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VERNER v. UNITED STATES GOVT.

October 26, 1992

ROBERT J. VERNER, Plaintiff,
v.
UNITED STATES GOVERNMENT, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court is plaintiff's motion for a preliminary injunction, defendant's motion to dismiss and opposition to plaintiff's motion for a preliminary injunction, plaintiff's opposition thereto, and defendant's reply. Upon careful consideration of the entire record, the Court dismisses most of the case for lack of subject matter jurisdiction and, due to lack of venue in the District of Columbia, transfers the case to the United States District Court for the Western District of Texas. See Fed. R. Civ. P. 12(b)(1), (3). "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56." Fed. R. Civ. P. 52(a). Nevertheless, for the benefit of the parties, the Court sets forth briefly its reasoning.

 Background

 Plaintiff's fifty-two page complaint sets forth in detail his medical history and

 centers primarily on activities of the old Veterans Administration and the new Veterans Affairs, . . . which is now controlled by the President (Executive Department), via his cabinet Secretary of Veteran Affairs, who ruled over the Bureau of Veteran Affairs . . ., who preside over Veteran Affairs Regional Offices . . .; who in turn preside over some 127 Veteran Affair Hospitals . . . .

 Complaint at 2-3.

 Plaintiff's first eleven "claims" (hereinafter referred to as counts) allege "negligent omissions" and rely on the Federal Tort Claims Act (FTCA) for relief. See Complaint at 7-42. Plaintiff's next four counts allege violations of his rights under the Constitution, see Complaint at 43-49, although his opposition appears to maintain that these counts are also brought pursuant to the FTCA, see Plaintiff's Opposition, at 4. *fn1" In addition to this suit, plaintiff has appealed his most recent disability rating to the Board of Veterans Appeals. That appeal has been remanded to the VA Regional Office (VARO) in Waco, Texas, and is apparently still pending. See Defendant's Motion, Exh. B.

 Defendant moves to dismiss based on lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. In the alternative, defendant requests that the action be transferred to the United States District Court for the Western District of Texas.

 Discussion

 Although the Court concludes that the case should be transferred, it first addresses its subject matter jurisdiction.

 The FTCA Counts

 Under the FTCA, prior to filing suit, a claimant must make a presentment of his claims to an agency setting forth "(1) a written statement sufficiently describing the injury to enable the agency to begin its investigation, and (2) a sum-certain damages claim." GAF Corp. v. United States, 260 U.S. App. D.C. 252, 818 F.2d 901, 919 (D.C. Cir. 1987). In addition, such presentment must be made within two years of the alleged negligent act; and, if the claim is denied by the agency, the claimant must file suit within six months of the notice of final denial. See 28 U.S.C. § 2401(b); Liles v. United States, 638 F. Supp. 963, 966 (D.D.C. 1986) (citing Schuler v. United States, 202 U.S. App. D.C. 199, 628 F.2d 199, 201-02 (D.C. Cir. 1980) (en banc) (per curiam)) (other citations omitted).

 Here, plaintiff filed a claim, seeking $ 5,000,000, with the Department of Veterans affairs (VA) on July 8, 1991. See 28 C.F.R. § 14.2(a) ("For purposes of the provisions of 28 U.S.C. § 2401(b), . . . a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . written notification of an incident . . . ."); Defendant's Motion, Exh. E (showing plaintiff's claim received on July 8, 1991). Therefore, plaintiff's complaint is barred as to all claims which accrued prior to two years before that date. *fn2" See Liles, 638 F. Supp. at 966-67. Accordingly, the FTCA count one (alleging negligence by the Denver VA Hospital on September 8, 1983), count two (alleging negligence by the Denver VARO Hospital and the Denver VA Hospital in 1983-1984), count three (alleging lack of investigation by Congress in 1983 and 1987-1988), count four (alleging negligence by the VA in 1983-1984 and arguably through 1988 regarding lost files), count five (alleging negligence by the El Paso Clinic of the VA and the Waco VARO in 1988), and count eight (alleging negligent refusal to admit plaintiff by the VA and the Tucson VA hospital on July 4, 1989), are time-barred and must be dismissed for lack of subject matter jurisdiction.

 Some of plaintiff's claims also fail to meet the presentment requirement, including, but not limited to, the FTCA counts six, nine, ten and eleven. *fn3" Plaintiff's notice to the agency was insufficient to allow the agency to investigate count nine, "negligent representation of [plaintiff] at VA hearings by negligent omissions and/or commissions." Complaint at 35. This count raises a general claim, with no specific dates alleged. ...


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