Petition for Writ of Certiorari — Charles J. Jenkins, Petitioner v. TriWest Healthcare Alliance, et al.

App.la

JUDGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

(FEBRUARY 8, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES JENKINS,

Plaintiff-Appellant,

v.

TRIWEST HEALTHCARE ALLIANCE,

Defendan tAppellee.

No. 22-30429

Appeal from the United States District Court for the

Eastern District of Louisiana USDC No. 2-22-CV-37

Before: SMITH, CLEMENT, and WILSON,

Circuit Judges.

This cause was considered on the record on appeal

and the briefs on file.

IT IS ORDERED and ADJUDGED that the

judgment of the District Court is AFFIRMED.

IT IS FURTHER ORDERED that appellant pay

to appellee the costs on appeal to be taxed by the

Clerk of this Court.

App.2a

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

(FEBRUARY 8, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES JENKINS,

Plaintiff-Appellant,

v.

TRIWEST HEALTHCARE ALLIANCE,

Defendant-Appellee.

No. 22-30429

Appeal from the United States District Court for the

Eastern District of Louisiana USDC No. 2:22-CV_37

Before: SMITH, CLEMENT, and WILSON,

Circuit Judges.

PER CURIAM:*

Charles Jenkins appeals the dismissal of his suit

for medical malpractice. We affirm.

* This opinion is not designated for publication. See 5th Cir. R.

47.5.

App.3a

I.

On January 9, 2020, Jenkins sued pro se in

federal district court. He alleged that three doctors,

the <fVA Medical Center,” “Tulane Medical Center,”

and “Triwest Healthcare Alliance” had “engaged and/or

participated in un-necessary [sic] surgical-negligence

medical malpractice . . .

He stated, “[t]he surgeon

was experimenting,” and he asked for “punitive dam­

ages because the surgeon did not have clearance to

perform.” Jenkins asserted federal question jurisdiction

under the Federal Torts Claims Act (“FTCA”), 28

U.S.C. § 2671 et seq.

Defendants

TriWest

Healthcare

Alliance

(“TriWest”) and University Healthcare System, L.C.,

d/b/a/ Tulane University Hospital & Clinic (“TUHC”),

moved to dismiss, alleging, among other things, failure

to state a claim, lack of subject matter jurisdiction,

and that the claims were time-barred. The district

court dismissed without prejudice for lack of subject

matter jurisdiction.

II.

Dismissals under Rule 12(b)(1) are reviewed de

novo. See JTB Tools & Oilfield Servs., L.L.C. v.

United States, 831 F.3d 597, 599 (5th Cir. 2016).

“The burden of proof... is on the party asserting

jurisdiction.” Ramming v. United States, 281 F.3d

158, 161 (5th Cir. 2001). The standard of review is

similar to that of Rule 12(b)(6) but allows the court

“to consider a broader range of materials,” such as

“undisputed facts in the record” or “the court’s

resolution of disputed facts.” Williams v. Wynne, 533

F.3d 360, 365 n.2 (5th Cir. 2008) (quoting another

source). A court should dismiss for lack of subject

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matter jurisdiction only when “it appears certain

that the plaintiff cannot prove any set of facts in

support of his claim that would entitle plaintiff to

relief.” Ramming, 281 F.3d at 161.

We may affirm for any reason supported by the

record, even if not relied on by the district court.

United States v. Grosz, 76 F.3d 1318, 1324 n.6 (5th

Cir. 1996). We cannot consider arguments not presented

to the district court. Nissho-Iwai Am. Corp. v. Kline,

845 F.2d 1300, 1307 (5th Cir. 1988); Little v. Liquid

Air Corp., 37 F.3d 1069, 1071 n.l (5th Cir. 1994) (en

banc).

III.

The district court held that Jenkins had not

established subject matter jurisdiction because he

had failed to exhaust his administrative remedies, a

jurisdictional prerequisite for an FTCA claim. The

FTCA is a limited waiver of sovereign immunity that

allows a suit against the United States only when

the plaintiff has “first exhausted his administrative

remedies.” McNeil v. United States, 508 U.S. 106, 107

(1993). That exhaustion is a “jurisdictional

prerequisite for FTCA claims that cannot be waived.”

Coleman v. United States, 912 F.3d 824, 834 (5th Cir.

2019). For exhaustion, the plaintiff must have

“presented the claim to the appropriate Federal

agency,” and the agency must have denied the claim.

28 U.S.C. § 2675(a). If a plaintiff cannot show

exhaustion, he has not pleaded a federal question.

See Coleman, 912 F.3d at 834.

None of Jenkins’s filings alleged that he had

exhausted his administrative remedies until after

the magistrate judge submitted his Report and

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Recommendation. At that point, Jenkins filed an

objection, stating that “the evidence of records [sic]

will reveal that the plaintiff filed his Standard form

95 within the two (2) year statute of limitations and

there was no objection to my submission.” The district

court overruled that objection and held that because

Jenkins did not “identify the agency with which he

filed [the form], the date on which it was filed, [] the

disposition of his alleged filing,... [or] a copy of the

form he says he filed,” he had failed to show that he

had exhausted.

Weeks later, Jenkins filed an untimely “objection”

to that ruling, contending that he had indeed filed

his form with the VA and that discovery would show

that. But Jenkins still failed to provide any evidence

pertaining to the Standard Form 95 itself. The court

therefore declined to revisit the judgment. Jenkins

filed a notice of appeal and attached what appears to

be his Standard Form 95 and a FedEx tracking

printout purportedly confirming that the Form had

been delivered to a recipient in ‘Lakewood, Co.’ on

November 6, 2018.

Regardless, Jenkins did not present that evidence

until after the district court had closed the case. And

“because our review is confined to an examination of

materials before the lower court at the time the

ruling was made[,] subsequent materials are

irrelevant.” Nissho-Iwai, 845 F.2d at 1307. Thus, the

success of Jenkins’s appeal rises and falls on the

evidence and contentions in the filings submitted

before the final judgment. There, we find nothing

more than conclusory statements. Allegations such

as “it’s a matter of record that plaintiff did file his

Standard Form 95 with the defendant” are speculative

App.6a

and conclusory. Even when viewed with the deference

to which Jenkins is entitled, bare allegations cannot

support a finding that he properly exhausted. Without

such a showing, he has not established federal question

jurisdiction.1

The judgment of dismissal without prejudice

was correct and is AFFIRMED.

1 Jenkins provides no other tenable basis for federal juris­

diction. His claim that he has diversity jurisdiction is without

merit—from the face of the pleadings, all parties are in

Louisiana. Jenkins’ only assertion to the contrary is that

“although TriWest does business in Louisiana, it’s [sic]

corporate Headquarters is in Arizona.” But even if that is true,

diversity jurisdiction requires complete diversity—“no party on

one side may be a citizen of the same State as any party on the

other side”—and Jenkins has made no showing that the other

plaintiffs are diverse. Mas v. Perry, 489 F.2d 1396, 1398-99 (5th

Cir. 1974); see also 28 U.S.C. § 1332.

App.7a

ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF LOUISIANA

(JUNE 21, 2022)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHARLES JENKINS

v.

VA MEDICAL CENTER, ET AL.

Civil Action No. 22-37

Section M (5)

Before: Barry W. ASHE,

United States District Judge.

Before the Court is plaintiffs second objection to

the United States Magistrate Judge’s Report and

Recommendation (“R&R”),1 to which defendant TriWest

Healthcare Alliance Corp. (“TriWest”) responds in

opposition.2 Having considered the parties’ arguments,

the record, and the applicable law, the Court overrules

plaintiffs second objection.

On January 9, 2022, plaintiff Charles Jenkins

filed this action alleging claims arising under the

1 R. Doc. 30.

2 R. Doc. 31.

App.8a

Federal Tort Claims Act (“FTCA”) and asserting

federal question subject-matter jurisdiction under 28

U.S.C. § 1331.3 TriWest filed a motion to dismiss

arguing, among other things, that this Court lacked

subject-matter jurisdiction under the FTCA because

Jenkins failed to exhaust his administrative remedies.4

On April 28, 2022, the magistrate judge issued an

R&R recommending that Jenkins’s case be dismissed

without prejudice because Jenkins did not meet his

burden of establishing subject-matter jurisdiction.5

On May 9, 2022, Jenkins objected to the R&R,

arguing that he exhausted his administrative remedies

as required by the FTCA by filing a “Standard form

95” within the two-year statute of limitations.6 Because

Jenkins provided no details regarding the “Standard

form 95” in either his complaint or objection, this

Court adopted the R&R and dismissed the case

without prejudice for lack of subject-matter juris­

diction.7 Judgment was entered and the case was

closed on May 12, 2022.8

On June 2, 2022, Jenkins filed a second objection

to the R&R reasserting that he filed a “Standard

3 R. Doc. 1. See also 28 U.S.C. § 1346.

4 R. Doc. 13. Defendant University Health System, L.C. also

filed a motion to dismiss (R. Doc. 15), which was dismissed as

moot. SeeR. Docs. 25; 28.

