Redlin v. United States of America

MOTION to Dismiss for Failure to State a Claim Defendant's Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed. R. Civ. P. 12

D. Ariz.April 19, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH A. STRANGE Acting United States Attorney District of Arizona Melissa Marcus Kroeger (#025209) Assistant U.S. Attorney 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701 Telephone: 520-620-7300 melissa.kroeger@usdoj.gov Attorneys for the United States of America IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Michael H. Redlin, Plaintiff, vs. United States of America, Defendant. 4:16-CV-00531-RCC DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Defendant United States of America (the “United States”) moves to dismiss Plaintiff’s First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff’s claims are barred by the statute of limitations for his failure to file suit within six months of the agency’s administrative denial. This Motion is supported by the following Memorandum of Points and Authorities and the Court’s entire record in this matter. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND. This is an action brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. First Amended Complaint [Doc. 5] (“FAC”), ¶ 1. Plaintiff’s claims arise from allegations of negligence that occurred on or about September 25, 2014. FAC ¶ 4. On or about March 26, 2015, Plaintiff submitted an administrative claim to the Department of Veteran’s Affairs (“VA”). FAC ¶ 8; but see Declaration of Anita Varma (“Varma Decl.”), attached as Exhibit A (although immaterial to this Motion, it appears that Case 4:16-cv-00531-RCC Document 13 Filed 04/19/17 Page 1 of 6 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the VA received Plaintiff’s claim in January of 2015 rather than March).1 On July 14, 2015, the agency denied Plaintiff’s claim. FAC ¶ 9; Ex. 2 To Varma Decl. On January 13, 2016, six months after the claim was denied, Plaintiff submitted an amended administrative claim to the VA (FAC ¶ 10; Ex. 3 to Varma Decl.), which the VA did not receive until January 22, 2016. See Varma Decl. at ¶ 4 and Ex. 3 thereto. On February 11, 2016, the agency denied the “amended” administrative claim as untimely. FAC ¶ 11; Ex. 4 to Varma Decl. Plaintiff subsequently filed a Complaint against the United States on August 10, 2016 (Complaint [Doc. 1]) – more than one year after the agency’s July 14, 2015 administrative denial – and he amended the complaint on August 17, 2016. See First Amended Complaint (FAC [Doc. 4]). II. THE COURT SHOULD DISMISS THIS CASE PURSUANT TO RULE 12(b)(6) FOR FAILURE TO FILE SUIT WITHIN THE STATUTE OF LIMITATIONS. A. Plaintiff Failed to File Suit Within Six Months of the Agency’s July 14, 2015 Denial of His Claim. The Court should dismiss this case pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiff’s complaint is barred by the FTCA’s statute of limitations. 28 U.S.C. § 2401(b) governs the statute of limitations in an FTCA case and has two requirements, both of which must be met: (1) a claim must be presented to the agency within two years of the claim’s accrual, and (2) the claimant must file suit within six months of the agency’s administrative denial. Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). Here, Plaintiff alleges that he submitted his claim to the VA by letter dated March 26, 2015 (FAC ¶ 7), and that the agency denied that claim on July 14, 2015. FAC ¶¶ 8-9. Plaintiff did not file suit until August 10, 2016, more than one year after his claim had been denied. As such, 1 The Court may consider the correspondence referenced in Paragraphs 8 through 11 of Plaintiff’s Complaint without converting this Motion into one for summary judgment because the documents are central to those allegations in the complaint. See, e.g., Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th Cir. 1982) (suggesting that documents integral to a complaint, although not literally incorporated within the complaint by reference, could be considered on a motion to dismiss); Cumis Ins. Soc., Inc. v. Merrick Bank Corp., 2008 WL 4277877, at *9 (D. Ariz. 2008) (document that is central to a parties’ complaint is not a matter outside the pleadings and is properly considered in deciding a 12(b)(6) motion). Case 4:16-cv-00531-RCC Document 13 Filed 04/19/17 Page 2 of 6 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff failed to comply with the six month requirement of 28 U.S.C. § 2401(b) and his suit is barred by the statute of limitations. B. Plaintiff’s Amended Claim Dated January 13, 2016, Was Untimely and Does Not Toll the Statute of Limitations. Plaintiff’s submission of an amended claim dated January 13, 2016 cannot save his suit. Claim amendments are permitted by statute, but they must be submitted “prior to the final agency action.” 