Knapp v. United States of America

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTINA KNAPP and

DOUGLAS KNAPP, :

Plaintiffs :

CIVIL ACTION NO. 3:18-1422

v. :

(JUDGE MANNION)

UNITED STATES OF AMERICA, :

DEPT. OF HEALTH AND HUMAN

SERVICES,1 :

Defendant :

MEMORANDUM

I. Background

Plaintiffs, Christina Knapp and her husband Douglas Knapp, filed the

above captioned medical negligence action on July 17, 2018, pursuant to the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§2671, et seq. (Doc. 1).

Plaintiffs essentially allege that Christina went to Pike County Family Health

Center, (the “Health Center”) Hawley, Pennsylvania, in May of 2015 for

medical care regarding a red rash on her head and tightening of her jaw, and

that Eileen Arenson, C.R.N.P., negligently treated her. They also allege that

1The only proper defendant in an FTCA action is the United States itself.

Thus, claims brought against parties other than the United States, such as the

federal agency, should be dismissed. See Priovolos v. FBI, 632 Fed.Appx. 58,

60 (3d Cir. 2015). Pike County Family Health Center is one of the sites

operated by Wayne Memorial Community Health Centers (“WMCHC”), which

is a federally qualified health center, and receives funding from the U.S.

Department of Health & Human Services (“HHS”). (Doc. 11-3). As such,

WMCHC was deemed eligible for Federal Tort Claims Act malpractice

coverage effective January 1, 2017. See Farrell v. United States, Civil No.

19-1786, M.D.Pa. (Feb. 18, 2020).

as a result of the negligent treatment Christina suffered serious injuries,

including microscopic polyangiitis and chronic kidney disease stage 3, which

became permanent. Douglas Knapp asserts a claim for loss of consortium.

Before they filed the instant lawsuit in this court, plaintiffs faxed an SF-95

administrative tort claim to the Health Center on June 28, 2017. Plaintiffs

indicated that the date of the incident was July 15, 2015. The SF-95 was sent

to WMCHC on July 19, 2017, and then emailed to HHS.

Presently before the court is the United States’ motion to dismiss, or

alternatively, for summary judgment due to plaintiffs’ failure to have presented

their tort claim to the HHS within two years from the date that their claim

accrued. (Doc. 9). The motion has been fully briefed and a statement of fact,

a response along with additional facts, and exhibits have been submitted.

Thus, the motion is ripe for disposition.

For the reasons that follow, the United States’ motion for summary

judgment will be granted and judgment will be entered in favor of the United

States because plaintiffs failed to present their tort claim to the proper federal

agency within two years of the accrual of their cause of action as required by

28 U.S.C. §2401(b).2

2On April 9, 2019, the court granted the United States’ motion for

protective order and stayed discovery in this case pending the resolution of

its dispositive motion. (Doc. 25).

2

II. Statement of Undisputed Facts3

The Health Center is operated by WMCHC and WMCHC is a federally

supported health center and receives funding from HHS.

Christina Knapp (“Knapp”) sought medical attention at the Health Center

on May 14, 2015, for a red rash on her head and tightening of her jaw. On the

same day, Arenson diagnosed Knapp with Lyme disease and prescribed

Doxycycline.

On May 22, 2015, Knapp developed a rash on her hands, and

experienced difficulty eating, as well as weight lost. Subsequently, Knapp

consulted a number of physicians, including Arenson, and was hospitalized

twice. Also, during this time, an on-call doctor advised Knapp to discontinue

Doxycycline immediately in case her rash was a drug-related reaction and

Knapp stopped taking the medication.

On May 27, 2015, Knapp was examined by Arenson because she

continued to have chills, was feverish, and had blood red eyes. At this visit,

Arenson advised Knapp to resume taking Doxycycline and finish the course

of the medication.

3Since the court considers the evidence submitted by the parties along

with their statements of material facts and their responses, it treats the United

States’ motion as one for summary judgment. Also, since the parties state the

correct legal standard for a Rule 56 summary judgment motion in their briefs,

the court does not repeat it herein.

The denials of both parties, without citation to the record, to the

statements of material facts submitted by the opposing party, which are

supported by citation to the record, shall be deemed admitted pursuant to

Local Rule 56.1, M.D.Pa.

3

After that, Knapp’s condition worsened and on June 3, 2015, she

discontinued the Doxycycline again.

