DAVIS v. BERCIK, 3:14-cv-02759

Plaintiff Ella Davis underwent knee surgery at a VA hospital on Oct. 11, 2011, alleging an incorrectly sized prosthesis and subsequent additional surgeries in 2012–2013.
On Sept. 5, 2013, Davis signed and submitted an SF-95 claiming $500,000; the SF-95 was filed at the VA Regional Office in Newark and processed as a claim for benefits.
Davis filed a pro se state-court complaint against the surgeon on Oct. 3, 2013; the VA removed the case to federal court under the FTCA and certified the surgeon was a VA employee.
The VA moved to dismiss under Fed. R. Civ. P. 12(b)(1), arguing Davis failed to exhaust administrative remedies: she submitted the SF-95 to the Regional Office rather than Regional Counsel and sued before six months passed.
The court analyzed jurisdictional exhaustion under 28 U.S.C. § 2675(a) and VA regulations, concluding the SF-95 met notice and sum-certain requirements but the suit was filed prematurely (less than six months after presentation).
Court dismissed the FTCA action without prejudice, noting Davis may refile if the VA denies the claim or six months elapse (and must observe timing limits thereafter).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Davis properly presented an administrative FTCA claim	Davis submitted a completed SF-95 (sum certain) to the VA, satisfying presentation requirements	VA contends SF-95 was filed at Regional Office not Regional Counsel, so presentation was improper	Court held presentation was proper: VA received SF-95 and claim in sum certain under VA and DOJ regs
Whether suit was timely under § 2675(a) (six-month rule)	Davis filed suit after submitting SF-95 and before final agency action; impliedly argues presentation sufficed	VA argues filing occurred less than six months after claim presentation, depriving agency of time to adjudicate	Court held suit was premature: filed within one month of presentation, so dismissal without prejudice required
Whether failure to exhaust deprives court of subject-matter jurisdiction	Davis argued statutory/regulatory presentation satisfied exhaustion	VA argued exhaustion (including timing/location requirements) is jurisdictional and not satisfied	Court treated exhaustion as jurisdictional and dismissed for lack of jurisdiction due to premature filing (not for improper venue of SF-95)
Whether dismissal should be with or without prejudice and ability to refile	Davis did not request specific relief beyond filing suit	VA sought dismissal for lack of jurisdiction (implying without prejudice)	Court dismissed without prejudice and instructed Davis may refile after VA denial or six-month lapse, subject to § 2401(b) timing

Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977) (no presumption of truth in jurisdictional fact challenges)
McCann v. Newman Irrevocable Trust, 458 F.3d 281 (3d Cir. 2006) (plaintiff bears burden to establish subject-matter jurisdiction)
Gould Elec., Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) (distinguishes facial and factual jurisdictional attacks)
White-Square v. U.S. Postal Serv., 592 F.3d 453 (3d Cir. 2010) (FTCA waiver construed strictly; procedures jurisdictional)
Livera v. First Nat’l State Bank of N.J., 879 F.2d 1186 (3d Cir. 1989) (FTCA procedures are jurisdictional and cannot be waived)
Tucker v. U.S. Postal Serv., 676 F.2d 954 (3d Cir. 1982) (agency notice requirement satisfied by written notice sufficient to investigate and sum-certain demand)
MacNeil v. United States, 508 U.S. 106 (U.S. 1993) (plaintiff must wait for agency denial or six months before suing under FTCA)