be taken as true. See Odyssey Marine
Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169-70
(11th Cir. 2011). Here, the Defendant’s Motion to Dismiss is a factual attack on
the Court’s jurisdiction because it relies on extrinsic evidence. Morrison v.
Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). The Motion is properly
brought under Rule 12(b)(1) because it can be decided by the Court without
reference to the merits of Plaintiff’s wrongful death claim. Id. at 925.
Sovereign immunity shields the federal government from claims asserted
against it, and, in the absence of a waiver of the government’s sovereign immunity,
federal courts lack subject matter jurisdiction over claims asserted against the
federal government. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). A plaintiff
has the burden of demonstrating that the federal government has waived its
sovereign immunity regarding claims asserted against the government.
“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.” Turner ex rel. Turner v. U.S., 514 F.3d 1194,
1200 (11th Cir. 2008) (internal citations and quotation marks omitted). This
waiver “must be scrupulously observed, and not expanded, by the courts.” Id.
Under 28 U.S.C. § 2675(a), federal courts have jurisdiction over suits against the
United States only if the plaintiff “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.” Id. A plaintiff may
bring a lawsuit in federal court against the appropriate agency “once the claim has
been denied or six months after the claim has been filed [if a decision on the claim
is not made by the appropriate agency] . . . ” Free v. United States, 885 F.2d 840,
842 (11th Cir. 1989).
The claim filing requirement of Section 2675(a) is satisfied if the plaintiff
“(1) gave the appropriate agency written notice of the tort claim to enable the
agency to investigate; and (2) stated a sum certain as to the value of the claim.”
Orlando Helicopter Airways v. U.S., 75 F.3d 622, 625 (11th Cir. 1996) (quoting
Free, 885 F.2d at 842). The FTCA requires “each claim and each claimant [to]
meet the prerequisites for maintaining a suit against the government.” Turner, 514
F.3d at 1201 (internal citations and quotation marks omitted) (emphasis in
original). In cases that involve more than one claimant, “each claimant must
individually satisfy the jurisdictional prerequisite of filing a proper claim.” Id.
These statutory requirements are a prerequisite to the exercise of this Court’s
jurisdiction and cannot be waived. See U.S. v. Kubrick, 444 U.S. 111, 117-118
(1979); Dalrymple v. U.S., 460 F.3d 1318 (11th Cir. 2006).
The requirement to file an administrative claim against the VA for
negligence resulting in wrongful death, as a prerequisite to filing a lawsuit for such
injury, was addressed by the Eleventh Circuit in Brown v. United States, 838 F.2d
1157 (11th Cir. 1988). The reasoning in Brown is instructive here. In that case,
Brown had been treated in two VA facilities in Miami. Id. at 1158. He claimed
that doctors at both facilities were negligent and as a result he suffered personal
injury. Id. Brown filed his administrative claim under the FTCA and thus
exhausted his administrative remedies as required by Section 2675(a), and later
filed, in federal district court, his lawsuit against the VA facilities. Id. at 1158-59.
Brown died while the litigation was pending, and his attorney moved to substitute
his duly appointed personal representative as plaintiff in the action, and to amend
the complaint to assert an action for wrongful death under the Florida wrongful
death statute. Id.
The Government opposed the motion, contending that Brown’s personal
representative failed to satisfy the jurisdictional requirements of Section 2675(a).
Id. at 1158. The Eleventh Circuit disagreed that a new administrative claim was
required to be presented by the personal representative of Brown’s estate. Id. at
1161. The Eleventh Circuit first considered the purpose of the administrative
claim requirement stating: “the FTCA’s filing requirement is satisfied if the
claimant (1) gives the agency written notice of his or her claim sufficient to enable
the agency to investigate and (2) places a value on his or her claim.” Id. at 1160
(citing Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980)). The Eleventh
Circuit discussed the reasons for the requirement noting:
The congressional purposes of the administrative claim procedure are
to ease court congestion and avoid unnecessary litigation, while
making it possible for the Government to expedite the fair settlement
of tort claims asserted against the United States . . . By requiring this
notice, Congress sought to ensure that the agency is apprised of the
circumstances underlying the claim, so that the agency may conduct
an investigation and respond to the claimant by settlement or by
Id. (internal citations and quotation marks omitted). The Eleventh Circuit went on
to say that the “notice requirement does not require a claimant to enumerate each
theory of liability in the claim,” and that a “claim” is not synonymous with a “legal
cause of action.” Id. at 1161. The Court then held that the “claim filed by Charlie
Brown provided the VA with the facts necessary to conduct a full investigation of
the underlying circumstances,” and that “requiring the [representative] to exhaust
the administrative claim procedure again would serve no useful purpose. It is
unlikely that the agency would conduct a second investigation or otherwise act any
differently.” Id. Because the original negligence action filed by Charlie Brown
and the wrongful death action filed by his representative were “based on the same
injury in fact,” the Eleventh Circuit held that the district court properly exercised
subject matter jurisdiction in the case. Id; see also Combs v. United States, No. 2:
04-CV-306, 2008 WL 2278661, at *6 (E.D. Tenn. May 30, 2008); Robbins v.
