Brown v. United States of America

Filing 8

ORDER granting 6 Motion to Dismiss. Signed by Judge Gregory L Frost on 2/26/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEBORAH BROWN,
Plaintiff,
Case No. 2:13-cv-902
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

v.
UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER
This matter is before the Court for consideration of a motion to dismiss filed by
Defendant, the United States of America. (ECF No. 6.) The Court finds the motion to dismiss
well taken.
I.

Background

On September 13, 2013, Plaintiff, Deborah Brown, filed a pro se wrongful death action
against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2401(b), 2671−80. (ECF No. 1, at Page ID # 3.) Ms. Brown alleges that her husband, George D.
Brown, died on February 26, 2009, from coronary atherosclerosis, a byproduct of hepatitis C
treatments he received from the Chalmers P. Wylie Veterans Affairs Clinic (“VA”). Id.
Specifically, Ms. Brown asserts that Mr. Brown complained to his doctors about heart-related
symptoms during forty-eight weeks of hepatitis C treatments but received no treatment. Id.
According to Ms. Brown, at no time did the VA doctors order any tests, make any diagnosis, or
provide any follow-up care. Id. On May 23, 2009, Ms. Brown received an autopsy report
confirming that coronary atherosclerosis was her husband’s cause of death. (ECF No. 6, at Page
ID # 58.)
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Ms. Brown asserts she submitted a tort claim in writing on November 30, 2010, well
within the two years permitted by 28 U.S.C. § 2401(b). (ECF No. 1, at Page ID # 3.) Her SF-95
Claim for Damage, Injury or Death was addressed, however, to the attention of the Director Tort
Branch, Civil Division, U.S. Department of Justice, Washington, D.C. 20430, rather than to the
VA, the “appropriate agency” for receiving such a claim. (ECF No. 6 ¶ 7, at Page ID # 42 &
ECF No. 6, at Page ID # 72.) According to Elijah Jenkins, a paralegal in the United States
Department of Justice’s Civil Division, no record of this claim exists in the Civil Division’s
Records System. (ECF No. 6 ¶ 4, at Page ID # 82.) Ms. Brown also submitted a separate claim
for entitlement to Dependency and Indemnity Compensation (“DIC”) under 38 U.S.C. § 1151
using VA Form 21-534 on December 22, 2010. (ECF No. 6 ¶ 3−4, at Page ID # 41−42 & ECF
No. 6, at Page ID # 46.)
On June 8, 2012, Ms. Brown submitted a second SF-95 to the VA; however, even if the
accrual date for Ms. Brown’s claim is pushed back to the date she received the autopsy report,
she filed this claim over three years after her husband’s death. (ECF No. 6 ¶ 6, at Page ID # &
ECF No. 6, at Page ID # 71.) Based on 28 U.S.C. § 2401(b)’s two-year statute of limitations, the
VA denied Ms. Brown’s claim on January 10, 2013. (ECF No. 6, at Page ID # 76.) On January
30, 2013, Ms. Brown requested reconsideration of her administrative tort claim by the VA’s
Office of General Counsel, but the VA denied her request on March 19, 2013. (ECF No. 6, at
Page ID # 78−79.)
Defendant has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, under Rule 12(b)(6) for
failure to state a claim upon which the Court can grant relief. (ECF No. 6, at Page ID # 10.)
Specifically, Defendant claims that this Court should dismiss Ms. Brown’s action because she

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failed to present a timely administrative tort claim, and the failure to do so causes her wrongful
death action to be “forever barred” under the FCTA’s statute of limitations. (ECF No. 6, at Page
ID # 3.) In anticipation of Ms. Brown’s request that the FTCA’s limitations period be equitably
tolled to save her untimely claim, Defendant also claims that the facts of this case do not warrant
such an extraordinary remedy and, furthermore, that the FTCA’s limitations period is an absolute
and jurisdictional bar not subject to tolling under any circumstances. (ECF No. 6, at Page ID #
6.) Ms. Brown filed no motion in opposition. Briefing has closed on the motion, which is ripe
for disposition.
II.

Discussion

When subject matter jurisdiction is challenged under Rule 12(b)(1), a plaintiff has the
burden of proving jurisdiction. See Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.
1996). Motions to dismiss for lack of subject matter jurisdiction fall into two general categories:
facial attacks and factual attacks. A facial attack on subject matter jurisdiction challenges
whether a plaintiff has properly alleged a basis for proper subject matter jurisdiction, and a
district court must regard the allegations of the complaint as true. Ohio Nat’l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990). In contrast, a factual attack is a challenge to
the factual existence of subject matter jurisdiction. No presumptive truthfulness applies to the
factual allegations, and a district court may weigh the evidence in ascertaining whether
jurisdiction exists. Id. The motion presents a facial attack on jurisdiction.
This Court can exercise jurisdiction based on diversity under 28 U.S.C. § 1332 or based
on the existence of a federal question under 28 U.S.C. § 1331. 28 U.S.C. § 1331 provides that
district courts have subject matter jurisdiction in “all civil actions arising under the Constitution,
laws, or treaties of the United States.” In her complaint, Ms. Brown alleges subject matter

