2004 | Cited 0 times | D. Maine | July 13, 2004


The United States, a named defendant in this action, has movedto substitute itself for one of the other named defendants,Ammonoosuc Community Health Services, Inc. ("Ammonooosuc"), andto dismiss Counts I through III of the amended complaint for lackof subject matter jurisdiction. After the motions were filed, theplaintiff filed a notice of voluntary dismissal of the claimsagainst the United States contained in Count III of the amendedcomplaint pursuant to Fed.R.Civ.P. 41(a), Plaintiff's Noticeof Voluntary Dismissal of Contract Claims Against the UnitedStates, etc. (Docket No. 21), and since Count III is assertedonly against the United States, First Amended Complaint (DocketNo. 2) at 9-10, that count is no longer before the court. Theplaintiff's response to the motion to dismiss states that thisnotice also applies "to the extent Count II . . . assert[s] acontract claim against the United States," Plaintiff's Objectionto Motion to Dismiss (Docket No. 22) at 2, but Count II of theamended complaint cannot reasonably be read to assert such aclaim on its face and the notice of dismissal does not refer toCount II at all. I accordingly will not consider the plaintiff to have voluntarilydismissed any portion of Count II. Because consideration of themotion to dismiss depends in part upon the disposition of themotion to substitute, I address the latter motion first.

I. Motion to Substitute

The applicable statute provides, in relevant part, that inactions brought pursuant to 28 U.S.C. § 1346(b)1 and2672, [u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action . . . commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.28 U.S.C. § 2679(d)(1). The Attorney General has delegated hiscertification authority under this statute to the United Statesattorneys. 28 C.F.R. § 15.3(a). The United States Attorney forthe District of New Hampshire has provided such a certificationin this case. Certificate of United States Attorney (Exhibit E toMotion to Substitute the United States for Ammonoosuc CommunityHealth Services, Inc. as Defendant ("Motion to Substitute")(Docket No. 5)).

This certification is provisional and subject to judicialreview. Aversa v. United States, 99 F.3d 1200, 1208 (1st Cir.1996). The scope of the defendant's employment is to bedetermined under the law of the sate in which the allegedtortious conduct occurred. Kelly v. United States,924 F.2d 355, 357 (1st Cir. 1991). When the plaintiff objects to a motion to substitutebased on such a certification, the burden is on the plaintiff toestablish that the individual defendant was not acting within thescope of its employment at the relevant time. Schrob v.Catterson, 967 F.2d 929, 936 (3d Cir. 1992); Brown v.Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991).

The United States relies on 42 U.S.C. § 233(g)(4), Memorandumin Support of Motion to Substitute, etc. ("Defendants'Substitution Memorandum") (attached to Motion to Substitute) at4, which provides that a public or non-profit private entityreceiving federal funds under 42 U.S.C. § 254b is covered by theexclusivity provisions of section 233(a). The secretary of theDepartment of Health and Human Services has deemed Ammonoosuc tobe a public health service employee under this statute,Declaration of Norrine Williams, Executive Director ("WilliamsDecl.") (Exh. A to Motion to Substitute) ¶ 3. This determinationis "final and binding upon the Secretary and the Attorney Generaland other parties to any civil action or proceeding."42 U.S.C. § 233(g)(1)(F). If a "deemed" facility is sued for damages forpersonal injury arising out of its provision of services topatients within the "deemed" activities, section 233(a) providesthe exclusive means to obtain relief. If the United Statesattorney's certification that the facility or its employees wereacting within the scope of the "deeming" is upheld, then theUnited States is to be substituted for the named defendant.28 U.S.C. § 2679(d)(2).

