                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

M.J., a minor, by and through
Bianca Jarvis, his parent and
natural guardian,

                Plaintiffs,
                                                  Civil Action No. 13-283 (GK)
         v.

Georgetown University Medical
Center, et al.,

                Defendants.


                                  MEMORANDUM OPINION

         Plaintiff      Bianca    Jarvis     ("Jarvis"   or   "Plaintiff")          brings

this     medical malpractice            action,   on behalf of       her minor        son,

M. J.'        against     the     Georgetown      University        Medical     Center,

Georgetown University Hospital, Lori A. Picco, M.D., and Phyllis

M. Rattey, R.N.           (collectively, the "Georgetown Defendants"), and

the United States of America (the "Government").

         This matter is before the Court on the Government's Motion

                                           Upon   consideration      or-tile   HO-Llon,

Opposition        [Dkt.   No.    12],   and Reply    [Dkt.    No.   16],    the entire

record        herein,      and    for      the    reasons     stated       below,      the

Government's Motion is granted.
    I.    BACKGROUND 1

          A.         Factual Background

          On November 1, 1998, Jarvis was admitted to the Georgetown

University Hospital                      twenty-five weeks pregnant with complaints

of       "abdominal           spasms        and        spontaneous         rupture                  of    membranes."

Compl.         <J[   16.      Over the next several days,                        she was monitored so

that       her        baby     could        be     "timely           delivered         in            the     event       of

infection and/or fetal distress."                                 Compl.    <J[<J[    17-68.              On November

6,       1998,        Jarvis       went         into        labor.       Compl.            <J[<j[        69-74.      The

attending              physicians           determined            that      her        fetus               should        be

delivered              via    cesarean           section,         but    after             administering                 an

epidural,              they     found          that         she   was    completely                      dilated     and

"decided             to    forego        the      cesarean        section            and      proceed             with    a

vaginal delivery."                       Compl.    <J[<j[   95,   99-101.            During the delivery,

a sonogram of the fetus indicated "terminal fetal bradycardia."

Compl.         <J[   103. 2    Forceps and traction were then used to extract

the fetus.                Compl.   <J[   105.



1
  The facts and relevant background are taken from the Complaint
[Dkt. No. 1-1], the Government's Certification Pursuant to 28
U.S.C. § 2679 [Dkt. No. 1-2], and the exhibits and declarations
appended to the parties' briefs.  [Dkt. Nos. 5-2, 12-1].
2
  Bradycardia is a slow heart rate.   See STEDMAN'S MEDICAL DICTIONARY
["STEDMAN's"] 54300 (27th ed. 2000).    Less than 100 beats per
minute is considered to be bradycardia in a fetus.    Id.
                               -2-
      M.J.    was     born      on November          7,     1998,    at    12:27     a.m.          Upon

deli very,    he    "was       blue,       with     no     respiratory      effort       or      heart

rate[,]"     and      had     "extensive           bruising    on     his    head,       neck       and

chest."        Compl.         ~~        106-07.       Following       delivery,         M.J.        was

diagnosed         with        "perinatal           asphyxia,        respiratory          distress

syndrome,     and     extreme            prematurity,"        and    was    admitted          to    the

neonatal     intensive         care        unit,     where    he    remained       for      sixteen

weeks.       Compl.      ~~    108-110. 3          M. J.    now suffers       from permanent

brain damage,         orthopedic injuries,                 global    developmental            delay,

and   other       complications,             which       Plaintiff        attributes        to      the

timing and method of M. J. 's deli very,                       specifically Defendants'

decision     to     deliver         M.J.     vaginally        rather       than    by    cesarean

section.      See Compl.           ~~   112, 117, 119.

