Mizrach v. United States, CIVIL NO.: WDQ-11-1153

PHILLIP MIZRACH, Plaintiff,

v.UNITED STATES OF AMERICA, Defendant.

CIVIL NO.: WDQ-11-1153

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

Date: July 9, 2012

MEMORANDUM OPINION

Phillip Mizrach, pro se and as personal representative of the estate of Abraham I. Kurland, sued the United States for medical malpractice. On February 7, 2012, the Court granted the Government's motion to dismiss, and denied Mizrach's motion to reopen an earlier lawsuit and consolidate it with this case. For the following reasons, the Court will deny Mizrach's motion to alter the judgment.

I. Background

On April 14, 2003, Kurland was admitted to the Baltimore Veterans Affairs Medical Center (the "VA Hospital") for a urinary tract infection and gastrointestinal problems. Compl. ¶ 12. On May 3, 2003, after "suffering in pain and moaning for hours," Kurland was found dead with a "copious, thin brown/red" discharge in his throat. Compl. ¶ 12. The source of hisabdominal problems was never identified or treated. Compl. ¶ 12.

On May 2, 2005, Mary Kurland, Kurland's sister and personal representative of his estate, filed an administrative tort claim with the Department of Veterans Affairs (the "VA"), alleging that Kurland's medical providers had negligently caused his death. ECF No. 10, Ex. 1. On February 7, 2008, the VA issued its final decision denying the claim. See Compl., Ex. A. The notice said:

[i]f you are dissatisfied with the action taken on your claim, you may file suit in accordance with the Federal Tort Claims Act, sections 1346(b) and 2671-2680, title 28, United States Code, which provides, in effect, that a tort claim which is administratively denied may be presented to a Federal district court for judicial consideration. Such a suit must be initiated, however, within 6 months after the date of the mailing of this notice of final denial as shown by the date of this letter (section 2401(b), title 28, United States Code). If you decide to initiate such a suit, you are further advised that the proper party defendant would be the United States, not VA.

Id.

On August 5, 2008, Kurland's nephew Mizrach¹ filed a survival action against the Government in this Court, alleging that the VA Hospital staff was negligent in treating Kurland. See ECF No. 1, Mizrach v. United States, Case No. AMD-08-2030[hereinafter Mizrach I]. The Government moved to dismiss, arguing that Mizrach's lawsuit was premature because he had not presented his claims to Maryland's Health Claims Alternative Dispute Resolution Office (the "Maryland ADR Office"), or filed an expert's certificate that Kurland's medical providers had departed from the standard of care.² ECF No. 5-1, at 1-2, Case No. AMD-08-2030. On February 17, 2009, then District Judge Andre Davis denied Mizrach's motion to stay the proceedings, and dismissed the case without prejudice because of Mizrach's failure to exhaust his remedies. ECF Nos. 20-21, Case No. AMD-08-2030. Judge Davis denied Mizrach's motion to alter the judgment, and the Fourth Circuit affirmed in a judgment that took effect on February 3, 2010.³

On February 25, 2010, Mizrach filed a claim with the Maryland ADR Office. Compl. ¶ 1. On May 25, 2010, he filed an expert's certificate stating that Kurland's medical providers had failed to comply with the appropriate standard of care. Compl., Ex. C ¶ 2.

On June 28, 2010, the Supreme Court denied Mizrach'spetition for certiorari in Mizrach I. Mizrach v. United States, 130 S. Ct. 3516 (2010).

On March 1, 2011, Mizrach waived arbitration in the state proceeding. Compl. ¶ 1. On March 2, 2011, the Maryland ADR Office issued an order allowing Mizrach to file his claim in federal court. Compl., Ex. D.⁴

On May 2, 2011, Mizrach brought this survival action, alleging that Kurland's medical providers were negligent. On August 22, 2011, the Government moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. ECF No. 10. On September 27, 2011, Mizrach opposed the motion, and moved to reopen Mizrach I and consolidate it with this case. ECF No. 14.

On February 7, 2012, the Court granted the Government's motion to dismiss. ECF No. 29. The Court ruled that it lacked subject matter jurisdiction because the Federal Tort Claims Act (the "FTCA") required Mizrach to file his lawsuit within six months after the VA denied his administrative claim. ECF No. 28 at 7 (citing 28 U.S.C. § 2401(b)). Mizrach had waited more than three years. Id. at 8. The Court found that no equitable principles provided for tolling the statute of limitations. Id.at 13.

