GRETA M. NICKLAS Individually and as Executrix of the Estate of WILLIAM E. NICKLAS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ARTHUR J. SCHWAB, District Judge.
Plaintiff alleges that government negligence caused the death of her 87-year-old husband, William E. Nicklas (Decedent), who died while under the care of the Veterans Affairs Pittsburgh Health System on University Drive ("the VA"), on November 23, 2012. Because the VA is owned by the government, Plaintiff has brought a cause of action against the United States of America, alleging the VA negligently allowed Decedent to be exposed to Legionella bacteria through the hospital's water supply, and failed to appropriately treat the resulting Legionella pneumonia infection ("Legionnaires' disease").
In Plaintiff's complaint, she alleges five (5) separate counts: Survival Action (Count I); Wrongful Death (Count II); Infliction of Emotional Distress (Count III); Loss of Consortium (Count IV); and, Civil Rights Violations (Count V). Pending before this Court is Defendant's motion to dismiss Count III for lack of subject matter jurisdiction under Fed. R. Civ. Pr. 12(b)(1) (doc. no. 21), Plaintiff's response in opposition (doc. no. 22), and Defendant's reply thereto (doc. no. 24).
II. Standard of Review-Rule 12(b)(1)
A Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) challenges this Court's "very power to hear the case." See Judkins v. HT Window Fashions Corp., 514 F.Supp.2d 753, 759 (W.D. Pa. 2007) (quoting Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). As the party asserting jurisdiction, Plaintiff "bears the burden of showing that its claims are properly before the district court." Dev. Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). In reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), this Court must distinguish between facial attacks and factual attacks. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006).
When a Defendant launches a factual attack on subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Petruska, 462 F.3d at 302 (quoting Mortenson, 549 F.2d at 891). In a factual attack, this Court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings. See United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). A facial attack challenges the sufficiency of the pleadings, and the Court must accept the Plaintiff's allegations as true. Id.
Where, as here, a Defendant who attacks a complaint on its face "[asserts] that considering the allegations of the complaint as true, and drawing all reasonable inferences in favor of [plaintiff], the allegations of the complaint are insufficient to establish a federal cause of action." Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa. 2001). Dismissal is proper under Rule 12(b)(1) when "the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or... is wholly insubstantial and frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
Defendant seeks dismissal of Count III of the Complaint primarily on the basis that this Court lacks subject matter jurisdiction because Count III is based on misrepresentation and the Federal Tort Claims Act (FTCA) precludes recovery for "[a]ny claim arising out of... misrepresentation."
A. The United States Is Immune From Suit Absent A Waiver
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). The United States consent to suit cannot be implied, rather it must be unequovically expressed and strictly construed. See United States v. Nordic Village, Inc., 503 U.S. 30, 34-35 (1992). Claims based upon "negligent or wrongful act or omission of any employee of the Government while acting within the scope of office or employment..., " are within the FTCA's waiver of sovereign immunity. 28 U.S.C. § 1346(b)(1).
B. The "Misrepresentation" Exception to the FTCA
As the United States Supreme Court has stated, "Congress was careful to except... several important classes of tort claims, " from the FTCA's waiver of sovereign immunity. United States v. Varig Airlines, 467 U.S. 797, 808 (1984). At 28 U.S.C. § 2680(h), the FTCA expressly states that it does NOT waive sovereign immunity for "[a]ny claim arising out of... misrepresentation [or] deceit." What has become known as the "misrepresentation exception, " therefore, bars recovery for claims for intentional or negligent concealment, misrepresentation, or omission of material fact. United States v. Neustadt, 366 U.S. 696, 705-06, 708-09 (1961); Block v. Neal, 460 U.S. 289, 298 (1983); Reynolds v. ...