      B.     Procedural Background

      On January 2,           2013, more than 14 years after M.J.'s birth,

Jarvis     filed    this       medical        malpractice          action    in    District          of

Columbia Superior Court.                   The case was initially brought against

the   Georgetown         Defendants         and    Dr.     Christian Macedonia,               one    of

the doctors involved in M.J.'s delivery.                            On March 4,         2013,       the

Government substituted itself as a party defendant on behalf of


3
  Asphyxia is oxygen deprivation resulting from the "[i]mpaired
or absent exchange of oxygen and carbon dioxide on a ventilatory
basis." See STEDMAN'S at 34 810.
                                 -3-
Dr.      Macedonia,            and removed the               case       to   this       Court pursuant            to

the Federal Employees Liability Reform and Tort Compensation Act

of 1988          (the     "Westfall Act"),               28    U.S.C.         §     2679.         According to

the       removal         papers,          at     the        time       of        M.J.'s        delivery,        Dr.

Macedonia          was     a    federal         employee,           serving         as     a     Major     in    the

United        States       Army      and        completing          a    fellowship              at    Georgetown

University Hospital.                   Plaintiff's claim against Dr. Macedonia is

therefore deemed to be an action against the United States under

the Federal Tort Claims Act                        ("FTCA"),            28 U.S.C.          §     1346(b).        See

28      u.s.c.     §   2679(d).        Dr. Macedonia was dismissed as a defendant

on April 10, 2013.

         On      March         20,    2013,        the        Government                moved         to   dismiss

Plaintiff's FTCA claim pursuant to Fed.                                      R.    Civ.     P.    12 (b) (1)     for

lack of subject matter jurisdiction                                 [ Dkt.        No.    5] .         On April 3,

2013,      Plaintiff filed her Opposition                               [Dkt.      No.     12],       and on May

15, 2013, the Government filed a Reply [Dkt. No. 16].

I I .    STANDARD OF REVIEW

         Under         Rule     12(b) (1),        the        plaintiff            bears        the     burden     of

proving by a             preponderance of the evidence that                                     the     Court    has

subject       matter          jurisdiction.          See       Shuler         v.     United           States,    531

F.3d 930,          932    (D.C.      Cir.       2008).        In deciding whether to grant a

motion        to       dismiss       for    lack        of     jurisdiction,               the        court     must


                                                        -4-
"accept     all        of    the        factual    allegations            in     [the]       complaint      as

true [.]"         Jerome          Stevens    Pharmaceuticals,                  Inc.    v.    Food    &    Drug

Admin.,     402       F.3d 1249,           1253-54        (D.C.    Cir.        2005)       (citing United

States     v.     Gaubert,          499    U.S.    315,      327     (1991))           (quotation marks

omitted) .            The        Court    may     also     consider            matters       outside       the

pleadings, and it may rest its decision on its own resolution of

disputed        facts.            See    Herbert     v.     Nat' 1    Acad.           of    Sciences,      974

F.2d 192, 197           (D.C. Cir. 1992). 4

III. ANALYSIS

      A.        The Federal Tort Claims Act

      It     is       basic        hornbook        law      that     the        United        States,       as

sovereign,        is    immune           from suit unless            it    consents          to be       sued.

United     States           v.     Mitchell,       445      U.S.      535,        538        (1980).        By

enacting        the    FTCA,        Congress       partially         waived           the    Government's

sovereign immunity for                    claims of "personal injury                                   caused

by the negligent or wrongful act or omission of any employee of

the   Government while                  acting within the             scope of his              office or

4
   The parties refer to the difference between a "factual
challenge"    and   a  "facial     challenge"  to  subject   matter
jurisdiction.    See Gov' t' s Mot. at 2; Pl.'s Opp' n at 3.  While
the Court does not find explicit support for this dichotomy in
D.C. Circuit case law, the distinction between the two types of
motions is not material to resolving this Motion.      The important
point is that, while the Court may consider materials outside of
the pleadings, it still accepts the factual allegations in the
Complaint as true.     See Jerome Stevens Pharmaceuticals, Inc.,
402 F.3d at 1253-54.
                                  -5-
employment."               28     u.s.c.           §     1346 (b).              However,        Congress

conditioned         such     waiver         on     the    requirement            that    a     plaintiff

present her claim "in writing to the appropriate Federal agency

within two years after such claim accrues," and thereafter file

her action in court within six months of agency's final denial

of her claim.         28 U.S.C.         §    2401(b).

