UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) JAMES STARKES, ) ) Plaintiff, ) ) v. ) ) Case No. 23-cv-00334 (APM) RICARDO F. FERNANDEZ, M.D., et al, ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

I.

Plaintiff James Starkes brings the instant action against Defendants Dr. Ricardo F.

Fernandez and LaClinica del Pueblo, Inc. (“LaClinica”), alleging that Defendants were negligent

in their care and treatment of Plaintiff from July 2013 through May 2019 when they failed to timely

diagnose and treat his prostate cancer. Plaintiff contends that he suffered physical and emotional

injuries, lost the ability to live disease free, his chances of survival have been diminished, his life

expectancy has been shortened, and he has suffered and will continue to suffer loss of earnings

and impairment of earning capacity. Plaintiff seeks $25,000,000 in damages. He initially filed

suit in the Superior Court of the District of Columbia, and the matter was removed to this court

pursuant to

(c). See Notice of Removal, ECF No. 1.

Before the court is the United States’ combined motion to substitute and dismiss.

Gov’t Combined Mot. to Substitute and Mot. to Dismiss, ECF No. 4 [hereinafter Gov’t Mot.].

Specifically, the United States seeks to (1) substitute itself as the sole defendant pursuant to

(g)(1)(A); (2) dismiss Plaintiff’s complaint for lack of subject matter jurisdiction

for failure to exhaust administrative remedies; and (3) dismiss Plaintiff’s claim on the grounds that it is time-barred. Gov’t Mot. at 7–8. For the reasons discussed below, the United States’ motion

is granted.

II.

From July 2013 through May 2019, Plaintiff received medical treatment and care from

Dr. Fernandez, his primary care physician at LaClinica. Notice of Removal, Compl., ECF No. 1-

2, [hereinafter Compl.], ¶¶ 9–12. Plaintiff’s visits with Dr. Fernandez included routine physical

examinations, follow-up visits concerning Plaintiff’s blood pressure and hypertension, laboratory

studies, and a hernia diagnosis and treatment.

. Plaintiff alleges that Dr. Fernandez failed

to advise him that “as an African American male he was at an elevated risk for developing prostate

cancer,” and failed to perform a prostate-specific antigen (PSA) test or discuss the benefits of

screening for prostate cancer through a PSA test.

. Around June or July of 2019,

Plaintiff began experiencing lower back pain, and in August he underwent a PSA test and biopsy

at George Washington University Hospital that found adenocarcinoma of the prostate.

¶¶ 13–

15. Since August 2019, Plaintiff has been receiving radiation and chemotherapy for his metastatic

prostate cancer.

.

In February 2023, over three years after his diagnosis, Plaintiff filed the instant action

against LaClinica and Dr. Fernandez for failure to timely diagnose and treat his prostate cancer.

See

III.

The court first addresses whether to substitute the United States as the sole defendant in

this action. Under the Public Health Service Act (“PHSA”), the United States “may substitute

itself for employees of the Public Health Service (‘PHS’) who are defendants in state civil actions,

[thereby] bringing the action under the [Federal Tort Claims Act (‘FTCA’)],” if (1) the Secretary

2 of Health and Human Services (the “Secretary”) determines that the defendants are PHS

employees, and (2) the Attorney General certifies that the defendants “were acting in their scope

of employment when they performed the acts which gave rise to the suit.”

(c),

(g)(1)(A) (2022); see Afolabi-Brown v. Coombs, No. 18-cv-1409 (EGS),

, at *2

(D.D.C. Mar. 25, 2019). The United States contends that it is the only appropriate defendant in

the instant case because (1) LaClinica was a “grantee of the Department of Health and Human

Services (‘DHHS’) by operation of the PHSA,” and Dr. Fernandez was employed by LaClinica,

making both Defendants PHS employees, and (2) both LaClinica and Dr. Fernandez were “acting

within the scope of their employment . . . at the time of the incidents alleged.” Gov’t Mot. at 4.

PHS Employee Determination. The Secretary is responsible for determining whether a

“public or non-profit private entity receiving federal funds” under

(b)—and

employees or contractors of that entity—are PHS employees covered by the FTCA. See

(g)(1)(A), (g)(4). The Secretary’s determination is “final and binding upon the Secretary and

the Attorney General and other parties to any civil action or proceeding.”

§ 233(g)(1)(F). Here,

the Secretary has “deemed LaClinica to be Public Health Service employees for the period of

January 1, 2013, to the present,” Gov’t Mot. at 5, and “Dr. Fernandez was an employee of

LaClinica . . . at the time of the” alleged incidents, id., Torres Decl., ECF No. 4-1, at 2. Therefore,

the court finds that LaClinica and Dr. Fernandez are PHS “employees” for purposes of the PHSA.

Scope of Employment. The Attorney General, or by delegation the “United States Attorney

in the district where the civil action or proceeding is brought,” may certify that an entity and its

employee were acting within the scope of employment at the time of the alleged incident.

(c);

(a) (2003). Such a certification constitutes “prima facie

evidence that the defendant was acting within the scope of . . . [his] employment.” Kimbro v.

