Opinion
Civil No. 09-1674 (SEC).
November 5, 2010
OPINION AND ORDER
Before the Court are a motion to dismiss filed by Defendant the United States of America (Docket # 15) and Plaintiffs' opposition thereto. Docket # 21. Plaintiffs are the widow and sons of the late Ramon R. Roca-Gomez who passed away victim of cancer. Dockets #1, ¶¶ 2 and 7. Plaintiffs filed suit under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et. sec, for negligent medical treatment Roca-Gomez allegedly received at the San Juan Veterans Affairs' Hospital (the "VA"). Defendant moves to dismiss Plaintiffs' claims as time barred, arguing that Plaintiffs filed the prerequisite administrative claims 22 days after the expiration of the FTCA's statute of limitation. Docket # 15, p. 1-3. Plaintiffs oppose dismissal, stating that they mailed their administrative claims to the VA 12 days before the applicable deadline. Docket # 21, ¶¶ 2-4.
For purposes of the FTCA statute of limitation, the critical date is when claims are received by an administrative agency, and not the date in which the claims are mailed. 28 C.F.R. § 14.2(a) ("For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when . . . receive[d] from a claimant. . . ."). Plaintiffs do not dispute that the VA received their administrative claims after the statutory period expired, and the evidence of record clearly shows that such was the case. See Dockets ## 21 — 21-6. Accordingly, the Court finds that Plaintiffs' claims are time barred and, as a result, dismisses them for lack of subject matter jurisdiction. See Gonzalez v. U.S., 284 F.3d 281, 288 (1st Cir. 2002) ("[I]t is well-settled that an FTCA claim must be dismissed if a plaintiff fails to file a timely administrative claim. This Court has repeatedly held that compliance with this statutory requirement is a jurisdictional prerequisite to suit that cannot be waived.") (internal citations omitted).
Conclusion
Based on the foregoing, Plaintiffs' claims are DISMISSED with prejudice.
IT IS SO ORDER.
In San Juan, Puerto Rico, this 5th of November 2010.