The plaintiff contends both that Ammonoosuc's "deemed" statusdoes not extend to the activities that gave rise to his claim andthat, in the alternative, section 233 is unconstitutional asapplied to him in this case. Memorandum in Support of Plaintiff'sObjection to Motion to Substitute, etc. ("Plaintiff'sSubstitution Opposition") (Docket No. 25) at 2. He first arguesthat the United States attorney's certification is insufficientbecause it "makes only a scope of employment certification" andomits the required certifications that Ammonoosuc is covered bysection 233 for this claim and that the acts or omissions givingrise to the claim were within the scope of the project, id. at 6, citingPolicy Information Notice 99-08 of the Bureau of Public HealthCare. He asserts that each specific allegation in his complaintmust receive separate consideration by the court with respect tothe scope of the project. Id. at 7. However, the sole authoritycited for this assertion, Lyons v. Brown, 158 F.3d 605, 608-09(1st Cir. 1998), imposes no such requirement. In that case, theFirst Circuit upheld a certification by the United Statesattorney which, unlike the certification here, provided that someof the claims alleged in the complaint were within the nameddefendant's scope of employment while others were not. 158 F.3dat 607, 609. The amended complaint in this case cannot reasonablybe read to allege a single claim supported by numerous"divergent" acts, as was the case in Lyons. Id. at 608. Theplaintiff cites no authority for his necessarily-impliedcontention that an internal policy document of a federal agencyhas the force of law with respect to statutory certification, andI am not inclined to endow it with such status on the basis ofthe showing made. The certification is sufficient under section233.

The plaintiff next asserts that his claims do not arise fromthe performance of medical or related functions and therefore arenot subject to section 233. Plaintiff's Substitution Oppositionat 8-11. He states that "at the time of the incidents inquestion" his mother had transferred his medical care fromAmmonoosuc to physicians "not affiliated with" Ammonoosuc. Id.at 9. Thus, he contends, the home visits provided by Ammonoosucafter December 1997, which apparently give rise to his claims,were "not related to medical care," id., as required by section233. The United States responds that the plaintiff's mother was apatient of Ammonoosuc and the plaintiff's allegations arise outof the provision of medical and related services by its homevisiting staff. Reply Memorandum in Support of Motion toSubstitute, etc. ("Substitution Reply") (Docket No. 31) at 3-5.It is not necessary to reach the plaintiff's argument that theindividual Ammonoosuc employees who provided the home visits werenot qualified under New Hampshire law to "give medical advice or perform medical examinations,"Plaintiff's Substitution Opposition at 9-10, or that his claimsare distinguishable from a claim for medical malpractice, id.at 10, because the home visiting services were related to themedical care provided to the plaintiff's mother and were providedonly because of the existence of the plaintiff. The plaintiffdoes not dispute that the home visiting services at issue wereprovided by a nurse or nurses. Id. at 9. Under New Hampshirelaw, a registered nurse is required to report suspected abuse orneglect of a child. N.H. Rev. Stat. Ann. § 169-C:29. The amendedcomplaint alleges, inter alia, that Ammonoosuc failed to reportpromptly the "potentially serious injury or illness" inflicted onthe plaintiff by his father. Amended Complaint ¶¶ 17-20. To theextent that the negligence alleged in the amended complaintarises out of the failure to comply with the statute, thatnegligence is "related to" the provision of medical servicesbecause the duty to report arises out of the employees' status asmedical professionals. See Teresa T. v. Ragaglia, 154 F. Supp.2d 290,300 (D. Conn. 2001). Nothing in the language of section 233requires that the damages claimed result from events related onlyto the performance of medical functions for the named plaintiff.

The plaintiff next argues that Ammonoosuc's home visitingprogram was not a "grant-supported activity," relying on42 C.F.R. § 6.6(d). Plaintiff's Substitution Opposition at 11-15.That regulation provides, in relevant part, that "[o]nly acts andomissions related to the grant-supported activity of entities arecovered" by the Tort Claims Act. 42 C.F.R. § 6.6(d). There is nodispute that Ammonoosuc's home visiting program was at leastpartially funded by the State of New Hampshire. See Attachment3 to Williams Decl. at ACHS-3 ("An important new home visitingdemonstration project will begin in the Spring of 1997 with Statefunding."); Ammonoosuc Community Health Services, Inc.'s Responseto Plaintiff's First Set of Interrogatories, etc. (Attachment 4to Plaintiff's Substitution Opposition) at 4 ("The home visitingprogram . . . was funded through a state grant to AmmonoosucCommunity Health Services, Inc. specifically for the development of that home visitingprogram."). The United States has submitted no evidence insupport of its effort to limit its agreement to the statementthat this program was "partially" funded by the state; the onlyevidence in the record is that it was fully funded by the state.The United States relies, Substitution Reply at 5-6, on aninternal agency interpretation of 42 C.F.R. § 6.6(d) as providingcoverage under the Federal Tort Claims Act to acts and omissions"related to activities within the scope of the approved Federalproject, as defined in the health center's grant application."BPHC Policy Information Notice ("PIN") 96-7 at IV.A (Attachment 1to Exh. A, Supplemental Declaration of Susan Lewis (Exh. A toAmmonoosuc and United States' Objection to Plaintiff's Motion forLimited Discovery and Evidentiary Hearing (Docket No. 13)).