5 R. Doc. 25.

6 R. Doc. 27.

7 R. Doc. 28.

8 R. Doc. 29.

App.9a

form 95.”9 There is no provision in the Federal Rules

of Civil Procedure or under 28 U.S.C. § 636 for outof-time objections to an R&R, especially when the

Court has already ruled on a previous (and

substantively similar) objection. Even if the Court

liberally construes Jenkins’s second objection as a

post-judgment motion under either Rule 59 or 60 of

the Federal Rules of Civil Procedure, Jenkins has not

satisfied the standard for the relief he seeks. In

particular, he still has not attached a copy of the

“Standard form 95” he says he filed with the appro­

priate federal agency (which he now says was the VA

Medical Center), nor provided other essential details

about any such filing (e.g., the date on which it was

filed or the disposition of the alleged filing), and so

has provided no basis for this Court to revisit its

opinion or judgment.

New Orleans, Louisiana, this 21st day of June,

2022.

Is/ Barrv W. Ashe

United States District Judge

9 R. Doc. 30.

App.lOa

ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF LOUISIANA

(MAY 12, 2022)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RICHARD JENKINS [sic: Charles Jenkins]

v.

VA MEDICAL CENTER, ET AL.

Civil Action No. 22-37

Section M (5)

Before: Barry W. ASHE,

United States District Judge.

Having considered the complaint, the record, the

applicable law, the magistrate judge’s Report and

Recommendation (“R&R”),1 and the plaintiffs objection

to the R&R,2 the Court hereby overrules the plaintiffs

objection, approves the R&R, and adopts the R&R as

its opinion in this matter. The R&R recommends

that this Court dismiss this action without prejudice

for lack of subject-matter jurisdiction because plaintiff

failed to plead that he exhausted his administrative

remedies as required by the Federal Tort Claims

1 R. Doc. 25.

2 R. Doc. 27.

App.lla

Act.3 In his objection, plaintiff claims that he filed a

“Standard form 95” within the two-year statute of

limitations.4 However, plaintiff provides no details

(either in his complaint or in any other submission)

regarding the “Standard form 95” he says he filed: he

does not identify the agency with which he filed it,

the date on which it was filed, or the disposition of

his alleged filing. Nor does plaintiff submit a copy of

the form he says he filed. Thus, plaintiff has not

satisfied his obligation to plead subject-matter juris­

diction.

Accordingly,

IT IS ORDERED that plaintiffs suit is dismissed

without prejudice for lack of subject-matter jurisdiction.

Is/ Barry W. Ashe

United States District Judge

3 R. Doc. 25. at 1-5

4 R. Doc. 27. at 1.

App.l2a

REPORT AND RECOMMENDATION OF THE

MAGISTRATE JUDGE

(APRIL 28, 2022)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHARLES JENKINS

v.

VA MEDICAL CENTER, ET AL.

Civil Action No. 22-37

Section “M” (5)

Before: Michael B. NORTH,

United States Magistrate Judge.

Before the Court are Defendant’s Motion to

Dismiss (Rec. doc. 13) filed by TriWest Healthcare

Alliance (“TWHA”), the Motion for Leave from the

Court to Present Amended Complaint (Rec. doc. 14)

filed by Plaintiff, and the Motion to Dismiss (Rec.

doc. 15) filed by Defendant University Healthcare

System (“UHS”). The District Court referred the two

motions to dismiss to this Court under 28 U.S.C.

§ 636 on March 15, 2022. (Rec. doc. 16).1 Jenkins

filed an opposition to the motions to dismiss. (Rec.

1 Even though Plaintiffs motion to amend is before this Court

by reference pursuant to the local rules of this Court, the Court

issues only a Report and Recommendation on all three motions.

App.l3a

doc. 19).2 Having reviewed the pleadings and the

case law, the Court recommends as follows.

I.

Factual Background

Jenkins, a Louisiana resident and Veteran, filed

this lawsuit pro se on January 9, 2022 against the VA

Medical Center (“the VA”), TWHA, UHS, and three

individual doctors (“the Doctors”) who Jenkins alleges

were or are providers at UHS. (Rec. doc. 1). Jenkins

alleges subject matter jurisdiction under 28 U.S.C.

§ 1331, specifically, alleging jurisdiction under the

Federal Tort Claims Act. (Id. at 4.). The complaint

appears to allege “medical malpractice” that arose out

of medical treatment that he received at UHS by the

Doctors. (Id. at p. 3.) Jenkins concludes in his complaint

that “[e]ach defendant engaged and/or participated

in un-necessary surgical-negligence.” (Id. at p. 5.).

Specifically, Jenkins alleges that “the surgeon did

not have clearance to perform. The surgeon was

experimenting.” (Id.). Jenkins alleges that this medical

negligence occurred in 2016, and that he has

experienced “incontinence for the past 5 years.” (Id.).

Jenkins seeks $2,000,000 in damages from each

Defendant, totaling $12 million. (Id.).

II. Standard for a Motion to Dismiss Under Rule

12(b)(1)

The Court first considers subject-matter juris­

diction. “Motions filed under Rule 12(b)(1) of the

Federal Rules of Civil Procedure allow a party to

2 TWHA also filed a reply, but the Clerk of Court marked it

deficient for failure to file a motion for leave to file the reply in

accordance with the local rules of this Court.

App.l4a

challenge the subject matter jurisdiction of the district

court to hear a case.” Ramming v. United States, 281

F.3d 158, 161 (501 Cir.2001). “Lack of subject matter

jurisdiction may be found in any one of three instances:

(1) the complaint alone; (2) the complaint supplemented

by undisputed facts evidenced in the record; or (3) the

complaint supplemented by undisputed facts plus the

court’s resolution of disputed facts.” Id. In a 12(b)(1)

motion, the party asserting jurisdiction bears the

burden of proof that jurisdiction does in fact exists.

Id. “Ultimately, a motion to dismiss for lack of

subject matter jurisdiction should be granted only if

it appears certain that the plaintiff cannot prove any

set of facts in support of his claim that would entitle

plaintiff to relief.” Id.

III. Law and Analysis

The Federal Tort Claims Act (“FTCA”) permits

individuals to sue the United States based on torts

committed by its employees. 28 U.S.C. 2671 et. seq.

The FTCA constitutes a “limited waiver of sovereign

immunity, making the Federal Government liable to

the same extent as a private party for certain torts of

federal employees acting within the scope of their

employment.” United States v. Orleans, 425 U.S. 807,

813 (1976); 28 U.S.C. §§ 1346(b), 2674, 2679(b)(1).

The FTCA is the exclusive remedy for an injury

caused by “the negligence or wrongful act or omission

of any employee of the Government while acting

within the scope of his office.” Osborn v. Haley, 549

U.S. 225, 247 (2007). A party who seeks to file suit

under the FTCA should obtain certification by the

United States Attorney that a federal employee acted

within the course and scope of employment at the

time of the relevant incident, and the action will then

App.l5a

be deemed against the United States, which “shall be

substituted as the party defendant.” 28 U.S.C.

§ 2679(d)(1). A proper FTCA claim should accordingly

be brought against the United States. 28 U.S.C.

§ 2679(d)(1). The allegedly negligent federal employee

is thus immune from any such tort action. Osborn,

549 U.S. at 247; Rodriguez v. Sarabyn, 129 F.3d 760

(5th Cir. 1997).

Additionally, as a prerequisite to filing suit, a

person must present any claim administratively before

filing suit. 28 U.S.C. § 2875. Under the FTCA, a

lawsuit cannot be initiated against the United States

unless the claimant first presents the claim to the

appropriate federal agency. Life Partners Inc. v.

United States, 650 F.3d 1026, 1029 (5th Cir. 2011)

(citing 28 U.S.C. § 2675(a)). Specifically,

An action shall not be instituted upon a claim

against the United States for money damages 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, 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.

28 U.S.C. § 2675(a). The FTCA has strict

requirements because it is a limited waiver of

immunity, and it can only be based on the negligence

of a federal employee and requires a person to first

exhaust administrative remedies. 28 U.S.C. § 2675(a).

Having reviewed the complaint, the Court finds

that Jenkins alleges no facts to establish federalquestion jurisdiction under the FTCA. Even had

App.l6a

Jenkins alleged that one or more of the defendants is

or was a federal employee - which he did not - his

complaint still fails to plead federal question jurisdiction

because he alleges no facts to show that he exhausted

administrative remedies, which is fatal to his lawsuit.

See Coleman v. United States, 912 F.3d 824, 834 (5th

Cir. 2019) (holding that exhaustion is “a jurisdictional

prerequisite for FTCA claims that cannot be waived”)

(citing McNeil v. United States, 508 U.S. 106, 109-13

(1993) (affirming dismissal for lack of jurisdiction

where the FTCA complainant had not satisfied

administrative exhaustion requirements before filing

the complaint)). Jenkins has thus not met his burden

to establish that this Court has federal subject matter

jurisdiction of his lawsuit.

Jenkins only alleges federal question jurisdiction

under the FTCA. (Rec. doc. 1 at p. 4). TWHA is the

only Defendant to raise the issue of federal subject

matter jurisdiction under the FTCA. Indeed, neither

the VA nor the Doctors has yet to appear in this

lawsuit. Not all Defendants in this case have thus

moved to dismiss the complaint. However, because

the Court concludes that the complaint is deficiently

pleaded as a matter of law for lack of subject matter

jurisdiction and because the claims against all

Defendants are premised on identical allegations,

dismissal of Plaintiffs claims regarding each Defendant

is appropriate. See Taylor v. Acxiom Corp., 612 F.3d

325, 339-40 (5th Cir. 2010) (“While the district court

did dismiss sua sponte some defendants who did not

join the motion to dismiss, there is no prejudice to

the plaintiffs in affirming the judgment in its entirety

because the plaintiffs make the same allegations

against all defendants.”); Siddhar v. Varadharajan,

App.l7a

No. CIV. A. 4:13-CV-1933, 2014 WL 2815498, at *5

(S.D. Tex. June 20, 2014) (same); Reeves v. Nelnet

Loan Servs., No. 4:17-CV-3726, 2018 WL 2200112, at

*6 (S.D. Tex. May 14, 2018) (same).3

Plaintiffs amended complaint does not cure this

jurisdictional deficiency. In that pleading, Plaintiff

still references the FTCA and 28 U.S.C. § 1331 as the

basis for subject matter jurisdiction. (Rec. doc. 14-2

at p. 6). Accordingly, any grant of Plaintiffs motion

to amend would be an exercise in futility, as he has

still not alleged that he has exhausted his

administrative remedies.