28 C.F.R. § 14.2 (c); 38 C.F.R. 14.604(c) (“A claim presented in compliance with paragraphs (a) and (b) of this section may be amended by the claimant at any time prior to final Department of Veterans Affairs action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a).”). Similarly, the regulations implementing the FTCA clarify that the submission of more than one claim arising out of the same incident does not toll the requirement that suit must be filed within six months of a final denial, even if the claim involves multiple agencies. See id. § 14.9(b)(4) (“If, after an agency final denial, the claimant files a claim arising out of the same incident with a different Federal agency, the new submission of the claim will not toll the requirement of 28 U.S.C. 2401(b) that suit must be filed within six months of the final denial by the first agency, unless the second agency specifically and explicitly treats the second submission as a request for reconsideration under 28 CFR 14.9(b) and so advises the claimant.”). Were it otherwise, the six month requirement in 28 U.S.C. § 2401(b) would be meaningless, as any claimant could circumvent the statute of limitations by simply re-submitting an amendment of a previously denied claim. Indeed, Plaintiff attempts to do that here. Plaintiff alleges that the agency denied his claim on July 14, 2015, and that he submitted an amended claim dated January 13, 2016. Because the FTCA precludes amendment following an agency decision, and because the submission of multiple claims arising from the same incident cannot toll the statute of limitations, Plaintiff’s suit remains barred by 28 U.S.C. § 2401(b) notwithstanding the attempted amendment. Case 4:16-cv-00531-RCC Document 13 Filed 04/19/17 Page 3 of 6 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Plaintiff Did Not Timely Seek Reconsideration of the Agency’s July 14, 2015 Denial of His Claim. Although Plaintiff does not allege that his amendment dated January 13, 2016 was a “request for reconsideration” of his March 26, 2015 administrative claim, even if the Court were to construe the amendment as such, it would not revive Plaintiff’s suit. Plaintiff’s amended claim dated January 13, 2016 was not received by the VA until January 22, 2016 (Varma Decl., at ¶ 4 and Ex. 3 thereto) – more than six months after the agency had denied Plaintiff’s March 26, 2015 claim. 28 C.F.R. § 14.2(a) makes clear that requests for reconsideration must be received by the agency within six months of a denial. 28 C.F.R. § 14.2 (“[f]or 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, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident….”); Gervais v. United States, 667 F. Supp. 710, 713, 1987 U.S. Dist. LEXIS 7961, *8 (D. Mont. 1987) (“[I]n order to file a request for reconsideration, the request must be received by the agency; simply mailing the request is insufficient. 28 C.F.R. § 14.2(a)”), reversed on other grounds by Gervais v. United States, 865 F.2d 196, 197-198, 1988 U.S. App. LEXIS 17678, *6 (9th Cir. Mont. 1988) (“request for reconsideration is deemed “filed” when received by the agency.”). Accordingly, construing all inferences in favor of Plaintiff, based on the allegations in Plaintiff’s Complaint, the statute of limitations expired six months after Plaintiff’s administrative claim was denied by the VA’s July 14, 2015 correspondence, and nearly seven months before Plaintiff filed the instant lawsuit. For all of these reasons, the Court should dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6). D. It is Plaintiff’s Burden to Establish Equitable Tolling. The Supreme Court held in United States v. Wong, ___ U.S. ___, 135 S. Ct. 1625 (2015), that the time limits for bringing claims under the FTCA were not jurisdictional because the statute “provided no clear statement indicating that § 2401(b) is the rare statute of limitations that can deprive a court of jurisdiction,” and were thus subject to equitable tolling. A plaintiff who seeks equitable tolling bears the burden of showing “’(1) that he Case 4:16-cv-00531-RCC Document 13 Filed 04/19/17 Page 4 of 6 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.’” Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (quoting Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221 (2012)). The first element examines whether the plaintiff was “without any fault” in pursuing his claim. See id. The second element requires that a plaintiff show that “’extraordinary circumstances were the cause of his untimeliness and . . . ma[de] it impossible to file [the document] on time.’” See id. (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and citations omitted)). Here, the record does not support equitable tolling, as the VA provided Plaintiff with notice of his filing deadline on July 14, 2015. See Ex. 2 To Varma Decl. In addition, Plaintiff was represented by counsel as of January 13, 2015. See FAC ¶ 10; Ex. 3 To Varma Decl. As such, Plaintiff had constructive knowledge of the filing deadline. Gessele v. Jack in the Box, Inc., 6 F. Supp. 3d 1141, 1163 (D. Or. 2014), quoting Leorna v. United States Dep’t of State, 105 F.3d 548, 551 (9th Cir. 1997) (“[O]nce a claimant retains counsel, tolling ceases because she has gained the means of knowledge of her rights and can be charged with constructive knowledge of the law’s requirements.”). In the absence of equitable tolling, the Court should dismiss Plaintiff’s FAC. See, e.g., Heyward v. United States Gov't, 2016 U.S. Dist. LEXIS 87586, at **8-9 (N.D. Cal. July 6, 2016). III. CONCLUSION. For the foregoing reasons, this Court should dismiss this case in its entirety. Respectfully submitted this 19th day of April, 2017. ELIZABETH A. STRANGE Acting United States Attorney District of Arizona s/Melissa Marcus Kroeger MELISSA MARCUS KROEGER Assistant U.S. Attorney Case 4:16-cv-00531-RCC Document 13 Filed 04/19/17 Page 5 of 6 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on April 19, 2017, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John P. Leader, Esq. Leader Law Firm 405 W. Cool Drive, Suite 107 Tucson, AZ 85704 s/Mary McClain Case 4:16-cv-00531-RCC Document 13 Filed 04/19/17 Page 6 of 6 EXHIBIT A Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 1 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN S. LEONARDO United States Attorney District of Arizona Melissa Marcus Kroeger (#025209) Assistant U.S. Attorney 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701 Telephone: 520-620-7300 melissa.kroeger@usdoj.gov Attorneys for the United States of America IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Michael H. Redlin, Plaintiff, vs. United States of America, Defendant. 4:16-cv-00531-RCC DECLARATION OF ANITA VARMA Pursuant to 28 U.S.C. § 1746, I declare and state as follows: 1. I am employed as a Deputy Chief Counsel with the Department of Veterans Affairs (VA), Office of General Counsel, 810 Vermont Avenue, N.W. Washington, DC 20420. 2. On January 7, 2015, the VA received a Claim for Damage, Injury or Death (Standard Form 95) from Michael H. Redlin. A true and correct copy of the claim is attached as Exhibit 1. 3. On July 14, 2015, the VA denied Mr. Redlin’s claim. A copy of the denial letter is attached as Exhibit 2. 4. On January 22, 2016, the VA received a Claim for Damage, Injury or Death (Standard Form 95) from Mr. Redlin’s counsel. A true and correct copy of the claim and accompanying envelop is attached as Exhibit 3. 5. On February 11, 2016, the VA denied Mr. Redlin’s January 22, 2016 claim. Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 2 of 25 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A true and correct copy of the February 11, 2016 denial letter is attached as Exhibit 4. I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th day of January, 2017. Anita Varma Deputy Chief Counsel U.S. Department of Veterans Affairs Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 3 of 25 EXHIBIT 1 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 4 of 25 Rec'd by RC19 <<01/07/2015>> Rec'd by RC19 <<01/07/2015>>2/12 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 5 of 25 Rec'd by RC19 <<01/07/2015>> Rec'd by RC19 <<01/07/2015>>2/12 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 6 of 25 Rec'd by RC19 <<01/07/2015>> Rec'd