Chickaway v. United States of America
Filing
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ORDER granting 19 Defendant United States of America's Motion to Dismiss Edward Phillips, Natural Father of Brandon Phillips, Deceased for Failure to Exhaust Administrative Claims. Signed by District Judge Carlton W. Reeves on 07/08/2011 (WB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
WENDY CHICKAWAY, Individually and
as Administrator and Personal
Representative of the Estate of Brandon
Phillips, a Minor, and on Behalf of All
Wrongful Death Beneficiaries of Brandon
Phillips, Deceased, and EDWARD
PHILLIPS, Natural Father of Brandon
Phillips, Deceased
PLAINTIFFS
V.
CAUSE NO. 4:11-CV-00022-CWR-LRA
UNITED STATES OF AMERICA
DEFENDANT
ORDER
The above-styled matter is before the Court on the United States’ Motion to Dismiss
[Docket No. 19], which it raises against plaintiff Edward Phillips for his purported failure to
exhaust administrative remedies prior to pursuing the matter in court. After reviewing the parties’
briefs and considering all available governing authority, the Court has concluded that the motion
must be granted.
FACTS
According to the Amended Complaint [Docket No. 6] in this case, Brandon Phillips
(hereinafter “Brandon”) was 12 years old in April 2007 when he suffered a fall to his left side
during a basketball game. On April 5, 2007, complaining of pain to his left leg, Brandon visited
the Choctaw Health Center (hereinafter “CHC”), which the United States Department of Health
and Human Services owns and operates in Philadelphia, Mississippi. The CHC diagnosed
Brandon with a muscle strain, injected him with a pain reliever, and instructed Brandon to take
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Motrin and to apply ice.
Two days later, Brandon returned to the CHC complaining of severe pain and unable to
walk. His blood pressure had dropped significantly from his previous visit, and his white blood
cell count was elevated, but the CHC again sent Brandon home with instructions to take pain
relievers.
On April 8, 2007, Brandon was admitted to Neshoba County Hospital with difficulty
breathing and severe pain in his left hip. He was transferred to University Medical Center
(hereinafter “UMC”) in Jackson by ambulance, but not before the ambulance rerouted to Leake
Memorial Hospital to stabilize his deteriorating condition.
At UMC, Brandon was diagnosed with a septic hip and related ailments. After more than
two months in the hospital, Brandon died from multiple organ failure and sepsis syndrome on
June 12, 2007.
On December 19, 2008, Brandon’s mother, Wendy Chickaway (hereinafter
“Chickaway”), “individually and on behalf of the Estate of Brandon Phillips, and on behalf of
M.S., T.P., and T.T.,” filed administrative claims with the Department of Human Services. Am.
Complaint at 4. More than six months passed without a resolution to the claims, and on February
11, 2011, Chickaway filed suit against the United States of America individually and in her
capacity as “administrator and personal representative of the Estate of Brandon Phillips.”
Complaint [Docket No. 1] at 1. Chickaway later filed a First Amended Complaint on March 1,
2011.
That same day, Brandon’s natural father, Edward Phillips (hereinafter “Phillips”), moved
to intervene [Docket No. 8] as a plaintiff, arguing that he should be permitted to participate in the
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litigation because Mississippi law permits just one wrongful-death case per cause of action. Long
v. McKinney, 897 So. 2d 160, 174 (Miss. 2004). Neither Chickaway nor the Government
opposed Phillips’s motion. The magistrate judge granted that request by text order on March 23,
2011.
On June 13, 2011, the United States moved to dismiss Phillips’ claims [Docket No. 19]
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Specifically, the United States
argued that Phillips had failed to file an administrative claim with the Department of Health and
Human Services, thereby depriving the Court of subject-matter jurisdiction. See Motion to
Dismiss at 2. The United States further argued that Phillips had violated the two-year statute of
limitations by waiting for nearly four years to act on any potential cause of action.
Phillips responded [Docket No. 22] by contending that although he had not filed an
administrative claim and Chickaway’s claim had not included his name, Mississippi law
necessarily includes him, as Brandon’s natural father, among the child’s wrongful-death
beneficiaries. See Miss. Code Ann. 11-7-13. Therefore, according to Phillips, Chickaway’s
administrative claim on behalf of Brandon’s estate served to satisfy the administrative
requirement for Phillips and all other beneficiaries, thereby effectively excusing his failure to
submit a claim on his own account. Phillips Memorandum in Opposition to Motion to Dismiss
[Docket No. 23] at 2. With the exception of denying that his claim should be dismissed at timebarred, Phillips did not address the United States’ arguments regarding the statute of limitations.