        Under the Westfall Act, the FTCA is the exclusive mechanism

by    which    a    plaintiff may             seek damages               for    any     "negligent      or

wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment."                                          28 U.S.C.

§     2679(b) (1).           Where,         as     in     this        case,      a     plaintiff       has

originally sued the employee in his or her individual capacity,

the     Westfall      Act       deems        the       action       to     be    one     against       the

Government         under    the       FTCA,      and     requires         the    Government       to be

substituted as party defendant in the employee's place.                                          See 28

u.s.c.    §   2679(d) (2).

        Because substitution of the United States as a party might

occur     long      after       the    FTCA's          two-year       limitations            period    has

expired,      the    Westfall          Act       contains       a     "savings        provision"       for

actions       initially          brought          against        an       individual         Government

employee,      subsequently converted into an FTCA claim against the

Government,         and     thereafter           dismissed          for    failure        to    file    an


                                                   -6-
administrative claim.                  See Mittleman v.       United States,          104 F.3d

410,     413      (D.C.    Cir.    1997)      (citing 28     U.S.C.    §    2679(d) (5) (A)).

In such cases, the savings clause provides a 60-day grace period

for the plaintiff to file her claim with the appropriate agency,

but only if such "claim would have been timely had it been filed

on the date the underlying civil action was                            commenced [.]"          28

u.s.c.       §   2679(d) (5).       Otherwise, a claim not timely presented to

the appropriate federal agency is "forever barred."                              28 U.S.C.      §


2401(b); Mittleman, 104 F.3d at 413.

        B.        Plaintiff's Claim Is Time-Barred

        It is undisputed that .Jarvis did not file an administrative

claim before commencing this case.                       See Def.'s Mem. at 4 & Ex. 2

(Decl.       of    Major     Linda      A.    Chapman);     Pl.'s     Opp'n    at     5.      The

parties           dispute,        however,       whether      she     may      exhaust        her

administrative remedies now that she is aware of Dr. Macedonia's

previous          status     as    a    federal        employee.      According        to     the

Government,         Plaintiff's claim is barred by the                      FTCA' s   two-year

statute of limitations.                      Plaintiff counters       that her claim is

not time-barred because it did not accrue until this year,                                    and

in     the       alternative,       that      equitable     tolling        should     apply    to

permit her case to proceed.




                                                 -7-
             1.    M.J.'s Claim Accrued in 1998

         Plaintiff   first     argues    that M. J. 's       claim did not        accrue

until March 2013, when she learned of Dr. Macedonia's status as

a   Government     employee.       Pl.'s   Opp' n      at    6-7.    The    Government

contends that M.J.'s claim accrued on M.J.'s date of birth, when

Jarvis    learned     of    the   injuries       she    now     attributes     to    the

Government.       Reply at 7-11.

       Accrual of a        claim under the FTCA is governed by federal

law.     See Sexton v.      United States,       832 F.2d 629,          633 n.4     (D.C.

Cir. 1987).       The seminal case on FTCA medical malpractice claims

is Kubrick v.      United States,        444 U.S.      111    (1979).      In Kubrick,

the Supreme Court held that a medical malpractice claim accrues

when the plaintiff knows          ~the   critical facts that [s]he has been

hurt   and who has     inflicted the           injury," even if she does not

know that the injury was          ~negligently         inflicted."       Kubrick,    444

U.S. at 122, 123.      The Court reasoned that:

       A plaintiff      . armed with the facts about the harm
       done to him, can protect himself by seeking advice in
       the medical and legal community.    To excuse him from
       promptly doing so by postponing the accrual of his
       claim would undermine the purpose of the limitations
       statute, which is to require the reasonably diligent
       presentation of tort claims against the Government.