IV. Conclusion

For the foregoing reasons,

IT IS RECOMMENDED that Defendant’s Motion

to Dismiss (Rec. doc. 13) be GRANTED.

IT IS FURTHER RECOMMENDED that the

Motion for Leave from the Court to Present Amended

Complaint (Rec. doc. 14) be DENIED.

IT IS FURTHER RECOMMENDED that the

Motion to Dismiss (Rec. doc. 15) be DISMISSED

WITHOUT PREJUDICE AS MOOT.

IT IS FURTHER RECOMMENDED that

Plaintiffs claims against all Defendants be DISMISSED

WITHOUT PREJUDICE for lack of subject matter

jurisdiction.

3 As noted above, Jenkins alleges globally that “[e]ach

defendant engaged and/or participated in un-necessary

surgical-negligence.” (Rec. doc. 1 at p. 5).

App.l8a

NOTICE OF RIGHT TO OBJECT

A party’s failure to file written objections to the

proposed findings, conclusions, and recommendation

contained in a magistrate judge’s report and

recommendation within 14 days after being served

with a copy shall bar that party, except upon grounds

of plain error, from attacking on appeal the unobjectedto proposed factual findings and legal conclusions

accepted by the district court, provided that the party

has been served with notice that such consequences

will result from a failure to object. Douglass v.

United States Auto. Assoc., 79 F.3d 1415 (5th Cir.

1996) (en banc).4

New Orleans, Louisiana, this 27th day of April,

2022.

Is! Michael B. North

United States Magistrate Judge

4 Douglass referenced the previouslyapplicable 10-day period

for the filing of objections. Effective December 1, 2009, 28

U.S.C. § 636(b)(1) was amended to extend that period to 14

days.

App.l9a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

DENYING PETITION FOR REHEARING

(MARCH 31, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES JENKINS,

Plain tiff-Appellant,

v.

TRIWEST HEALTHCARE ALLIANCE,

Defendant-Appellee.

No. 22-30429

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2-22-CV-37

Before: SMITH, CLEMENT, and WILSON,

Circuit Judges.

PER CURIAM:

The petition for panel rehearing is DENIED.

Because no member of the panel or judge in regular

active service requested that the court be polled on

rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R.

35), the petition for rehearing en banc is DENIED.

App.20a

APPELLEE’S BRIEF

(OCTOBER 3, 2022)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES JENKINS,

Plain tiff-Appellan t,

v.

TRIWEST HEALTHCARE ALLIANCE,

Defendant-Appellee.

No. 22-30429

Jason R. Scheiderer

Dentons US LLP

650 Poydras Street, Suite 2850

New Orleans, LA 70130-6132

[Tel.] 504-524-5446

[Fax] 816-531-7545

Counsel of Record for Defendant-Appellee

TriWest Healthcare Alliance Corp.

App.21a

CERTIFICATE OF INTERESTED PARTIES

The undersigned certifies that the following

listed persons and entities as described in the fourth

sentence of 5th Cir Rule 28.2.1 have an interest in

the outcome of this case. These representations are

made in order that the judges of this court may

evaluate possible disqualification or recusal.

Defendants/Appellees

1. TriWest Alliance, Inc. is the parent company

and wholly owns TriWest.

2. TriWest Alliance, Inc. is owned by 14 non­

profit health plans and university hospital

systems.

3. TriWest Healthcare Alliance Corp. has no

subsidiaries or affiliates.

4. No parent company, subsidiary, or affiliate

holds any shares issues to the public.

Counsel for Appellees:

Jason R. Scheiderer

DENTONS US LLP

650 Poydras Street, Suite 2850

New Orleans, LA 70130-6132

[Tel.] 504-524-5446

[Fax] 816-531-7545

Plaintiff/Appellant

Charles Jenkins

Counsel for Appellant:

Charles Jenkins, Pro se

/s/ Jason R. Scheiderer

App.22a

STATEMENT REGARDING ORAL ARGUMENT

Because this appeal involves the application of

well-established principles of statutory interpretation,

federal question jurisdiction, and prescriptive periods,

oral argument is unnecessary to aid the Court’s

decisional process.

TO THE HONORABLE U.S. COURT OF APPEALS

FOR THE FIFTH CIRCUIT:

Plaintiff/Appellee Jenkins believes that the District

Court for the Eastern District of Louisiana wrongfully

dismissed his Complaint, in which Jenkins attempted

to bring a Federal Tort Claims Act (“FTCA”) action

alleging damages resulting from medical care he

received more than five years prior to filing his Lawsuit.

Jenkins alleged he received care at Defendant Tulane

Medical Center (“Tulane”), by Defendants Dr. Kenneth

Delay, Jr., Dr. Russell Libby, and Dr. Julie Wang

(collectively, the “Doctors”). Jenkins - allegedly a

Veteran - has also sued the “VA Medical Center” and

Defendant/Appellee TriWest, an administrator of care

for Veterans at non-VA facilities. All of the negligence

he alleged occurred more than five years prior to his

lawsuit.

Jenkins failed to state any valid claim for relief

against TriWest because his claim was time-barred

by Louisiana’s one-year prescriptive period for medical

malpractice actions. (See La. R.S. 9:5628). Second,

even if not time barred, Jenkins’ allegations were

insufficient to overcome TriWest’s derivative sovereign

immunity. Third, Jenkins failed to plead federal

question jurisdiction under the FTCA. Thus, the

District Court properly found it lacked subject-matter

jurisdiction over the matter. Finally, Jenkins’

App.23a

allegations failed to state any viable caused of action

against TriWest, so the District Court also properly

dismissed Jenkins’ Complaint on that basis.

ISSUES PRESENTED

1. Jenkins filed a medical malpractice action

more than five years after the allegedly negligent

medical care. Louisiana requires medical malpractice

actions to be filed within one-year from the alleged

negligence. (See La. R.S. 9:5628) Is Jenkins’ claim

barred by the prescriptive period?

2. The VA has not waived immunity and the

federal government has properly delegated

administration of the Veterans Choice Program (“VCP’)

to TriWest by a statutorily authorized contract, to

which TriWest has adhered. Even if Jenkins’ claim is

not time barred, is TriWest entitled to Yearsley

immunity for Jenkins’ medical malpractice claim?

3. The Federal Tort Claims Act authorizes an

individual to bring a tort claim for the torts committed

by federal employees who were acting within the

course and scope of their employment. Neither TriWest

nor the doctors who provided the allegedly negligent

medical care were employees of the federal government.

Were Jenkins’ allegations sufficient to plead federal

question jurisdiction?

App.24a

STATEMENT OF THE CASE

I.

Jenkins’ Claim Is Barred By the Prescriptive

Period

The Louisiana1 prescriptive period for a medical

malpractice claim requires a person to file within

one-year from the alleged negligence or discovery

thereof, but in no event, more than three years from

the alleged negligence:

A. No action for damages for injury or

death against any physician .. . whether

based in tort, or breach of contract, or

otherwise, arising out of patient care shall

be brought unless filed within one year from

the date of the alleged act, omission, or

neglect, or within one year from the date of

discovery of the alleged act, omission, or

neglect; however, even as to claims filed

within one year from the date of such

discovery, in all events such claims shall be

1 Even if Jenkins had sufficiently alleged federal question juris­

diction under the FTCA, the result would be the same. “State

law controls liability for medical malpractice under the FTCA.”

Dupree v. United States, 495 F. App’x 422, 424 (5th Cir. 2012)

(citing Ayers v. United States, 750 F.2d 449, 452 n. 1 (5th Cir.

1985).) Pursuant to the Federal Tort Claims Act, 28 U.S.C.

§ 1346(b), liability of the United States is determined in

accordance with the law of the place where the act or omission

occurred. ‘The FTCA authorizes civil actions for damages

against the United States for personal injury or death caused

by the negligence of a government employee under circumstances

in which a person would be liable under the law of the state in

which the negligent act or omission occurred.” Hannah v.

United States, 523 F.3d 597, 601 (5th Cir. 2008) (citing 28

U.S.C. §§ 1346(b)(1), 2674).

App.25a

filed at the latest within a period of three

years from the date of the alleged act,

omission, or neglect.

La. R.S. 9:5628.

This statute sets forth two prescriptive limits

within which to bring a medical malpractice action:

one year from the date of the alleged act or one year

from the date of discovery, with a single qualification

that the discovery rule is expressly made inapplicable

after three years from the act, omission, or neglect.

Campo v. Correa, 2001-2707 (La. 06/21/02), 828 So.2d

502. The plain language of the statute requires a

plaintiff who alleges he or she experienced medical

malpractice in Louisiana to bring a medical malpractice

action within one year of the alleged negligence and,

“in all events” no later than “three years from the

date of the alleged act, omission, or neglect.” Id.