3 Velten,

(D.C. Cir. 1994); Council on Am. Islamic Rels. v. Ballenger,

(D.C. Cir. 2006). In this case, the Chief of the Civil Division, Office of the United States

Attorney for the District of Columbia, certified that LaClinica and Dr. Fernandez acted within their

scope of employment as employees of the PHS at the time of the events at issue. Gov’t Mot. at 7;

Notice of Removal, Hudak Cert., ECF No. 1-3, at 1.

A scope-of-employment certification does not end the inquiry. At the pleadings stage, the

plaintiff “bears the burden . . . to raise a material dispute regarding the substance” of the

certification “by alleging facts that, if true, would establish that the defendants were acting outside

the scope of their employment.” Stokes v. Cross,

, 1214–15 (D.C. Cir. 2003).

A plaintiff who meets this burden is entitled to discovery and, if necessary, an evidentiary hearing

to resolve disputed facts. See

In this case, Plaintiff has not met even this low bar. If anything, Plaintiff’s allegations are

entirely consistent with the certifications. Plaintiff generally avers that Defendants “were acting

as the real, apparent, and/or ostensible agents, servants, and employees of each other, individually,

and through their respective employees, servants, and/or real and/or apparent and/or ostensible

agents.” Compl. ¶ 8. As to Dr. Fernandez, Plaintiff alleges that he was “acting within the scope

of said employment, agency, and/or service, and he was acting individually, when providing

medical care and services to the plaintiff.” Id. ¶ 6. Plaintiff specifies that from “July 16, 2013,

through December 9, 2014, [he] presented to Dr. Fernandez at LaClinica del Pueblo for medical

treatment and care including, but not limited to, routine physical examinations, follow-ups on his

blood pressure/hypertension, laboratory studies, and hernia diagnosis and treatment.” Id. ¶¶ 10,

12. In short, Plaintiff’s Complaint contains no factual allegations that, if true, would plausibly

establish that Defendants’ conduct was outside of their physician-patient relationship or that

4 Defendants acted in a way that is “different in kind from that authorized” by their employer.

See RESTATEMENT (SECOND) OF AGENCY § 228 (Am. L. Inst. 1958).

Plaintiff nevertheless contends that “there are sufficient facts that, if true, would rebut the

certifications issued by the U.S. Attorney and put into question the validity of the certifications so

filed.” Pl.’s Opp’n to Gov’t Combined Mot., ECF No. 6, [hereinafter Pl.’s Opp’n], at 10. But he

never identifies any fact allegation, in his Complaint or elsewhere, to support that assertion. A bald

assertion of disputed material fact is not enough even at the motion-to-dismiss stage to carry a

plaintiff’s burden. See Stokes,

(concurring with a Sixth Circuit decision that

affirmed the district court’s dismissal of a claim without a hearing where the plaintiff did not allege

any facts “that, if true, would demonstrate that [the defendant] had been acting outside the scope

of his employment”) (citing Singleton v. United States,

(6th Cir. 2002)).

Accordingly, the court substitutes the United States as the sole defendant and treats this

matter as arising under the FTCA. See Wuterich v. Murtha,

(D.C. Cir. 2009)

(“Consequently, where a plaintiff fails to allege sufficient facts to rebut the certification, the United

States must be substituted as the defendant because the federal employee is absolutely immune

from suit.”).

IV.

Having found that substitution is proper, the court now turns to whether Plaintiff exhausted

administrative remedies. A federal court lacks subject matter jurisdiction if a claimant did not first

exhaust administrative remedies under the FTCA. See McNeil v. United States,

(1993). Here, there is no dispute that Plaintiff did not timely exhaust administrative remedies.

Pl.’s Opp’n at 12 (conceding that it is an “undisputed fact that [he] did not file a Form 95 with the

5 U.S. Department of Health and Human Services”). The court therefore lacks jurisdiction over this

matter. 1

Before concluding, the court notes that, in 1988, Congress amended the FTCA to provide

“plaintiffs an additional sixty days to file an administrative claim with the appropriate federal

agency [after dismissal] as long as the original lawsuit was commenced within the two-year time

period allowed for filing a claim.” Norman v. United States,

(D.D.C. 2005)

(citing

(d)(5) (1988)). The purpose of the amendment was to “provide some

relief for plaintiffs where the United States is unexpectedly substituted as a party defendant and

the case is dismissed for failure to exhaust administrative remedies.”

The court offers no

opinion as to whether Plaintiff might benefit from this provision.

V.

For the foregoing reasons, Defendant’s motion to substitute and motion to dismiss for lack

of subject matter jurisdiction, ECF No. 4, is granted. The court dismisses the Complaint and this

action without prejudice. A final, appealable order accompanies this Memorandum Opinion.

Dated: June 30, 2023 Amit P. Mehta United States District Court Judge

1 Because the court lacks the subject matter jurisdiction to hear this case, the court need not rule on Defendant’s argument for dismissal for failure to state a claim.

6