United States District Court, W.D. Washington, Seattle
ORDER DISMISSING COMPLAINT FOR LACK OF SUBJECT MATTER
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Defendant United States of America's
(“the Government” or “the United
States”) Federal Rule of Civil Procedure 12(b)(1)
motion to dismiss Plaintiff Behrouz Kazemi's complaint
for lack of subject matter jurisdiction pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2675. (See MTD (Dkt. # 5); see also
Compl. (Dkt. # 1-1).) Mr. Kazemi did not file a response to
the Government's motion. (See generally Dkt.)
The court has reviewed the motion, relevant portions of the
record, and the applicable law. Being fully advised,
court GRANTS the Government's motion and DISMISSES Mr.
Kazemi's complaint WITHOUT PREJUDICE.
about May 23, 2019, Mr. Kazemi filed a complaint in King
County Superior Court. (See generally Compl.) In his
complaint, Mr. Kazemi alleges that he suffered injuries and
incurred damages on May 30, 2016, following a medical
appointment with Dr. Katherine Wertin at HealthPoint, which
is a federally supported health center. (See generally
Id. ¶¶ 6.1-6.7.) Specifically, Mr. Kazemi
alleges that he was misdiagnosed with a serious heart
condition and prescribed medication. (See generally
id.) Prior to filing his complaint, Mr. Kazemi did not
file an administrative claim with the United States
Department of Health and Human Services (“the
Department”). (Torres Decl. (Dkt. # 7) ¶¶
October 16, 2019, the Government removed Mr. Kazemi's
complaint to federal court. (See Notice of Removal
(Dkt. # 1).) The next day, the Government certified that Dr.
Wertin and HealthPoint, and its employees, “are federal
employees acting within the scope of employment for purposes
of coverage under the Federally Supported Health Centers
Assistance Act (“FSHCAA”), 42 U.S.C. §
233.” (See Notice of Sub. (Dkt. # 2) at 1-2;
see also Torres Decl. ¶¶ 5-6).) Pursuant
to that certification, the Government substituted itself for
Healthpoint and Dr. Wertin as the defendant in this action.
(Id. (citing 28 U.S.C. §§ 2679(b),
October 22, 2019, the Government filed its present motion to
dismiss for lack of subject matter jurisdiction.
(See MTD.) Mr. Kazemi failed to respond to the
Government's motion. (See generally Dkt.) The
court now considers the Government's motion.
Standards for a Rule 12(b)(1) Motion to Dismiss
matter jurisdiction is a threshold issue that goes to the
court's power to hear a case. Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 94-95 (1998). A
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction may be facial or factual. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
In resolving a facial attack, the challenger asserts that the
allegations of the complaint are insufficient on their face
to invoke the jurisdiction of the court. See Id.
However, “[i]n resolving a factual attack on
jurisdiction, the district court may review evidence beyond
the complaint without converting the motion to dismiss into a
motion for summary judgment.” Id. (citing
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003)). “Once the moving party has
converted the motion to dismiss into a factual motion by
presenting affidavits or other evidence properly brought
before the court, the party opposing the motion must furnish
affidavits or other evidence necessary to satisfy its burden
of establishing subject matter jurisdiction.”
Id. (quoting Savage, 343 F.3d at 1039 n.2).
The Court Lacks Subject Matter Jurisdiction Because Mr.
Kazemi Failed to File an Administrative Claim
United States is immune from suit unless it consents to be
sued. United States v. Mitchell, 445 U.S. 535, 538
(1980); Cato v. United States, 70 F.3d 1103, 1107
(9th Cir. 1995). Any waiver of immunity is strictly construed
in favor of the United States. United States v. Nordic
Vill., Inc., 503 U.S. 30, 33-34 (1992). The FTCA is a
limited waiver of sovereign immunity that permits plaintiffs
to bring claims against the United States for the
“negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office
or employment.” 28 U.S.C. § 1346(b)(1).
jurisdictional prerequisite, an FTCA claim may only be
instituted after the Government denies an administrative
claim, either actually or constructively by failing to act
upon the claim within six months. See 28 U.S.C.
§ 2675(a); McNeil v. United States, 508 U.S.
106, 113 (1993) (“The FTCA bars claimants from bringing
suit in federal court until they have exhausted their
administrative remedies.”). “The requirement of
an administrative claim is jurisdictional.” Brady
v. United States, 211 F.3d 499, 502 (9th Cir. 2000).
“Because the requirement is jurisdictional, it must be
strictly adhered to. This is particularly so since the FTCA
waives sovereign immunity.” Id. (internal
citation and quotation omitted).
Government provides competent evidence that Mr. Kazemi did
not present an administrative claim to the Department prior
to filing suit in King County Superior Court. (See
Torres Decl. ¶¶ 2-4.) Mr. Kazemi provides no
response to the Government's evidence. (See
generally Dkt.) Thus, the court concludes that because
Mr. Kazemi did not “first present the claim to”
the relevant federal agency and allow the agency to make a
final disposition of his claim, he failed to exhaust his
administrative remedies as required under 28 U.S.C. §
2675(a). As a result, the United States has not waived its
sovereign immunity, and this ...