Then on June 10, 2015, when Knapp’s condition worsened again, she

went to the emergency room at Geisinger Community Medical Center. At the

hospital, the treating physician allegedly indicated that he “was appalled that

the Doxycycline was prescribed without diagnosis of Lyme Disease.”

Following several other doctor’s visits, Knapp “learned for the first time

[on July 15, 2015] that she was suffering from microscopic polyangiitis and

chronic kidney disease stage 3 caused by the Doxycycline.”

On May 26, 2017, plaintiffs instituted an action against Arenson and the

Health Center in the Court of Common Pleas of Pike County, Pennsylvania,

with the filing of a Praecipe for Writ of Summons.

On June 20, 2017, the Pike County Sheriff’s Office served the Writ of

Summons on Arenson and the Health Center.

On June 23, 2017, counsel for plaintiffs received a telephone call from

Matthew P. Keris, Esq., counsel for the Health Center, and was advised that

the Health Center received federal funding, and that the action commenced

against it by plaintiffs in the Pike County Court of Common Pleas had to be

pursued through the Federal Tort Claims Act.

On June 28, 2017, plaintiffs faxed an administrative tort claim, SF-95,

to the Health Center. The SF-95 asserted claims on behalf of both plaintiffs

and stated that the date of the incident giving rise to their claims was July 15,

2015, and that their claims were related to the allegedly negligent care Knapp

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was provided by Arenson. By July 18, 2017, the SF-95 tort claim form was

given to Arenson, however, she does not recall who gave it to her or

specifically when she received it.

On July 19, 2017, Arenson forwarded the SF-95 to Norma Nocilla,

Risk Manager for WMCHC. That same day, Nocilla emailed the SF-95 to

Meredith Torres, a Senior Attorney in HHS’s Office of General Counsel,

Claims and Employment Branch.

Torres has access to the records regarding all claims against HHS, and

she searched those records and did not find any administrative tort claim SF-

95 that was submitted to HHS by plaintiffs prior to July 19, 2017.

Plaintiffs then filed the instant complaint in this federal court on July 17,

2018, (Doc. 1), against the United States and HHS. Plaintiffs state that since

HHS took no action on their SF-95 tort claim within 6 months, they

commenced their instant case in federal court pursuant to 28 U.S.C.

§2675(a). Plaintiffs’ state court action against Arenson and the Health Center

remains pending. To date, there is nothing in the record to suggest that HHS

denied plaintiffs’ administrative tort claim SF-95, and it appears that HHS has

not decided plaintiffs’ SF-95 since it was not timely presented.

III. Discussion

As a prerequisite to suit under the FTCA, a claim must first be

presented to the federal agency and be denied by the agency, or be deemed

to be denied. Section 2675(a) of Title 28, United States Code, provides in

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pertinent part:

An action shall not be instituted against the United States for

money damages for injury or loss of property or personal injury ...

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 the 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....

The plaintiff has the burden of demonstrating that the agency actually

received the administrative claim. Lightfoot v. United States, 564 F.3d 625 (3d

Cir. 2009). This burden rests with the plaintiff because, in general, the United

States enjoys sovereign immunity from suit unless it otherwise consents to be

sued. White—Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).

The United States’ “consent to be sued must be ‘unequivocally expressed,’

and the terms of such consent define the court’s subject matter jurisdiction.”

Id. The Federal Tort Claims Act constitutes “a limited waiver of the United

States’s sovereign immunity.” Id. The FTCA provides that the United States

shall be liable, to the same extent as a private individual, “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[.]” 28 U.S.C. §1346(b)(1); see also 28 U.S.C.

§2674.

“The cause of action provided by the FTCA, 28 U.S.C. §1346(b), is the

exclusive remedy ‘for injury or loss of property, or personal injury or death

arising or resulting from the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or

employment.” Vargas v. Eckhardt, 2018 WL 4676050, *3 (D.N.J. Sept. 28,

2018) (citing 28 U.S.C. §2679(b)(1)). “The statute confers exclusive

jurisdiction over such claims on federal district courts.” Id. (citing 28 U.S.C.

§1346(b)(1)) (emphasis original).