United States, No. CIV03-1224PCT-JAT, 2006 WL 359948, at *8 (D. Ariz. Feb.
The holding and reasoning in Brown apply here. The Form submitted to the
VA on July 2, 2012, satisfies all of the statutory prerequisites of Section 2675(a).
The Form specifically asserted the claim that Brian R. Campeau suffered personal
injury and ultimately death as a result of the negligence of doctors at the VA
Medical Center. The claim was asserted in the specific amount of $5 million. This
was precisely the same claim and the same amount that was described in the
Amended and the Second Amended Forms. That is, this is not a case where a new,
different or independent claim was asserted by Stephanie Campeau or any other
person. This case simply involves the Plaintiff serving as a successor
representative of the claims asserted on behalf of Brian R. Campeau.
In Brown, the Eleventh Circuit held that even though a state law cause of
action for wrongful death is distinct from a personal injury claim, “liability of a
defendant in a wrongful death action is based on the negligent or wrongful act
which injured the decedent.” Brown, 838 F.2d at 1161 (citations omitted). As a
result, a personal representative of the decedent is not required to fill out a new
SF-95 Form because “while a different legal injury is suffered, both actions are
based on the same injury in fact.” Id. Only if a new injury was alleged is a
claimant required to submit a new SF-95 Form. Id. at 1161 n.9. A new and
different claim is not asserted by Stephanie Campeau. 4
The Form amply described the time, place, and manner of Brian Campeau’s
death at the VA Medical Center in a comprehensive manner, and stated in a section
entitled “personal injury/wrongful death” that VA negligence caused Brian
The Court concludes in its decision in this case that Brown does not conflict with
the Eleventh Circuit’s decision in Turner. The Eleventh Circuit held in Turner that
the failure to state the name of the claimants on the SF-95 form, and to specify the
individual amount of their claims on the form, precluded subject matter
jurisdiction. Turner, however, is a different case than this one because in Turner,
the plaintiffs alleged a new injury of which the federal agency did not have notice,
and thus the agency could not adequately investigate the nature of the new claim.
Turner, 514 F.3d at 1201. To the extent that there is a conflict between the panel
decisions in Turner and Brown, and the Court concludes that there is not, Brown is
controlling based on the “earliest case” rule, which “mean[s] [that] when circuit
authority is in conflict, [the court] should look to the line of authority containing
the earliest case, because a decision by a prior panel cannot be overturned by a
later panel.” Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003). In
short, the Court concludes that Turner concerned a case where new and different
claims were asserted after the required filing deadlines, thus interfering with the
agency’s ability to investigate and seek resolution of the claims ultimately asserted.
Campeau’s death. That form contained all the information that the VA needed to
be on notice of the potential theories of liability, and the facts upon which liability
could be asserted by a potential claimant, including Stephanie Campeau as her
husband’s representative. The Form adequately put the VA on notice of the claim
of alleged medical malpractice at the VA Medical Center that proximately caused
Brian R. Campeau’s death. Specifically, the Form stated that Brian R. Campeau
had died as a result of complications from ECT while he was under the care of
Defendant’s agents and employees as a result of their negligence. This claim is
cognizable under Georgia law, which recognizes wrongful death actions that
emanate from medical malpractice, and allows surviving decedents to bring
wrongful death claims based on the provision of negligent medical care. Clark v.
Singer, 298 S.E.2d 484, 486 (Ga. 1983).