by RC19 <<01/07/2015>>2/12 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 7 of 25 EXHIBIT 2 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 8 of 25 DEPARTMENT OF VETERANS AFFAIRS Office of Regional Counsel One Veterans Drive, Bldg. 73 Minneapolis, MN 55417 In Reply Refer to: VC-9943 Via Certified-Mail, Return-Receipt Requested July 14, 2015 Mr. Michael Redlin 43949 W. Sagebrush Trail Maricopa, AZ 85138 Re: Administrative Tort Claim of Michael H. Redlin, Karen Redlin and Katelyn Redlin Dear Mr. Redlin: The Department of Veterans Affairs (VA) has thoroughly investigated the facts and circumstances surrounding your administrative tort claim. Our adjudication of your claim included a review of your medical records, a review of your claim by a medical reviewer in a different part of the country, and interviews of medical personnel. The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680, under which you filed your claim, provides for monetary compensation when a Government employee, acting within the scope of employment, injures another by a negligent or wrongful act or omission. Medical negligence means there was a breach in the standard of care and that breach proximately caused an injury. The standard of care is the level at which similarly qualified medical professionals would have managed the care under the same or similar circumstances. We regret you were not satisfied with the care you received; however, our review concluded that there was no negligent or wrongful act on the part of an employee of the Department of Veterans Affairs (VA) acting within the scope of employment that caused you compensable harm. Accordingly, we deny your claim, Karen Redlin’s claim and Katelyn Redlin’s claim. If you are dissatisfied with this decision, you may file a request for reconsideration of your claim with the VA General Counsel by any of the following means: (1) by mail to the Department of Veterans Affairs, General Counsel (021B), 810 Vermont Avenue, N.W., Washington, DC 20420; or (2) by data facsimile (fax) to (202) 273-6385. To be timely, VA must receive this request within six months of the mailing of this final denial. The VA has six months to act on the reconsideration request. After that time, you have the option of filing suit in an appropriate U.S. District Court under 28 U.S.C. § 2675(a). 28 C.F.R. § 14.9. Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 9 of 25 2 In the alternative, if you are dissatisfied with the denial of your claim, you may file suit directly under the FTCA, 28 U.S.C. §§ 1346(b) and 2671-2680. The FTCA provides that when an agency denies an administrative tort claim, the claimant may seek judicial relief in a Federal district court. The claimant must initiate the suit within six months of the mailing of this notice as shown by the date of this denial (28 U.S.C. § 2401(b)). In any lawsuit, the proper party defendant is the United States, not the Department of Veterans Affairs. Sincerely, Doris L. Gruntmeir Regional Counsel Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 10 of 25 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 11 of 25 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 12 of 25 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 13 of 25 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 14 of 25 EXHIBIT 3 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 15 of 25 - ~ CLAIM FOR DAMAGE, INSTRUCTIONS: Please read carefully the instructions on the FORM APPROVED 1 INJURY, OR DEATH reverse side and supply information requested on both sides of this OMB NO. 11 05-0008 form. Use additional sheet(s) if necessary. See reverse side for - additional instructions. 1. Submit to Appropriate Federal Agency: 2. Name, address of claimant, and claimant's personal representative if any. (See instructions on reverse) . Number, Street, City, State and Zip code. Secretary of Veterans Affairs Michael H. Redlin (SSN: U.S. Department of Veterans Affairs 43949 W. Sagebrush Trail 810 Vermont Avenue NW Maricopa, AZ 85138 Washington, DC 20420 John P. Leader. Esq. - Leader Law Firm, Tucson, AZ 3. TYPE OF EMPLOYMENT 4. DATE OF BIRTH 5. MARITAL STATUS 6. DATE AND DAY OF ACCIDENT 7 . TIME (A.M. OR P.M.) D MILITARY [gj CIVILIAN /1946 married 09/25/2014 Thursday 9:16a.m. 8. BASIS OF CLAIM (State in detail the known facts and circumstances attending the damage, injury, or death, identifying persons and property involved, the place of occurrence and the cause thereof. Use additional pages if necessary). RECEIVED AMENDED Form 95- SEE ATTACHED LETTER JAN 2 8 2016 CFF.ICE OF GENERAL COLi' .W.. 021 •• ,., . 