The plaintiff asserts that extending the immunity protectionsof section 233 "not only to `grant-supported activity' but alsoto other activities which are not grant-supported . . . wouldcontradict 42 C.F.R. § 6.6(d)." Plaintiff's SubstitutionOpposition at 13. This argument ignores the fact that theregulation refers to acts and omissions related togrant-supported activity, not to grant-supported activity alone.On its face, the language of the regulation cannot reasonably beinterpreted to be as limited as the plaintiff assumes. I agreewith the plaintiff, id. at 14-15, that the mere listing byAmmonoosuc of every program and activity that it undertakes inits relevant grant application under the heading "scope of theproject" does not thereby render each such program and activityrelated to grant-supported activity, but the inquiry does notstop there.

The United States argues that this court must defer to theagency's interpretation of 42 U.S.C. § 6.6(d) under Bowles v.Seminole Rock & Sand Co., 325 U.S. 410 (1945). SubstitutionReply at 5-9. In that case, the Supreme Court held that ininterpreting a regulation, a court "must necessarily look to theadministrative construction of the regulation if the meaning ofthe words used is in doubt." 325 U.S. at 413-14. In such circumstances, the administrative interpretation "becomesof controlling weight unless it is plainly erroneous orinconsistent with the regulation." Id. at 414. The plaintiffresponds that Bowles does not apply because section 6.6(d) isnot ambiguous. Plaintiff's Surreply Memorandum to ReplyMemorandum in Support of Motion to Substitute, etc.("Substitution Surreply") (Docket No. 39) at 2-7. However, theplaintiff's argument focuses solely on the term "grant-supportedactivity." Id. For the purposes of the present case, it is theterm "related to" in the regulation that is crucial. IfAmmonoosuc's home visiting program is "related to" activity thatis supported by the federal grant at issue, nothing further isrequired. Assuming arguendo that "grant-supported activity" canonly mean activity that is directly paid for by federal grantfunds, as the plaintiff contends, the home visiting program maystill conceivably be related to such activity.

If the term "related to" in 42 C.F.R. § 6.6(d) isambiguous,2 the agency's interpretation set forth in PIN96-7 is neither plainly erroneous nor inconsistent with theregulation. See also Regions Hosp. v. Shalala, 522 U.S. 448,460 (1998) (if plaintiff's construction of ambiguous regulationnot inevitable one, court will examine reasonableness of agency'sinterpretation). The home visiting program is "within the scopeof" the activity that is to be federally funded under therelevant application. See Ammonoosuc Community Health ServicesCommunity Health Center Budget Period Renewal Application(Attachment 3 to Williams Decl.) at ACHS-3 ("The ACHS health planplaces particular emphasis on: infant and child health anddevelopment. . . . The Network will provide case-managedperinatal services. . . . Family practice medical care willcontinue to be the centerpiece of a comprehensive array ofservices including: . . . Family Support services (e.g.counseling, social services advocacy, home visiting, parent-childplaygroups.") It is at least equally possible that the term is not ambiguous,however. I have no trouble reaching the conclusion that the homevisiting program is "related to" Ammonoosuc's federally-fundedactivities, as that term is commonly understood, because theexpressed purposes of the program and of the federally-fundedactivities are so similar. See id. Accordingly, I conclude thatthe plaintiff has failed to carry his burden to overturn theUnited States attorney's certification.

This conclusion makes it necessary to consider the plaintiff'sargument that 42 U.S.C. § 233 is unconstitutional. Plaintiff'sSubstitution Opposition at 16-25. Specifically, the plaintiffcontends that section 233 violates the Tenth and Fifth Amendmentson its face and the Fifth Amendment as applied to him. Id. at19-25.