On April 15, 2013, the VA denied the medical malpractice claim alleged in
the original and Amended Form on the merits, and concluded that its investigation
“did not find any negligent or wrongful act or omission on the part of a [VA]
employee acting within the scope of his or her employment that caused personal
injury to, or resulted in the death of Brian Campeau, at the [VA Medical Center]
following elective ECT treatment.” See Ex. D., attached to Pl.’s Response in Opp.
to Mot. to Dismiss at 2. This finding confirms that the VA had all of the
information required to investigate the claim, actually investigated the claim, and
denied it. It was upon this investigation that the VA denied that any of the
Defendant’s agents or employees had committed medical malpractice. See
Robbins v. United States, 2006 WL 359948, at *8 (applying Brown to allow the
beneficiaries to assert a wrongful death claim by relying on an administrative claim
form filed by the decedent, and noting that denial of the pending administrative
claim on the merits will moot “any lingering concern regarding this Court’s
The Form and the amendments to it stated a “sum certain” in the amount of
$5 million. The same $5 million amount was alleged in the Plaintiff’s Complaint,
although Plaintiff now seeks only wrongful death damages in the amount of $4
million, since the Administrator has voluntary dismissed the estate’s $1 million
claim for the decedent’s pain and suffering, mental anguish, funeral and burial
expenses and other nonmonetary damages. The $4 million amount claimed by
Plaintiff for Brian R. Campeau’s alleged wrongful death is thus less than the
amount in the claim forms, and the Complaint originally filed in this Court. The
reduction of the claimed amount stated in the “wrongful death” section of the Form
did not prejudice—and, in fact, benefitted—the Defendant, and Defendant cannot
assert that this reduction of the claimed amount precludes the conclusion that a
proper claim was filed. See Combs v. United States, at *6 (applying Brown to
allow the spouse and children of the decedent to bring a wrongful death action
based on an exhausted personal injury claim filed by the decedent, and concluding
that the agency was prejudiced in no way because the beneficiaries sought
damages “in an amount no greater than the amount originally sought on her
For all of the reasons discussed above, the Court concludes that the Form
“(1) gave the [VA] written notice of [Plaintiff’s wrongful death claim] to enable
the agency to investigate; and (2) stated a sum certain as to the value of the
[wrongful death claim].” Orlando Helicopter Airways, 75 F.3d at 625 (11th Cir.
1996) (quoting Free, 885 F.2d at 842).5
The Form was amended on December 10, 2010, to assert the claim by the
Administrator as one for wrongful death. On April 15, 2013, the VA denied the
claim on the merits, finding that the medical staff at the VA medical center was not
The Court notes that footnote 9 of the Eleventh Circuit’s Opinion in Brown does
not apply to this matter because Plaintiff seeks damages only for the “full value” of
Brian R. Campeau’s death, and Plaintiff has not asserted any derivative claims
arising from his death dependent on a different injury such as loss of consortium or
emotional distress. See Combs v. United States, 2008 WL 2278661, at *5-6
(dismissing the loss of consortium claim for failure to exhaust administrative
remedies, but denying the government’s motion to dismiss the wrongful death
claim asserted by the decedent’s surviving spouse and children). See also Kruger
v. United States, 686 F. Supp. 2d 1333, 1337 (N.D. Ga. 2010).
negligent, and was not the proximate cause of Brian R. Campeau’s death. It also
denied the wrongful death claim on the grounds that the Administrator was not a
proper party to assert the claim under Georgia law, and that the December 10,
2012, Amended claim was untimely filed. On April 23, 2013, Stephanie Campeau
was substituted as the party asserting the claim as Brian R. Campeau’s
representative, an action the VA stated on May 15, 2013, caused the original claim
to be deemed a new claim outside the limitations period, and upon which the VA
now claims that the Complaint filed on November 7, 2013, was untimely.
The Court rejects the VA’s hyper technical interpretation. See Brown, 838
F.2d at 116-61. The Form, the Amended Form, and the Second Amended Form all
assert the same claim. They do not add new claims, new legal theories, new facts
or new parties. The Court necessarily finds that the Complaint which was filed
after six months of the VA’s decision to deem the Second Amended Form filed on
April 23, 2013, to be a new claim, was timely filed and over which the Court has
subject matter jurisdiction. 6
The VA here was aware of the medical malpractice claim asserted in this
“The failure of an agency to make final disposition of a claim within six months
after it is filed shall, at the option of the claimant any time thereafter, be deemed a
final denial of the claim for purposes of . . . section [Section 2675(a)].” Burchfield
v. United States, 168 F.3d 1252, 1254 (11th Cir. 1999) (emphasis added).
action, the facts supporting the claim, and the total amount for the claim since July
2, 2012. The FTCA statutory prerequisites for filing a complaint in federal court
were met and this case should now proceed to be litigated.
The Defendant’s Motion to Dismiss the Complaint for lack of subject matter
jurisdiction is required to be denied.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Defendant’s Motion to Dismiss the
Complaint for lack of subject matter jurisdiction is DENIED .
IT IS FURTHER ORDERED that Plaintiff’s Motion for Oral Argument on
the Motion to Dismiss is DENIED AS MOOT .
SO ORDERED this 21st day of July, 2014.
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