Opinion
Cause No. 1:02-CV-108
June 26, 2002
MEMORANDUM OF DECISION AND ORDER
Currently before the Court is a motion to dismiss filed by the defendant in this case, the United States of America (hereinafter "United States" or "the government"). On March 27, 2002, pro se plaintiff Ronald Lee Owen ("Owen") filed a complaint against Marsha Nieves ("Nieves"), an officer of the United States Department of Labor, in the Small Claims division of the Adams Superior Court, seeking $3000.00 in reimbursement for a doctor bill, correspondence costs, and damage to his credit status. On March 28, 2002, the United States removed the action to this Court and on June 6, 2002, moved that the United States be substituted as the sole defendant in the action pursuant to 28 U.S.C. § 2679(d)(1). The Court granted the motion and on March 6, 2002, the United States was substituted as the sole defendant. The government then moved to dismiss the case on June 7, 2002 for lack of subject matter jurisdiction. Owen responded on June 18, 2002, and the government chose not to reply. For the reasons set forth herein, the United States' motion to dismiss will be GRANTED.
FACTUAL BACKGROUND
Owen suffered two injuries to his left leg while employed with the United States Postal Service — one on May 8, 1992 and one on December 1, 1997. Owen filed a claim under the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. (hereinafter "FECA") with the Office of Workers' Compensation Programs (hereinafter "OWCP") of the United States Department of Labor and was accepted for coverage. FECA is the federal workers' compensation statute. FECA establishes a compensation scheme whereby federal employees or their survivors receive benefits, regardless of fault, for employment-related injuries or deaths.
On March 27, 2001, Owen received medical treatment from Summit Radiology in Indianapolis, Indiana related to his injuries and incurred $142.00 in office visit charges. For some reasons, OWCP denied Owen's claim for the $142.00. Owen's complaint seeks money damages because OWCP did not pay the doctor bill and Owen's credit status was affected. Owen also claims that OWCP officials, specifically Nieves, acted with negligence or gross negligence in denying his claim.
The record is unclear as to why the $142.00 office visit was not covered by the FECA.
Owen has sent several letters to OWCP seeking reimbursement. He has not, however, filed any administrative claim for damages with OWCP.
DISCUSSION
I. Lack of Subject Matter Jurisdiction
In considering a motion to dismiss for lack of subject matter jurisdiction, the Court of Appeals for the Seventh Circuit has said that courts are to "read a complaint liberally and `accept as true the well pleaded allegations of the complaint and the inferences that may be reasonably drawn from those allegations.'" Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999) (citing Panaras v. Liquid Carbonic Indust. Corp., 74 F.3d 786, 791 (7th Cir. 1996)). Nevertheless, the plaintiff has the burden of establishing jurisdiction by a preponderance of the evidence. See Commodity Trend Service, Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir. 1998); Manos v. Caira, 162 F. Supp.2d 979, 986 (N.D.Ill. 2001). Moreover, "[t]he issue is not whether a plaintiff will ultimately prevail but whether he is entitled to offer evidence to support the claims." Sapperstein, 188 F.3d at 855. The district court is not limited to considering the jurisdictional allegations of the complaint, but may look to other evidence to determine whether subject matter jurisdiction exists. See id. Finally, the presumption in favor of the plaintiff disintegrates once a defendant proffers evidence that calls the court's jurisdiction into question. See Commodity Trend, 149 F.3d at 685.
In this case, the government argues that this Court lacks subject matter jurisdiction over Owen's claims because Owen has failed to exhaust his administrative remedies. The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a), states as follows:
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 and sent by certified or registered mail.
Therefore, a plaintiff bringing an action in tort and seeking money damages against the United States must file an administrative claim for damages before filing suit in federal court. The Seventh Circuit uses the definition of "claim" set forth in 28 C.F.R. § 14.2(a). See Kanar v. United States, 118 F.3d 527, 531 (7th Cir. 1997). That regulation, promulgated by the Department of Justice, reads:
Federal courts have exclusive jurisdiction to hear tort claims brought pursuant to the FTCA. See 28 U.S.C. § 1346(b)(1).
For purposes of the provisions of 28 U.S.C. § 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property. . . .28 C.F.R. § 14.2(a).
Owen has requested that this Court send him three (3) Standard Form 95's so that he may file administrative claims against OWCP. This Court, however, has no such forms. If Owen wishes to obtain Standard Form 95's, he should request them from OWCP.
In this case, Owen has clearly not filed a claim for damages with OWCP. The fact that he has sent several letters to OWCP requesting reimbursement is not enough to survive the government's motion to dismiss. See Dancy v. U.S., 668 F.2d 1224, 1228 (Ct.Cl. 1982) (finding that the filing of an administrative appeal is not the same as filing an administrative tort claim as required under the FTCA). As a result, this Court does not have jurisdiction to hear the case and the government's motion to dismiss will be granted.
I. Appointment of Counsel
Owen has also requested that he be appointed counsel to represent him in this matter. Because the Court is dismissing Owen's claims, his request for appointment of counsel will be denied as moot.
CONCLUSION
Based on the foregoing, the United States' motion to dismiss for lack of subject matter jurisdiction is hereby GRANTED. The Clerk is DIRECTED to enter judgment on behalf of the Defendant.