Sandoval, M.D. v. Department of Health & Human Services
Filing
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ORDER granting 6 Motion to Dismiss for Lack of Jurisdiction -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, defendant's motion to dismiss this action for lack of subject matter jurisdiction is granted and the complaint is dismissed with prejudice. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/30/2018. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JUAN SANDOVAL, M.D.,
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Plaintiff,
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-against:
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DEPARTMENT OF HEALTH AND HUMAN
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SERVICES,
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Defendant.
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DORA L. IRIZARRY, Chief Judge:
MEMORANDUM AND ORDER
17-CV-3532 (DLI)(RLM)
Plaintiff Juan Sandoval, M.D. (“Plaintiff”) filed the instant action against the Department
of Health and Human Services (“Defendant” or “HHS”), seeking a declaratory judgment that
Plaintiff was a federal employee acting within the scope of his employment pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 2675(a) in order to be indemnified for a lawsuit that had
been filed against him. Defendant moved to dismiss Plaintiff’s claims for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See Def.’s Mem. of Law in
Supp. of Def.’s Mot. to Dismiss (“Def.’s Mot.”), Dkt. Entry No. 6. Plaintiff opposed Defendant’s
Motion. See Affirm. in Opp. to Mot. to Dismiss (“Pl.’s Opp.”), Dkt Entry. No. 7. For the reasons
set forth below, Defendant’s Motion is granted.
BACKGROUND
On June 13, 2017, despite his status as an attorney, Plaintiff’s attorney filed a pro se form
complaint seeking a declaratory judgment on Plaintiff’s behalf. Compl., Dkt. Entry No. 1. As the
Court can best discern from the poorly drafted complaint, Plaintiff has worked at the Brownsville
Community Development Center since August 2, 2002. Compl. at Part III. Plaintiff alleges that
he was a federal employee of the United States Public Health Service (the “PHS”) entitled to
indemnification from lawsuits pursuant to the FTCA, and specifically the Federally Supported
Health Centers Assistance Act, 42 U.S.C. § 233. Id. There is a pending medical malpractice
lawsuit against Plaintiff in New York State Supreme Court, Kings County that Plaintiff claims
arose out of his work as a federal employee on August 7, 2005. Id. In that action, a mother claims
damages on behalf of her infant plaintiff who sustained cerebral injury during the mother’s labor
and delivery. Id.
Plaintiff alleges that he “made demand upon” HHS for indemnification for any liability
arising from the case and treatment provided to the infant “under existing precedent and pursuant
to the prior custom and practice existing between Plaintiff and the PHS.” Id. According to
Plaintiff, HHS refused to certify Plaintiff as a federal employee pursuant to the FTCA. Id. Plaintiff
alleges that he “administratively appealed from that refusal by letter brief on October 25, 2016.”
Id. HHS did not respond to that letter brief. Id.
Defendant argues this Court lacks subject matter jurisdiction because: (1) sovereign
immunity precludes an FTCA action against HHS; (2) Plaintiff names no tort on which Plaintiff
could base an FTCA action; and (3) Plaintiff never administratively exhausted an FTCA claim.
See generally, Def.’s Mot.
DISCUSSION
Subject matter jurisdiction is a threshold requirement in any suit. Da Silva v. Kinsho Int’l
Corp., 229 F.3d 358, 361-62 (2d Cir. 2000) (holding that a judgment rendered by a court lacking
subject matter jurisdiction is subject to collateral attack as void). Rule 12(b)(1) requires that a
court dismiss a suit if it lacks subject matter jurisdiction as it “‘lack[s] the statutory or constitutional
power to adjudicate [the suit].’” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638
(2d Cir. 2005) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). When
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responding to a defendant’s 12(b)(1) motion, a plaintiff must establish the existence of subject
matter jurisdiction by a preponderance of the evidence. Id. (citing Luckett v. Bure, 290 F.3d 493,
497 (2d Cir. 2002)).
Subject matter jurisdiction “‘must be shown affirmatively, and that showing is not made
by drawing from the pleadings inferences favorable to the party asserting it.’” Greene v. Gerber
Products Co., 262 F. Supp.3d 38, 51-52 (E.D.N.Y. 2017) (quoting Morrison v. Nat’l Austl. Bank
Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d 561 U.S. 247 (2010)). In deciding a defendant’s Rule
12(b)(1) motion, a court “‘need not accept as true contested jurisdictional allegations[,] and may
resolve disputed jurisdictional facts by reference to affidavits and other matters outside the
pleadings.’” Kitzen v. Hancock, 2017 WL 4892173, at *2 (E.D.N.Y. Oct. 27, 2017) (quoting
Williams v. Runyon, 1997 WL 77207, at *1 (S.D.N.Y. Feb. 17, 1999)).
I.
Sovereign Immunity
Generally, federal courts lack jurisdiction over suits brought against the United States
government. See Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (finding that the United States is
immune from suit except as it consents to be sued). “[T]he United States, as a sovereign, is
immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any
court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535,
538 (1980) (internal quotations and citation omitted).
