Gabriel v. United States, 683 F. App'x 671

Plaintiff Gary Gabriel sued under the Federal Tort Claims Act (FTCA) alleging negligence at a federal health-care facility; suit was filed July 14, 2014.
Gabriel had not presented an administrative FTCA claim to the appropriate federal agency before filing suit.
Gabriel submitted an administrative claim on April 6, 2015, after the complaint was filed.
The district court granted the government’s dispositive motion, treated it as a summary-judgment ruling, and dismissed the action with prejudice for failure to exhaust administrative remedies.
The Tenth Circuit agreed the claim was unexhausted (thus the district court lacked subject-matter jurisdiction) but held the dismissal should have been without prejudice and not converted to summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FTCA exhaustion is jurisdictional	Gabriel argued exhaustion could be satisfied after filing and contended Wong required a stay to permit exhaustion	Government argued exhaustion under 28 U.S.C. § 2675(a) is jurisdictional and was not met before suit	FTCA exhaustion is jurisdictional; suit was filed before administrative claim, so court lacked jurisdiction
Effect of filing administrative claim after suit	Gabriel asserted his post-suit filing cured the defect or warranted a stay	Government contended post-suit filing does not cure lack of jurisdiction	Post-suit administrative filing does not confer jurisdiction over the earlier-filed suit
Impact of United States v. Wong on exhaustion	Gabriel relied on Wong to justify tolling or staying proceedings to permit exhaustion	Government noted Wong addressed equitable tolling of time bars, not the exhaustion requirement	Wong does not alter the jurisdictional exhaustion rule; it addresses timeliness, not pre-suit exhaustion
Proper procedural disposition when jurisdiction is lacking	Gabriel implicitly favored allowing merits consideration or prejudice dismissal	Government moved to dismiss; district court treated motion as summary judgment and dismissed with prejudice	A factual jurisdictional attack does not convert to summary judgment absent intertwining of merits; dismissal for lack of jurisdiction was proper and must be without prejudice

Cizek v. United States, 953 F.2d 1232 (10th Cir. 1992) (noting concurrence in outcome but disagreement with reasoning)
Walden v. Bartlett, 840 F.2d 771 (10th Cir. 1988) (standard: subject-matter jurisdiction reviewed de novo)
Duplan v. Harper, 188 F.3d 1195 (10th Cir. 1999) (post-suit administrative filing cannot cure jurisdictional defect)
United States v. Wong, 135 S. Ct. 1625 (2015) (FTCA time bars are nonjurisdictional and subject to equitable tolling)
Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) (distinction between facial and factual jurisdictional attacks)
Wheeler v. Hurdman, 825 F.2d 257 (10th Cir. 1987) (evidence outside pleadings does not automatically convert jurisdictional motion to Rule 56)
Pringle v. United States, 208 F.3d 1220 (10th Cir. 2000) (intertwining test for conversion to summary judgment)
Brereton v. Bountiful City Corp., 434 F.3d 1213 (10th Cir. 2006) (dismissals for lack of jurisdiction should be without prejudice)