Virginia A. Smitherman v. USA

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 2, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14300
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00894-MEF-TFM
VIRGINIA A. SMITHERMAN,
Administrator of the Estate of Trentina
Valencia Smitherman, deceased,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
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(April 2, 2012)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.

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PER CURIAM:
Virginia Smitherman, proceeding pro se, appeals the district court’s grant of
the government’s motion to dismiss her wrongful death action filed under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).
I.
Smitherman alleges that United States Army medical personnel in Germany
prescribed her daughter sodium fluoride supplements because the water in
Germany was not fluoridated. She claims that the prescription was issued under
guidance from the Food and Drug Administration and the Centers for Disease
Control and Prevention even though sodium fluoride supplements have never been
approved by the FDA. She alleges that the fluoride supplements caused her
daughter to develop cancer, from which her daughter eventually died.
Smitherman was appointed administrator of her daughter’s estate and filed a
wrongful death action against the United States under the FTCA, alleging that the
FDA and CDC acted negligently by “establishing, promulgating and enforcing
rules, regulations, policies, directives, guidelines and practices” that encouraged
doctors in areas with nonfluoridated water to give children fluoride supplements.
The government filed a motion to dismiss, arguing that the district court lacked
subject matter jurisdiction because the United States had not waived its sovereign
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immunity to torts arising in foreign countries. See 28 U.S.C. § 1346. It also
argued that Smitherman was not allowed to proceed pro se on behalf of her
daughter’s estate.
The district court adopted a magistrate judge’s amended report, which
recommended granting the government’s motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) because Smitherman could not proceed pro se on behalf
of her daughter’s estate. This is Smitherman’s appeal.
II.
We review de novo a district court’s grant of a motion to dismiss under Rule
12(b)(6). See Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d
1235, 1259 (11th Cir. 2011). And we must inquire into subject matter jurisdiction
whenever it might be lacking. See Mallory & Evans Contractors & Eng’rs, LLC
v. Tuskegee Univ., 663 F.3d 1304, 1304 (11th Cir. 2011).
The United States, as sovereign, is immune from suit unless it consents to
be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351
(1980). By enacting the FTCA, the United States waived its immunity to suit for
certain torts committed by its employees acting within the scope of their
employment, and it vested exclusive jurisdiction over those suits in the United
States District Courts. See 28 U.S.C. § 1346(b)(1).
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The United States did not, however, waive its immunity to claims “based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of
the Government, whether or not the discretion involved be abused.” Id. § 2680(a).
A discretionary function “involves an element of judgment or choice.” Berkovitz
v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1959 (1988). “The exception,
properly construed, protects only governmental actions and decisions based on
considerations of public policy.” Id. at 537, 108 S.Ct. at 1959. “Where there is
room for policy judgment and decision there is discretion.” Id. (quotation marks
omitted).
Smitherman alleges that employees of the CDC and the FDA acted
negligently in setting a policy that encouraged doctors to give some children
sodium fluoride as a dietary supplement. The United States has not waived its
sovereign immunity for this type of decision because it “involves an element of
judgment or choice” and is a “governmental action[] or decision[] based on
considerations of public policy.” See 28 U.S.C. § 2680(a); Berkovitz, 486 U.S. at
536, 108 S.Ct. at 1959.
The district court lacked subject matter jurisdiction over Smitherman’s
wrongful death claim because it is barred by the United States’ sovereign
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immunity. Because the district court did not dismiss the case for lack of
jurisdiction, we vacate and remand with instructions for it to do so.1
VACATED AND REMANDED.
The district court also denied as futile what it construed as Smitherman’s motion to1
amend her complaint to allege the wrongful death claim on her own behalf, instead of on behalf
of her daughter’s estate. Because the district court would still lack jurisdiction over the claim if
the district court permitted that amendment, we AFFIRM the district court’s denial of
Smitherman’s motion to amend her complaint.
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