With respect to the Tenth Amendment, the plaintiff essentiallycontends that section 233 impermissibly obliterates theconstitutional distinction between national and local authority.Id. at 21. This argument about section 233 was squarelyrejected in Ragaglia for reasons that I find persuasive.154 F. Supp.2d at 300. In this circuit, a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state's ability to structure integral operations in areas of traditional governmental functions.United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997)(citations and internal quotation marks omitted). Section 233cannot reasonably be read to regulate the states as states.Nothing further is required to reject the plaintiff's TenthAmendment argument. The plaintiff next asserts that section 233 violates the FifthAmendment on its face because it violates the equal protectionclause by creating a classification that is not rationallyrelated to a legitimate governmental interest. Plaintiff'sSubstitution Opposition at 23-24. The plaintiff's argument onthis point is sketchy at best. Assuming arguendo this it issufficiently set forth to be entitled to judicial consideration,the argument fails. The plaintiff has made no attempt to identifythe classification assertedly created on the face of section 233,and none is readily apparent. A classification based on claimsarising out of medical and related functions within the scope ofa funded project, the only classification which the statute canreasonably be construed to create, is not a suspectclassification, Mills v. Maine, 118 F.3d 37, 47 (1st Cir. 1997)(suspect class is class of persons characterized by unpopulartrait or affiliation that would reflect special likelihood ofbias against them by majority), and is rationally related to thegoal of saving nonprofit providers of such care the cost ofmalpractice insurance, see 138 Cong. Rec. S17862-01. SeeKittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 47 (1st Cir.2003); see also DiPippa v. United States, 687 F.2d 14, 19-20(3d Cir. 1982) (similar provision of Swine Flu Act does notviolate equal protection clause).

The plaintiff's first as-applied constitutional challenge isbased on an assertion that section 233 violates the due processclause of the Fifth Amendment because it deprives him of astate-law cause of action without notice that a shorter statuteof limitations applies and without tolling provisions applicableto minors and disabled individuals that are available under statelaw. Plaintiff's Substitution Opposition at 23. However,

[w]here the legislature enacts general legislation eliminating statutory rights or otherwise adjusting the benefits and burdens of economic life, in the absence of any substantive constitutional infirmity, the legislative determination provides all the process that is due. Hoffman v. City of Warwick, 909 F.2d 608, 619-20 (1st Cir.1990) (citation and internal quotation marks omitted). Theplaintiff has made no showing that there is any substantiveconstitutional infirmity in the statute as applied to him. "Thereis no fundamental right to particular state-law tort claims."Hammond v. United States, 786 F.2d 8, 13 (1st Cir. 1986). Seealso Salmon v. Schwartz, 948 F.2d 1131, 1142-43 (10th Cir.1991).

Finally, the plaintiff contends that section 233, in concertwith 28 U.S.C. § 2401(b),3 violates the equal protectionclause as applied to him because it "singles out tort claimantsfor a shortened two-year statute of limitations with no tollingfor disability, while allowing a six-year statute of limitationsplus tolling during legal disability for `every (other) civilaction.'" Plaintiff's Substitution Opposition at 24 (emphasis inoriginal). He contends that heightened scrutiny must be appliedwhen the classification involves people with mentaldisabilities.4 Id. at 23. The latter contention isincorrect. City of Cleburne v. Cleburne Living Ctr., Inc.,473 U.S. 432, 442 (1985) (mental retardation not a quasi-suspectclassification calling for standard of review stricter than thatnormally applied to economic and social legislation). See alsoTennessee v. Lane, 124 S.Ct. 1978, 1988 (2004) (classificationsbased on disability require application only of rationalrelationship test). In any event, neither section 233 nor section2401(b) can reasonably be read to create a classification basedon disability, so no consideration of the rational relationshiptest is required in this regard. To the extent that theplaintiff's challenge can be construed to challenge the statuteof limitations independent of the alleged classification based ondisability, an equal-protection challenge to section 2401(b) wasrejected in Montalvo v. Graham, 390 F. Supp. 533, 534 (E.D.Wis. 1975), and I agree with that court that the United States may limit its waiverof sovereign immunity in the manner set forth in that statute.Requiring tort claims to be presented sooner than other civilclaims is rationally related to a government interest in promptresolution of such claims. See generally Cadieux v.International Tel. & Tel. Corp., 593 F.2d 142, 145 (1st Cir.1979). II. Motion to Dismiss