Prior to commencing an FTCA action against the United States in

federal court, however, a plaintiff must “first present[ ] the claim to the

appropriate Federal agency” and receive a final denial “by the agency in

writing and sent by certified or registered mail.” 28 U.S.C. §2675(a). A claim

is considered to be presented when the federal agency receives written

notification of the alleged tortious incident and the alleged injuries, together

with a claim for money damages in a sum certain. 28 C.F.R. §14.2(a). If the

receiving federal agency fails to make a final disposition of the claim within six

months from the time it is filed, that failure is “deemed a final denial of the

claim” for purposes of commencing suit under the FTCA. 28 U.S.C. §2675(a).

The Third Circuit has instructed that “[i]n light of the clear, mandatory

language of the statute, and [the] strict construction of the limited waiver of

sovereign immunity by the United States, ... the requirement that the

appropriate federal agency act on a claim before suit can be brought is

jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352,

362 (3d Cir. 2003) (citing Livera v. First Nat'l Bank of New Jersey, 879 F.2d

1186, 1194 (3d Cir. 1989)). The Supreme Court has likewise succinctly

explained that “[t]he FTCA bars claimants from bringing suit in federal court

until they have exhausted their administrative remedies.” McNeil v. United

States, 508 U.S. 106, 113 (1993). As a result, a district court may dismiss a

claim brought under the FTCA for lack of subject matter jurisdiction pursuant

to Rule 12(b)(1) where the plaintiff has not exhausted his administrative

remedies prior to filing suit. See, e.g., Abulkhair v. Bush, 413 F. App’x 502,

506 (3d Cir. 2011); Accolla v. United States Gov’t, 369 F. App’x 408, 409-10

(3d Cir. 2010) (finding the district court properly dismissed FTCA claim where

the plaintiff filed federal suit prior to exhausting administrative remedies);

Hurley v. Fata, 2019 WL 6975095, *3 (D.N.J. Dec. 19, 2019) (“Exhaustion of

all administrative remedies under the FTCA ‘is jurisdictional and cannot be

waived.” “Strict compliance with Section 2675(a) is required to establish

subject matter jurisdiction over an FTCA suit.”) (internal citations omitted).

Moreover, a claimant must abide by the strict time requisites codified in

28 U.S.C. §2401(b) or its tort claim under the FTCA will be “forever barred.”

See Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). In order

428 U.S.C. §2401(b) states:

[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 or unless action is

begun within six months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim by the agency

to which it was presented.

to sue the United States in District Court and avoid violating the FTCA’s

express Statute of limitations, a tort claim must be “presented in writing to the

appropriate Federal agency within two years after such claim accrues....” 28

U.S.C. § 2401(b); see also Bialowas, 443 F.2d at 1049. Section 2401's “time

bar is strictly construed.” Livera v. First Nat. State Bank of N.J., 879 F.2d

1186, 1195 (3d Cir. 1989). The determination of when a claim has accrued

under the for statute of limitations purposes is governed by federal law and

not state law. Miller v. Phila. Geriatric Center, 463 F.3d 266, 270 (3d Cir.

2006). The claim accrues “when a plaintiff knows of both the existence and

the cause of his injury.” Id. at 272. “[A] claim of medical malpractice under the

FTCA accrues when a plaintiff possesses the facts such that, as a reasonable

person, he or she should have known of the malpractice.” Young v. Temple

Univ. Hosp., 2019 WL 5569510, *7 (E.D.Pa. 2019) (citing United States v.

Kubrick, 444 U.S. 111, 119-122 (1979)). The claim is “presented” (thus tolling

the running of the limitations period) when an executed SF-95 and a claim for

money damages in a sum certain are received by the appropriate government

agency. 28 C.F.R. §14.2.

At issue is when plaintiffs properly presented their tort claim to the

applicable federal agency, HHS. Here, the undisputed evidence shows that

HHS did not receive plaintiffs’ SF-95 tort claim until July 19, 2017. Also,

according to plaintiffs’ own admissions in their SF-95 and in their instant

complaint, their negligence claim accrued on July 15, 2015. Thus, plaintiff's

were required to have presented their tort claim to HHS, within two years of

July 15, 2015, i.e., by July 15, 2017. Although plaintiffs faxed their SF-95 on

the Health Center on June 28, 2017, the question becomes whether this

constituted receipt by the appropriate federal agency for purposes of being

presented to HHS. Unfortunately, it does not.