Id. at 123.




                                         -8-
                       The    D.C.         Circuit       has     construed         Kubrick       to     stand       for         the

               proposition         that           "a    plaintiff's              understanding          of       the       basic

               nature of the               [allegedly improper]                  treatment       should suffice to

               begin the statute running."                            Sexton,       832    F.2d at        633.            Stated

               differently,            a     medical        malpractice             claim        accrues         when           the

               plaintiff possesses sufficient "historical facts associated with

               the    injury"      to permit             her     to     "undertake        a     reasonably diligent

               investigation to determine whether a                                cause of action may lie."

               Id.    at   633-34;          see    also McCullough v.                   United States,             607         F. 3d

               1355,    1359      (11th Cir.            2010)    (a medical malpractice claim accrues

               when plaintiff "is,                     or in the exercise of reasonable diligence

               should be,         aware       of both           [her]    injury and            its    connection with

               some act of the defendant")                       (citation omitted).

                       Applying            these       principles           to    the     instant        case,            it     is

               undisputed that Jarvis knew of M.J.'s injuries on the day he was

              born.        According to the Complaint,                           newborn M. J.          was "blue with

--------=-n'--'o'-----_r__ce_sRiratory       effort        or     heart          rate,"       and     had        "ext-ensive

              bruising       on    his       head,       neck     and       chest."           Comp l.    en en   1 0 6,        107 .

              These        obvious          physical        symptoms,             and     the       doctors'           related

              diagnosis           of       perinatal            asphyxia          and      respiratory             distress

              syndrome,       put Jarvis on notice that M.J.                              had suffered an injury

              related to oxygen deprivation, even if she did not then know its


                                                                      -9-
         full    extent    or its     future    impact on M. J.' s            development.           See

         Wallace v. Kato,          549 U.S.    384,    391     (2007)   ("The cause of action

         accrues even though the full extent of the injury is not then

         known or predictable.")          (citations omitted).

                Jarvis     also    possessed     sufficient         information         to    prompt    a

         "reasonably diligent"          inquiry into whether Defendants'                       medical

         care -    specifically the decision to proceed by vaginal delivery

         rather    than    cesarean section                caused M. J. 's          condition.       See

         Sexton,     832 F. 2d at 633-34.             It is uncontested that Dr.                  Picco

         initially       informed     Jarvis     that       M.J.     would     be      delivered       by

         cesarean     section,      before     the    doctors       changed     their        minds   and

         opted for vaginal delivery.                 Compl.    ~   96; Pl.'s Opp'n, Ex. A at

         Consent for Surgery, Anesthetics, and Other Medical Services and

         Operative       Report.       This     fact,         in   conjunction          with     M.J.'s

         conspicuous injuries, gave Jarvis a reasonable basis to question

         whether     the   doctors'     choice       was     proper,    and     to     seek    further

_______
      l_egal and medical advice on that question.

                Plaintiff contends in her Opposition that her claim did not

         accrue in 1998 because Defendants told her that M.J.'s condition

         was    caused by prematurity.                Pl.'s    Opp' n   at     6.      However,      the

         Complaint itself alleges that "M.J. was diagnosed with perinatal

         asphyxia,         respiratory         distress            syndrome,          and      extreme


                                                     -10-
prematurity."            Compl.       CJI    110 (emphasis added).                    Under Sexton, the

fact    that      an     injury             has    multiple         causes        does    not       negate     a

plaintiff's           duty to make                a    reasonable          inquiry       into   all     other

potential        causes        once          she       is     aware       of     the     relevant       facts

underlying            that     cause.                 See     Sexton,          8 32    F. 2d    at     633-34

(plaintiffs'           belief        that         death       resulted         from    leukemia        rather

than     negligence            did          not       postpone           accrual       where     plaintiff

understood            "basic         nature             of        the      [allegedly           negligent]

treatment").