Phillips Resp. in Opp. at 2.
ANALYSIS
Rule 12(b)(1) of the Federal Rules of Civil Procedure concerns the most fundamental
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requirement of a court’s authority: subject-matter jurisdiction, “the courts’ statutory or
constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
89 (1998). That requirement cannot be waived, see Clinton v. New York, 524 U.S. 417, 428
(1998), and therefore, an apparent absence of subject-matter jurisdiction permits only one course
of action: dismissal.
Title 28, Section 2675 of the United States Code permits no claim for money damages
against the United States to be instituted “unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been finally denied by the agency in
writing . . . .” 28 U.S.C. § 2675(a). Such a presentation is no mere procedural nicety; for claims
brought under the Federal Tort Claims Act, like the one at hand, the submission of an
administrative claim is “a jurisdictional prerequisite to filing suit . . . .” Cook v. United States ex
rel. U.S. Dept. of Labor, 978 F.2d 164, 166 (5th Cir. 1992). See also Rise v. United States, 630
F.2d 1068, 1071 (5th Cir. 1980) (“litigant may not base any part of a tort action against the
United States on claims not presented to the appropriate administrative agency”).
Phillips admits that he did not pursue an administrative remedy before moving to
intervene in the case at bar. Phillips Memo in Opp. at 1. Instead, Phillips contends that because
Mississippi law includes him, as Brandon’s natural father, within the membership of Brandon’s
estate, Chickaway’s administrative claim on behalf of that estate served to satisfy Phillips’
obligation. See Miss. Code Ann. § 11-7-13 (“[I]f the deceased has no husband, nor wife, nor
children, the damages shall be distributed equally to the father, mother, brothers and sisters, or
such of them as the deceased may have living at his or her death.”)
To support his argument, Phillips relies on the Fifth Circuit’s decision in Transco Leasing
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Corp. v. United States, 896 F.2d 1435 (5th Cir. 1990). Transco concerned, among other issues,
the wrongful-death suit of an airplane pilot’s estate against the United States and the attempts of
the estate’s executor, a bank, to recover on behalf of the pilot’s widow and daughter. The district
court initially granted summary judgment in favor of the United States after concluding that the
bank’s administrative claim failed to name either the widow or daughter as a claimant and,
instead, listed the estate’s executor as the claimant. But the Fifth Circuit reversed that decision
after “conclud[ing] that the administrative claim form submitted by the [b]ank, on behalf of [the
pilot’s] widow and daughter, satisfied the jurisdictional notice requirements . . . : (1) the agency
was given sufficient written notice to commence investigation; and (2) a value was placed on the
claim.” Id. at 1444 (citing Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980), clarified,
622 F.2d 197 (5th Cir. 1980)). Likewise, Phillips argues that Chickaway’s administrative claim
so advised the Department of Health and Human Services, thereby effectively notifying the
United States of Phillips’ claim.
But Phillips’ reliance on Transco is misplaced. In Transco, the issue before the Fifth
Circuit was whether the bank’s failure to delineate the pilot’s survivors as claimants precluded
the bank, acting as executor of the pilot’s estate, from recovering on their behalf. But in this case,
the question is not whether the estate has entitled itself to recover for Brandon’s death on behalf
of his survivors; instead, the question is whether Chickaway’s administrative claim on behalf of
Brandon’s estate entitles Phillips to proceed with a claim independent of the estate’s cause of
action. Transco did not so hold, and if any other authority suggests the existence of such a right,
then this Court has been unable to find it.
A similar case likewise demonstrates the error of Phillips’ position. In Rise v. United
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States, supra, the Fifth Circuit held that an imperfect administrative claim that was sufficient to
provide an agency with constructive notice could vest a federal court with subject-matter
jurisdiction over that claim, notwithstanding the administrative claim’s imprecision. Rise, 630
F.2d at 1071-72. But the Rise Court reached its decision only after concluding that the notice
requirement’s purpose – “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,” id. at 1071 – was fulfilled “as long as a[n administrative] claim brings
to the Government’s attention facts sufficient to enable it thoroughly to investigate its potential
liability and to conduct settlement negotiations with the claimant.” Id. (emphasis added). In
Transco, the administrative claim’s omission of the estate members’ names did not preclude the
United Stats from conducting settlement negotiations with the estate’s administrator on behalf of
the members of the estate. But here, Phillips’ failure to submit an administrative claim deprived
the United States of notice, constructive or otherwise, of a possible need to discuss a resolution
of any claims belonging to him; indeed, prior to his effort to intervene in this case, the record
contains no hint that the Government even knew that Phillips existed.1
Instead, the Court is persuaded by caselaw presented by the United States that subject1
In fact, the record before the agency actually suggests that Phillips did not exist.
