Briscoe v. U.S. Dept. of Veterans Affairs et al

Filing 6

ORDER re 1 Declaration filed by Robert V. Briscoe. SO ORDERED that plaintiffs application to proceed in forma pauperis is granted and the complaint is sua sponte dismissed in its entirety without prejudice pursuant to Rule 12(h)(3) of the Federa l Rules of Civil Procedure for lack of subject matter jurisdiction. The Clerk of the Court shall close this case and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon plaintiff in accordance with Rule 5(b) of the Federal Rules of Civil Procedure. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 4/28/2014. (Florio, Lisa)

•

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------)(

ROBERT V. BRISCOE,

Plaintiff,

ORDER
14-CV-1771(SJF)(GRB)

-againstU.S. DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES ARMY & ARMED FORCES,
U.S. DVA MEDICAL CENTER NORTHPORT,
U.S. DEPARTMENT OF DEFENSE,
Defendants.

------------------------------------------------------------------)(

FILED

IN ClERK'S OFFIC:I"
U S DISTRICT COURT f: ,-, N

*

APR 28 ZOf4

On March 18, 20!4,pro se plaintiff Robert V. Briscoe ("plaintiff') filed: (I) a complaint
against defendants U.S. Department of Veterans Affairs ("the VA"), United States Army and
Armed Forces ("the Army"), the U.S. [VA] Medical Center Northport ("the VA Medical Center")
and the U.S. Department of Defense ("DOD"), asserting claims seeking damages for medical
malpractice and wrongful death concerning the death of his father, Robert B. Briscoe, in 1988,
while he was "under the care of the (VA]" at "the VA Medical Center in Northport, N.Y.,"
at~

liLA-B), which are liberally construed to be tort claims against the United States

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b) and 2671 et seq. 1;

"The FTCA * • • precludes tort suits against federal agencies[,]" Rivera v. United
States, 928 F.2d 592, 609 (2d Cir. 1991), and makes the United States "[t]he only proper federal
institutional defendant in such an action." Id.; see also 10 U.S.C. § 1089(a) ("The remedy against
the United States provided by [the FTCA] for damages for personal injury, including death,
caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist,
or paramedical or other supporting personnel (including medical and dental technicians, nursing
assistants, and therapists) of the armed forces * * • [and] the Department of Defense • * * in the
performance of medical, dental, or related health care functions • * * while acting within the
scope of his duties or employment therein or therefor shall hereafter be exclusive of any other
civil action or proceeding by reason of the same subject matter against such physician, dentist,
nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person)
whose act or omission gave rise to such action or proceeding. • • *"); 28 U.S.C. §§ 2679(a)
1

*

10HG ISLAND OFFICE.

FEUERSTEIN, District Judge:

(Compl.

y

and (2) an application to proceed in forma pauperis. Since plaintiff's financial status, as set forth
in his declaration in support of his application to proceed in forma pauperis, qualifies him to
commence this action without prepayment of the filing fees, see 28 U.S.C. § !915(a)(l), his
application to proceed in forma pauperis is granted. However, for the reasons set forth below,
the complaint is sua sponte dismissed without prejudice pursuant to Rule 12(h)(3) of the Federal
Rules of Civil Procedure for lack of subject matter jurisdiction.

I.

Subject Matter Jurisdiction
A.

Standard of Review

Federal courts are courts of limited jurisdiction, see Gunn v. Minton,- U.S.-, 133 S.
Ct. 1059, 1064, 185 L. Ed. 2d 72 (2013); Mims v. Arrow Financial Services, LL~- U.S.-,
132 S. Ct. 740,747, 181 L. Ed. 2d 881 (2012), and may not preside over cases absent subject
matter jurisdiction. See Exxon Mobil Com. v. Allapattah Services. Inc., 545 U.S. 546, 552, 125
S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (holding that federal courts may not exercise jurisdiction