Here, Jenkins alleged that he experienced negli­

gence at least five years ago. (Compl. at 5.) Jenkins’

claim was therefore filed four years beyond the oneyear prescriptive period and two-years beyond the

three year statute of repose. La. R.S. 9:5628. Because

Jenkins’ claim is forever time barred by the Louisiana

prescriptive period, Jenkins has failed to state a

claim for which relief can be granted. Rule 12(b)(6);

Ashcroft, 556 U.S. at 662. Therefore, Jenkins’ claim

must be dismissed with prejudice. See Newton v.

United States, 836 F. App’x 308, 309 (5th Cir. 2021)

(dismissing with prejudice medical malpractice claims

brought under the Federal Tort Claims Act as barred

by prescriptive period).

App.26a

II. Triwest Is Entitled to Yearsley Immunity for

Its Administration of VCP

Separately, dismissal of TriWest is appropriate

because TriWest is entitled to derivative immunity

for its administration of the VCP. “Under the concept

of derivative sovereign immunity, stemming from the

Supreme Court’s decision in Yearsley, . . . agents of

the sovereign are also sometimes protected from

liability for carrying out the sovereign’s will,” including

private contractors such as TriWest. Cunningham v.

Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 643

(4th Cir. 2018). To extend derivative sovereign immu­

nity under Yearsley v. W.A. Ross Const. Co., 309 U.S.

18 (1940), “a government contractor is not subject to

suit if (1) the government authorized the contractor’s

actions and (2) the government Validly conferred’ that

authorization, meaning it acted within its consti­

tutional power.” Id. at 646 (quotation omitted) (citing

Yearsley, 309 U.S. at 20-21).

As long as the authorization was validly conferred,

‘“there is no liability on the part of the contractor’

who simply performed as the Government directed.”

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 673

(2016) (quoting Yearsley, 309 U.S. at 20-21). “Authori­

zation is ‘validly conferred’ on a contractor if Congress

authorized the government agency to perform a task

and empowered the agency to delegate that task to

the contractor, provided it was within the power of

Congress to grant the authorization.” Cunningham,

888 F.3d at 646-47 (citing Yearsley, 309 U.S. at 20;

Campbell-Ewald, 136 S.Ct. at 672).

“Yearsley immunity,” “the Yearsley doctrine

/defense,” or “derivative sovereign immunity” “operates

as a jurisdictional bar to suit and not as a merits

App.27a

defense to liability.” Id. at 650.2 “Sovereign immunity

is a jurisdictional, threshold matter that is properly

2 Whether Yearsley immunity constitutes a jurisdictional bar

has not yet been conclusively resolved by the United States

Supreme Court. According to TriWest’s research, Cunningham

is the only case to evaluate whether “Yearsley immunity”

should be analyzed under the 12(b)(1) standard since the

Supreme Court’s Campbell-Ewald decision. Prior to CampbellEwald, the Fifth Circuit agreed that “[i]f the basis for

dismissing a Yearsley claim is sovereign immunity, then a

Yearsley defense would be jurisdictional,” but ultimately

concluded that Yearsley “does not deny the court of subjectmatter jurisdiction” because Yearsley “does not discuss

sovereign immunity or otherwise address the court’s power to

hear the case.” Ackerson v. Bean Dredging LLC, 589 F.3d 196,

207 (5th Cir. 2009). Later, but also prior to Campbell-Ewald,

the Sixth Circuit adopted the Fifth Circuit’s reasoning. See

Adkisson v. Jacobs Eng’g Grp,, Inc., 790 F.3d 641, 647 (6th Cir.

2015). However, the Fourth Circuit in Cunningham concluded

that Yearsley immunity is jurisdictional because CampbellEwald “reaffirmed” the test for the applicability of Yearsley

derivative sovereign immunity. Cunningham, 888 F.3d at 646.

Thus, Campbell-Ewald seemingly resolves in the affirmative

the Fifth and Sixth Circuits’ questions as to whether a

“Yearsley defense” is based on sovereign immunity, which those

Courts also found would constitute a jurisdictional bar. Because

Cunningham is the most recent on-point federal decision and

takes into account Campbell-Ewald, and the older Fifth and

Sixth Circuit cases seem now to have been answered by

Campbell-Ewald, Yearsley immunity constitutes a jurisdictional

bar that should be addressed under Rule 12(b)(1); See also

Taylor Energy Co., L.L.C. u. Luttrell, 3 F.4th 172, 175 (5th Cir.

2021) (“Yearsley immunity is ‘derivative sovereign immunity.’

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160, 136 S.Ct.

663, 193 L.Ed.2d 571 (2016). Such immunity shields contractors

whose work was ‘authorized and directed by the Government of

the United States’ and ‘performed pursuant to [an] Act of

Congress.’ Id. at 167, 136 S.Ct. 663 (quoting Yearsley, 309 U.S.

at 20, 60 S.Ct. 413).”).

App.28a

addressed under Rule 12(b)(1).” Keselyak v. Curators

of the Univ. of Missouri, 200 F. Supp. 3d 849, 853

(W.D. Mo. 2016), affd sub nom. Keselyak v. Curators

of Univ. of Missouri, 695 F. App’x 165 (8th Cir. 2017).

Rule 12(b)(1) motions may assert either a “facial” or

“factual” attack on jurisdiction. E.g., Moss v. United

States, No. 17-1928, 2018 WL 3489927, at *3 (8th

Cir. July 20, 2018).

Because TriWest’s entitlement to Yearsley immu­

nity is a jurisdictional fact not fully evident from the

face of the Complaint, TriWest attaches hereto, as

further support, a factual affidavit and public records.

“Where, as here, a party brings a factual attack, a

district court may look outside the pleadings to affida­

vits or other documents,” without converting the

motion into one for summary judgment or providing the

non-moving party with the benefit of Rule 12(b)(6)’s

safeguards. Id. Jenkins, the party invoking federal

jurisdiction, has the burden of overcoming these facts

to prove jurisdictional facts by a preponderance of

the evidence. Id.

A. The United States Has Not Waived

Immunity

As a threshold matter to the Yearsley immunity

test, courts must ensure that the United States has

not waived its immunity from suit invoking the

particular alleged federal law. The United States is

immune from all suits against it absent an express

waiver of its immunity, and any such express waiver

“must be unequivocally expressed in statutory text.”

Lane v. Pena, 518 U.S. 187, 192 (1996). The United

App.29a

States has not waived immunity for the administration

of the VCP or for the negligence of private actors.3

The VACAA established the VCP, a program to

furnish hospital care and medical services to Veterans

through eligible non-VA healthcare providers. (Id.);

see also 38 U.S.C. § 1703, 38 C.F.R. § 17.1500(b) See

28 U.S.C. § 2671; Rodriguez v. Sarabyn, 129 F.3d

760, 765 (5th Cir. 1997). Here, Jenkins alleged three

Tulane employees provided negligent medical care.

(Compl. at 2-3.) The United States has not waived its

immunity from claims regarding the negligence of

non-VA doctors. Accordingly, this Court should next

consider the Yearsley immunity test.

B. The United States Authorized TriWest to

be its Contractor

The federal government, through the VA, author­

ized TriWest to administer VCP within the legislated

confines of VACAA. (See Exhibit A to Exhibit 2, at

46-47.) TriWest is performing under a VA contract

for services, to which it undisputedly adhered. Any

discretion as to a Veteran’s eligibility for healthcare

outside the statutory requirements belongs to the

3 Although the FTCA can waive the United States’ immunity in

certain circumstances, the FTCA expressly retains immunity

for its employees and persons acting on behalf of a federal

agency. See 28 U.S.C. § 2671. “It is settled doctrine that the

United States cannot be held liable under the Federal Tort

Claims Act for the negligence of its independent contractors.”

Mocklin v. Orleans Levee Dist., 690 F. Supp. 527, 528-29 (E.D.

La. 1988), affd, 877 F.2d 427 (5th Cir. 1989) (citing United

States v. Orleans, 425 U.S. 807 (1976); Logue v. United States,

412 U.S. 521, (1973); Cavazos v. United States, 776 F.2d 1263,

1264 (5th Cir. 1985); Lathers v. Penguin Industries, 687 F.2d 69,

72 (5th Cir. 1982).

App.30a

VA, not TriWest. The contract, on its face, vests this

discretion with the VA only. (See, e.g., Exhibit A to

Exhibit 2, at 63-64 (“Upon notification by the Con­

tractor [for emergency services], VA will determine

Veteran eligibility and generate an authorization to

the Contractor!.]”). “In the event that care is not

authorized by VA, the Contractor’s provider may

submit claims directly to the VA for reconsideration

outside the terms of this contract.” (Id.) Further,

Veterans are put on notice that the VA holds this

discretion. As required by VACAA, each Choice Card

must contain the following statement: “This card is

for qualifying medical care outside the Department

of Veterans Affairs. Please call the Department of

Veterans Affairs phone number specified on this card

to ensure that treatment has been authorized.” Pub.

