United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
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).
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.
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).
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).
“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.
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. “This
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 ...