The government argues, “Plaintiffs’ act of faxing the SF-95 to the Health

Center prior to the July 15, 2017 deadline does not satisfy the requirements

of federal law with respect to presentment of a claim, because, inter alia, the

Health Center is not considered a federal agency.” (Doc. 18 at 3) (citing Motta

ex rel. A.M. v. U.S., 717 F.3d 840, 845 (11th Cir. 2013) (affirming dismissal of

FTCA complaint where claimant submitted SF-95 to the health center within

two years of the accrual of her claim, but did not submit SF-95 to HHS until

after the two years had elapsed since health center was not a federal

agency)).

The government then contends as follows:

Plaintiffs’ request that the Court utilize tolling principles to save

their claim from dismissal completely ignores the fact that they did

not present their claim to HHS prior to the applicable deadline.

The timely presentment of a claim is essential to the successful

filing of an action pursuant to the FTCA. Plaintiffs never presented

a claim directly to HHS. While their claim eventually arrived at

HHS through other means, by the time the claim arrived, the filing

deadline had passed. To this day, Plaintiffs have not presented a

claim directly to the agency, as per the requirements of the FTCA.

HHS merely came into possession of the SF-95 because Arenson

forwarded the document to Nocilla who, in turn, forwarded the

document to Torres (Doc. 11, at ¶¶12-16). Torres’s receipt of the

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SF-95 does not constitute presentment because the form arrived

four days after the deadline had passed. Plaintiffs’ act of filing a

state court praecipe prior to these deadlines did not toll those

deadlines.

(Id. at 3-4).

Plaintiffs argue that they should be able to avail themselves of the

Westfall Act’s Savings Clause. See 28 U.S.C. §2679(d)(5). No doubt that

“[t]he FTCA required [plaintiffs] to present [their] claim to the appropriate

federal agency—here, the Department of Health and Human Services

(HHS)—within two years of its accrual.” Huerto v. U.S., 601 Fed.Appx. 169,

170 (3d Cir. 2015) (citing 28 U.S.C. §2401(b)). In the instant case, the court

has found that plaintiffs failed to present their SF-95 tort claim to HHS within

the 2-year period. However, in 1988, Congress amended the FTCA and

“established a procedure by which an FTCA action that is filed in the wrong

forum (such as the state court here) will be removed by the Attorney General

to federal district court, at which point the United States is substituted as

defendant, the case is dismissed for failure to exhaust administrative

remedies, and the plaintiff gets a second chance to file the FTCA claim with

the appropriate federal agency.” Id. at 171(citing 28 U.S.C. §2679(d)). “[T]he

Westfall Act contains a tolling provision (known as its “savings clause”)”,

which provides that in order “for a tort action to avoid dismissal under the

FTCA statute of limitations after it was mistakenly filed in state court, the

plaintiff must have: (1) filed her state court action within two years of the

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alleged injury; (2) presented her FTCA claim to the correct federal agency

within 60 days of the removal and dismissal of the wrongly filed state court

action; and (3) if denied by the agency, appealed to federal district court

within six months.” Id. (citing §2679(d)(5)). See also Santos ex rel., Beato v.

U.S., 559 F.3d 189, 193-94 (3d Cir. 2009) (“Pursuant to [the Westfall Act’s]

savings clause an errant plaintiff whose suit is removed to a district court, and

then dismissed because she failed to bring the timely required administrative

claim, will be credited with the date that she filed her claim in the wrong forum

for purposes of the FTCA's statute of limitations.”).

Even if the Westfall Act’s Savings Clause is applicable in this case

involving a Healthcare Center, plaintiffs fail to satisfy the second requirement.

Although they initiated a state court action within two years of their alleged

injury, i.e., on May 26, 2017, they failed to present their tort claim to HHS

within 60 days of the removal and dismissal of the wrongly filed state court

action. The United States was not substituted as the proper party in plaintiffs’

state court action, and the state court case was not removed to federal court

with the government moving to dismiss it for failure to exhaust administrative

remedies. In fact, plaintiffs’ state court action was not dismissed and it

remains pending against Arenson and the Health Center in Pike County

Court. Then, almost 14 months after plaintiffs filed their state court action,

they filed the instant complaint in this federal court on July 17, 2018.