L. No. 113-146, Sec. 101 (a)(l)(f)(3)(E).

To the extent TriWest had any involvement in

Jenkins’ medical care, TriWest’s actions to administer

the VCP were thus non-discretionary and were done

at the express direction of the U.S. government.4 See

Cunningham, 888 F.3d at 647-48 (finding contractor

“adhered” to its contract to administer aspects of the

HealthCare. gov website per the Affordable Care Act,

which in turn directs the U.S. Department of Health

and Human Services, Centers for Medicare & Medicaid

Services to establish a system to keep applicants

informed about their eligibility for enrollment in a

qualified health plan, leading to contracted admin­

istrators such as the defendant); Cabalce v. Thomas

E. Blanchard & Assocs., Inc., 797 F.3d 720, 732 (9th

Cir. 2015) (“derivative sovereign immunity, as

4

App.31a

discussed in Yearsley, is limited to cases in which a

contractor had no discretion in the design process

and completely followed government specifications.”

(internal quotation omitted)). As a result, the first

Yearsley criterion is satisfied here.

C. TriWest’s VA Contract Was a Proper

Delegation from the United States to

TriWest

The VA is vested with the authority to “make

arrangements, by contract or other form of agree­

ment ... of health-care resources” with any “entity or

individual.” 28 U.S.C. § 8153(a)(1). TriWest’s VA

contract is thereby a permissible means for the VA

(and the government more broadly) to meet its “un­

questioned need to delegate governmental functions”

while avoiding “[i]mposing liability on private agents

of the government!, which] would directly impede the

significant governmental interest in the completion

of its work.” Cunningham, 888 F.3d at 643 (quotations

omitted) (finding contract was “validly conferred” by

government to defendant contractor pursuant to

statutorily mandated directives under the Affordable

Care Act). There is no assertion in the Complaint

that the VA was not authorized by Congress to

engage private contractors to effect the statutorily

mandated VCP under VACAA. To the contrary, and

consistent with post-Campbell-Ewald case law as to

Years/ey-immune private contractors, the VACAA

validly confers authorization to delegate VCP

administration. See In re Oil Spill by the Oil Rig

“Deepwater Horizon” in the Gulf of Mexico, on Apr.

20, 2010, No. MDL 2179, 2016 WL 614690, at *9

(E.D. La. Feb. 16, 2016) (finding that the Clean Water

Act mandates that the President direct all oil spill

App.32a

response efforts on navigable waters of the United

States, including those actions undertaken by private

parties, and that the federal government “validly

conferred authority upon the Clean-Up Responder

Defendants to carry out various oil spill response

activities. As a result, . .. the Clean-Up Responder

Defendants are immunized under the CWA.”). The

second Yearsley criterion is also met.

Because the VA has not waived immunity and

the federal government has properly delegated

administration of the VCP to TriWest by a statutorily

authorized contract to which TriWest has adhered,

the Yearsley standards are established. The Court

here should follow Campbell and Taylor Energy Co.,

L.L.C. v. Luttrell, 3 F.4th 172, 175 (5th Cir. 2021),

see footnote 8, supra, when, as here, Jenkins has not

submitted any allegations challenging TriWest’s immu­

nity in administering the VCP. In short, Jenkins’

vague and conclusory allegations do not establish

jurisdiction over TriWest. And, given that TriWest is

entitled to Yearsley immunity, this Court should

affirm that the district courts are of limited jurisdiction

and dismiss the claims against TriWest.

III. Jenkins Failed to Plead Federal Question

Jurisdiction

A. The Federal Tort Claims Act

The Federal Tort Claims Act (“FTCA”) permits

individuals to sue the United States based on torts

committed by U.S. employees. 28 U.S.C. § 2671, et.

seq. The FTCA waives the United States government’s

sovereign immunity for the negligence of federal

employees acting within the course and scope of their

App.33a

employment. 28 U.S.C. § 2679(b)(1). Thus, the FTCA

constitutes a “limited waiver of sovereign immunity,

making the Federal Government liable to the same

extent as a private party for certain torts of federal

employees acting within the scope of their employment.”

United States v. Orleans, 425 U.S. 807, 813 (1976);

28 U.S.C. §§ 1346(b), 2674. The FTCA is the exclusive

remedy for an injury caused by “the negligence or

wrongful act or omission of any employee of the

Government while acting within the scope of his

office.” Id.

A proper FTCA claim should be brought against

the United States. 28 U.S.C. § 2679(d)(1). Under the

FTCA, the allegedly negligent federal employee is

immune from any such tort action. Osborn v. Haley,

549 U.S. 225, 247 (2007); Rodriguez v. Sarabyn, 129

F.3d 760 (5th Cir. 1997). A party seeking to file suit

under the FTCA should obtain certification by the

U.S. Attorney that a federal employee acted within

the course and scope of employment at the time of

the relevant incident, and then the action is deemed

against the United States, which “shall be substituted

as the party defendant.” 28 U.S.C. § 2679(d)(1).

Additionally, as a prerequisite to filing suit, a

person must present any claim administratively before

filing suit. 28 U.S.C. § 2875. Specifically,

An action shall not be instituted upon a

claim against the United States for money

damages 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,

unless the claimant shall have first presented

App.34a

the claim to the appropriate Federal agency

and his claim shall have been finally denied

by the agency in writing.

28 U.S.C. § 2675(a). The FTCA has these strict

requirements because it is a limited waiver of

immunity. 28 U.S.C. § 2675(a).

B. Jenkins’ Allegations Do Not Establish

FTCA Federal Question Jurisdiction

Jenkins’ alleged no facts to establish federal

question jurisdiction under the FTCA. Even if Jenkins

had alleged that the Doctors were federal employees,

his allegations still failed to plead federal question

jurisdiction because he alleged no facts to show that

he exhausted administrative remedies. This alone is

fatal to Jenkins’ action. See Coleman v. United

States, 912 F.3d 824, 834 (5th Cir. 2019) (holding

that exhaustion is “a jurisdictional prerequisite for

FTCA claims that cannot be waived.” (citing McNeil

v. United States, 508 U.S. 106, 109-13 (1993) (affirming

a dismissal for lack of jurisdiction where the FTCA

complainant had not satisfied administrative

exhaustion requirements before filing the complaint)));

see also Life Partners Inc. v. United States, 650 F.3d

1026, 1029 (5th Cir. 2011) (citing 28 U.S.C. § 2675(a)).

Jenkins’ allegations are insufficient to establish

federal question jurisdiction, and dismissal is appro­

priate. See 12(b)(1); Wiley, 2021 WL 4460529, at *2.

This Direct Court properly concluded that it lacked

subject matter jurisdiction over Jenkins’ claim.

App.35a

IV. Jenkins’ Allegations Fail to State Any Viable

Claim Against TriWest

In order to state a viable claim against TriWest,

Jenkins was required to plead allegations showing

his entitlement to relief—beyond mere speculation.

Rule 12(b)(6); Twombly, 550 U.S. at 555, 127 S.Ct.

1955; Ashcroft, 129 S.Ct. at 1949 (requiring that “a

complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is

plausible on its face.”’). Jenkins’ Complaint makes no

allegations about TriWest specifically. Indeed, the

name “TriWest” is not even mentioned in Jenkins

statement of claim or relief requested. (Compl., gen­

erally) Even construing Jenkins’ pro se allegations

liberally, he failed to plead facts to show a right to

relief. Coleman v. United States, 912 F.3d 824, 828

(5th Cir. 2019) (“pro se plaintiffs must still plead

factual allegations that raise the right to relief above

the speculative level.”).

Jenkins’ lone allegation is actually a legal

conclusion that “each defendant engaged and/or

participated in” medical malpractice. (Compl. at 5.)

The Court should disregard such legal conclusions.

Chevron Corp., 484 F.3d at 780 (5th Cir. 2007); see

also Iqbal, 129 S.Ct. at 1940 (‘While legal conclusions

can provide the complaint’s framework, they must be

supported by factual allegations.”). Once Jenkins’

conclusions are struck, what remains is insufficient

to state any viable claim against TriWest. Accordingly,

this Court should affirm dismissal of Jenkins’ claims.

SUMMARY OF THE ARGUMENT

Jenkins believes that the District Court for the

Eastern District of Louisiana wrongfully dismissed

App.36a

his Complaint, in which Jenkins attempted to bring

an FTCA action alleging damages resulting from

medical care he received more than five years prior

to his lawsuit. Jenkins failed to state any valid claim

for relief against TriWest because his claim was

time-barred by Louisiana’s one-year prescriptive period

for medical malpractice actions. See La. R.S. 9:5628.

Second, even if not time barred, Jenkins’ allegations

were insufficient to overcome TriWest’s derivative

sovereign immunity. Third, Jenkins failed to plead

federal question jurisdiction under the FTCA. Thus,

the District Court properly found it lacked subjectmatter jurisdiction over the matter. Finally, Jenkins’

allegations failed to state any viable caused of action

against TriWest, so the District Court also properly

dismissed Jenkins’ Complaint on that basis.

ARGUMENT

This Court employs a de novo standard of review

when considering a motion to dismiss under Rule

12(b)(1), JTB Tools & Oilfield Services, L.L.C. v.

United States, 831 F.3d 597, 599 (5th Cir. 2016), and

under Rule 12(b)(6), Meador v. Apple, Inc., 911 F.3d

260, 264 (5th Cir. 2018). This includes

“accepting all well-pleaded facts as true and

viewing those facts in the light most favorable

to the plaintiffs.” Dorsey v. Portfolio Equities,

Inc., 540 F.3d 333, 338 (5th Cir. 2008)

(quotation omitted). A complaint survives a

motion to dismiss only if it “pleads factual

content that allows the court to draw the

reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft

App.37a

v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009).