        Plaintiff also argues that her FTCA claim could not accrue

until     she     discovered                the       Government's         involvement          in     M.J.'s

injury.       Pl.'s Opp'n at 6-7.                       The D.C. Circuit has not addressed

such an argument,               but         other circuits have                   rejected it.

e.g.,    Ramos v.            Dep't of Health and Human Servs.,                             429 F.       App'x

947,    951   (11th Cir. 2011)                    ("That [Plaintiff] did not learn until

later     that    the        government               was    the    proper        defendant         does     not

alter    [accrual]           analysis.");              Skwira v.          United States,             344 F.3d

64,    (1st Cir. 2003)            ("In the medical malpractice context,

knowledge        of    the     legal          status         of    the    physician        as   a     federal




                                                        -11-
             employee     is    not     required     for     claim     accrual.")        (emphasis       in

             original)     (citing cases) . 5

                     Further,    by     including    the     savings      clause    in   the       Westfall

             Act so as to give additional time for exhaustion to plaintiffs

             whose    state     court    actions     would    otherwise       be    timely,        Congress

             already     provided       for    circumstances         in     which   a    plaintiff       is

             initially unaware that            the   Government        is   the proper defendant.

             See 28 U.S.C.       §    2679(d) (5) (A) . 6    There would be little need for

             this clause if Congress also intended a plaintiff's claim not to

             accrue    until     she    knew   of    the    Government's       role      in    her    case.

             Therefore,     M. J. 's    claim accrued        in   1998      regardless        of    whether




             5
         Plaintiff cites Valdez v. United States, 518 F.3d 173 (2d Cir.
      2008) and Danzan v. United States, 762 F.2d 56 (7th Cir. 1985),
      but neither endorse the rule she urges.                      In Valdez, the Second
      Circuit merely observed that equitable tolling might apply where
      a plaintiff had no reason to know her medical provider was a
      government entity.             Valdez, 518 F.3d at 178 n.2 & 182-85.                        In
      Danzan, the Seventh Circuit held that when an injury has a
      natural cause (in that case, cancer), and an accelerating cause
-----~ tt-r±-butab-l-e-----to----the-@overnment--(-ne-g--1--±-gen L Lre-atm-ent-)---,-----t-he-PTeA: · - - - - -

      claim does not accrue until a plaintiff has reason to know of
      the Government-related cause.                     Danzan,     762 F.2d at 59-60.
      Neither Valdez nor Danzan held that a plaintiff's claim does not
      accrue until she knows that the employee alleged to have caused
      her injury is a government employee.
            6
              The savings clause does not apply in this case because Jarvis
            did not file her state court action until January 2013, more
            than fourteen years after the statute of limitations expired.
            28 U.S.C. § 2679(d) (5) (A).

                                                       -12-
           Jarvis     had     any    reason     to    suspect       that       Dr.        Macedonia       was     a

           federal employee.

                        2.      Equitable Tolling Does Not Apply

                   Plaintiff        also   argues     that       even    if    M. J.' s        claim     accrued

           earlier,    the     statute of limitations               should be equitably tolled

           because she·had no reason to suspect Dr. Macedonia was a federal

           employee,    and      because      her     claims      were     otherwise           timely      under

           District    of     Columbia       law. 7        The   Government          counters          that     the

           FTCA's     limitations          period     is     a   prerequisite             to     the     Court's

           subject    matter        jurisdiction,          and   therefore,          is    not       subject     to

           equitable        tolling. 8        The     Court      need     not        reach       that     issue,

           however,    because,        as the Government also points out,                              Plaintiff

           has not made a convincing case for equitable tolling.                                       Reply at

           4-7.