Unfortunately, during all of this time plaintiffs did not properly present their tort

12

claim to HHS within two years of July 15, 2015 (the date their cause of action

accrued), and HHS did not receive plaintiffs’ SF-95 tort claim until July 19,

2017. Thus, plaintiffs never timely presented their tort claim to HHS.

Significantly, plaintiffs acknowledge that they were on notice that their action

fell under the FTCA prior to the deadline to present their SF-95 to HHS.

Counsel for plaintiffs avers that on June 23, 2017 counsel for the Health

Center (Keris) advised him that plaintiffs were required to pursue their claim

through the FTCA. Rather than properly submitting their SF-95 to HHS as

required, plaintiffs faxed and hand delivered the SF-95 to the Health Center

on June 28, 2017. It was incumbent on counsel for plaintiffs to determine the

“procedural machinations” under the FTCA and how to properly present

plaintiffs’ SF-95 to the applicable federal agency within the deadline. No doubt

that “[b]ecause the FTCA expresses the consent of the United States to be

sued for certain claims, ‘the terms of such consent [including the

administrative exhaustion procedure] define the court’s subject matter

jurisdiction’ and must be ‘strictly construed.’” Vargas, 2018 WL 4676050, *4

(quoting White-Squire, 592 F.3d at 456). Additionally, “[t]he burden is on a

plaintiff to establish that a proper administrative claim has been filed.” Livera,

879 F.2d at 1195.

As such, if applicable, the Westfall Act’s Savings Clause was never

triggered in this case and plaintiffs’ untimely presented tort claim to HHS was

not rendered timely pursuant to the Savings Clause.

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Moreover, the government contends that since “this matter involves

alleged acts by employees of a federally supported health center, the

Plaintiffs’ only FTCA remedy is relief potentially available through the

Federally Supported Health Centers Assistance Act, 42 U.S.C. §§ 233(g)-(n),

which itself incorporates only the provisions of the Public Health Service Act,

42 U.S.C. §233, and not provisions of the Westfall Act.” (Doc. 18 at 8). The

government argues that the Public Health Service Act’s provisions govern the

instant case and that “the Supreme Court [in Hui v. Castaneda, 559 U.S. 799,

809-12 (2010),] has ruled that the Westfall Act’s provisions are not

incorporated into the Public Health Service Act.” (Id.). However, in Hui, the

Supreme Court did not decide the issue of whether the Westfall Act’s Savings

Clause applied to an action against PHS officers and employees.

As noted above, the Health Center is one of the sites operated by

WMCHC, which is a federally qualified health center, and receives funding

from HHS. “Under 42 U.S.C. §254b(c)(1)(A), the government ‘may make

grants to public and nonprofit private entities for projects to plan and develop

health centers which will serve medically underserved populations.’” Lomando

v. U.S., 667 F.3d 363, 371 (3d Cir. 2011). Thus, “Congress passed the

Federally Supported Health Centers Assistance Act of 1992 [FSHCAA],

Pub.L. No. 102–501, 106 Stat. 3268 (codified as amended at 42 U.S.C.

§§201, 233).” Id. The FSHCAA “created a process by which ‘public and

nonprofit private entities’ receiving federal funds pursuant to 42 U.S.C.

14

§254b(c)(1)(A) and health practitioners that such entities employ ‘shall be

deemed to be [employees] of the Public Health Service.’ 42 U.S.C.

§233(g)(1)(A).” Id. See also D’Alessabdro v. United States, 2019 WL

2514827, *6n. 4 (W.D.N.Y. 2019) (“The Public Health Services Act (“PHSA’),

42 U.S.C. §201, et seq., as amended by the [FSHCAA], ‘provides that eligible

community health centers and their employees are considered federal agency

employees under the PHS Act for certain purposes.’”’).

“A new [Federally Supported Health Centers Assistance Act (FSHCAA)

was enacted in 1995 to permanently extend and clarify the provisions of the

earlier [1992] Act.” Estate of Booker v. Greater Phila. Health Action, Inc., 10

F.Supp.3d 656, 660 n. 5 (E.D.Pa. 2014). As the court in Booker, id. at 660,

stated:

the FSHCAA makes a suit against the United States under the

FTCA the exclusive remedy for medical negligence claims against

public or private nonprofit entities receiving federal funds under 42

U.S.C. §254b and employees of such entities in certain

circumstances. Federally funded community health centers like

[the Health Center] are entitled to FTCA coverage for malpractice

claims against themselves and their employees if the Secretary

has deemed the entity and its employees to be employees of the

Public Health Service for purposes of 42 U.S.C. §233 with respect

to the actions or omissions that are the subject of the underlying

malpractice claims.