9. PROPERTY DAMAGE NAME AND ADDRESS OF OWNER, IF OTHER THAN CLAIMANT (Number, Street, City, State, and Zip Code). N/A BRIEFLY DESCRIBE THE PROPERTY, NATURE AND EXTENT OF THE DAMAGE AND THE LOCATION OF WHERE THE PROPERTY MAY BE INSPECTED. (See instructions on reverse side) . N/A 10. PERSONAL INJURY/WRONGFUL DEATH STATE THE NATURE AND EXTENT OF EACH INJURY OR CAUSE OF DEATH, WHICH FORMS THE BASIS OF THE CLAIM. IF OTHER THAN CLAIMANT, STATE THE NAME OF THE INJURED PERSON OR DECEDENT. See attached letter. 11 . WITNESSES NAME ADDRESS (Number, Street, City, State, and Zip Code) Mrs. Karen Redlin 43949 W. Sagebrush Trail, Maricopa, AZ 85138 Ms. Katelyn Redlin (daughter) 44009 W. Juniper Avenue, Maricopa, AZ 85138 12. (See instructions on reverse). AMOUNT OF CLAIM (in dollars) 12a. PROPERTY DAMAGE 12b. PERSONAL INJURY 12c. WRONGFUL DEATH 12d. TOTAL (Failure to specify may cause forfeiture of your rights). 0.00 ~ex. ceo oc:o. CCJ 0.00 ~ 0< Oco DCO 0() I CERTIFY THAT THE AMOUNT OF CLAIM COVERS ONLY DAMAGES AND INJURIES CAUSED BY THE INCIDENT ABOVE AND AGREE TO Ac!CEPT SAID AMOUNT IN FULL SA TIS FACTION AND FINAL SETTLEMENT OF THIS CLAIM. 13a. SI~LAIUJT~ns on reverse side) . 13b. PHONE NUMBER OF PERSON SIGNING FORM 14. DATE QF SIGNATURE 520-575-9040 \II? I b V' CIVIL PENALTY FOR PRESENTING CRIMINAL PENALTY FOR PRESENTING FRAUDULENT FRAUDULENT CLAIM CLAIM OR MAKING FALSE STATEMENTS The daimant is liable to the United States Government for a civil penalty of not less than Fine, imprisonment, or both. (See 18 U.S. C. 287, 1001.) $5,000 and not more than $10,000, plus 3 times the amount of damages sustained by the Government. (See 31 U.S. C. 3729). Authorized for Local Reproduction Previous Edition is not Usable NSN 7540-00-634-4046 STANDARD FORM 95 (REV. 2/2007) PRESCRIBED BY DEPT. OF JUSTICE 95-109 28 CFR 14.2 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 16 of 25 - ~ .r · INSURANCE COVERAGE I In order that subrogation claims may be adjudicated, it is essential that the claimant provide the following information regarding the insurance coverage of the vehicle or property. 15. Do you carry accident Insurance? 0 Yes If yes, give name and address of insurance company (Number, Street, City, State, and Zip Code) and policy number. [.8] No 16. Have you filed a claim with your insurance carrier in this instance, and if so, is it full coverage or deductible? 0 Yes [.8] No 17. If deductible, state amount. 0.00 16. If a claim has been filed with your carrier, what action has your insurer taken or proposed to take with reference to your claim? {It is necessary that you ascertain these facts). N/A 19. Do you carry public liability and property damage insurance? 0 Yes If yes, give name and address of insurance carrier (Number, Street, City, State, and Zip Code). [.8] No INSTRUCTIONS Claims presented under the Federal Tort Claims Act should be submitted directly to the "appropriate Federal agency" whose employee(s) was involved in the incident. If the incident involves more than one claimant, each claimant should submit a separate claim form. Complete all items • Insert the word NONE where applicable. A CLAIM SHALL BE DEEMED TO HAVE BEEN PRESENTED WHEN A FEDERAL AGENCY RECEIVES FROM A CLAIMANT, HIS DULY AUTHORIZED AGENT, OR LEGAL REPRESENTATIVE, AN EXECUTED STANDARD FORM 95 OR OTHER WRITIEN NOTIFICATION OF AN INCIDENT, ACCOMPANIED BY A CLAIM FOR MONEY Failure to completely execute this form or to supply the requested material within two years from the date the claim accrued may render your claim Invalid. A claim Is deemed presented when it Is received by the appropriate agency, not when it is mailed. If instruction is needed in completing this form, the agency listed in item #1 on the reverse side may be contacted. Complete regulations pertaining to claims asserted under the Federal Tort Claims Act can be found in Title 28, Code of Federal Regulations, Part 14. Many agencies have published supplementing regulations. If more than one agency is involved, please state each agency. The claim may be filled by a duly authorized agent or other legal representative, provided evidence satisfactory