                   Equitable     tolling,      where       it    applies,       "permits         a    plaintiff

           to avoid the bar of the               limitations period if .despite all                             due

           diligence she is unable to obtain vi tal
----------------
                                                                              information bearing on

           7
               Under District of Columbia law, the three year statute of
           limitations for medical malpractice claims of minors is tolled
           until their eighteenth birthday.    D.C. Code §§ 12-301, 12-
           302 (a) (1).

           8
              Notwithstanding this implicit dispute about whether the FTCA's
           limitation period is "jurisdictional," the parties agree that
           Rule 12(b) (1) supplies the applicable standard of review for all
           issues raised in this Motion.     See Def.' s Mem. at 2-3; Pl.'s
           Opp'n at 3-4.
                                          -13-
the existence of her claim."                       Smith-Haynie v. Dist. of Columbia,

155    F.3d     575,     579        (D.C.    Cir.      1998)        (citing        Cada         v.       Baxter

Healthcare        Corp.,        920         F.2d      44 6,        451      (7th         Cir.         1990)).

"Generally,        a     litigant           seeking       equitable         tolling            bears         the

burden     of    establishing          two     elements:           ( 1)    that      [ s] he     has        been

pursuing         [her]        rights         diligently,              and         ( 2)     that             some

extraordinary          circumstance            stood       in       [her]     way."                  Pace     v.

DiGuglielmo,       544 U.S.          408,    418    (2005)         (citing Irwin v.                  Dep't of

Veterans Affairs, 498 U.S. 89, 96 (1990)).

       In Norman v. United States, 467 F.3d 773, 775-76                                         (D.C. Cir.

2006),     our    Court        of     Appeals       addressed             equitable         tolling           in

circumstances          nearly       identical        to    those          presented        here.             The

plaintiff,       Norman,       was     hit by a           rental car and filed                       a    claim

with     the     driver's            insurance         provider            shortly         thereafter.

However,      the insurance company did not inform him until two and

a half years later that the driver was a federal employee acting

within the scope of his employment.                             Norman subsequently filed

his      case     within        the         District          of        Columbia's              three-year

limitations period for personal injury actions,                                     but outside the

FTCA's two-year limitations period.                           The District Court rejected

Norman's request for equitable tolling and dismissed the case as

time-barred.             On    appeal,        the     Court        of     Appeals         declined            to


                                                -14-
address       whether          the      FTCA        limitations          period          may     ever        be

equitably tolled because it concluded that,                                  in any event, Norman

"failed       to    meet       the     due     diligence          requirement            for    equitable

tolling."          Id. at 776.

       The     same      conclusion           holds    here.            Like      the     plaintiff          in

Norman,      Jarvis        has    not        identified          "any    efforts         prior     to    the

expiration         of    the     FTCA' s      two-year          statute      of      limitations-much

less    reasonably          diligent          efforts-to         discover         [Dr.    Macedonia's]

employer."           Id.        Her     failure       to    do    so    is     not    excused       simply

because      M.J.'s         claim       is    otherwise           timely       under       District          of

Columbia law.              As the D. C.            Circuit emphasized,               "[i] f     that were

enough       for    equitable           tolling                        the     FTCA's          statute       of

limitations would have no bite [,]" because plaintiffs would be

able    to    circumvent          the    statute           by    merely      filing       claims        in    a

jurisdiction with a longer limitations period.                                    Id.

       In    addition,          the     due    diligence          requirement            for    equitable

tolling is not relaxed merely because Jarvis had no basis during

the    fourteen         years    that        elapsed       since       the    injury       occurred          to

know that Dr. Macedonia worked for the Government.                                        As the Court

of Appeals         observed,          "if prejudice were                enough,         then equitable

tolling      would       no     longer        be    restricted          to     'extraordinary            and




                                                    -15-
carefully       circumscribed       circumstances.'"             Id.    at     777    (citing

Smith-Haynie, 155 F.3d at 580) . 9

       Plaintiff       attempts     to   distinguish       Norman       by    arguing    that

the plaintiff in that             case had a      greater reason to assume the

tort feasor was a        federal employee because "when dealing with an

automobile accident in the District of Columbia,                         there would be

a    high likelihood that the driver was                 going about his business

for    any one    of    the numerous      government       agencies          in the    area."