("The authority of any federal agency to sue and be sued in its own name shall not be construed
to authorize suits against such federal agency on claims which are cognizable under section
1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.")
and (b) ("The remedy against the United States provided by [the FTCA1 for * * * personal injury
or death arising or resulting from the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment is exclusive of any
other civil action or proceeding for money damages by reason of the same subject matter against
the employee whose act or omission gave rise to the claim or against the estate of such employee.
Any other civil action or proceeding for money damages arising out of or relating to the same
subject matter against the employee or the employee's estate is precluded without regard to when
the act or omission occurred."); 38 U.S.C. § 7316(a)(l) ("The remedy-{A) against the United
States provided by [the FTCA1 ***for damages for personal injury, including death, allegedly
arising from malpractice or negligence of a health care employee of the [Veterans Health1
Administration in furnishing health care or treatment while in the exercise of that employee's
duties in or for the [VA1 shall be exclusive of any other civil action or proceeding by reason of
the same subject matter against the health care employee (or employee's estate) whose act or
omission gave rise to such claim.")

2

absent a statutory basis); Kokkonen v. Guardian Life Ins. Co. of Americ!l, 511 U.S. 375, 377, 114
S. Ct. 1673, 128 L. Ed. 2d 391 (1994) (holding that federal courts "possess only that power
authorized by Constitution and statute* * *.") Lack of subject matter jurisdiction cannot be
waived or forfeited and may be raised at any time by a party or by the courtsua sponte. See
Gonzalez v. Thaler,- U.S.-, 132 S. Ct. 641,648, 181 L. Ed. 2d 619 (2012); ~also Sebelius
v. Auburn Regional Medical Center,- U.S.-, 133 S. Ct. 817, 824, 184 L. Ed. 2d 627 (2013)
("Objections to a tribunal'sjurisdiction can be raised at any time, even by a party that once
conceded the tribunal's subject-matter jurisdiction over the controversy."). If a court lacks
subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y
& H Com., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006); Fracasse v. People's

United Bank,- F.3d - , 2014 WL 1243811, at* 2 (2d Cir. Mar. 27, 2014); Durant, Nichols.
Houston. Hodgson & Cortese-Costa. P.C. v. Dupont 565 F.3d 56, 62-3 (2d Cir. 2009).
It is axiomatic that district courts are required to read pro se complaints liberally,

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106,97 S. Ct. 285,50 L. Ed. 2d 251 (1976));Hogan v. Fischer, 738 F.3d
509, 515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they
suggest." Gerstenbluth v. Credit Suisse Securities (USA) LL!::, 728 F.3d 139, 142-43 (2d Cir.
2013) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the
Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the
complaint." Harrington v. Countv of Suffolk, 607 F.3d 31,33 (2d Cir. 2010); see also Ashcroft v.
Iqbal 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

3

B.

Sovereign Immunity

"The United States, as 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." Hercules Inc. v. United States, 516 U.S. 417,422-23, 116 S. Ct. 981,134 L. Ed. 2d47
(1996) (quotations, brackets and citation omitted); see also AmBase Com. v. United State~ 731
F.3d 109, 118 (2d Cir. 2013) (accord). In Long Island Radio Co. v. National Labor Relations
Board, 841 F.2d 474,477 (2d Cir. 1988), the Second Circuit held:
"Since jurisdiction to entertain a claim against the United States exists only as
Congress has granted it, neither an agency nor a court has the power to entertain
claims that do not meet the conditions limiting the waiver of immunity. Where a
statute authorizing a claim against the United States contains time limits for filing
the claim, those limits set the temporal boundaries of the consent to be sued; they
grant the tribunal in which the claim is to be filed jurisdiction to entertain only
those claims that are filed within the time allowed by the statute. • • • [S]uch a
time limit is an enabling statute, evidencing a consent to be sued and fixing the
time for suing; it is not a statute of limitations but a statute granting for a limited
time the right of action afforded."
Id. (quotations, brackets and citations omitted); see also Morales v. United States, 38 F.3d 659,
660 (2d Cir. 1994) ("A claimant is not entitled to bring suit against the government without first
having complied with all statutory and regulatory prerequisites to such a suit."); Williams v.
United States, 947 F.2d 37,39 (2d Cir. 1991) ("When an action is brought against the United
States government, compliance with the conditions under which the government has agreed to
waive sovereign immunity is necessary for subject matter jurisdiction to exist.")