to the Government is submitted with the claim establishing express authority to act for the claimant. A claim presented by an agent or legal representative must be presented in the name of the claimant. If the claim is signed by the agent or legal representative, it must show the title or legal capacity of the person signing and be accompanied by evidence of his/her authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian or other representative. If claimant intends to file for both personal injury and property damage, the amount for each must be shown in item number 12 of this form. DAMAGES IN A SUM CERTAIN FOR INJURY TO OR LOSS OF PROPERTY, PERSONAL INJURY, OR DEATH ALLEGED TO HAVE OCCURRED BY REASON OF THE INCIDENT. THE CLAIM MUST BE PRESENTED TO THE APPROPRIATE FEDERAL AGENCY WITHIN TWO YEARS AFTER THE CLAIM ACCRUES. The amount claimed should be substantiated by competent evidence as follows: (a) In support of the claim for personal injury or death, the claimant should submit a written report by the attending physician, showing the nature and extent of the injury, the nature and extent of treatment, the degree of permanent disability, if any, the prognosis, and the period of hospitalization, or incapacitation, attaching itemized bills for medical, hospital, or burial expenses actually incurred. (b) In support of claims for damage to property, which has been or can be economically repaired, the claimant should submit at least two itemized signed statements or estimates by reliable, disinterested concerns , or, if payment has been made, the itemized signed receipts evidencing payment. (c) In support of claims for damage to property which is not economically repairable, or if the property is lost or destroyed, the claimant shou ld submit statements as to the original cost of the property, the date of purchase, and the value of the property, both before and after the accident. Such statements should be by disinterested competent persons, preferably reputable dealers or officials familiar wrth the type of property damaged, or by two or more competitive bidders, and should be certified as being just and correct. (d) Failure to specify a sum certain will render your claim invalid and may result in forfeiture of your rights. PRIVACY ACT NOTICE This Notice is provided in accordance with the Privacy Act, 5 U.S.C. 552a(e)(3), and concerns the information requested in the letter to which this Notice is attached. A. Authority: The requested information is solicited pursuant to one or more of the following: 5 U.S.C. 301 , 28 U.S.C. 501 et seq., 28 U.S.C. 2671 et seq., 28 C.F.R. Part 14. B. Principal Purpose: The information requested is to be used in evaluating claims. C. Routine Use: See the Notices of Systems of Records for the agency to whom you are submitting this form for this information. D. Effect of Failure to Respond: Disclosure is voluntary. However, fa ilure to supply the requested information or to execute the fonm may render your claim "invalid ." PAPERWORK REDUCTION ACT NOTICE This notice is~ for the purpose of the Paperwork Reduction Act, 44 U.S.C. 3501 . Public reporting burden for this collection of information is estimated to average 6 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Director, Torts Branch, Attention: Paperwork Reduction Staff, Civil Division, U.S. Department of Justice, Washington, DC 20530 or to the Office of Management and Budget. Do not mail completed form(s) to these addresses. STANDARD FORM 95 REV. (2/2007) BACK Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 17 of 25 The Leader Law Firm r Secretary of Veteran's Affairs 405 West Cool Dr., Ste. 107 Tucson, Az. 85704 520.575.9040520.575.9340 (facsimile) www.leaderlawaz.com January 13, 2016 United States Department of Veteran's Affairs 810 Vermont Ave. NW. Washington DC 20420 Re: Supplemental Administrative "Form 95," Claimant Michael Redlin Dear Sir or Madame: I represent Michael Redlin, who was injured in September, 2014 as the result of negligent medical care provided by your agency. On or about November 26,2014, Mr. Redlin submitted an administrative "Form 95" to your agency. In that claim, he demanded a total of $200,000 in damages. His November 26, 2014 claim letter set forth the alleged negligence in some detail. On July 14, 2015, your agency denied Mr. Redlin's first administrative claim. The purpose of this