A. Applicable Legal Standard

The United States contends that this court lacks subject-matterjurisdiction over the plaintiff's remaining claims. Memorandum inSupport of United States' Motion to Dismiss, etc. ("Motion toDismiss") (attached to Docket No. 4) at 2. This argument invokesFed.R.Civ.P. 12(b)(1). When a defendant moves to dismisspursuant to Rule 12(b)(1), the plaintiff has the burden ofdemonstrating that the court has jurisdiction. Lundquist v.Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir. 1991);Lord v. Casco Bay Weekly, Inc., 789 F. Supp. 32, 33 (D. Me.1992). The court does not draw inferences favorable to thepleader. Hogdon v. United States, 919 F. Supp. 37, 38 (D. Me.1996). For the purposes of a motion to dismiss underRule 12(b)(1) only, the moving party may use affidavits and othermatter to support the motion. The plaintiff may establish theactual existence of subject-matter jurisdiction throughextra-pleading material. 5A C. Wright & A. Miller, FederalPractice and Procedure § 1350 at 213 (2d ed. 1990); see Hawesv. Club Ecuestre el Comandante, 598 F.2d 698, 699 (1st Cir.1979) (question of jurisdiction decided on basis of answers tointerrogatories, deposition statements and an affidavit).

B. Analysis

Count I of the amended complaint sounds in tort and Count IIalleges breach of contract. Amended Complaint ¶¶ 15-24. TheUnited States asserts that the plaintiff failed to file anadministrative claim with the Department of Health and HumanServices within two years of the accrual of his cause of actionas required by the statute of limitations included in the FederalTort Claims Act ("FTCA"), thereby depriving this court ofjurisdiction over his tort claim, and that the plaintiff'scontract claim is barred by the exclusivity provision of42 U.S.C. § 233. Motion to Dismiss at 6, 19. 1. The Tort Claim. The plaintiff alleges that he receivedinjuries at the hands of his father before and on April 10, 1998and that Ammonoosuc failed to prevent these injuries throughnegligence and breach of unspecified contractual duties of whichhe was a third-party beneficiary. Amended Complaint ¶¶ 17-20,22-24. He also asserts that he filed an administrative claim withthe Department of Health and Human Services on January 24, 2002.Id. ¶ 9.

The FTCA provides, in relevant part, that a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues. Because the FTCA is a waiver of sovereign immunity, it is strictly construed. Normally, a tort claim accrues at the time of injury. In United States v. Kubrick, 444 U.S. 111 . . . (1979), the Supreme Court created a discovery rule exception for FTCA claims involving medical malpractice. The Court held that such claims accrue when a plaintiff knows of both the existence and the cause of his injury. The Court determined that accrual does not await the point at which a plaintiff also knows that the acts inflicting the injury may constitute medical malpractice. Distinguishing between ignorance of the facts (of injury or its cause) and ignorance of legal rights, the Court reasoned that a claimant, once armed with knowledge of the fact of injury and the identity of the parties that caused the injury, is no longer at the mercy of the government. At that point, claimants can go to others, such as doctors or lawyers, who will tell them if they are victims of malpractice. The same is not necessarily true of plaintiffs who are ignorant of the facts, particularly when the government may be in possession or control of the necessary information. This court has extended this discovery rule to FTCA claims outside the medical malpractice context. Most circuits also apply a discovery rule to wrongful death actions. Under the discovery rule, a claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action. The test for whether a plaintiff should have discovered the necessary facts is an objective one. We look first to whether sufficient facts were available to provoke a reasonable person in the plaintiff's circumstances to inquire or investigate further. . . . Once a duty to inquire is established, the plaintiff is charged with the knowledge of what he or she would have uncovered through a reasonably diligent investigation. The next question is whether the plaintiff, if armed with the results of that investigation, would know enough to permit a reasonable person to believe that she had been injured and that there is a causal connection between the government and her injury. Definitive knowledge is not necessary. This inquiry is highly fact — and case-specific, as are the pertinent questions to ask.McIntyre v. United States, 367 F.3d 38, 51-52 (1st Cir. 2004)(citations and internal punctuation omitted). The partiesskirmish in their written submissions over the question whetherthe cause of action alleged in Count I of the amended complaintis one for medical malpractice, but the appropriatecharacterization of that claim is irrelevant to resolution of themotion to dismiss. The plaintiff contends that the discovery ruleapplies to his claim. Plaintiff's Memorandum in Support ofObjection to United States' Motion to Dismiss, etc. ("Plaintiff'sDismissal Opposition") (Docket No. 23) at 4-5. Even when thatrule is applied to the facts of this case, the United States isentitled to dismissal.

