87 F. Supp.2d 79 (2000) | Cited 0 times | D. Rhode Island | March 6, 2000


Amy Bewley and her children brought this medical malpractice actionagainst three doctors and a hospital for their alleged failure todiagnose and treat Amy Bewley for an infection she claims to havedeveloped during childbirth. The United States, having previouslysubstituted itself for two of the doctors, now moves to dismiss theclaims against it for lack of subject matter jurisdiction.

The issue presented is whether the exhaustion requirement of theFederal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., appliesto actions commenced against individual federal employees for whom theUnited States later is substituted as a defendant. Because I answer thatquestion in the affirmative, the motion to dismiss is granted.

Factual Background

On February 7, 1997, Amy Bewley was admitted to Memorial Hospital inPawtucket, R.I., where she gave birth to a son. According to theComplaint, Bewley developed an infection during her hospital stay but herdoctors failed to detect it and discharged her without properly treatingit. Complications arose and Bewley was taken to Massachusetts GeneralHospital where she experienced seizures and a stroke that she claimsresulted in permanent brain damage.

At the time of Bewley's admission to Memorial Hospital, DoctorsCampanile and Fraboni, two of the original defendants, were full-timeemployees of Blackstone Valley Community Health Center, Inc. ("BlackstoneValley"), a federally funded health center, and were "on loan" toMemorial Hospital.

Procedural History

Bewley commenced this action in Rhode Island Superior Court on July10, 1998. Approximately one year later, the United States removed thecase to this Court and moved, pursuant to the FTCA, to substitute itselfas a defendant for Drs. Campanile and Fraboni. That motion was unopposedand was granted. The United States also filed the instant motion todismiss the claims against it, as the substituted defendant, for lack ofsubject matter jurisdiction. More specifically, the United States arguesthat the plaintiffs have failed to exhaust their administrative remediesunder the FTCA, as required by 28 U.S.C. § 2675 (a). The plaintiffscontend that the exhaustion requirement is inapplicable because they didnot bring this action against the United States.


A. Sovereign Immunity

It is "elementary" that the United States, as a sovereign, is immunefrom suit unless it consents to be sued. United States v. Mitchell,445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Thus, "theterms of [the United States'] consent to be sued in any court define thatcourt's jurisdiction to entertain the suit." United States v. Testan,424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Consent "`cannotbe implied but must be unequivocally expressed.'" Mitchell, 445 U.S. at538, 100 S.Ct. 1349 (quoting United States v. King, 395 U.S. 1, 4, 89S.Ct. 1501, 23 L.Ed.2d 52 (1969)). Accordingly, statutes purporting towaive the United States' sovereign immunity are strictly construed. SeeMitchell, 445 U.S. at 538, 100 S.Ct. 1349.

B. The Federal Tort Claims Act

The FTCA waives the United States' sovereign immunity with regard tovarious kinds of tort claims against the United States, including claimsfor personal injury allegedly caused by the negligence of governmentemployees acting within the scope of their federal employment. See UnitedStates v. Kubriclc, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259(1979). However, the statute attaches conditions to the waiver. If thoseconditions are not satisfied, the Court lacks subject matter jurisdictionover the lawsuit. See McNeil v. United States, 508 U.S. 106, 112, 113S.Ct. 1980, 124 L.Ed.2d 21 (1993). One of those conditions is theexhaustion requirement contained in 28 U.S.C. § 2675 (a).

C. Section 2675

Section 2675(a) provides:

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) (emphasis added).1

Bewley argues that Section 2675(a) is inapplicable because thislawsuit was not "instituted upon a claim against the UnitedStates" since it was brought against the individual doctors and MemorialHospital. The United States argues that because the claim, now, is oneagainst it as a defendant, this is an action "instituted upon a claimagainst the United States."