C.

TheFTCA

"The FTCA

* * * was designed primarily to remove the sovereign immunity of the United

States from suits in tort[,]" Levin v. United States,- U.S.-, 133 S. Ct. 1224, 1228, 185 L. Ed.
2d 343 (2013) (quotations and citation omitted), and "gives federal district courts exclusive
4

jurisdiction over claims against the United States for'* * *personal injury or death caused by the
negligent or wrongful act or omission' of federal employees acting within the scope of their
employment." Id. (quoting 28 U.S.C. § 1346(b)(l)); see also Celestine v. Mount Vernon
Neighborhood Health Center, 403 F.3d 76, 80 (2d Cir. 2005) ("The FTCA waives the United
States's sovereign immunity for certain classes of torts claims and provides that the federal
district courts shall have exclusive jurisdiction over damages claims against the United States for
* * *personal injury or death '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."'
(quoting 28 U.S.C. § 1346(b)(l))). Specifically, the FTCA waives the United States's sovereign
immunity for, inter alia, medical malpractice claims based upon negligence, see Levin,- U.S.
- , 133 S. Ct. at 1231 ("[M]edical malpractice claims may be based on negligence, in which case
the FTCA's waiver of the Government's sovereign immunity is not in doubt."), and wrongful
death claims, see Davis v. United States, 143 F. App'x 371, 372 (2d Cir. July 25, 2005)
(summary order) ("FTCA permits individuals to file, inter alia, wrongful death tort claims against
the United States based on the acts of a government employee who is acting within the scope of
his or her employment").
The FTCA's waiver of sovereign immunity, however, "operates subject to numerous
conditions, each of which must be satisfied for a court to exercise jurisdiction." Adeleke v.
United States, 355 F.3d 144, !53 (2d Cir. 2004); see also In re World Trade Center Disaster Site
Litigation, 521 F.3d 169, 189 (2d Cir. 2008) (accord); Johnson v. Smithsonian Inst., 189 F.3d
180, 189 (2d Cir. 1999) ("In order to state a claim under the FTCA, the person attempting to
assert it must comply with several strictly construed prerequisites.") "One such condition is that
a plaintiff must first file an administrative claim with the appropriate federal agency before suing

5

for relief in federal court." Adeleke, 355 F.3d at 153; ~also McNeil v. United States, 508 U.S.
106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993)('The FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies"); Celestine, 403
F.3d at 82 ("The FTCA requires that a claimant exhaust all administrative remedies before filing
a complaint in federal district court."); Millares Guiraldes de Tinea v. United States, 137 F.3d
715,719 (2d Cir. 1998) ("The [FTCA's]limitations foreclose suit unless the tort claimant has
previously presented to the appropriate administrative agency a claim that meets the specific
statutory requirements as to its form, content, and timing.") Specifically, the FTCA provides, in
relevant part:
"An action shall not be instituted upon a claim against the United States for
money damages for * * * personal injury or death 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, 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 and sent by certified or registered
mail. 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 this section. * * *"
28 U.S.C. § 2675(a).2 This exhaustion requirement "is jurisdictional and cannot be waived[,]"
Celestine, 403 F.3d at 82, and "applies equally to litigants with counsel and to those proceeding

prose." Adeleke, 355 F.3d at 153.
The FTCA further provides that "[a] tort claim againstthe 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
2

"[A] claim shall be deemed to have been presented when a Federal agency receives
from a claimant, * • * an executed Standard Form 95 or other written notification of an incident,
accompanied by a claim for money damages in a sum certain for * * * personal injury, or death
alleged to have occurred by reason of the incident; and the title or legal capacity of the person
signing,* * *." 28 C.F.R. § 14.2(a).
6

certified or registered mail, of notice of final denial of the claim by the agency to which it was
presented." 28 U.S. C.§ 240l(b); see also Phillips v. Generations Family Health Center, 723 F.3d
144, 147 (2d Cir. 2013) ("Under the FICA, before a claimant can file suit, he or she must first
present the claim to the appropriate federal agency •