Id. Just as the District Court concluded, Jenkins’

claim failed to state any viable claim, compelling

dismissal.

I.

The District Court Correctly Determined

That It Lacks Subject Matter Jurisdiction

A. TriWest’s Motion to Dismiss was

Appropriate Because Jenkins’ Claim Was

Filed Beyond All Applicable Prescriptive

Periods

TriWest appropriately sought dismissal under

the Federal Tort Claims Act (“FTCA”), and its twoyear prescriptive period, which governed Jenkins’

claims. Even after amendment, Jenkins’ allegations

in his Amended Complaint (see Doc. 14-2) could not

save his untimely-filed claims. Jenkins admitted that

the allegedly negligent medical conduct occurred in

November 2016 - more than five years before he filed

the underlying lawsuit, well beyond the two-year

prescriptive period under the FTCA. Am. Compl.,

1 2. Dismissal of Jenkins’ claims with prejudice was

therefore appropriate under well-settled law. See

Newton v. United States, 836 F. App’x 308, 309 (5th

Cir. 2021) (dismissing with prejudice medical

malpractice claims brought under the Federal Tort

Claims Act as barred by prescriptive period).

It is established law that allegations of diversity

jurisdiction such as those alleged by Jenkins could

not save prescribed claims. See Vinzant v. United

States, No. CV 06-10561, 2007 WL 9809136, at *2

(E.D. La. Mar. 28, 2007) (rejecting a plaintiffs claim

App.38a

of diversity jurisdiction, because his personal injury

claims was prescribed). Because the law clearly

supported TriWest’s arguments below, TriWest’s

position is not frivolous.

B. TriWest’s Motion to Dismiss was

Appropriate Because Jenkins Failed to

Allege Any Well-Pleaded Facts Showing

That TriWest Failed to Follow the

Government Directive

TriWest properly sought dismissal of Jenkins’

claims because Jenkins failed to state a claim for

relief. Even affording Jenkins all deference he is

entitled to as a pro se plaintiff, his allegations are

incomprehensible and do not support any claim against

TriWest. See Cunningham v. Gen. Dynamics Info.

Tech., Inc., 888 F.3d 640, 646 (4th Cir. 2018) (Yearsley

immunity applies and “a government contractor is

not subject to suit if (1) the government authorized

the contractor’s actions and (2) the government Validly

conferred’ that authorization, meaning it acted within

its constitutional power.”).

Because Jenkins has alleged no well-pleaded

facts that would render Yearsley immunity inapplicable,

TriWest’s argument for dismissal was reasonable

and made in good faith. Jenkins’ Amended Complaint

still does not actually allege any facts showing that

TriWest failed to follow a Government directive. See

Am. Compl., generally. Nor does his Memorandum in

Opposition to TriWest’s Motion to Dismiss cite a

single case to establish that the Government directed

TriWest to control the medical procedure Tulane

performed. See Mem. Opp. Defs.’ Mot. to Dismiss at

2-3. No such duty or directive existed. Accordingly,

App.39a

Jenkins failed to overcome the jurisdictional bar of

Yearsley immunity, and TriWest appropriately sought

dismissal of Jenkins’ claims. See Cunningham, 888

F.3d 640 at 650.

C. TriWest’s Motion to Dismiss was

Appropriate Because Jenkins Failed to

Allege Facts Showing His Claim Under the

FTCA is Viable

TriWest acted reasonably and in good faith by

seeking dismissal of Jenkins’ FTCA claim. First,

Jenkins alleged no facts to establish federal question

jurisdiction under the FTCA. To state a claim under

the FTCA, Jenkins was required to obtain certification

by the U.S. Attorney that a federal employee acted

within the course and scope of employment at the

time of the relevant incident, and then the action is

deemed against the United States, which “shall be

substituted as the party defendant.” 28 U.S.C.

§ 2679(d)(1). The FTCA has strict requirements because

it is a limited waiver of immunity. 28 U.S.C. § 2675(a).

Jenkins alleged no facts to show that he exhausted

administrative remedies, nor did he allege that he

obtained certification by the U.S. attorney that a

federal employee was acting within the course and

scope of employment at the time of the relevant

incident. These failures are each fatal to Jenkins’

action. See 28 U.S.C. § 2679(d)(1); Coleman v. United

States, 912 F.3d 824, 834 (5th Cir. 2019) (holding

that exhaustion is “a jurisdictional prerequisite for

FTCA claims that cannot be waived.” (citing McNeil

v. United States, 508 U.S. 106, 109-13 (1993) (affirming

a dismissal for lack of jurisdiction where the FTCA

complainant had not satisfied administrative

App.40a

exhaustion requirements before filing the complaint))).

Because the FTCA is the exclusive remedy for an

injury caused by “the negligence or wrongful act or

omission of any employee of the Government while

acting within the scope of his office,” its requirements

are mandatory. Id. Jenkins’ failure to allege wellpleaded facts to show he exhausted administrative

remedies is fatal. Life Partners Inc. v. United States,

650 F.3d 1026, 1029 (5th Cir. 2011) (citing 28 U.S.C.

§ 2675(a)).

Second, Jenkins cannot bring his FTCA claim

against a nongovernmental entity like TriWest. A

proper FTCA claim should be brought against the

United States. 28 U.S.C. § 2679(d)(1). The FTCA

does not provide Jenkins with a private cause of

action against TriWest, a private entity. Because

Jenkins’ FTCA claim cannot be brought against

TriWest, the district court lacked subject matter

jurisdiction over Jenkins’ lawsuit, and TriWest

reasonably sought its dismissal.

Third, Jenkins’ allegations do not state a claim

under the FTCA, and diversity of Jenkins’ and

TriWest’s citizenship is irrelevant. See Johnson v.

United States, 576 F.2d 606, 611 (5th Cir. 1978)

(recognizing similarities between diversity jurisdiction

and actions under the FTCA but holding “diversity

jurisdiction principles do not govern Tort Claims

actions”). For at least these reasons, TriWest’s

argument for dismissal were reasonable.

App.41a

D. TriWest’s Motion to Dismiss was

Appropriate Because Jenkins’ Allegations

are Fatal to Diversity Jurisdiction

TriWest argued in good-faith that there was no

federal diversity jurisdiction in this case. To establish

federal diversity jurisdiction under 28 U.S.C A. § 1332,

all parties must be diverse. As this Court held in

Mas v. Perry, 489 F.2d 1396, 1398 (5th Cir. 1974),

the general rule of diversity jurisdiction is that there

must be complete diversity. That is, all defendants

must be diverse from all defendants. Id. Here, Jenkins

alleged he is a resident of Louisiana and that Defendant

Tulane Medical Center and the individual Defendants

are also residents of Louisiana. See Compl. at 2 (Doc.

1). Therefore, it is well settled that Jenkins failed to

establish diversity jurisdiction. Jenkins’ allegations

are fatal to his assertion of diversity jurisdiction.

Therefore, TriWest reasonably sought dismissal of

Jenkins’ lawsuit.

II. The District Court Decision Is

Tantamount as Favorable to Jenkins

Not

The District Court decision unequivocally

dismissed Jenkins’ claims against TriWest. Jenkins

reading of the District Court decision as being

“tantamount” to a decision in his favor is flawed.

Jenkins’ suggests (wrongly) that he proved he had

timely raised his claim. Jenkins also asserts (wrongly)

that the District Court’s decision did not say he was

not entitled to the damages demanded. Under Jenkins’

flawed reading of the District Court’s decision, he is

still somehow authorized to pursue his monetary

claim. But there is no legal or factual basis for

Jenkins’ argument.

App.42a

III. Triwest Did Not File This Appeal, So Triwest

Cannot Be Sanctioned for Filing a Frivolous

Appeal

Jenkins is the Appellant. If the Court deems this

appeal frivolous, Jenkins is the appropriate party to

sanction, not TriWest. Federal Rule of Appellate

Procedure permits a court to impose sanctions against

the appellant for a frivolous appeal: “If a court of

appeals determines that an appeal is frivolous, it

may, after a separately filed motion or notice from

the court and reasonable opportunity to respond,

award just damages and single or double costs to the

appellee.” FRAP 38.

Jenkins filed this appeal yet seeks sanctions

against TriWest for the frivolousness of his own

appeal. Jenkins’ Motion fails to establish any

reasonable good-faith basis for the Court to enter

sanctions against TriWest for Jenkins’ own frivolous

appeal. The Federal Rules of Civil Procedure do

authorize an appellate court to impose sanctions

against a party for filing a frivolous appeal; however,

if the Court determines that the instant appeal is

frivolous, Jenkins is the appropriate party to be

sanctioned.

IV. Even If Rule 38 Applied to Appellee, Triwest,

Sanctions are Inappropriate, Because

Triwest’s Arguments and Actions Have Been

in Good Faith

Even if Rule 38 applied, sanctions are not appro­

priate because TriWest has made reasonable, goodfaith arguments based on well-settled law. Federal Rule

of Appellate Procedure 38 authorizes a court of

appeals to issue sanctions for a frivolous appeal: “If a

App.43a

court of appeals determines that an appeal is frivolous,

it may, after a separately filed motion or notice from

the court and reasonable opportunity to respond,

award just damages and single or double costs to the

appellee.” Sanctions are not appropriate when an

appeal is based on reasonable arguments made in

good faith.