The plaintiff's specific position is that his mother, whobrought this action on his behalf, "did not know, and in theexercise of reasonable diligence could not have known that ACHS[Ammonoosuc] was a deemed Federal employee because neither shenor her lawyers had reason to suspect that ACHS might be aFederal employee. . . ." Id. at 5-6.5 "[I]n the medicalmalpractice context, . . . one need not know of a governmentalcausal connection for a claim to accrue under the FCTA." Skwirav. United States, 344 F.3d 64, 77 (1st Cir. 2003). This gloss onthe discovery rule has not yet been extended by the First Circuitbeyond medical malpractice cases. However, even assuming thatthis interpretation would not be extended to tort claims allegingbreach of a duty to monitor a plaintiff for evidence ofintentional injury, to provide educational services, to properlytrain and supervise employees, to report abuse and neglect and toexercise reasonable care for a plaintiff's safety, Amended Complaint ¶ 17,the First Circuit's analysis of the discovery rule in Skwiraand Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002),another medical malpractice case, is instructive for evaluationof the plaintiff's specific claim. "[I]n order to toll thestatute of limitations pursuant to the discovery rule, thefactual basis for the cause of action must have been inherentlyunknowable at the time of injury." Gonzalez, 284 F.3d at 288-89(citation and internal quotation marks omitted). A fact is"inherently unknowable" if it is "incapable of detection by thewronged party through the exercise of reasonable diligence."Id. at 289 (citation omitted).

The plaintiff takes the position that Ammonoosuc's status as adeemed federal employee was "inherently unknowable" under thecircumstances of this case. Plaintiff's Dismissal Opposition at13-17. He contends that Ammonoosuc concealed its deemed status byfailing to inform the public and the people it served of thatspecific status, asserting that it had a duty to do so. Id. at10-11, 13-14.6 However, the applicable legal burden iswhether the plaintiff had a duty to inquire under thecircumstances, not whether the defendant had a duty to disclose.Cragin v. United States, 684 F. Supp. 746, 755 (D. Me. 1988).If the plaintiff's admitted failure, and that of his attorneys,to make any inquiry about the possibility that Ammonoosuc mightbe a deemed federal employee falls below an objectivelyreasonable standard under the circumstances, the discovery ruledoes not protect the plaintiff's otherwise admittedly untimelyfiling of his administrative claim. Id. In this case, theplaintiff's mother, who is acting in this litigation as his nextfriend, was informed that Ammonoosuc's home visiting program waspartially funded by the federal government. Williams Decl. ¶ 5 &Attachment 5. This was sufficient information to trigger a dutyon the part of the plaintiff or his attorneys to investigatewhether Ammonoosuc might be a federal employee. See Geo. Knight & Co. v. Watson Wyatt & Co., 170 F.3d 210, 213 (1stCir. 1999). The plaintiff contends that, had he investigated as aresult of the statement that the home visiting program waspartially federally funded, he would only have found that theprogram was in fact totally state funded. Plaintiff's DismissalOpposition at 8. The plaintiff apparently would not havediscovered such a fact, because the funds provided to Ammonoosucby the state for the home visiting program were in fact federalfunds, Supplemental Declaration of Norrine Williams, etc. (Exh. Bto Reply Memorandum in Support of United States' Motion toDismiss (Docket No. 32)) ¶ 11 & Attachment G. In any event, theexistence of federal funding is not the end of the reasonableinquiry to be made. The object of the inquiry would be todetermine whether it was possible that Ammonoosuc could beconsidered a federal employee, for any reason. I find persuasivethe following reasoning of the Eighth Circuit in a case thatrejects the argument made here by the plaintiff: In this case, plaintiffs argue that [they were] "lulled into a false sense of security" because [the defendant] is a private not-for-profit corporation . . . and [they were] never informed of its FTCA coverage. But plaintiffs were not affirmatively misled by [the defendant] or the government — they simply made no inquiry into [the defendant's] status while [one of the plaintiffs] was receiving prenatal care, or during the two-year period after [the accrual date] when an administrative FTCA claim could have been timely filed. The statute of limitations under the FTCA does not wait until a plaintiff is aware that an alleged tortfeasor is a federal employee. To toll the statute because of a plaintiff's ignorance of the defendant's federal employee status, plaintiff must at the very least show that the information could not have been found by a timely diligent inquiry. Here, plaintiffs had ample time after learning of [their injury] to find the Federally Supported Health Centers Assistance Act of 1992 and to inquire into its possible application to their claim. Their failure to do so was a mistake of law that does not entitle them to equitable tolling. Motley v. United States, 295 F.3d 820, 824 (8th Cir. 2002) (emphasis in original; citations and internal punctuation omitted). Here, the plaintiff has not shown that he could not have discovered Ammonoosuc's federal employee status by a diligent inquiry.

