Nelda Kellom v. Mitchell Quinn, 86 F.4th 288

Background

On April 27, 2015, federal agent Michael Quinn shot and killed Terrance Kellom; Kellom’s estate and family later sued.
The estate filed an FTCA suit in federal court before presenting an administrative claim to DHS; the United States substituted as defendant under FTCA procedure and DHS later denied the estate’s administrative claim.
Instead of filing a new action after denial, the estate amended its original complaint to continue its FTCA claims; the district court dismissed those FTCA claims as jurisdictional (later corrected to a nonjurisdictional, mandatory claims‑processing rule).
Kellom’s family joined the estate’s amended complaint in May 2018 (about three years after the death) without prior administrative exhaustion and did not present an administrative claim to DHS until October 2018 (≈3.5 years after the death).
On remand, the district court held the United States did not waive or forfeit its exhaustion defense and that the estate’s amended complaint did not cure the premature FTCA filing; it also held the family’s FTCA claims were time‑barred under 28 U.S.C. § 2401(b) and did not relate back for Westfall Act purposes.
The Sixth Circuit affirmed: the United States preserved its exhaustion defense; an amended complaint cannot cure an FTCA suit filed before administrative exhaustion; and the family’s claims are forever barred because they failed to file an administrative claim within two years and relation‑back to the estate’s original filing does not apply to new plaintiffs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the United States waived or forfeited its FTCA exhaustion defense	Estate: U.S. failed to preserve the defense by not opposing amendment/moving to reconsider	U.S.: repeatedly raised exhaustion in answer, motion to dismiss, and summary judgment; reserved defenses when not opposing amendment	Held: No waiver/forfeiture; U.S. properly preserved the defense
Whether an amended complaint cures a plaintiff’s filing of an FTCA suit made before administrative exhaustion	Estate: Amending the complaint after exhaustion cured the defect	U.S.: McNeil requires a new action; amendment cannot retroactively cure premature suit	Held: Amendment does not cure; FTCA suit must be refiled as a new action after exhaustion (McNeil controls)
Whether the estate is entitled to a new trial on its Bivens excessive‑force claim	Estate: sought new trial	U.S.: trial verdict stands	Held: Previously decided on appeal against estate; no new trial (decision is binding)
Whether Kellom family’s FTCA claims relate back for Westfall Act tolling and are timely under §2401(b)	Family: Joining the estate’s amended complaint means their FTCA claims relate back to the estate’s original filing date	U.S.: Relation‑back under Rule 15 does not apply to new plaintiffs; the family’s administrative claim was untimely	Held: Relation‑back inapplicable to new plaintiffs; family’s administrative claim was filed after the two‑year limit and is forever barred

Key Cases Cited

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (establishing Bivens remedy for constitutional torts)
McNeil v. United States, 508 U.S. 106 (FTCA claim must be presented to agency before suit; exhaustion cannot be cured by post‑filing exhaustion — requires new action)
Arbaugh v. Y & H Corp., 546 U.S. 500 (distinguishing jurisdictional rules from mandatory claims‑processing rules)
Calhoun v. Bergh, 769 F.3d 409 (6th Cir.) (an amended complaint supersedes earlier complaints)
Miller v. French, 530 U.S. 327 (plain meaning of “shall” in statutory commands)
United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (Congress does not lightly displace the Federal Rules)
Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir.) (Rule 15 relation‑back does not apply to adding new plaintiffs)
Allgeier v. United States, 909 F.2d 869 (6th Cir.) (applying Rule 15 relation‑back principles in the Westfall Act context)
Copen v. United States, 3 F.4th 875 (6th Cir.) (FTCA exhaustion is mandatory though not jurisdictional)