In Coghlan v. Starkey, 852 F.2d 806, 809 (5th

Cir. 1988), this Court discussed Rule 38 sanctions at

length, stating “that there can be little tolerance for

unmerited appeals without articulable support in the

law. Appeal as of right does not translate into propriety

of appeal when counsel can make no reasonable

argument for extension, modification, or reversal of

precedent clearly elaborated by the district court

opinion.” Moreover,

[w]hen the appellant files an appeal, he

asks for this court’s attention. [T]he notion

that an appellant has an untrammelled

right of review cannot shift the burden of

going forward to the appellee. . . . Appellee

should not be forced to endure the expense

and anxiety of waiting unnecessarily to

have its dispute resolved. With so many

worthy claims waiting to be resolved, we

cannot tolerate unfounded and undeveloped

claims [to clog our docket and consume

appellate time and resources].

Id. at 809-10 (citing Reliance Ins. Co. v. Sweeney

Corp., 792 F.2d 1137, 1139 (D.C. Cir. 1986) (per

curiam) (in opinion affirming summary judgment,

panel sua sponte ordered appellant and its attorney

to show cause why sanctions should not be imposed;

App.44a

appellant filed no response and, based upon affidavit

of appellee, $5220.00 was awarded)).

V.

Conclusion

Yet regardless of how couched, Jenkins’ medical

malpractice claim was time barred by the Louisiana

prescriptive period for medical malpractice actions.

And, even if his claim was timely, Jenkins’ allegations

do not overcome TriWest’s derivative sovereign

immunity. The District Court properly determined it

lacked subject-matter jurisdiction over Jenkins’ claims

because Jenkins’ allegations were insufficient to

establish federal question jurisdiction. For any of

these reasons, dismissal was and is appropriate.

Based on the foregoing, TriWest respectfully

requests that the Court affirm the District Court

decision dismissing Jenkins’ Complaint and Deny

Jenkins’ Motion for Sanctions.

Respectfully submitted this 3rd day of October,

2022.

/s/ Jason R. Scheiderer

Mo. State Bar No. 53091

jason.scheiderer@dentons.com

DENTONS US LLP

650 Poydras Street, Suite 2850

New Orleans, LA 70130-6132

Telephone: 504-524-5446

Counsel of Record for Defendant-Appellee

TriWest Healthcare Alliance Corp.

App.45a

REPLY BRIEF OF APPELLANT

CHARLES JENKINS

(OCTOBER 20, 2022)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES JENKINS,

Plain tiff-Appellan t,

v.

TRIWEST HEALTHCARE ALLIANCE,

Defendant-Appellee.

No. 22-30429

On Appeal from the United States District Court

for the Eastern District of Louisiana

2-22-CV-37

SUBMITTED BY:

Charles J. Jenkins

11261 Idlewood Court

New Orleans, LA 70128

(504) 708-3498

Pro se litigant

App.46a

CERTIFICATE OF INTERESTED PARTIES

The undersigned certifies that the following listed

persons and entities as described in the fourth sentence

of 5th Cir Rule 28.2.1 have an interest in the

outcome of this case. These representations are made

in order that the judge of this court may evaluate

possible disqualification or recusal.

Appellees:

TriWest Healthcare Alliance

Counsel for Appellees:

Jason R. Scheiderer Dentons US, LLP, New

Orleans

Jerry Beatmann of Dentons US, L.L.P. New

Orleans, LA

Appellant:

Charles Jenkins

Counsel for Appellant:

Charles Jenkins, New Orleans

Other Interested Parties:

VA Medical Center

Counsel for Interested Parties:

Robert Hilton Adams of DOJ-USAO New Orleans,

LA

Other Interested Parties:

Tulane Medical Center

Counsel for Interested Parties:

App.47a

Peter Sperling, Brittany Sloan, Nairda Colon of

Frilot L.L.C.New Orleans,LA

/s/Charles Jenkins

STATUTE

28 U.S.C. S 1331 - 1332

TABLE OF AUTHORITY

Cardsoft v. Verifone Inc., 807 F.rd 1346 (2015)

This Court has jurisdiction over the case at bar

due to the fact of TriWest’s diversity of citizenship in

that they does business in the States of Louisiana

but is headquartered in the States of Arizona. Whereby

Plaintiff-Appellant Jenkins resides in the States of

Louisiana pursuant to 28 U.S.C. § 1331-1332.

STATEMENT OF THE ISSUE(S)

Whether Defendant - Appellee TriWest Healthcare

Alliance (TriWest) properly pleaded arguments in

their brief pertaining to the Doctrines of Res judicata

and Collateral Estoppel.

SUMMARY OF THE ARGUMENT(S)

This case turns on whether TriWest pleaded in

their brief the Doctrines of collateral Estoppel and

Res judicata. If not, then TriWest’s appeal has been

waived.

ARGUMENT(S)

And once more TriWest pleads the same

arguments as they did before in opposing Jenkins’s

motion for sanctions. And that is they are trying to

re-litigate a thing decided. All that blustering and

App.48a

saber rabbling is just that, a bunch of “Toro Manure”

and those voluminous citing of authorities are all

moot and null and void. It would be a waste of the

court’s valuable time to even consider such a debacle.

We are reminded that the fifth circuit has alway

been known for its conservatism but maybe this time

they want be as lenient for TriWest being so picayunish

and frivolous. The facts of the matter is that TriWest

failed to plead the primary issues (e.g., Res judicata

and Collateral Estoppel). That means once again,

You cannot re-litigate issues already decided. In the

case at bar this is the death nil for TriWest whose

failure to plead in their brief. Those are situations

where the courts has applied the rule that arguments

that are not appropriately developed in a party’s

briefing may be deemed waive. See Cardsoft v. Verifone

Inc., 807 F.rd 1346 (2015). There’s an adage in the

American Jurisprudence lexicon which says “if you

don’t have the law on your side you argue the facts

and if you don’t have the facts on your side you

pound the table and yell hell.” In TriWest’s case they

didn’t yell hell loud enough.

CONCLUSION

Ergo, Plaintiff-Appellant, Jenkins is entitled to

summary judgment as a matter of law since there’s

no genuine issue of material facts pursuant to FRCP

Rule 56. Also Jenkins should be entitled to receive

the award he requested (e.g., two million dollars as

per those 6 (six)) Tortfeasors jointly and severally

and/or appoint a special master to direct meaningful

negotiation toward a settlement.

That TriWest filed a frivolous appeal and whatever

else the Court may determine for the continuing and

App.49a

ongoing incontinence, the humiliation of wearing

diapers for the rest of his life, for the urinary urgency

along with the long term sequalae of infections.

SUBMITTED BY:

/s/ Charles Jenkins

11261 N Idlewood Ct

New Orleans, LA 70128

App.50a

PLAINTIFF-APPELLANT PETITION FOR

PANEL REHEARING AND/OR REHEARING

EN BANC

(MARCH 6, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES JENKINS,

Plain tiff'Appellant,

v.

TRIWEST HEALTHCARE ALLIANCE,

Defendant-Appellee.

No. 22-30429

Appeal from the United States District Court

for the Eastern District of Louisiana

The Honorable Barry W. Ashe

Case No. 2:22-CV-37

SUBMITTED BY:

Charles J. Jenkins

11261 Idlewood Court

New Orleans, LA 70128

(504) 708-3498

Pro se litigant

App.51a

CERTIFICATE OF INTERESTED PARTIES

The undersigned certifies that the following

listed persons and entities as described in the fourth

sentence of 5th Cir Rule 28.2.1 have an interest in

the outcome of this case. These representations are

made in order that the judge of this court may

evaluate possible disqualification or recusal.

Appellees:

TriWest Healthcare Alliance

Counsel for Appellees:

Jason R. Scheiderer Dentons US LLP, New

Orleans

Appellant:

Charles Jenkins

Counsel for Appellant:

Charles Jenkins, New Orleans

/s/Charles Jenkins

App.52a

STATEMENT OF THE ISSUE­

REHEARING EN BANC

(1). Whether the panel for this case has violated

the statute by failing to adhere to its mandate of

accepting the July 16, 2022 judgement of a rule 36

decision of which Plaintiff-Appellant contends is

favorable to his case/claim/appeal thereby making

the Defendant-Appellee claims moot pursuant to the

rule 36 decision. Therefore, supplanting another case

in its stead is also moot and/or subject to collateral

estoppel/res judicata.

STATEMENT OF THE ISSUE-REHEARING

(2). And whether the other elements e.g., juris­

diction, diversity of citizenship, failure to state a

claim among others are all subsumed in the doctrine

of res judicata a thing decided.

SUMMARY OF THE ARGUMENT(S)

This case will turn on whether an en banc panel

be enjoined to correct the imbalances in the tribunal

decision to break away/violate the statutorily mandate

of the rule 36 decision, replace one in its stead and

come in compliance with the other panel/circuits.

And whether the appeal court will provide a

rehearing to determine the issues e.g., jurisdiction,

diversity of citizenship, failure to state a claim and

the like to determine whether those issues are subject

to collateral estoppel/res judicata.

App.53a

ARGUMENT(S)

(1). Arguments to Issue One-1 Rehearing En

Banc

Now comes, Plaintiff-Appellant Charles Jenkins

appearing pro se respectfully requests a rehearing or

rehearing en banc as provided by this court to accept

the lower courts rule 36 decision which says it “does

not endorse or reject a specific part of the trial court’s

reasoning” and is non-precedential, i.e., not binding

on the Court...