The plaintiff also contends that he is entitled to equitabletolling of the statute of limitations because Ammonoosuc"deliberately conceal[ed]" its deemed status. Plaintiff'sDismissal Opposition at 16. Assuming arguendo that equitabletolling is even available in FTCA cases, see McIntyre, 367 F.3dat 61 & n. 8, to the extent that this argument differs from theplaintiff's contention that he was not required to investigatethe possible existence of Ammonoosuc's deemed status, it isforeclosed by Motley. In addition, the plaintiff has made noshowing of deliberate concealment by Ammonoosuc; he merelycharacterizes Ammonoosuc's failure to include a statement of suchstatus on all of its brochures, consent forms and other publicdocuments as deliberate concealment, a characterization that isnot justified under the circumstances. As the First Circuit saidin Skwira, when the plaintiff knows the identity of the allegedtortfeasor, "[a]bsent extraordinary circumstances" the FTCAstatute of limitations is not tolled until the plaintiff is awareof the legal status of the alleged tortfeasor. 344 F.3d at 76.The plaintiff asserts that the existence of section 233 is initself such an extraordinary circumstance, Plaintiff's DismissalOpposition at 17, but that argument would eviscerate section 233,because the FTCA statute of limitations, of which section 233 wasdesigned to take advantage, could never be applied throughsection 233.

The plaintiff's final argument is that the FTCA statute oflimitations should be tolled because he was incapacitated by thegovernment's negligence. Id. at 17-18. Even if this theory wereapplicable in this case, the fact is that the plaintiff at thetime the action was filed was six years old, Amended Complaint ¶2, and the action could only have been brought on his behalf by aparent or next friend in any event. His mother, who brought thisaction on his behalf, does not allege that she was in any wayincapacitated by the defendant's negligence. Under these circumstances, the facts thatthe plaintiff is a minor or that he alleges incompetence causedby the defendant cannot serve to toll the statute of limitations.McCall v. United States, 310 F.3d 984, 986-87 (7th Cir. 2002)(distinguishing 2 of 4 cases cited by plaintiff in this case,Plaintiff's Dismissal Opposition at 18). The two cases cited bythe plaintiff that are not distinguished in McCall are alsodistinguishable. In Washington v. United States, 769 F.2d 1436(9th Cir. 1985), the court determined that the administrativeclaim was filed within two years after the cause of actionaccrued and specifically stated that its decision did not rest ontolling of the FCTA statute of limitations. Id. at 1439. InLieberkneckt v. Bridgestone/Firestone, Inc., 980 F. Supp. 300,308 (N.D. Iowa 1997), the court was construing Iowa law, not theFTCA. The First Circuit has held that "it is well establishedthat state . . . tolling rules do not affect the two-year statuteof limitations applicable to federal claims" under the FTCA.Vega-Velez v. United States, 800 F.2d 288, 290 (1st Cir. 1986).The plaintiff has not cited any federal tolling rule forincapacitated minors.

