Cynthia Rollo-Carlson v. United States, 971 F.3d 768

Background

In October 2015, veteran Jeremiah Flackus-Carlson died from an opioid overdose after prior psychiatric treatment at the St. Cloud VA Medical Center.
In September 2017 Jeremiah’s parents, Cynthia Rollo-Carlson and Doug Carlson, submitted an SF-95 (VA Claim) alleging medical malpractice and naming themselves as wrongful-death claimants (demanding $10 million).
The VA requested additional records but did not ask for proof that either parent was a court-appointed trustee under Minnesota’s wrongful-death statute.
While the VA Claim was pending, the parents filed a federal FTCA suit; the VA treated the administrative claim as not amenable to administrative resolution and issued a final denial July 16, 2018. The parents then voluntarily dismissed that suit.
On October 2, 2018, Cynthia was appointed trustee under Minnesota law and, the next day, she filed the present FTCA wrongful-death suit as the sole plaintiff.
The government moved to dismiss for lack of subject-matter jurisdiction, arguing Cynthia failed to present evidence of her authority as a court-appointed trustee when she filed the SF-95; the district court granted dismissal and the court of appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FTCA presentment was satisfied when claimant was not a court-appointed wrongful-death trustee at time of SF-95	Rollo-Carlson: Minnesota distinguishes a "claim" from an "action," and only an action requires a trustee, so her SF-95 as next-of-kin sufficed	Gov’t: Presentment (28 C.F.R. §14.2(a)) requires evidence of legal authority to present on decedent’s behalf (trustee); she provided none	Court: Rejected plaintiff; she did not present evidence of trustee authority and presentment is jurisdictional, so dismissal affirmed
Whether VA’s other interactions supplied actual notice of trustee authority (e.g., burial allowance, records requests)	Rollo-Carlson: VA’s actions showed actual notice of her authority to act for decedent	Gov’t: Next-of-kin status and other contacts are not the same as court-appointed trustee authority required by state law and regulation	Court: Rejected; actual notice of other capacities does not substitute for required evidence of trustee authority
Whether the government is precluded from raising presentment defect because it did not raise it during administrative review	Rollo-Carlson: VA did not raise trustee-authority issue during administrative handling, so it should be precluded from asserting it later	Gov’t: Presentment is a jurisdictional prerequisite separate from claim merits and not subject to preclusion here	Court: Rejected plaintiff; administrative exhaustion and jurisdictional rules preclude applying preclusion to excuse presentment failure
Whether Mader (en banc) holding that presentment is jurisdictional should be overruled	Rollo-Carlson: Invited the court to overrule Mader and hold presentment non-jurisdictional	Gov’t: Relied on controlling en banc precedent	Court: Declined; a panel cannot overrule en banc precedent and reaffirmed Mader

Key Cases Cited

Molzof ex rel. Molzof v. United States, 502 U.S. 301 (1992) (FTCA liability measured by reference to state law)
Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (en banc) (presentment is a jurisdictional prerequisite under FTCA)
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991) (limits on applying issue preclusion where administrative exhaustion applies)
United States v. Lucas, 521 F.3d 861 (8th Cir. 2008) (panel may not overrule en banc precedent)
Goodman v. United States, 2 F.3d 291 (8th Cir. 1993) (FTCA claims require application of state substantive law)
Regie de l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85 (Minn. 1987) (Minnesota wrongful-death claims must be brought by court-appointed trustee)
Ortiz v. Gavenda, 590 N.W.2d 119 (Minn. 1999) (Minnesota decisions use “claim” and “action” interchangeably in wrongful-death context)