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Eufrosina v. Gates

November 24, 2009

DIACONU EUFROSINA
v.
ROBERT GATES, SECRETARY OF DEFENSE, STEVE JOHNSON, ADMINISTRATOR, EPA, U.S. DEPARTMENT OF DEFENSE, U.S. ENVIRONMENTAL PROTECTION AGENCY



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM

I. Introduction

This case concerns allegations by former federal employee Plaintiff Diaconu Eufrosina that she suffered injuries, including the development of uterine cancer, as a result of exposure to toxic chemicals during her employment with the Department of Defense's Defense Logistics Agency ("DLA") and Defense Personnel Support Center ("DPSC"). (Doc. 1, Ex. B at 2.) Pending before the Court are the parties' cross-motions: (1) Defendants' ("the government") Motion to Dismiss or, Alternatively, for Summary Judgment (Doc. No. 32), and (2) Plaintiff's*fn1 Motion for Summary Judgment (Doc. No. 31). For the reasons stated below, the Court will grant the government's Motion to Dismiss, will deny the Plaintiff's Motion for Summary Judgment, and will dismiss the case.

II. Factual and Procedural Background*fn2

The Court's March 5, 2009 Memorandum placing this case in suspense pending adjudication of Eufrosina's administrative claim respecting cancer detailed much of the history of this and several related cases. Eufrosina v. Gates, No. 08-3633, 2009 WL 564448, at *1-2 (E.D. Pa. Mar. 5, 2009) ("Eufrosina III"). The Court sets forth the factual and procedural background relevant to the pending Motions below.

A. Eufrosina's Earlier Claims Respecting Central Nervous System Injuries

Over ten years ago, Eufrosina filed several related cases in the Eastern District of Pennsylvania alleging that she suffered various injuries to her central nervous system as a result of her employment with the DLA and DPSA; those cases were dismissed on statute of limitations grounds. See Eufrosina v. Defense Logistics Agency, No. 98-6533, 1999 WL 238954 (E.D. Pa. Apr. 2, 1999) (Weiner, J.) ("Eufrosina I"), aff'd, 33 F. App'x 647 (3d Cir. Apr. 16, 2002). In May 2007, Eufrosina filed an administrative claim respecting her central nervous system injuries with the Pentagon, which was not the proper agency. (Docket No. 21, Ex. 5.) In March 2009, the Torts Claim Division of the Department of the Army ("Tort Claims Division") denied Eufrosina's claim on the basis that the Federal Employees' Compensation Act ("FECA") provides the exclusive remedy for Eufrosina's alleged injuries, thereby barring her FTCA claim. (See Docket No. 32, Ex. 2.)

B. Eufrosina's Claims Respecting Uterine Cancer

In July 2007, Plaintiff, pro se, commenced this action seeking relief under the Federal Tort Claims Act, 28 U.S.C. § 2673 et seq., for the uterine cancer she alleges that she developed during her employment with DLA and DPSC, in the federal District Court for the District of Columbia. (Docket No. 32, Ex. 1.) On July 7, 2008, the District Court for the District of Columbia determined that Eufrosina "brings multiple tort claims" against the government and "seeks relief via money damages. Accordingly, the Court... construe[d] [Eufrosina]'s complaint as an Federal Tort Claims Act ("FTCA") action against the United States." (Docket No. 1, at 4.) Because FTCA actions may only be prosecuted "in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred," 28 U.S.C. § 1402, and because Eufrosina resides in Philadelphia, the District Court for the District of Columbia transferred the case to this court. (Docket No. 1, at 3.) The government had filed a motion to dismiss the suit due to Eufrosina's failure to exhaust her administrative remedies. Eufrosina v. Gates, No. 07-1358, Docket No. 6 (D. D.C. Jan. 4, 2008) ("Eufrosina II").

On March 5, 2009, after conducting a hearing, this Court determined that Eufrosina had filed an administrative claim in October 2008 respecting her uterine cancer, which was different from her earlier July 2007 administrative claim regarding her nervous system injuries. Eufrosina III, 2009 WL 564448, at *2; (see also Gov't Mot. to Dismiss, Ex. 2.) Again, Eufrosina incorrectly filed her claim with the Pentagon. (Doc. 21, Ex. 2.) Accordingly, the Court ordered Eufrosina to re-file her administrative claim with the Tort Claims Division and placed the case in suspense pending adjudication of that claim. (Docket No. 22.)

On April 22, 2009, the Torts Claim Division interpreted Eufrosina's claim respecting her uterine cancer "as a request for reconsideration" of her July 2007 administrative claim, and affirmed the claim denial, again concluding that the FECA barred Eufrosina's FTCA claim.

(Gov't Mot. to Dismiss, Ex. 2.) Eufrosina subsequently filed a motion to remove this action from the suspense docket (Docket No. 31), which the Court granted (Docket No. 35). On September 26, 2009, the government filed a Motion to Dismiss, or, in the Alternative, for Summary Judgment (Docket No. 32), and on November 6, 2009, Eufrosina filed a Motion for Summary Judgment. (Docket No. 33.)

III. Discussion

A. The Parties' ...


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