* * within two years of the date the claim

accrued. 28 U.S.C. § 240 I (b).") "Unless a plaintiff complies with that requirement [of Section
240!(b)], a district court lacks subject matter jurisdiction over a plaintiffs FICA claim."
Johnson, 189 F.3d at 189 (citation omitted); see also In reAgent Orange Product Liability
Litigatio!J, 818 F.2d 210,214 (2d Cir. 1987) ("[S]ection 240l(b) of28 U.S.C. provides time
limitations that • • • are jurisdictional in nature.

* • * In the absence of such compliance [with

the requirements of Section 240l(b)], a district court has no subject matter jurisdiction over the
plaintiffs [FICA] claim."); Wyler v. United

State~

725 F.2d 156, !59 (2d Cir. 1983) ("Absent

compliance with [Section 240 I (b)'s] requirements the action is barred by sovereign immunity
and the district court ha[ s] no subject matter jurisdiction.") "In sum, the United States has not
consented to be sued on a tort claim unless the claim was first presented to the appropriate federal
agency in writing, was so presented within two years after the claim accrued, and specified the
amount of the claim in writing." Millares Guiraldes de Tineo, 137 F.3d at 720.
"The burden is on the plaintiff to plead and prove compliance with §240 I (b)." Johnson,
189 F.3d at 189; see also Gilvar v. United States, 468 F. App'x 31,32 (2d Cir. Mar. 14, 2012)
(summary order) ("Because the question of timeliness [of an FTCA claim]isjurisdictional, the
plaintiff bears the burden of pleading and proving timeliness."); In reAgent Orange Product
Liabilitv Litigatio!J, 818 F .2d at 214 ("The burden is on the plaintiff to both plead and prove
compliance with the statutory requirements [of Section 2401(b)].")
Although "[s]tatutes oflimitations are generally subject to equitable tolling where

7

necessary to prevent unfairness to a plaintiff who is not at fault for her lateness in filing," see, ~
Veltri v. Building Service 32B-J Pension FunQ, 393 F.3d 318, 322 (2d Cir. 2004), equitable
principles of tolling, estoppel and waiver do not apply where, as here, "the limitation on the filing
of such claims is a limitation of the tribunal's subject matter jurisdiction* • *."3 Long Island
Radio, 841 F.2d at 478. The Supreme Court has recently held:
"As a general matter, equitable tolling pauses the running of, or 'tolls,' a statute of
limitations when a litigant has pursued his rights diligently but some extraordinary
circumstance prevents him from bringing a timely action. [citation omitted].
Because the doctrine effectively extends an otherwise discrete limitations period
set by Congress, whether equitable tolling is available is fundamentally a question
of statutory intent. [citations omitted].
As applied to federal statutes of limitations, the inquiry begins with the
understanding that Congress 'legislate[s] against a background of common-law
adjudicatory principles.' Astoria Fed. Sav. and Loan Assn. v. Soliming, 501 U.S.
104, 108, IllS. Ct. 2166, 115 L. Ed. 2d 96 (1991). Equitable tolling,** • is just
such a principle. [citations omitted]. We therefore presume that equitable tolling
applies if the period in question is a statute of limitations and if tolling is
consistent with the statute. [citation omitted]."

