Opinion
CIV. 97-1406 SECTION "T" (5).
April 11, 2000.
Before the Court is a Motion for Summary Judgment seeking to dismiss this action for lack of subject matter jurisdiction, filed on behalf of the defendant, United States of America. The matter was set for hearing on March 29, 2000. The parties waived oral argument and the motion was submitted for the Court's consideration on the briefs only. The Court having considered the memoranda filed, the record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
BACKGROUND:
This suit arises out of personal injuries allegedly suffered by plaintiff, Michael Cabaniss, as a result of surgery conducted at the Veteran Affairs ("VA") Hospital in New Orleans, Louisiana. On April 30, 1997, an administrative claim letter was sent to the Office of Veteran Affairs. The following day, suit was filed in this Court asserting a claim for damages arising out of the same subject matter set forth in the administrative claim. While the complaint was filed with this Court in 1997, service was not effected on the defendants. On August 25, 1997, prior to defendants being served with a copy of the complaint, plaintiff presented an ex parte motion, which was granted, staying the proceedings in this Court until the expiration of the administrative review by the Department of Veteran Affairs or until October 28, 1997, whichever came first. The order made it the responsibility of the plaintiff to reopen the action at that time. October 28, 1997 came first, yet the plaintiff did not move to have the matter reopened.
On June 29, 1998, the administrative claim filed with the Office of Veteran Affairs was amended to name plaintiff's minor son, Joshua, as the claimant since Michael Cabaniss was now deceased. Almost a year later, on April 26, 1999, the Department of Veteran Affairs sent a denial letter which informed that claimant had six months to file suit pursuant to 28 U.S.C. § 2401(b). No further action was taken until December 13, 1999, when a Motion to Lift Stay was filed by plaintiff and said motion was granted. On January 28, 2000, the summons and Petition for Damages filed on May 1, 1997, were finally served on the U.S. Attorney's Office for the first time. In response, the United States of America filed this Motion for Summary Judgment.
ARGUMENTS OF THE RESPECTIVE PARTIES:
The United States contends that when this suit was filed on May 1, 1997, plaintiff's claim had just been received by the appropriate federal agency. This Court therefore lacked jurisdiction over the claims as the waiver of sovereign immunity contained in the Federal Tort Claims Act ("FTCA") allows a suit to be instituted only after the claim has been denied by the federal agency or upon failure of the agency to make a final disposition within six months of its filing. 28 U.S.C. § 2675(a). Waivers of sovereign immunity must be strictly construed and as such, jurisdiction did not exist at the time the complaint was filed. Additionally, the United States argues that under no scenario does plaintiff present a timely filed suit. Accordingly, defendant maintains that the plaintiff's claim has prescribed and defendant is therefore entitled to summary judgment dismissing this suit against it.
Plaintiff argues that the voluntary stay effectively suspended the prosecution of the claim until the expiration of the initial period of administrative review, thus prohibiting claimant from undertaking any substantial progress in the litigation. As claimant was prohibited from prosecuting the claim until after the completion of the period allotted for administrative review, the United States was not prejudiced by the time of claimant's filing. As such, the motion should be denied.
LAW AND ANALYSIS:
It is well settled that the United States is immune from suit except as to the manner and degree that sovereign immunity is waived. Leigh v. National Aeronautics Space Administration, 1987 WL 9269 (E.D. La.). The Federal Tort Claims Act provides a limited waiver of sovereign immunity, making the federal government liable for certain torts to the same extent as a private party. However, before a lawsuit may be brought under the FTCA, the plaintiff must first exhaust administrative remedies.Commercial Union Ins. Co. v. USA, 1998 WL 637379 (E.D.La.). The controlling provision of the statute states:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or 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).
The requirement of exhaustion of administrative review is a jurisdictional requisite to the filing of an action under the FTCA. Gregory v. Mitchell, 634 F.2d 199 (5th Cir. 1981). Waivers of sovereign immunity must be strictly construed. "Section 2675 is more than a mere statement of procedural niceties. It requires that jurisdiction must exist at the time the complaint is filed."Id. The Court in Gregory noted that to allow a district court to stay or hold a case in abeyance until the administrative period accrued would tend to increase the congestion in our already heavily burdened courts, spur unnecessary litigation, and slow down the judicial process. Id. Jurisprudence provides that an action must be dismissed and cannot be held in abeyance pending prosecution of administrative remedies, for where a Court does not have jurisdiction, it cannot retain jurisdiction. Id., citingFuller v. Daniel, 438 F. Supp. 928, 930 (N.D.Ala. 1977).
The plaintiff has argued that the defendant would not be prejudiced in this case as the voluntary stay prohibited plaintiff from undertaking any substantial progress in this case. While the Fifth Circuit and several other circuits have not espoused this theory, certain circuits did permit a prematurely filed FTCA action to proceed if no substantial progress had taken place in the litigation before the administrative remedies were exhausted. In order to resolve the split in the circuits, in 1993, the Supreme Court took up the issue of whether an action may be maintained when the claimant failed to exhaust his administrative remedies prior to filing suit, but did so before substantial progress was made in the litigation. In McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), the Supreme Court looked to the language of the statute and determined that the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. As petitioner in that case had failed to heed that clear statutory command, it was found that the district court had properly dismissed his suit. Id.
The facts of this case show that suit was filed only one day after a claim was filed with the administrative agency. As such, there had been no formal denial issued and six months had not passed from its filing. Prior to the defendants being served with this suit and prior to the expiration of the six months, plaintiff voluntarily moved to stay the action. In light of the above jurisprudence, it is clear that staying an action while complying with the administrative exhaustion requirement does not cure the jurisdictional defect. As such, this Court lacked subject matter jurisdiction over this matter at the time the action was filed.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment, filed on behalf of the United States of America, is hereby GRANTED.
New Orleans, Louisiana, this 10 th day of April, 2000.