See also Dawson v. United States, 2018 WL 2440516, “1 (S.D.IIl. 2018)

(“Under section 233(a) [of the FSHCAA] , a [FTCA] lawsuit against the United

States is the sole remedy “for damage or personal injury, including death,

resulting from the performance of medical, surgical, dental, or related

15

functions ... by any commissioner officer or employee of the Public Health

Service while acting within the scope of his office or employment.”).

Further,

When a Public Health Service employee is sued for medical

negligence in state court, “[u]pon a certification by the Attorney

General that the defendant was acting in the scope of his

employment at the time of the incident out of which the suit

arose,” the state court action “shall be removed without bond at

any time before trial by the Attorney General to the district court

of the United States of the district and division embracing the

place wherein it is pending and the proceeding deemed a tort

action brought against the United States under the provisions of

Title 28.” 42 U.S.C. §233(c).

Booker, 10 F.Supp.3d at 662.

Thus, “[t]he United States has the ability pursuant to 42 U.S.C. §233(c)

to remove the case from State court at any time before trial.” Estate of Peqgy

Campbell v. South Jersey Medical Center, 2016 WL 7377101, *3 (D.N.J. Dec.

20, 2016) (citation omitted). See also Hui v. Castaneda, 559 U.S. 799, 811

(2010) (The Supreme Court held that “in most §233(a) cases,” “proof of scope

is ... established by a declaration affirming that the defendant was a PHS

official during the relevant time period.”). In Hui, id., the Supreme Court held

that “the FTCA’s scope certification procedure was enacted almost two

decades after 42 U.S.C. §233(a), which ‘confirms that Congress did not

intend to make that procedure the exclusive means for PHS personnel to

invoke the official immunity provided by §233(a).” D’Alessabdro, 2019 WL

2514827, *7. Thus, “PHS defendants seeking to invoke the immunity provided

by §233(a) [do not have to] rely on the FTCA’s scope certification procedure,

16

set forth in §2679(d).” Hui, 559 U.S. at 811. Further, the Supreme Court in

Hui, id. at 812, held that “the immunity provided by §233(a) precludes Bivens

actions against individual PHS officers or employees for harms arising out of

conduct described in that section”, and essentially that the Westfall Act’s

Bivens exception, §2679(b)(2)(A), does not preserve a Bivens action against

PHS officers and employees. Id. at 809. Further, “[o]nce a certification is

made pursuant to 42 U.S.C. §233(g)(1)(F), 28 C.F.R. §15.4 mandates that the

exclusive remedy against the subject employee is the FTCA, which itself

authorizes substitution.” D’Alessabdro, 2019 WL 2514827, at *8 (citing Hui,

559 U.S. at 801-02).

Additionally, “[the PHSA] 42 U.S.C. § 233(a) is narrower in scope than

the FTCA; it applies to a discrete group of Federal employees working at

covered health centers who statutorily ‘enjoy immunity from medical

malpractice claims or other claims, including claims for violating constitutional

rights, if the alleged harmful action occurred while the employees were

providing medical or related services.” D’'Alessabdro, 2019 WL 2514827, at

*7 (citation omitted).

In Dawson, 2018 WL 2440516, *2, the court discussed the relationship

between the Westfall Act and the FSHCAA and stated:

Regarding the FSHCAA, section 233(a) makes the remedy

against the United States under the FTCA exclusive of any other

civil action claiming damages due to injury stemming from a

Public Health Service employee’s alleged negligence. It is an act

of limited scope applying only to those deemed employees of the

17

Public Health Service. The broader reaching coverage of the

Westfall Act, applying to “employees of the government,” does not

overlap with the provisions of the FSHCAA. See Hui v.

Castaneda, 599 U.S. 799, 800 (2010) (“Because §233(a) refers

only to ‘[t]he remedy ... provided by [the FTCA] (emphasis added),

only those portions of the FTCA that establish its remedy are

incorporated by § 233(a)[.] ... Section 2679(b) [the Westfall Act]

is not such a provision.”).