The Court also denied Mizrach's motion to reopen and consolidate Mizrach I with this case because he had not shown cause to reopen Mizrach I. ECF No. 29; ECF No. 28 at 14-15. He had not established that the Government had committed fraud, nor had he timely moved to reopen under Fed. R. Civ. P. 60(b). Id. at 15-17. Mizrach had also failed to show that Fed. R. Civ. P. 60(d) applied.⁵

On February 15, 2012, Mizrach moved to alter the judgment under Fed. R. Civ. P. 59(e). ECF No. 30. On March 12, 2012, the Government opposed the motion.⁶ On March 29, 2012, Mizrach filed a reply. ECF No. 34.

II. Analysis

A. Standard of Review

Under Rule 59(e), the Court may grant a motion to alter or amend the judgment to: (1) accommodate an intervening change in controlling law; (2) account for new evidence previously unavailable; or (3) correct a clear error of law or prevent manifest injustice. Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 241 n.8 (4th Cir. 2008). Rule 59(e) may not be used to reargue points that could have been made before judgment was entered. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008); Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002).

A party's disagreement with the Court's decision is not a basis for granting a Rule 59(e) motion. Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993). Indeed, "[w]here a motion does not raise new arguments, but merely urges the [C]ourt to 'change its mind,' relief is not authorized."⁷

B. Mizrach's Motion

Mizrach argues that: (1) the Court failed to consider the "deemed denied" provision of the FTCA, (2) he satisfied the statute of limitations because he filed a claim within two years after it accrued, (3) the VA attorneys misled him about how muchtime he had to file his lawsuit, and (4) "the Court has discretion to grant [his] [m]otion to [r]eopen and [c]onsolidate based on changes in the law that was relied on and cited by [the Government] in Mizrach I." ECF No. 30-1.

1. "Deemed Denied" Doctrine

Mizrach argues that his lawsuit was timely filed under the "deemed denied" doctrine because the VA took more than six months to deny his claim. ECF No. 30-1 at 3-4. He argues that a claim may be deemed denied if the relevant federal agency has not issued a decision within six months, and "a [lawsuit] may be filed at any time" thereafter, regardless of "[t]he fact that an administrative denial [is] eventually made." Id. He contends that the Court failed to consider several cases in support of this doctrine, including Zander v. United States, 786 F. Supp. 2d 880 (D. Md. 2011).⁸

The Government argues that Mizrach's reliance on Zander is misplaced because (1) the case is distinguishable, and (2) the Court in a subsequent proceeding dismissed Zander's claims for failing to comply with the FTCA's six-month limitations period. See ECF No. 33 at 5.

The FTCA's limitations provision states that a tort claimagainst the Government "shall be forever barred unless . . . action is begun within six months" after the relevant federal agency denies the plaintiff's administrative claim. 28 U.S.C. § 2401(b). A different section provides that an FTCA action is barred unless "the appropriate Federal agency" has "finally denied" the administrative claim "in writing ... by certified or registered mail," and

[t]he failure of an agency to make a final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

28 U.S.C. § 2675 (a) .

Although the Fourth Circuit has not addressed the interplay of these two provisions, many courts have held that § 2401(b)'s six-month statute of limitations is tolled only until the agency issues a final denial.⁹ Under this view, constructive denial under § 2675(a) "does not occur until the claimant exercises the option to deem the claim to have been denied." Conn, 867 F.2dat 920-21. "The claimant may exercise the option at any time after the six months has expired [from the time he filed his administrative claim] and there has been no denial." Id. at 921 (emphasis added).

Thus, if an agency fails to issue a notice of final denial within six months of receiving an administrative claim, the claimant may either deem it denied and file suit in district court at any time prior to final agency action or the claimant may await final agency action and file suit within six months thereafter

Lehman, 154 F.3d at 1013 (emphasis added) (internal quotation marks omitted). "[T]he option to 'deem' a claim constructively denied evaporates once the agency actually denies the claim," because "[t]here is nothing to deem once the agency formally acts." Ellison v. United States, 531 F.3d 359, 363 (6th Cir. 2008).

Mizrach argues that § 2401(b) simply does not apply when an agency takes more than six months to deny an administrative claim.¹⁰ Were that true, a claimant's cause of action would be preserved indefinitely, contrary to the purpose of the FTCA. When drafting § 2675(a), Congress stated that it sought to encourage the prompt resolution of claims:

[I]f the agency fails to act in 6 months, the claimant may at his option elect to regard this inaction as afinal denial and proceed to file suit. It is obvious that there will be some difficult tort claims that cannot be processed and evaluated in this 6-month period. The great bulk of them, however,

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