Chickaway’s administrative claim notes that it is the claim of “Wendy Chickaway Individually
and on Behalf of [T.P.], [M.S.], [T.T.,] Minor Children, and Wendy Chickaway on Behalf of the
Estate of Brandon Phillips.” Letter from Chickaway’s counsel to agency with submission of the
SF-95 [Docket No. 31-1]. The submission further notes that damages are being pursued for “[a]ll
wrongful death and survival actions cognizable under the law.” [Docket No. 31-1] at 5.
Furthermore, as the mother, Wendy Chickaway is seeking damages to which she is entitled under
state and federal law. Id. at 5-6. Counsel for Chickaway also provided the agency a copy of its
letter of representation that it had entered into with Wendy Chickaway, individually, and on
behalf of the decedent’s estate. Id. at 8-9. Nothing within these submissions would have put the
agency on notice that Edwards Phillips might be pursuing any claims.
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matter jurisdiction is absent. In Wilke v. United States, 2009 WL 590450 (S.D. Miss. 2009)
(Guirola, J.) (cited by 5B C. Wright & A. Miller, Federal Practice and Procedure: Civil 3d § 1350
n.5 (3d ed. 2011)), the Court granted the Government’s motion to dismiss the derivative claims
of a wife who, along with her husband, filed suit for medical malpractice visited upon the
husband. All parties involved agreed that the husband presented an administrative claim
regarding his injuries and that the wife did not, but the plaintiffs argued – as Phillips does in the
case at bar – that the husband’s claim provided sufficient notice to satisfy the wife’s obligation to
exhaust her administrative remedies. Id. at *2. Judge Guirola disagreed and granted the
Government’s motion to dismiss her claim, holding that “[i]n short, one spouse may not rely on
the administrative claim of another spouse” to satisfy Section 2675(a). Id. at *3 (quoting Walker
v. United States, 471 F. Supp. 38, 42 (D.C. Fla. 1978), aff’d, 597 F.2d 770 (5th Cir. 1979)).
This Court is compelled to agree with the holding in Wilke. Fundamentally, the issue at
hand is one regarding the federal government’s abrogation of its sovereign immunity, and such
provisions must be construed strictly in favor of the sovereign. Texas Clinical Labs, Inc. v.
Sebelius, 612 F.3d 771, 778 n.2 (5th Cir. 2010). Phillips wishes to proceed as a claimant,
independent of Brandon’s estate, despite having failed to exhaust his administrative remedies in
accord with Section 2675(a). Federal law prohibits him from doing so.
Indeed, the only case that Phillips offers in his support rested centrally on the proposition
that “[a] claim is properly presented within the meaning of § 2675(a) when the agency is given
sufficient written notice to commence investigation and the claimant places a value on the
claim.” Transco, 896 F.2d at 1442 (emphasis added). See also 28 U.S.C. § 2675(a) (no claim for
money damages against the United States “unless the claimant shall have first presented the
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claim to the appropriate Federal agency and his claim shall have been finally denied by the
agency in writing . . .”) (emphasis added). In the dispute at hand, the claimant at issue is Phillips,
and even he concedes that he did not comply with the dictates of Section 2675. Therefore, the
Court is without jurisdiction over the subject matter of his claims and has no choice but to
dismiss them.
But this decision is somewhat tempered as Phillips correctly argues that Mississippi law
necessarily includes him within the membership of Brandon’s estate. Miss. Code Ann. § 11-7-13.
In that sense, he maintains an interest in the case at bar, albeit as a member of the estate rather
than as an independent plaintiff. Although his failure to exhaust administrative remedies prevents
him from directing the course of this litigation, when and if the case ends in favor of Chickaway
(in her capacity as administrator of Brandon’s estate), then Phillips will be entitled to the portion
of the recovery set out by law for a natural parent.
Because the exhaustion element to the United States’ motion is dispositive, the Court
declines to evaluate the question of whether the statute of limitations barred Phillips’
intervention.
The United States’ Motion to Dismiss Edward Phillips [Docket No. 19] is granted. All
claims raised by Chickaway remain unaddressed and undisturbed by this Order.
SO ORDERED this Eighth day of July 2011.
/s/ Carlton W. Reeves
Hon. Carlton W. Reeves
United States District Court Judge
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