3

In Phillips, the Second Circuit declined to decide whether equitable tolling of the statute
of limitations under the FTCA is available, indicating, inter alia:
"Whether equitable tolling is available at all under the FTCA is an open question
in this circuit. Although we have sometimes hinted that equitable tolling might be
appropriate * * •, we have explicitly declined to resolve whether the FTCA's
statute oflimitations is 'jurisdictional' and, hence, not subject to tolling • • •.
We leave it for the district court to consider in the first instance on remand, if
necessary, whether the FTCA' s statute of limitations is jurisdictional."
723 F.3d at 149 (emphasis added). Since the FTCA's limitations, like the limitations set by other
statutes waiving the United States's sovereign immunity, are jurisdictional, see,~ Celestine,
403 F.3d at 82 (holding that the FTCA's exhaustion requirement "is jurisdictional and cannot be
waived"); In reAgent Orange Product Liabilitv Litigation 818 F.2d at 214 ("[S]ection 240l(b) of
28 U.S.C. provides time limitations that* * * are jurisdictional in nature"); Long Island Radio,
841 F.2d at 477 ("[T]he limitation on the filing of* • • claims [under the Equal Access to Justice
Act, 5 U.S.C. § 504 (1982)] is a limitation of the tribunal's subject matter jurisdiction • • *"),
those limitations are not subject to equitable tolling.

8

Lozano v. Montoya Alvare;?,- U.S.-, 134 S. Ct. 1224, 1231-32,- L. Ed. 2d- (2014)
(brackets in original). The Supreme Court further held:
"As a general matter, statutes of limitations establish the period oftime within
which a claimant must bring an action. * * * They characteristically embody a
policy of repose, designed to protect defendants. * * * And they foster the
elimination of stale claims, and certainty about a plaintiffs opportunity for
recovery and a defendant's potential liabilities."
Id.- U.S.-, 134 S. Ct. at 1234 (quotations, brackets and citations omitted).
However, in an earlier case, John R. Sand & Gravel Co. v. United

State~

552 U.S. 130,

128 S. Ct. 750, 169 L. Ed. 2d 591 (2008), the Supreme Court distinguished the type of statute of
limitations designed to eliminate stale claims, to which the Lozano Court referred, from other
types of statutes of limitations, including those "limiting the scope of a governmental waiver of
sovereign immunity." Id. at 133, 128 S. Ct. 750. Specifically, the Court held:
"Most statutes of limitations seek primarily to protect defendants against stale or
unduly delayed claims. * * * Thus, the law typically treats a limitations defense as
an affirmative defense that the defendant must raise at the pleadings stage and that
is subject to rules of forfeiture and waiver. * * * Such statutes also typically
permit courts to toll the limitations period in light of special equitable
considerations. * * *
Some statutes of limitations, however, seek not so much to protect a defendant's
case-specific interest in timeliness as to achieve a broader system-related goal,
such as facilitating the administration of claims, * * * limiting the scope of a
governmental waiver of sovereign immunity, * * * or promoting judicial
efficiency, • * *. The Court has often read the time limits of these statutes as
more absolute, say, as requiring a court to decide a timeliness question despite a
waiver, or as forbidding a court to consider whether certain equitable
considerations warrant extending a limitations period. * * • As convenient
shorthand, the Court has sometimes referred to the time limits in such statutes as
'jurisdictional."'
Id. 552 U.S. at 133-34, 128 S. Ct. 750 (citations omitted; emphasis added). Thus, since the
FTCA's requirements act to limit the scope of the government's waiver of sovereign immunity,
they are jurisdictional in nature and, therefore, the doctrine of equitable tolling does not apply to
9

i

them.
Since plaintiff does not allege that he has complied with the requirements of the FTCA,
nor has he alleged any facts from which it may reasonably be inferred that this Court has subject
matter jurisdiction over his claims under the FTCA, the complaint is sua sponte dismissed in its
entirety without prejudice pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction.

II.

Conclusion
For the reasons set forth above, plaintiffs application to proceed in forma pauperis is

granted and the complaint is sua sponte dismissed in its entirety without prejudice pursuant to Rule
12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. The Clerk
of the Court shall close this case and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil
Procedure, serve notice of entry of this Order upon plaintiff in accordance with Rule 5(b) of the
Federal Rules of Civil Procedure.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See CQppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).
SO ORDERED.

s/ Sandra J. Feuerstein
S;ifidraT -F eu€Ji;tein
dnited States District Judge

Dated:

April28, 2014
Central Islip, New York

10