“A plaintiff bears the burden on
demonstrating that sovereign immunity has been waived.” Haber v. United States, 823 F.3d 746,
751 (2d Cir. 2016) (citing Makarova, 201 F.3d at 113).
Plaintiff asserts an FTCA claim solely against HHS, a federal agency, not the United States.
See generally, Compl. The FTCA’s waiver of sovereign immunity authorizes lawsuits against the
United States, but does not authorize lawsuits against federal agencies. See Mignogna v. Sair
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Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991) (“The Federal Tort Claims Act would not have
conferred such jurisdiction, since an action thereunder must be brought against the United States
rather than an agency thereof.”) (citing 28 U.S.C. § 2679(a)). Accordingly, the Court lacks subject
matter jurisdiction over Plaintiff’s claims. See Parker v. United States, 2006 WL 3378684
(S.D.N.Y. Nov. 15, 2006) (finding that DEA and DOJ, among other agencies, were “not proper
parties” as “[t]he FTCA only authorizes suits against the United States but not against federal
agencies”) (internal quotation marks and citations omitted); Barnes v. United States, 2004 WL
957985, at *2 (E.D.N.Y. Apr. 12, 2004), aff'd, 204 F. App'x 918 (2d Cir. 2006) (dismissing FTCA
claims against federal agencies and a federal official acting in his official capacity).
However, even if the Court substitutes the United States for HHS for the purposes of this
analysis, see, e.g., Newton v. Bureau of Prisons, 2011 WL 1636259 (E.D.N.Y. Apr. 28, 2011), the
claims against the United States must be dismissed for the reasons discussed below.
II.
Tort Cause of Action
The FTCA “constitutes a limited waiver by the United States of its sovereign immunity
and allows for a tort suit against the United States under specified circumstances.” Hamm v. United
States, 483 F.3d 135, 137 (2d Cir. 2007) (internal quotations and citation omitted). “Under the
FTCA, a private citizen may sue for injuries caused by ‘the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.’” Id. (quoting 28
U.S.C. § 1346(b)(1)). The FTCA’s “waiver of sovereign immunity under the FTCA is strictly
limited to suits predicated upon a tort cause of action cognizable under state law and brought in
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accordance with the provisions of the FTCA.” Kuhner v. Montauk Post Office, 2013 WL 1343653
(E.D.N.Y. Apr. 4, 2013) (alterations, quotations, and citations omitted).
Plaintiff has not alleged a tort claim pursuant to the FTCA. See generally, Pl.’s Opp.
Instead, Plaintiff seeks declaratory relief from this Court in an attempt to appeal from a finding by
HHS. Id. Because the relief available under the FTCA is strictly limited to tort causes of action
cognizable under state law, the Court must dismiss Plaintiff’s request for declaratory relief for lack
of subject matter jurisdiction.
III.
Administrative Exhaustion of an FTCA Claim
The United States’ waiver of sovereign immunity under the FTCA requires that an
administrative claim be filed with and adjudicated by the appropriate federal agency within two
years of the accrual of the cause of action, before a lawsuit may be filed. 28 U.S.C. § 2401(b).
When a plaintiff fails to exhaust his or her administrative remedies prior to filing a suit under the
FTCA, the United States does not waive its sovereign immunity. 28 U.S.C. § 2675(a). The
FTCA’s administrative exhaustion requirement is jurisdictional and cannot be waived. Gay v.
Terrell, 2013 WL 5437045, at *9-10 (E.D.N.Y. Sept. 27, 2013) (citing Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005)) (“A claim of failure to exhaust
administrative remedies under the FTCA is thus properly raised under FRCP 12(b)(1).”); See also
Celestine, 403 F.3d at 82 (“This requirement is jurisdictional and cannot be waived.”).
If sovereign immunity is not waived, a court does not have subject matter jurisdiction
over the FTCA claim. Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir.
1998) (emphasis omitted) (quoting 28 U.S.C. § 2675(a)) (“[T]he FTCA provides . . . that ‘[a]n
action shall not be instituted upon a claim against the United States . . . unless the claimant shall
have first presented the claim to the appropriate Federal agency . . . .’”).
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Here, Plaintiff merely alleges that he sent a letter to HHS regarding his alleged demand for
indemnification from HHS. Plaintiff did not file an administrative tort claim with HHS. See
Declaration of Meredith Torres, Dkt. Entry No. 6-2, at ¶ 4 (noting that Plaintiff had not filed an
administrative claim with HHS in connection with the allegations set forth in this case). Therefore,
the United States did not waive its sovereign immunity, and this Court lacks subject matter
jurisdiction over Plaintiff’s claims. Millares Guiraldes de Tineo, 137 F.3d at 719-20 (affirming
dismissal where no plaintiff failed to file an administrative claim).
CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss the Complaint is granted
and this action is dismissed with prejudice.
SO ORDERED.
Dated: Brooklyn, New York
September 30, 2018
______________/s/
DORA L. IRIZARRY
Chief Judge
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