Supplemental Administrative Claim to provide additional information regarding his negligence claim, and to increase the amount he is demanding for damages. In addition to the matters set forth in the prior, November 26,2014 claim, the thrust of Mr. Redlin's claim is that after his pneumothorax occurred, it was mismanaged. Specifically, after his lung collapsed, multiple chest tubes were placed. The third such chest tube was placed (by a medical resident) on September 25, 2014. Thereafter, it is documented that a radiologist(s) reviewed placement of this chest tub and concluded in the records that it was incorrectly placed, in the lung parenchyma. As a result, this chest tube should have immediately been removed. Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 18 of 25 • Secretary of Veteran's Affairs Supplement-al Administrative claim Michael Redlin Page 2 Instead of removing this third chest tube, a fourth chest tube was placed. This fourth chest tube was placed by cardiothoracic surgeon Dr. Kim. Remarkably, Dr. Kim concluded in his subsequent notes that the third, non-removed chest tube was properly placed, despite comments from multiple radiologists to the contrary. Mr. Redlin maintains that the failure to timely remove this third improperly placed chest tube resulted in permanent irreversible injury to his lung and loss of pulmonary function. In his initial administrative claim, Mr. Redlin demanded $200,000 in damages. Because that amount is inadequate, he hereby demands $2 million in damages to resolve his claim. Thank you. Sincerely, JPL/ym John P. Leader Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 19 of 25 hn P . Leader, Esq, :ader Law Firm lS W. Cool Dr. Ste. 107 ucson, AZ 85704 I IIIII II II I Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 20 of 25 John P. Leader, Esq, Leader Law Firm 405 W. Cool Dr. Ste. 107 Tucson, AZ 85704 ~ IIIII II Ill 7015 1660 DODO 9450 7519 ·),~i: LL i.l ~· ~ 1.) ?1 1 .c, J!.' Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 21 of 25 USPS Tracking Customer Service ›Have questions? We're here to help. Get Easy Tracking Updates › Sign up for My USPS. 70151660000094507519 Track It Track all your packages from a dashboard. No tracking numbers necessary. Manage Incoming Packages Sign up for My USPS › ® Postal Product: First-Class Mail Certified Mail Return Receipt Features: See tracking for related item: 9590940302785155305808 Product & Tracking Information DATE & TIME STATUS OF ITEM LOCATION January 22, 2016 , 5:29 am Delivered WASHINGTON, DC 20420 Your item was delivered at 5:29 am on January 22, 2016 in WASHINGTON, DC 20420. January 21, 2016 , 10:23 am Available for Pickup WASHINGTON, DC 20420 January 21, 2016 , 10:18 am Arrived at Unit WASHINGTON, DC 20018 January 16, 2016 , 9:07 am Departed USPS Facility WASHINGTON, DC 20066 January 16, 2016 , 12:37 am Arrived at USPS Destination Facility WASHINGTON, DC 20066 January 14, 2016 , 2:16 am Departed USPS Origin Facility PHOENIX, AZ 85043 January 14, 2016 , 12:59 am Arrived at USPS Origin Facility PHOENIX, AZ 85043 January 13, 2016 , 3:32 pm Departed Post Office TUCSON, AZ 85704 January 13, 2016 , 2:55 pm Acceptance TUCSON, AZ 85704 Available Actions Text Updates Email Updates Tracking Number: 70151660000094507519 Updated Delivery Day: Friday, January 22, 2016 ® ™ Track Another Package Tracking (or receipt) number Customer Service USPS MobileEnglish Register / Sign In Page 1 of 2USPS.com® - USPS Tracking® 2/10/2016https://tools.usps.com/go/TrackConfirmAction?tLabels=70151660000094507519 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 22 of 25 HELPFUL LINKS Contact Us Site Index FAQs ON ABOUT.USPS.COM About USPS Home Newsroom USPS Service Updates Forms & Publications Government Services Careers OTHER USPS SITES Business Customer Gateway Postal Inspectors Inspector General Postal Explorer National Postal Museum Resources for Developers LEGAL INFORMATION Privacy Policy Terms of Use FOIA No FEAR Act EEO Data Copyright © 2016 USPS. All Rights Reserved. T Search or Enter a Tracking Number Page 2 of 2USPS.com® - USPS Tracking® 2/10/2016https://tools.usps.com/go/TrackConfirmAction?tLabels=70151660000094507519 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 23 of 25 EXHIBIT 4 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 24 of 25 Case 4:16-cv-00531-RCC Document 13-1 Filed 04/19/17 Page 25 of 25