And seeking that each merits panel may enter

precedential opinions, a party seeking en banc

consideration must typically show that either the

merits panel has (1) failed to follow existing decisions

of the U.S. Supreme Court or Federal Circuit precedent

or (2) followed Federal Circuit precedent that the

petitioning party now seeks to have overruled by the

en banc court. This tribunal has chosen to violate its

statute and mandates according to 35 U.S.C. 144 and

15 U.S.C. 1074 (a)(4). See 35 Patent § 144, and

Patent Trademark Office (USPTO) which allow the

Federal Circuit to write an opinion in every appeal

from the USPTO. And If the Federal Circuits dismiss

with affirmance, they are not allowed to ignore a rule

36 decision and select in its stead a negative decision

in that same case.

The above statute and USPTO further elucidates

that;

a). Petitioner asserts that written opinions

are necessary to achieve such objectives as

“unifying and improving the administration

of patent law,” Pet. 31; ensuring transparent

App.54a

and correct court decisions, ibid.; providing

“meaningful appellate review” to patent

owners, Pet. 34; and preserving the possibility

of further review, ibid. But nothing about

the Federal Circuit’s practices suggests that

the court is breaching its duty to articulate

the law, apply it properly, and promote

uniformity. The Federal Circuit issues Rule

36 judgments only after giving cases “the

full consideration of the court,” United

States Surgical Corp. v. Ethicon, Inc., 103

F.3d 1554, 1556 (Fed. Cir.), cert, denied, 522

U.S. 950 (1997), and only if it concludes

that an opinion would not meaningfully

serve the interests that petitioner highlights.

In particular, the court issues a Rule 36

judgment without opinion only if it determines

that an opinion would have no precedential

value and that there is no ground to revisit

the decision of the lower tribunal. See Fed.

Cir. R. 36.

For similar reasons, the question presented has

limited practical significance. Rule 36 authorizes

summary affirmance only when the Federal Circuit

determines that the decision under review contains

no reversible error. Thus, for example, when a summary

affirmance is used in a case involving a legal challenge

reviewed de novo, the affirmance communicates the

court’s judgment that the trial court or agency

committed no error. See Fed. Cir. R. 36(a)(4) and (5).

When a summary affirmance is used to reject a

factual challenge reviewed for clear error, the

affirmance indicates that the court found no such

clear error in the underlying factual finding. See Fed.

App.55a

Cir. R. 36(a). An opinion that simply stated those

conclusions explicitly would add little to what is

already implicit in the judgment.

This Court has repeatedly and recently denied

challenges to the Federal Circuit’s use of summary

dispositions under Rule 36. See pp. 9-10, supra

(collecting examples). The same result is warranted

here.

1st Conclusion:

It is suggested that the federal circuit especially

this panel is guilty of violating the en banc doctrine

by dismissing this Plaintiff-Appellant rule 36 decision

as allowed by the USPTO and not letting rule 36

decision stand by dismissing it and put a negative

decision in its stead.

This is why the judges and/or panel should

enjoin their full complement of the Federal Circuit

judges to resolve this blatant violation of the statue

on the use of summary affirmances and replacing it

with a surrogate decision in the same case especially

when it appears the lower court rule 36 decision was

dispositive of this case. E.g., Collateral Estoppel

and/res judicata.

(2). Arguments to Issue Two-2 Rehearing

Rehearing-In addition, this panel has determined

that this litigant has no subject matter jurisdiction,

no diversity of citizenship and failure to state a claim

among others. However, as the Court has stated the

standard of review for subject matter jurisdiction is

the following:

App.56a

II. STANDARD OF REVIEW

This Court evaluates de novo the district court’s

grant of Appellee’s Rules 12(b)(1) and 12(b)(6) motion

for dismissal applying the same standard used by the

district court. Hebert v. United States, 53 F.3d 720,

722 (5th Cir. 1995).

Motions filed under Rule 12(b) (1) of the

Federal Rules of Civil Procedure allow a

party to challenge the subject matter juris­

diction of the district court to hear a case.

Fed. R. Civ. P. 12(b) (1). Lack of subject

matter jurisdiction may be found in any one

of three instances: (1) the complaint alone;

(2) the complaint supplemented by

undisputed facts evidenced in the record; or

(3) the complaint supplemented by undisputed

facts plus the court’s resolution of disputed

facts.

Barrera-Montenegro v. United States, 74 F.3d 657,

659 (5th Cir. 1996).

The burden of proof for a Rule 12(b) (1) motion

to dismiss is on the party asserting jurisdiction.

McDaniel v. United States, 899 F.Supp. 305, 307

(E.D. Tex. 1995). Accordingly, the plaintiff constantly

bears the burden of proof that jurisdiction does in

fact exist. Menchaca v. Chrysler Credit Corp., 613

F.2d 507, 511 (5th Cir. 1980).

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. Hitt v. City of Pasadena,

561 F.2d 606, 608 (5th Cir. 1977) (per curiam). This

requirement prevents a court without jurisdiction

App.57a

from prematurely dismissing a case with prejudice.

The court’s dismissal of a plaintiffs case because the

plaintiff lacks subject matter jurisdiction is not a

determination of the merits and does not prevent the

plaintiff from pursuing a claim in a court that does

have proper jurisdiction. Id.

In examining a Rule 12(b) (1) motion, the

district court is empowered to consider matters of

fact which may be in dispute. Williamson v. Tucker,

645 F.2d 404, 413 (5th Cir. 1981). Ultimately, a

motion to dismiss for lack of subject matter jurisdiction

should be granted only if it appears certain that the

plaintiff cannot prove any set of facts in support of

his claim that would entitle plaintiff to relief. Home

Builders Ass’n of Miss., Inc. v. City of Madison, Miss.,

143 F.3d 1006, 1010 (5th Cir. 1998).

This litigant suggests that his subject matter

jurisdiction is attained in all three instances e.g., (1)

the complaint alone; (2) the complaint supplemented

by undisputed facts evidenced in the record; or (3)

the complaint supplemented by undisputed facts

plus the court’s resolution of disputed facts. BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th

Cir. 1996).

And since this court evaluated de novo this grant

of appellees rule... be advised that in the court’s

decision filed February 08, 2023 see ROA p.3 it

should take “judicial notice”1 that an SF-95 was filed

1 Judicial notice-is used by a court when it declares a fact

presented as evidence as true without a formal presentation of

evidence. A court can take judicial notice of indisputable facts.

If a court takes judicial notice of an indisputable fact in a civil

case, the fact is considered conclusive.

App.58a

within the two (2) years Federal Tort Claims Act

(FTCA) framework and was received by a proper

agent of the Veterans Administration with his signature

as verified by FedEx carrier.

Nevertheless, the above issues supra are a

matter of res judicata. That is to say once the lower

court accepted the rule 36 decision those issues are

now moot.

In regards to diversity of citizenship this issue

was adjudicated also and was rule on in its finality

which is again is moot and a matter of res judicata

because of the acceptance of the rule 36 decision by

the lower court. As a result, the merits of this claim

cannot be attacked because a de novo evaluation has

proven that this litigant has subject matter jurisdiction

especially construed in a light most favorable to him.

And once more again, motions to dismiss for

failure to state a claim are appropriate when a

defendant attacks the complaint because it fails to

state a legally cognizable claim. Fed. R. Civ. P. 12(b)

(6). The test for determining the sufficiency of a

complaint when he can prove no set of facts in

support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.

99, 2 L.Ed.2d 80 (1957). See also, Grisham v. United

States, 103 F.3d 24, 25-26 (5th Cir. 1997).

However, subsumed within the rigorous standard

of the Conley test is the requirement that the plaintiffs

complaint be stated with enough clarity to enable a

court or an opposing party to determine whether a

claim is sufficiently alleged. Elliott v. Foufas, 867

F.2d 877, 880 (5th Cir. 1989). Further, “the plaintiffs

complaint is to be construed in a light most favorable

App.59a

to the plaintiff, and the allegations contained therein

are to be taken as true.” Oppenheimer v. Prudential

Securities Inc., 94 F.3d 189, 194 (5th Cir. 1996). This

is consistent with the well-established policy that the

plaintiff be given every opportunity to state a claim.

Hitt, 561 F.2d at 608.

In other words, a motion to dismiss an action for

failure to state a claim “admits the facts alleged in

the complaint, but challenges plaintiffs rights to

relief based upon those facts.” Tel-Phonic Servs. Inc.

v. TBS Int’l, Inc., 975 F.2d at 608.

Once again, the issue regarding a failure to state

a claim, that is to say each element of the action has

been clearly stated in the complaint. And again,

there was no challenge to this Plaintiff-Appellant

rights to relief based upon the facts. See citation

above supra. Consequently, this issue is also subjected

to the doctrine of Res judicata things already decided.

2nd Conclusion

We respectfully submits that the court enjoin

the full circuit for a rehearing panel to resolve the

issues in question and determine whether the July

16 lower Court Rule 36 decision prevail and that it

would attach summary judgment and possible Rule

36 offer. And respectfully request a rehearing to

determine whether the instant tribunal erred in its

conclusion not to concede that the doctrine of res

judicata prevailed in their attempt to nullify PlaintiffAppellants claim of subject matter jurisdiction, failure

to state a claim, diversity of citizenship and the like.

SUBMITTED BY:

App.60a

/s/ Charles Jenkins

11261 N Idlewood Ct

New Orleans, LA 70128