Prior to 1988, at least two courts had read Section 2675(a) in themanner urged by the plaintiffs and had held the exhaustion requirementinapplicable to actions commenced against federal employees for whom theUnited States is later substituted. See Kelley v. United States,568 F.2d 259, 264 (2d Cir. 1978); Harris v. Burns Chem. Inc.,490 F. Supp. 968 (N.D.Ga. 1980) (holding that § 2675 is inapplicablewhen the plaintiff neither knew nor had reason to know the defendant wasa federal employee at the time the complaint was filed).

However, in 1988, Congress amended the FTCA by enacting The FederalEmployees Liability Reform and Tort Compensation Act of 1988, P.L.100-694, 102 Stat. 4564, which commonly is referred to as the "WestfallAct."

Those amendments immunize federal employees from personal liability forclaims seeking damages for injuries allegedly attributable to theemployees' negligence while acting within the scope of their offices oremployment, and the amendments make an action against the United Statesthe exclusive remedy for such claims. See 28 U.S.C. § 2679 (b)(1);Aversa v. United States, 99 F.3d 1200, 1207 (1st Cir. 1996). Inaddition, the Westfall Act amendments make it clear that the FTCA'sexhaustion requirements apply even to actions not originally broughtagainst the United States. Thus, the FTCA, now, provides that an actionin which the United States is substituted as a party for a nameddefendant "shall proceed in the same manner as any action against theUnited States filed pursuant to section 1346(b) of this title 2 andshall be subject to the limitations and exceptions applicable to thoseactions." 28 U.S.C. § 2679 (d)(4) (emphasis added).

The unqualified reference to "any" action against the United Statesstrongly suggests that Congress did not intend to exempt from theexhaustion requirement claims made against the United States simplybecause they are asserted after an action is commenced. Moreover, itseems apparent that the exhaustion requirement of § 2675(a) is oneof the "limitations" referred to in Section 2679(d)(4). See Egan v.United States, 732 F. Supp. 1248, 1250 (E.D.N.Y. 1990). Indeed, ifexhaustion were not one of those limitations, a plaintiff couldcircumvent the exhaustion requirement by commencing an action against anindividual employee even though the individual was acting within thescope of federal employment.

Congress' manifest intent to require exhaustion in cases where theUnited States is substituted is underscored by the Westfall Act'sadoption of 28 U.S.C. § 2679 (d)(5). In cases where the United Statesis substituted as a defendant, that subsection provides relief from thetwo-year period of limitations, see 28 U.S.C. § 2401 (b), for filingadministrative claims under the FTCA. It allows a plaintiff in alawsuit, whose claim is dismissed for failure to exhaust, to file anadministrative claim within sixty (60) days after dismissal as long asthe lawsuit was commenced within the time allowable for filing a claim.3

Unless Congress intended to apply the exhaustion requirement to casesin which the United States is substituted as a defendant, there wouldhave been no reason to enact Section 2679(d)(5).

Unfortunately, it is possible that a future claimant may be snared in atrap not anticipated by Congress when it adopted § 2679(d)(5). Forexample, in states like Rhode Island, where the statute of limitationsfor personal injury actions is longer than the two-year period prescribedby the FTCA, a plaintiff, who is unaware of a prospective defendant'sfederal employment and waits more than two years to bring suit, couldfind that his claim against the United States is time-barred.

Whether such a claim would be subject to dismissal for failure toexhaust administrative remedies may depend upon the particular facts ofthat case. In any event, it is not a question presented in this case andit is best left for another day.


Because the FTCA's exhaustion requirement applies to cases in which theUnited States is substituted after the action has commenced, thegovernment's motion to dismiss the FTCA claims against the United Statesas the substituted defendant for Drs. Campanile and Fraboni is granted.


1. The "appropriate Federal agency" is the administrative agency whoseactivities gave rise to the cause of action. See McNeil, 508 U.S. atll2, 113 S.Ct. 1980.

2. 28 U.S.C. § 1346 (b) states in relevant part:

(1) Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

3. The relevant text of Section 2679(d)(5) is as follows:

Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a[n administrative] claim . . . such a claim shall be deemed to be timely presented . . . if (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

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