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jurisdiction under 28 U.S.C. § 2674, which allows claimants to hold the United States liable
under the FCTA for limited state law tort claims like wrongful death. A cause of action for
wrongful death based on medical malpractice accrues on the date when both an injury and its
cause are known, at which time the Plaintiff is on “inquiry notice” of a possible tort claim.
Amburgey v. United States, 733 F.3d 633, 636−37 (6th Cir. 2013). Under the presentment
requirement of the FCTA, once a plaintiff is on notice, the federal agency whose activities gave
rise to the claim must receive written notification of the incident. 28 U.S.C. § 2675(a); see also
McNeil v. United States, 508 U.S. 106, 112 n.7 (1993) (discussing the presentment requirement
as a necessary step in allowing the appropriate agency to consider settlement before a court
action is instituted). The claimant must also demand a “sum certain in damages.” Blakely v.
United States, 276 F.3d 853, 864−65 (6th Cir. 2002).
Finally, and most importantly for present purposes, the claim must be submitted to the
correct federal agency in writing within two years after such a claim accrues or shall be “forever
barred.” 28 U.S.C. § 2401(b). Notably, mailing the claim with the two-year statute of
limitations is insufficient to satisfy the presentment requirement; the appropriate federal agency
must be in physical receipt of the claim. See, e.g., Amburgey v. United States, 733 F.3d 633,
635−36 (6th Cir. 2013) (noting that receipt by a federal agency four days after the statute of
limitations has run would normally constitute an untimely claim, even though claimant mailed
the required form one day prior to the statute of limitations deadline).
Defendant correctly points out that Ms. Brown had sufficient facts when her husband
died to put her on inquiry notice of a possible legal claim against the VA. (EFC No. 6, at Page
ID # 4.) She knew of the injury her husband suffered and its likely cause when Mr. Brown died
on February 26, 2009. (ECF No. 1, at Page ID # 3.) The autopsy report Ms. Brown received on

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May 23, 2009, further confirmed that coronary atherosclerosis was her husband’s cause of death.
(ECF No. 6, at Page ID # 58.) As Ms. Brown’s own research revealed, coronary atherosclerosis
is a possible side effect of hepatitis C treatments and should be treated accordingly. (ECF No. 6,
at Page ID # 58.) Mr. Brown received no such treatments from the VA. (ECF No. 1, at Page
ID # 3.) Thus, Ms. Brown knew she had a possible legal claim for wrongful death against the
VA at the time she received the autopsy report on May 23, 2009.
Defendant also notes that Ms. Brown’s separate DIC application in which she requested
benefits as a result of “improper care” from the VA does not meet the presentment requirements
of the FCTA. (EFC No. 6, at Page ID # 5−6). This document failed to put the VA on notice to
investigate her husband’s death in anticipation of possible settlement of an administrative tort
claim, and it also failed to include a demand for a “sum certain in damages.” (EFC No. 6, at
Page ID # 53.) Although Ms. Brown filed a second SF-95 with the VA on June 8, 2012, this
claim was untimely with regard to the two-year statute of limitations provided for by the FCTA.
(ECF No. 6, at Page ID # 71.) As a result, the VA properly denied her claim in writing and
informed her of its final decision via certified mail. (ECF No. 6, at Page ID # 76.)
Ms. Brown pleads that she submitted the original SF-95 on November 30, 2010, well
within the FCTA’s two-year statute of limitations, but the VA received no copy of this form until
January 4, 2013. (ECF No. 6, at Page ID # 42 ¶ 7.) Furthermore, even if she sent this original
form to the incorrect federal agency as alleged, the Civil Division of the Department of Justice
has no record of such a claim. (ECF No. 6, at Page ID # 82 ¶ 4.) Therefore, because the correct
federal agency did not receive Ms. Brown’s claim within two years of its accrual, her claim is
untimely within the FCTA’s statute of limitations. As a result, her claim is “forever barred” and
she fails to meet her burden of proving subject matter jurisdiction.

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This Court would still have subject matter jurisdiction over Ms. Brown’s claim if
equitable tolling were appropriate. Equitable tolling allows federal courts to toll a statute of
limitations only when “a litigant’s failure to meet a legally mandated deadline unavoidably arose
from circumstances beyond that litigant's control.” Graham–Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000) (“Absent compelling equitable
considerations, a court should not extend limitations by even a single day.”). Courts apply
equitable tolling “sparingly, and not when there has only been a garden variety claim of
excusable neglect.” Chomic v. United States, 377 F.3d 607, 615 (6th Cir. 2004) (citations and
internal quotation marks omitted).
The party seeking equitable tolling bears the burden of proving entitlement to it.
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). Ms. Brown has made no affirmative
request, however, to toll the statute of limitations to save her untimely claim. She also failed to
provide any evidence or to even plead facts indicating that she is implicitly entitled to such a
defense. Therefore, equitable tolling is inappropriate here. Without the benefit of equitable
tolling, her claim remains untimely within the FCTA’s statute of limitations. As a result, this
Court lacks subject matter jurisdiction.
In the alternative, Defendant also seeks dismissal of Ms. Brown’s complaint based on her
failure to state a claim upon which this Court can grant relief pursuant to Rule 12(b)(6). An
operative principle of federal practice, however, is that the merits of a case will not be
determined if the court first finds that the action should be dismissed for lack of subject matter
jurisdiction. See Bell v. Hood, 327 U.S. 678, 682 (1946). Because Ms. Brown failed to comply
with the filing requirements of the FTCA within the two-year statute of limitations, the action
should be dismissed for lack of subject matter jurisdiction.

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III.

Conclusion

The Court GRANTS Defendant’s motion to dismiss. (ECF No. 6.) The Clerk shall enter
judgment accordingly and terminate this case on the docket records of the United States District
Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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