Pl.'s Opp'n at 11.            The D.C.    Circuit emphatically rejected such

an argument,      observing that "[w] e           think it entirely unworkable

to calibrate the required level of due diligence to the number

of    federal    employees     living     in    the     region    where       the    accident

occurred."       Norman,      467   F. 3d at     778.     Instead,       "due diligence

must    have    the    same   meaning     everywhere."            Id.         Here,     as   in

Norman,    Plaintiff's        "claim for       equitable    tolling          fails    because

at no time during the FTCA's two-year statute of limitations did




9
  In fact, in Norman, the D.C. Circuit concluded that equitable
tolling would not even apply if the insurance carrier had
"deliberately withheld information about     [the tortfeasor's]
employment status" because Norman sought "equitable tolling
against the government, not against [the insurance company]."
Norman, 467 F.3d at 777 (emphasis added)

                                          -16-
[s]he make any        e~fort    - diligent or otherwise - to identify [Dr.

Macedonia's] employer."             Id. 10

        "It goes without saying that statutes of limitations often

make    it     impossible      to   enforce     what    were    otherwise       perfectly

valid    claims."       Kubrick,        444    U.S.    at   125.         As   the   Seventh

Circuit observed in Sexton,

       any statute of limitations that puts inquiry burdens
       on a plaintiff, as this one clearly does,
       entails a degree of ghoulish behavior. Patients or
       survivors, whose instinct may well be to shut off from
       their minds the grim experience through which they
       have passed, are required instead to follow up on
       their leads. For persons of any sensitivity this must
       be a difficult or even repugnant process. Yet, to
       protect defendants from stale claims, legislatures put
       potential plaintiffs to the hard choice of proceeding
       with such inquiries or risking loss of possible
       claims.

        832 F.2d at 636 (citations omitted).

       The FTCA bars claimants from bringing suit in federal court

unless they have presented their claim to the Government within

two years of the claim's accrual.                   McNeil v. United States,            508

u.s.    106,    113   (1993).       Jarvis     never    filed      any    administrative


10
    The Government argues that Plaintiff could have quickly
discovered Dr. Macedonia's status as a federal employee, and
cites a number of public websites listing Dr. Macedonia's
affiliation with the United States Army.   See Gov't's Reply at 6
n. 2.  Given that this information was presented for the first
time in the Government's Reply, and Plaintiff did not have the
opportunity to respond to it, the Court does not rely on it.

                                             -17-
claim,      and     is    now   time       barred    from   doing   so.    Accordingly,

Plaintiff's claim against the Government shall be dismissed for

lack of subject matter jurisdiction.

      C.      The Case Shall Be Remanded to Superior Court

      The claim against Dr. Macedonia was the sole basis on which

the   case    was        removed     to    this   Court.    [Dkt.   No.   1].    Having

concluded that the Court lacks jurisdiction over such claim, the

Court shall remand the case to Superior Court.

IV.   CONCLUSION

      For     the        foregoing        reasons,   the    Government's     Motion   is

granted,     and the case shall be remanded to Superior Court.                        An

Order shall accompany this Memorandum Opinion. 11



August 22, 2013



Copies to: attorneys on record via ECF




11
   Plaintiff requests that if the Court determines that equitable
tolling applies but still dismisses the case due to her failure
to exhaust her administrative remedies, the Court should dismiss
the case without prejudice.     Pl.'s Opp' n at 12.   Because the
Court determines that equitable tolling does not apply and that
Plaintiff's claims are untimely, it shall dismiss the case with
prejudice.
                               -18-
