United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
On June 13, 2014, plaintiff Dominique Preston filed a negligence suit against the United States of America (the "Government") and Carol Aviles, R.N., defendants, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., for acts allegedly committed by Aviles, beginning in 2009, while Aviles was an employee at a U.S. Department of Veterans Affairs ("VA") facility in Perry Point, Maryland. ECF 1 ("Complaint"). Plaintiff contends the Government was negligent in failing to prevent Aviles from engaging in an "inappropriate and ultimately abusive relationship" with Preston while she was a psychiatric patient at the Perry Point VA Medical Center, where Aviles worked as a nurse. Id. ¶ 38(c). Plaintiff maintains that the inappropriate relationship caused her to suffer mental and physical anguish, pain and suffering, and loss of income. Id. ¶ 38(d)-(e).
Two motions filed by the Government are now pending. See ECF 4, ECF 10. On September 15, 2014, the Government filed a motion to dismiss (ECF 4, "Motion"), which is supported by a memorandum of law (ECF 4-1, "Memo") (hereinafter, collectively, the "Motion"). The Government has also moved to substitute itself for Aviles with respect to all claims lodged against her, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act"). ECF 10. The motion is supported by a memorandum (ECF 10-1) (collectively, the "Motion to Substitute"). See Westfall v. Ervin, 484 U.S. 292 (1988).
In the Motion, the Government argues that the case must be dismissed under Fed.R.Civ.P. Rule 12(b)(1) for lack of subject matter jurisdiction, because plaintiff failed to file suit within six months after notice of final denial of her administrative claim, as set forth in § 2401(b) of the FTCA. ECF 4-1 at 14. Plaintiff submitted a response in opposition on September 26, 2014 (ECF 6, "Opposition"), and the Government replied on October 8, 2014. ECF 7 ("Reply").
Aviles responded to the Government's motion, arguing that if plaintiff's suit against the Government is dismissed, this Court must also dismiss all claims against her individually. ECF 5. Thereafter, the Government filed the Motion to Substitute, predicated on the certification that, at all times relevant, Aviles was acting within the scope of her employment. ECF 10-1 at 2. On January 7, 2014, plaintiff filed a response consenting to the Government's Motion to Substitute. ECF 11.
The Motion and the Motion to Substitute have been briefed, and no hearing is needed to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will grant the Government's Motion to Substitute, but hold the Government's Motion to Dismiss in abeyance and stay the case, pending resolution of a similar case currently before the Supreme Court.
Plaintiff is a woman in her mid-50's with a history of emotional problems and mental illness. ECF 1, ¶ 16. She has bipolar disorder and suffers from post-traumatic stress disorder. Id. ¶ 17. In 2006, she began receiving psychiatric care at the Perry Point VA Medical Center, alternating between periods of inpatient and outpatient treatment. See ECF 1-1 (administrative claim form); ECF 1, ¶ 32. For much of that period, plaintiff claims that she received care from Nurse Carol Aviles and that, in 2009, Aviles initiated an "inappropriate and ultimately abusive relationship" with plaintiff. ECF 1, ¶ 38(c); ECF 1-1. As a result of the allegedly inappropriate relationship, plaintiff claims that she suffered damages, including mental and physical anguish, pain and suffering, and loss of income. ECF 1, ¶ 38(c). Further, plaintiff asserts that the Government's failure to "intervene, prevent or terminate this relationship" was the "actual and proximate cause of Plaintiff's damages." Id. at ¶ 38(d).
On March 21, 2013, plaintiff initiated an administrative claim against the Government on her own behalf by filing a Standard Form 95 with the VA, pursuant to 28 U.S.C. § 2675(a). See ECF 1-1. On April 8, 2013, plaintiff's attorney, Roy L. Mason, sent a letter to the VA, advising that he "represents" plaintiff in her claim against the VA. ECF 4-4 at 2 (letter). The printed letterhead listed Mr. Mason's address as "4 Dock Street, Suite 200, Annapolis, Maryland 21401." Id.
The Government issued a letter dated October 4, 2013, denying plaintiff's administrative claim. ECF 1-3 at 2-3 ("Denial Letter"). It was addressed to "Roy L. Mason, Esq., 4 Dock Street, Suite 200, Annapolis, Maryland 21401." Id. at 2. The Denial Letter also stated, in capital letters: "SENT BY REGULAR AND CERTIFIED MAIL - RETURN RECEIPT REQUESTED." Id. However, plaintiff maintains that neither she nor her lawyer ever received the Denial Letter. ECF 1, ¶ 10.
According to a United States Postal Service ("USPS") Certified Mail receipt, attached to the Complaint, the Denial Letter was mailed to Mr. Mason's address. ECF 1-3 at 4 (receipt). According to the Declaration dated September 8, 2014, submitted by Patricia Trujillo, Esq., a staff attorney for the VA, the Denial Letter was "mailed to Ms. Preston's counsel's Annapolis, Maryland, address of record that he provided." ECF 4-2, ¶¶ 1, 7 ("Trujillo Aff."). Specifically, she avers that the address was the same Dock Street address, id. ¶ 8, and the letter was postmarked October 10, 2013. Id. ¶ 7.
Further, Ms. Trujillo asserts that the Denial Letter was sent by both certified mail and by ordinary mail on October 10, 2013. Id. A "USPS Tracking" sheet shows that the letter was processed through a USPS facility in Baltimore, Maryland on October 10, 2013. ECF 1-4 ("Tracking Sheet"). It also shows that the Denial Letter arrived in Annapolis on October 11, 2013, that it went "Out for Delivery, " and that there was a "Notice Left" the same day. Id. In addition, it indicates that the letter remained "Unclaimed" as of October 26 and 28, 2013, and that the letter was processed through USPS facilities in Baltimore again on November 5 and 6, 2013. Id.
Ms. Trujillo asserts that the letter sent by ordinary mail was never returned to the Government. ECF 4-2, Trujillo Aff. ¶ 8. But, on November 6, 2013, the certified letter was returned to the VA with a yellow label dated "11/05/13" that reads, "Return To Sender[, ] Unclaimed[, ] Unable To Forward." See ECF 4-6 at 3 (envelope). Beneath the yellow label is a white label that reads, "RETURN to SENDER" and "UNCLAIMED." Id. The green return receipt, ECF 4-6 at 4, was completed correctly with Mr. Mason's address but does not contain his signature.
In late April 2014, Preston attempted to "update" her administrative claim with an amended SF-95 form. See ECF 1, ¶ 7; ECF 1-2 (administrative claim form, signed April 21, 2014, and cover letter dated April 28, 2014). Among other things, it included a medical report and increased the damage claim from $500, 000 to $770, 000. See ECF 1-2 at 2, 5. At the time this "update" was filed, plaintiff claims she had not been provided "with a final disposition of her claim." ECF 1, ¶ 6. Ms. Trujillo maintains that "the VA's claim processing regulations do not permit amendments following the VA's denial of claims." ECF 4-2, Trujillo Aff. ¶ 10. Moreover, Ms. Trujillo avers that she spoke with plaintiff's attorney, Mr. Mason, by telephone on May 5, 2014, and informed him that plaintiff's claim had been denied in October 2013. Id. At Mr. Mason's request, Ms. Trujillo faxed him a copy of the Denial Letter on May 6, 2014. Id.; Complaint, ECF 1, ¶ 9.
On June 13, 2014, as noted, plaintiff filed her Complaint with this Court, about five and a half weeks after her attorney was made aware of the denial of her claim, and about seven months after the Government claims it provided effective notice of denial. See ECF 1. As noted, ...