Opinion
3:23-cv-00318-YY
09-11-2023
ANNETTE MARTINEZ, as Personal Representative for the Estate of James Martinez, Plaintiff, v. UNITED STATES, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff alleges a single claim of wrongful death following the death of her husband who was treated by the Department of Veterans Affairs (“VA”) medical center. Compl., ECF 1. Defendant has filed a Motion to Dismiss (ECF 12) for lack of subject matter jurisdiction on grounds that plaintiff filed this lawsuit prior to exhausting administrative remedies as required by the Federal Tort Claims Act. There is no dispute that plaintiff had not exhausted administrative remedies at the time this action was filed. Because plaintiff failed to meet this jurisdictional requirement, the case must be dismissed.
“The Federal Tort Claims Act waives the United States' sovereign immunity for actions in tort.” Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995) (citing Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)). “The Act allows claimants to sue the government in district court provided that they first give the appropriate federal agency the opportunity to resolve the claim.” Id. (citing 28 U.S.C. § 2675(a)). Specifically, the FTCA requires that “an action shall not be instituted . . . unless the claimant shall have first presented the claim to the appropriate . . . agency and his claim shall have been finally denied by the agency.” 28 U.S.C. § 2675(a). “This administrative claim prerequisite is jurisdictional” and is interpreted “strictly.” Cadwalder, 45 F.3d at 300 (citing Jerves, 966 F.2d at 519).
Here, plaintiff submitted an Updated Federal Tort Claim Notice (Form 95)” to the VA, and the VA notified plaintiff on November 14, 2022, that she was “required to allow [the] VA at least six months to consider your claim.” Lewis-Barrett Decl., Exs. 2, 4, ECF 13-2. Plaintiff filed this suit less than six months later, on March 6, 2023. Because plaintiff failed to exhaust her administrative remedies at the time she filed suit, this court lacks jurisdiction over the case and it must be dismissed.
Plaintiff contends that the “six month period has now passed and the claim is considered denied per 28 USC §2675,” and the exhaustion requirement should therefore be considered “moot.” Resp. 2, ECF 16. This argument was recently rejected in a different case filed in this district, Earley v. United States, No. 3:22-CV-00697-SB, with the following explanation:
Earley alternatively argues that the FTCA's exhaustion requirement is now moot because the BOP denied his claim while his case was pending in this court. (Pl.'s Resp. at 2, citing Macke Decl. Ex. 1 at 1.) Earley, however, fails to address the fact that “the Supreme Court [has] clarified that a prematurely filed FTCA claim must be dismissed even if the plaintiff ultimately exhausts his administrative remedies before ‘substantial progress' has occurred in the [federal court] case.” D.L. ex rel. Junio v. Vassilev, 858 F.3d 1242, 1245 (9th Cir. 2017) (quoting McNeil, 508 U.S. [106,] 113 [(1993)]). The McNeil plaintiff “filed an FTCA claim against the United States in federal court before exhausting his administrative remedies,” and later “notified the district court that his administrative claim had been denied.” Id. at 1246. The Supreme Court affirmed the district court's grant of the government's “motion to dismiss [the] plaintiff's
complaint as premature due to the failure to exhaust before filing,” and in doing so, “settl[ed] a circuit split over whether a premature FTCA complaint could survive dismissal if administrative exhaustion occurred before ‘substantial progress' had been made in the federal litigation.” Id. (quoting McNeil, 508 U.S. at 110-13).2023 WL 2245669, at *4 (D. Or. Jan. 27, 2023), report and recommendation adopted, 2023 WL 2242007 (D. Or. Feb. 24, 2023). Plaintiff's argument fails for the same reasons here. Moreover, as defendant correctly observes, jurisdiction “ordinarily depends on the facts as they exists when the complaint is filed.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 (1992). At the time plaintiff filed suit, she had not exhausted her administrative remedies. Therefore, this court lacks jurisdiction over her case. See also Azzolino v. Roberts, No. C 12-1378 RS, 2012 WL 1831628, at *2 (N.D. Cal. May 18, 2012) (“In this Circuit, . . . it is settled that the FTCA's exhaustion requirement must be ‘strictly' observed, and plaintiffs here have not mustered any authority to suggest otherwise. They protest that it would be a needless formality to dismiss and re-file the same pleadings minutes later, yet this is apparently what the statute requires.”).
RECOMMENDATIONS
Defendant's Motion to Dismiss (ECF 12) should be granted and this case should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, September 25, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.