Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jensen v. United States

November 24, 2009

DOUGLAS P. JENSEN, AN ALLEGED INCAPACITATED PERSON, BY HIS LAWFUL WIFE AND ATTORNEY IN FACT DEBORAH J. JENSEN; AND DEBORAH J. JENSEN IN HER OWN RIGHT, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



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

Memorandum

I. Introduction

Plaintiff Deborah J. Jensen brings this action against the United States, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., on behalf of her husband, Douglas P. Jensen, for personal injury and in her own right for loss of consortium.*fn1 Before me is the motion of the United States pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss Mrs. Jensen's loss of consortium claim. For the reasons set forth below, I will grant the motion and dismiss her loss of consortium claim for lack of subject matter jurisdiction.

II. Factual Background

Mr. Jensen is a United States Army veteran. (Compl. ¶ 9.) Mrs. Jensen is Mr. Jensen's wife and caregiver and holds a durable power of attorney to act on his behalf. (Id. ¶¶ 4-5.) Since 2004, Mrs. Jensen has also been the designated beneficiary of Mr. Jensen's veteran's benefits. (Id., Ex. C.)

As a result of progressive illness, Mr. Jensen was admitted on April 22, 2004, to the Veterans Administration Hospital in Coatesville, Pennsylvania. (Id. ¶ 18.) According to plaintiffs, Mr. Jensen sustained multiple injuries at this hospital over the course of several months due to assaults by other patients, "multiple 'mysterious' falls," and other abuse. (Id. ¶¶ 19-21.) As a result, Mr. Jensen allegedly suffered from serious head injuries, for which he underwent two brain surgeries on October 27 and 29, 2004. (Id. ¶¶ 22, 27-29.) Since these surgeries, Mr. Jensen has allegedly "been on a respirator and in a non-communicative state and he is currently an inpatient at the Perry Point Veteran's Administration Medical Center in the State of Maryland...." (Id. ¶ 30 (internal citation omitted).) Plaintiffs allege that Mr. Jensen's injuries were caused by hospital employees' failure to take reasonable security measures or to provide competent medical care.

On April 24, 2006, Mrs. Jensen submitted to the Department of Veterans Affairs ("the VA") a Standard Form 95*fn2 notifying the VA of Mr. Jensen's injuries and of her intent to hold the VA liable for those injuries.*fn3 (Id. ¶ 7 n.2.) On January 16, 2009, the VA issued a final denial of that claim. (Id.) On July 2, 2009, Mrs. Jensen filed suit on behalf of her husband for personal injury and in her own right for loss of consortium. The government has filed a Rule 12(b)(1) motion to dismiss the loss of consortium claim, and plaintiffs have objected to that motion.

III. Jurisdiction and Standard of Review

A. Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges the existence of subject matter jurisdiction. The plaintiff bears the burden of proving that the relevant jurisdictional requirements are met. See Dev. Fin. Corp. v. Alpha Hous. & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). "[W]hen there is a factual question about whether a court has jurisdiction, the trial court may examine facts outside the pleadings... '[b]ecause at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case.'" Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); see also Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997). The plaintiff's factual allegations are not entitled to a presumption of truthfulness. See Robinson, 107 F.3d at 1021.

B. Federal Tort Claims Act

As a sovereign, the United States is immune from suit unless it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941). The United States' sovereign immunity is only waived to the extent that Congress, by statute, consents to its waiver. United States v. Mitchell, 445 U.S. 535, 538 (1980). Through the FTCA, Congress has waived sovereign immunity for actions sounding in tort against the United States and its agencies. Pascale v. United States, 998 F.2d 186, 189 (3d Cir. 1993). The FTCA allows tort claims against the United States for the acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).

Before filing suit under the FTCA, a plaintiff must file an administrative claim with the appropriate federal agency and the agency must issue a final denial of the claim. See 28 U.S.C. § 2675(a). Through this exhaustion requirement, Congress intended "to ease court congestion... while making it possible for the Government to expedite the fair settlement of tort claims" and to "provid[e] for fair and equitable treatment of private individuals and claimants." See Tucker v. U.S. Postal Serv., 676 F.2d 954, 958 (3d Cir. 1982) (internal quotation marks omitted) (quoting S. Rep. No. 89-1327, at 5, 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2515-16).

The FTCA requires that a claimant submit his or her administrative claim to the appropriate agency within two years after the date on which the cause of action accrued. 28 U.S.C. § 2401(b). Each individual claimant must "submit an independent and separate claim to the appropriate administrative agency for review and possible settlement." Pennsylvania ex rel. Sheppard v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11, 23 (3d Cir. 1975) (citing 28 U.S.C. § 2675(a); Bialowas v. United States, 443 F.2d 1047, 1050 (3d Cir. 1971)). This administrative exhaustion requirement "is jurisdictional and cannot be waived." Bialowas, 443 F.2d at 1049. Because the exhaustion requirement is jurisdictional in nature, it must be "strictly construed." Pascale, 998 F.2d at 193 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990)); see also Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (stating that limitations ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.