ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiffs proceed pro se, was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Defendant United States of America moves to dismiss for lack of subject matter jurisdiction. Plaintiff Amanda Widener, on behalf of herself and her minor son, filed an opposition to the motion to dismiss.*fn2
On March 21, 2012, the court held a hearing regarding the motion to dismiss. Edward Olsen appeared on behalf of defendants; plaintiff appeared pro se. At the hearing, the court inquired about whether Marysville Immediate Care is a federally supported health care center; and whether this action can be dismissed with or without prejudice against the minor plaintiff, even though Ms. Widener does not have the authority to represent her minor son without retaining a lawyer. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). After the hearing, defendants filed a supplemental declaration indicating that both Peach Tree Clinic and Marysville Immediate Care Clinic are service delivery sites for Peach Tree Clinic, Inc., which is a federally supported health care center. Dckt. No. 20. Plaintiff filed a response to the supplemental declaration, stating that she acknowledges the supplemental declaration and is proceeding with her administrative claims. Dckt. No. 21. For the following reasons, the court recommends that the motion to dismiss be granted without prejudice.
Plaintiffs Amanda Widener and her minor son filed a complaint in the Yuba County Superior Court on July 20, 2011. Plaintiffs allege that Judy Newman of the Peach Tree Clinic and Marysville Immediate Care negligently treated them, denied treatment to plaintiffs, and engaged in patient abandonment. Dckt. No. 1-1 at 7, 9. Plaintiffs also name Dr. Genato, Medical Director, as a defendant in one section of the complaint. Id. at 4. On November 10, 2011, defendants removed this action to this court because the complaint alleges injury resulting from the performance of medical functions by an employee of the Public Health Service authorized by the Federally Supported Health Centers Assistance Act ("FSHCAA"). See 42 U.S.C. § 233(c).
The United States moves to dismiss this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that plaintiffs have failed to comply with the exhaustion requirement of the Federal Tort Claims Act ("FTCA"), which is a jurisdictional prerequisite to suit under the FSHCAA. 42 U.S.C. § 233(a).
Federal courts are courts of limited jurisdiction and a case presumably lies outside the jurisdiction of the federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78 (1994). Plaintiff bears the burden of demonstrating the court's jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) ("A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction"). "In ruling on a challenge to subject matter jurisdiction, the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." See Thornhill Publ'g Co. v. Gen. Tel. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In those circumstances, "[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id.; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
The FSHCAA provides that the FTCA is the exclusive remedy against the United States for injury resulting from the performance of medical functions by an employee of the Public Health Service. See 42 U.S.C. § 233(a). The FTCA's coverage extends to employees of designated federally supported medical clinics. 42 U.S.C. § 233(g). Here, plaintiffs seek to sue Judy Newman and Edgar Genato, and lists both Peach Tree Clinic and Marysville Immediate Care in their complaint. In a supplemental declaration filed on March 21, 2012, Meredith Torres, Office of the General Counsel, Department of Health and Human Services, attests that Peach Tree Clinics, Inc., was deemed eligible for Federal Tort Claims Act malpractice coverage effective January 1, 2011, and that its coverage has continued without interruption since that time; that Peach Tree Clinic and Marysville Immediate Care Clinic are service delivery sites for Peach Tree Clinic, Inc.; and that Dr. Edgar Genato and Judy Newman were employees of Peach Tree Clinics, Inc., at all times relevant to plaintiffs' claim. See Dckt. No. 20 at 2. On these facts, which plaintiffs do not dispute, plaintiffs' exclusive remedy is to proceed pursuant to the FTCA, and they must comply with its requirements.
Under the doctrine of sovereign immunity, actions against the United States may not be maintained except by its express consent. United States v. Testan, 424 U.S. 392, 400 (1976); Doe v. Attorney Gen. of U.S., 941 F.2d 780, 788 (9th Cir. 1991). Although Congress has consented to suits against the United States under the FTCA, prior to litigating a tort claim against the United States, a plaintiff must first file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a). The action may not be instituted until an administrative claim has "been finally denied by the agency in writing and sent by certified or registered mail." Id. The administrative claim requirement under the FTCA is jurisdictional and cannot be waived. Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). Further, the exhaustion requirement is strictly construed. Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). "Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions . . . . We are not allowed to proceed in the absence of fulfillment of the conditions merely because dismissal would visit a harsh result upon the plaintiff." Id. (internal citations omitted).
Here, plaintiffs have not met their burden of demonstrating that they have exhausted administrative remedies. Although Meredith Torres, an attorney for the Department of Health and Human Services, attests that plaintiff filed an administrative claim on March 7, 2012, Dckt. No. 20 at 1-2, that claim was filed after this action was commenced, and no final determination has yet been made on the administrative tort claim, id. at 2. As noted above, a civil action may not be instituted until an administrative claim has been finally denied by the agency at issue.
Plaintiffs do not claim that they have properly exhausted their administrative remedies. Nor do they argue that the medical professionals were acting outside of the scope of their employment with respect to any of the incidents forming the basis for this lawsuit. Therefore, plaintiffs' claims must be dismissed without prejudice for lack of jurisdiction.*fn3
Accordingly, it is hereby ORDERED that plaintiffs' notice of intention to appeal, Dckt. No. 13, is stricken. ...