The court in Dawson, id., then cited to Hui, at 800-01, and stated that

the Supreme Court “explain[ed] that to layer all of the FTCA’s procedures

contained in the Westfall Act, section 2679, into 42 U.S.C. §233(a), would be

to effectively imply a repeal of the FSHCAA and ‘[r]epeals by implication are

not favored and will not be presumed absent a clear and manifest legislative

intent to repeal. Nothing suggests that Congress intended §2679(b) to repeal

§233(a)’s more comprehensive immunity.’” (internal citation omitted).

In this case, plaintiffs’ state court action was never removed to federal

court by the Attorney General under §233(c). Nor does the record indicate

that Arenson was deemed an employee of the Public Health Service and

there is not any scope certification by the Attorney General regarding

Arenson. Also, the United States has not been substituted as the defendant

in plaintiffs’ state court action. Thus, the court in this case is not governed by

§233, which “provides the sole and exclusive means for bringing claims for

personal injury against the United States when, ..., the offending [medical

personnel] was employed by a deemed employee of the Public Health Service

and was certified acting within the scope of his employment at the time of the

18

incident.” Dawson, 2018 WL 2440516, *2.

Next, the court discusses whether plaintiffs are entitled to equitable

tolling.

The FTCA’s statute of limitations “in appropriate circumstances” is

subject to the equitable tolling doctrine. Santos ex rel., Beato v. U.S., 559

F.3d 189, 194-95 (3d Cir. 2009).

Initially, since plaintiffs failed to exhaust administrative remedies prior

to filing their action in this court due to the untimely presentment of their SF-

95 tort claim to HHS, equitable tolling “provides no relief where a plaintiff fails

to exhaust administrative remedies prior to initiating a case.” Young v. Temple

Univ. Hosp., 2019 WL 5569510, *6 (E.D.Pa. Oct. 28, 2019) (emphasis

original) (citing Walker v. U.S., 616 F.App’x 497, 500 (3d Cir. 2015)).

Additionally, “[e]quitable tolling may apply to FTCA claims in three

instances: ‘(1) where the defendant has actively misled the plaintiff respecting

the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way

has been prevented from asserting his or her rights; or (3) where the plaintiff

has timely asserted his or her rights mistakenly in the wrong forum.’” Id. at *7

(citations omitted). Further, “[e]quitable tolling requests are judged by exacting

standards and mere excusable neglect is insufficient”, and “‘a plaintiff will not

receive the benefit of equitable tolling unless she exercised due diligence in

pursuing and preserving her claim.’” Id. (internal citations omitted).

As discussed, “[n]o claim can be brought under the FTCA unless the

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plaintiff first presents the claims to the appropriate federal agency and the

agency renders a final decision on the claim.” Shelton v. Bledsoe, 775 F.3d

554, 569 (3d Cir. 2015). Plaintiffs simply cannot escape the undisputed fact

that they were notified that the FTCA applied to their claim prior to the

deadline to present their tort claim to HHS. In fact, plaintiffs had their SF-95

complete and ready to present to HHS, however, they did not comply with the

FTCA’s requirement to timely present their tort claim to the appropriate

agency, HHS.

Thus, equitable tolling is not warranted since it is undisputed that

plaintiffs’ counsel was timely advised by Keris that the Health Center and its

employees were deemed to be federal employees under the FTCA for

malpractice actions, still within two years of plaintiffs’ claim accrual date, and

nonetheless failed to timely present plaintiffs’ tort claim to HHS. In fact,

plaintiffs had ample time after Keris advised them their action fell under the

FTCA to properly present their tort claim to HHS. However, plaintiffs failed to

exercise due diligence in presenting their tort claim to HHS within two years

after the accrual of their claim. As the government states, service of plaintiff’s

SF-95 on the Health Center was not proper presentment to HHS, and that

“[b]asic research on this issue would have revealed that the statute, which

‘deems’ a community health center employee to be a Public Health Service

employee does not ‘deem’ a community health center to be a Federal agency

for any purpose.” (Doc. 18 at 13) (citing 28 U.S.C. §233(g)).

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Thus, the court cannot apply equitable tolling in this case. See Phillips

v. Generations Family Health Center, 657 Fed.Appx. 56 (7th Cir. 2016).