2. The Contract Claim. Count II of the amended complaintalleges that the plaintiff is the third-party beneficiary ofunspecified contractual obligations between Ammonoosuc and othersthat were breached by Ammonoosuc. Amended Complaint ¶¶ 21-24. TheUnited States contends that it is entitled to dismissal of thisclaim because the only remedy authorized for the plaintiff'sclaims is provided by section 233, which is by its terms anexclusive tort remedy and that the contract claim is only adisguised tort claim. Motion to Dismiss at 19-20, 21-23. Theplaintiff does not respond to this portion of the United States'motion, although in his formal objection to the motion to dismisshe states that he "agrees that to the extent Count II . . .assert[s] a contract claim against the United States, th[at]contract claim[] [is] subject to the exclusive jurisdiction ofthe U.S. Court of Federal Claims." Plaintiff's Objection toMotion to Dismiss at 2. This would appear to be an admission thatthe defendant, if the motion to substitute is granted, isentitled to dismissal of Count II. Under these circumstances, the motion todismiss the contract claim set forth in Count II should begranted.

The motion should also be granted on the merits. The languageof 42 U.S.C. § 233(a) does make the tort remedy exclusive underthe circumstances of this case. See also Bembenista v. UnitedStates, 866 F.2d 493, 496 (D.C. Cir. 1989) (contract claim thatessentially repeats tort claim sounds in tort).

III. Conclusion

For the foregoing reasons, I grant the motion of the UnitedStates to substitute itself for Ammonoosuc and recommend that themotion of the United States to dismiss be GRANTED.

1. The amended complaint alleges no basis for jurisdiction inthis court other than "diversity of citizenship and amount incontroversy," Amended Complaint ¶ 6, a reference to28 U.S.C. § 1332(a). It also alleges that the plaintiff's claims are notsubject to the Federal Tort Claims Act. Id. ¶ 9. However, tothe extent that the action should properly be brought against theUnited States, 28 U.S.C. § 1346(b) provides jurisdiction in thiscourt for tort claims such as those set forth in the amendedcomplaint and 28 U.S.C. § 2672 provides an administrativeprocedure for disposition of such claims. The remedy provided bythese statutes is exclusive when the claim arises from theperformance of medical, surgical, dental or related functions.42 U.S.C. § 233(a).

2. See, e.g., Doe v. Group Hospitalization & Med. Servs.,3 F.3d 80, 89 (4th Cir. 1993) (scope of "related to" ambiguous);United States v. Giorgi, 840 F.2d 1022, 1028 (1st Cir. 1988)("related to" facially ambiguous); Charles of the Ritz GroupLtd. v. Quality King Distribs., Inc., 832 F.2d 1317, 1324 (2dCir. 1987) (phrase "not related to" is ambiguous).

3. This statute establishes a six-year limitations period forcivil actions against the United States and requires presentationof a tort claim against the United States to the appropriatefederal agency within two years after the claim accrues.28 U.S.C. § 2401.

4. The plaintiff alleges that he is mentally incompetent.Amended Complaint ¶ 11.

5. The plaintiff contends that knowledge that Ammonoosuc'shome visiting program, through which the services at issue inthis proceeding were provided, was funded in part or in full bythe federal government would not have given his mother or hislawyers reason to suspect that Ammonoosuc was a federal employeebecause its day-to-day operations were not supervised by thefederal government. Plaintiff's Dismissal Opposition at 8-9.However, that is not the applicable legal test involved in thiscase, where Ammonoosuc was deemed a federal employee by operationof statute.

6. Much of the case law cited by the plaintiff in support ofthis assertion, Plaintiff's Dismissal Opposition at 14-15, isbased on or follows the decision in Kelly v. United States,568 F.2d 259 (2d Cir. 1978), the reasoning of which was "effectivelyoverruled by the 1988 amendments to the FTCA," Nin v. Liao,2003 WL 21018816 (S.D.N.Y. May 5, 2003), at *4.

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