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Sterling v. VA North Texas Health Care System

United States District Court, N.D. Texas, Dallas Division

April 29, 2019




         Plaintiff Phillip Sterling filed in a Dallas County justice court a pro se petition against defendants including the VA North Texas Health Care System (the “VA”) invoking the Federal Tort Claims Act (the “FTCA”) (the “Complaint”). See Dkt. No. 1-4 at 1 (citing 28 U.S.C. § 2674). The VA and the United States removed his action to this Court under 28 U.S.C. §§ 1442(a)(1) and 2679(d)(2). See Dkt. No. 1. And the action was referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from Senior United States District Judge A. Joe Fish.

         The VA and the United States have moved to dismiss Sterling's lawsuit for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Dkt. No. 5. Sterling filed a court-ordered response to the motion. See Dkt. No. 8; see also Dkt. No. 9. The VA and the United States filed a reply brief. See Dkt. No. 9. And Sterling filed an unauthorized sur-reply. See Dkt. No. 10; see also Dkt. No. 9.

         The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should grant the motion to dismiss and dismiss this action without prejudice for lack of subject matter jurisdiction.

         Applicable Background

         In the Complaint, Sterling, a veteran, alleges that, under the VA “Choice Program, ” the VA failed to pay for out-of-pocket expenses he incurred related to heath care he received from non-VA providers (1) under the Texas Deceptive Trade Practices-Consumer Practice Act (the “DTPA”) and (2) based on a breach-of-contract theory. See generally Dkt. No. 1-4; see also, e.g., Dkt. No. 8 (response to motion to dismiss) at 2 (“[T]he Dallas VA does not have a clear procedure for reimbursing medications not carried by the VA pharmacy. The VA did not disclose this information to the veteran. The VA lead Sterling to believe they were going to pay him for his out of pocket expenses but did not. The whole VA process is confusing, mis-leading, and deceptive. Veteran was told he would be reimbursed and was not. Sterling has met all requirements showing his complaint is State Law related and has nothing to do with Federal Law, VA benefits or FTCA tort claim.”).

         Sterling named as a defendant Stephen Holt, Director. See Dkt. No. 1-4 at 1. And, in removing this action, the VA and the United States included a certification from the Civil Chief for the United States Attorney's Office for this district that Holt “was acting within the scope of employment as an employee of the United States at the time of the incidents out of which the claim arose, ” Dkt. No. 1 at 6 (citing 28 U.S.C. § 2679; 28 C.F.R. § 15.4), thus substituting the United States as the party defendant for Holt, see 28 U.S.C. § 2679(d)(2).

         Legal Standards

         “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). As such, the Court must dismiss a complaint for lack of subject matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). The Court will not assume it has jurisdiction. Rather, “the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference.” Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5th Cir. 1983)).

         “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist” in any case originally filed in federal court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted).

         And where, like here, a defendant files a Rule 12(b)(1) motion to dismiss, the attack is presumptively “facial, ” and the Court need look only to the sufficiency of the allegations of the plaintiff's complaint, or on the complaint as supplemented by undisputed facts, all of which are presumed to be true. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981).

         A “factual” attack on jurisdiction, however, is based on affidavits, testimony, and other evidentiary material. See Id. Under such an attack, the Court “is empowered to consider matters of fact which may be in dispute, ” Ramming, 281 F.3d at 161, and, to oppose the Rule 12(b)(1) motion, “a plaintiff is also required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction, ” Paterson, 644 F.2d at 523; see also Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. May 1981) (“Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case - there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” (quoting Mortensen v. First. Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977))).

         “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming, 281 F.3d at 161. ‚ÄúThis requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. The court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits ...

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