Finally, the court finds that limited discovery is not warranted in this case

as plaintiffs suggest regarding the issue of when HHS received their SF-95

and whether it was presented to HHS in a timely manner since there is no

genuine issue of material fact on these issues. The government has

submitted undisputed evidence regarding the receipt of plaintiffs’ SF-95 by

Arenson, Nocilla and Torres, and plaintiffs have the burden of proof to show

that they timely presented their tort claim to HHS. See Medina v. City of

Philadelphia, 219 Fed.Appx. 169, 173-74 (3d Cir. 2007) (Third Circuit held

that “a plaintiff must demonstrate that the appropriate federal agency actually

received the claim”) (emphasis original).

Additionally, as the government points out, (Doc. 18 at 12), “Plaintiffs

have submitted their own Statement of Material Facts and Brief and have not

raised any facts or any factual bases upon which to dispute Defendant’s facts

regarding receipt [of their SF-95 by HHS]”, and “even if Plaintiffs now raised

facts that suggested that they submitted paperwork to the Health Center on

an earlier date, they still would not be entitled to relief because Arenson and

Nocilla never had any obligation to present the [SF-95 tort] claim to Torres [at

HHS] when they received the SF-95 at the Health Center.”

Further, under some circumstances, a claim may be deemed

“constructively filed.” Kraft v. Office of Chief Counsel Div. of V.A., 2018 WL

21

1293107, *3 (D.De. March 13, 2018) (citing Greene v. United States, 872 F.2d

236, 237 (8" Cir. 1989); Bukala v. United States, 854 F.2d 201, 204 (7" Cir.

1988)). “[T]he Regulations provide that if an administrative claim is presented

to a federal agency whose activities did not give rise to the claim, that agency

shall transfer the claim forthwith to the appropriate agency if the agency can

be identified from the claim, or return the claim to the claimant if transfer is not

feasible.” Id. (citing 28 C.F.R. §14.2(b)(1); Ahmed v. United States, 334

Fed.Appx. 512, 513-14 (3d Cir. 2009)).“Courts permitting constructive filing

in the FTCA context have largely been resolving situations where the

government's failure to transfer the claim led to the claimant's failure to

comply with the FTCA’s statute of limitations.” Id. (quoting Ahmed, 334

Fed.Appx. at 514 (citing Bukala, 854 F.2d at 204 (permitting constructive filing

of complaint with wrong agency where agency did not transfer claim to

appropriate agency within the two-year statute of limitations)). However, the

Health Center is not a federal agency. See Motta, 717 F.3d at 845 (“Section

14.2(b)(1) pertains to federal agencies that erroneously receive an FTCA

claim, and the [Health Center] is not a federal agency.”). See also 28 C.F.R.

§14.1 (“These regulations shall apply only to claims asserted under the

Federal Tort Claims Act. The terms Federal agency and agency ...include the

executive departments, the military departments, independent establishments

of the United States and corporations primarily acting as instrumentalities or

agencies of the United States ....”).

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Assuming arguendo that the Health Center was a federal agency, there

is no evidence that anyone at the Health Center acted negligently when they

received plaintiffs’ SF-95. “Where one agency of government attempts in a

dutiful and timely fashion to transfer a misdelivered claim to the appropriate

federal agency and despite due diligence the claim arrives at the proper

agency after the two year limitations period has run, the claim will be

time-barred.” Kraft, 2018 WL 1293107, *3 (citations omitted).

Thus, as the government states, “the issue of when exactly Arenson or

Nocilla received the SF-95 is inconsequential to the date that Torres received

the document because Arenson and Nocilla were not under an obligation to

transfer that document to HHS, nor does their transfer of the documentation

to HHS constitute timely presentment on Plaintiffs’ behalf.” (Doc. 18 at 13).

Accordingly, since plaintiffs failed to present their tort claim to the proper

federal agency (HHS) within two years of the accrual of their cause of action,

the claim is barred under §2401(b). Thus, the United States’ motion for

summary judgment will be granted regarding plaintiffs’ claims asserted under

the FTCA and judgment will be entered in favor of the United States. See

Kraft, 2018 WL 1293107, *3-4 (“Plaintiff’s claim was untimely presented

because it was not sent to an agency, much less an improper agency, and it

was filed too close to the end of the two year time-frame.”).

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IV. Conclusion

Based on the foregoing, the United States’ motion for summary

judgment, (Doc. 9), will be GRANTED and, JUDGMENT will be entered in

favor of the United States and against plaintiffs as to plaintiffs’ claims raised

under the FTCA. An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: February 28, 2020

19-1786-01

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