ESTATE OF ELEUSIPA VAN EMBURGH, by and through its Administrator James Michael Van Emburgh; JAMES MICHAEL VAN EMBURGH, Individually; JAMES ALAN VAN EMBURGH, Individually; IMELDA CROVETTO, Individually; AMY RIVERA, Individually; ALEXIS NAVARRO, Individually; RAFAEL NAVARRO, Individually, Plaintiffs - Appellants, v. UNITED STATES OF AMERICA, Defendant - Appellee.
No. 23-1011
United States Court of Appeals for the Fourth Circuit
March 12, 2024
Before GREGORY, WYNN, and RUSHING, Circuit Judges.
PUBLISHED. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:21−cv−00603−RAJ−LRL). Argued: December 7, 2023.
ARGUED: Benjamin Aaron Beliles, BELILES & ASSOCIATES, PLLC, Richmond, Virginia, for Appellants. Daniel Patrick Shean, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Anna M. McKenzie, Assistant United States
Plaintiffs brought this action against the United States pursuant to the Federal Tort Claims Act (“FTCA“), asserting negligence, wrongful death, and survival claims arising from Eleusipa Van Emburgh‘s death after she was treated at a Navy medical center. The district court dismissed their claims for lack of subject matter jurisdiction, and this appeal followed. Because we hold that regulations enacted pursuant to
I.
A.
On October 2, 2019, Van Emburgh underwent an operation at a Navy medical center in Virginia. During the operation, she suffered a surgical perforation that Van Emburgh‘s estate (“the Estate“), her spouse, and her five children (collectively, “Plaintiffs“) allege resulted from and was worsened by negligent care. Van Emburgh was eventually transferred to a hospital that was not affiliated with the Navy or Department of Defense. After several weeks at the second hospital, she was discharged to her home. On November 9, 2019, three days after returning home, she died from complications related to the surgical perforation.
On April 27, 2020, each of the seven Plaintiffs submitted an administrative claim to the Navy for damages, alleging that Van Emburgh‘s medical complications and death were the result of substandard care she received at the Navy medical center. The claims each listed $25,000,000 in damages sought for wrongful death, except for the claim by Van Emburgh‘s daughter Imelda Crovetto in her individual capacity, which listed no damages. The claim submitted on behalf of the Estate was signed by Crovetto, whom Van Emburgh‘s will named as executor of the Estate.
After more than 10 months of investigation, on March 11, 2021, the Government denied all seven claims because it found that “the applicable standard of care was met by each of [Van Emburgh‘s] Navy health care providers” and therefore “[t]he damages [Plaintiffs] alleged did not result from any negligent act or omission on the part of an employee of the United States.” J.A. 167.1 The letter denying the claims also stated Plaintiffs should “be advised” that they “ha[d] six months from the date of mailing of th[e] letter to file suit in the appropriate Federal district court” if they wanted to pursue their claims. Id.
Less than four months later, Plaintiffs filed suit under the FTCA, asserting negligence, wrongful death, and survival claims. When the case was filed, the complaint identified the Estate as proceeding “by and through its executor Imelda Crovetto,” whom the complaint alleged was the Estate‘s representative. J.A. 5.
Under Virginia law, a wrongful death action “shall be brought by and in the name of the personal representative of such deceased person.”
After receiving the Government‘s discovery requests, Plaintiffs attempted to qualify Crovetto as the Estate‘s executor. Administrative difficulties, caused in part by the COVID-19 pandemic, prevented Plaintiffs from properly qualifying Crovetto, who was living in Japan at the time and could not travel to complete the process. So, Plaintiffs ultimately qualified Van Emburgh‘s spouse, James Michael Van Emburgh (“James“), as administrator of the Estate for purposes of the lawsuit. During that process, Plaintiffs informed the Government‘s counsel they would withdraw their original lawsuit and refile
Once James was formally qualified as the Estate‘s administrator, Plaintiffs filed the present lawsuit and stipulated to dismissal of the original lawsuit. The instant action contains the same factual allegations and asserts the same negligence, wrongful death, and survival claims as the original suit. The complaint in this case identified the Estate as proceeding “by and th[r]ough its Administrator James Michael Van Emburgh,” J.A. 42, and alleged that James “is . . . the duly appointed Administrator of the Estate of Eleusipa Van Emburgh,” J.A. 44 ¶ 8.
C.
A month after the stipulated dismissal of the first case, the Government moved to dismiss the present case for lack of subject matter jurisdiction and moved in the alternative for summary judgment or dismissal pursuant to
After briefing, the district court dismissed the complaint for lack of subject matter jurisdiction pursuant to
Plaintiffs filed a motion for reconsideration pursuant to
II.
“Since the district court‘s dismissal of the complaint under [Rule] 12(b)(1) is a legal determination, we review its judgment de novo.” Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (emphasis omitted).
Plaintiffs contend that the district court erred in dismissing the case for lack of subject matter jurisdiction because, in their view, they satisfied the minimum jurisdictional requirements imposed by the FTCA. We largely agree because Congress has not authorized regulations that impose additional jurisdictional requirements beyond those the statute itself imposes; thus, the regulations on which the Government relies are nonjurisdictional. Accordingly, we look only to the requirements provided by the statute and hold that all but one Plaintiff satisfied the FTCA‘s jurisdictional requirements.
A.
From the outset, we address the question of whether Plaintiffs’ argument about the scope of the FTCA‘s jurisdictional requirements is properly before us. The Government argues that Plaintiffs failed to preserve this argument because they first raised it in their motion for reconsideration. We conclude that even if that is true, it is appropriate and desirable for us to consider the matter.
Even so, we retain broad discretion to excuse a party‘s failure to timely raise an argument. Singleton v. Wulff, 428 U.S. 106, 121 (1976); accord Manning v. Caldwell, 930 F.3d 264, 271 (4th Cir. 2019) (en banc) (collecting cases). “Indeed, we have recognized that when deemed necessary to reach the correct result on matters of public importance, we may sua sponte consider points not presented to the district court[.]” Manning, 930 F.3d at 271 (internal quotation marks and citations omitted).
In this case, the district court held that an FTCA regulation,
B.
We begin with the jurisdictional requirements imposed by the FTCA itself. We conclude that, except for Crovetto, Plaintiffs satisfy the statutory jurisdictional requirements.
“As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity.” Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA provides a waiver of sovereign immunity for damages suits related to certain actions by federal employees that occur within the scope of their employment. See
When filing suit under the FTCA, plaintiffs must satisfy certain jurisdictional prerequisites. See Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). One such jurisdictional prerequisite is the administrative exhaustion requirement.
This administrative exhaustion requirement contains three elements. First, a plaintiff must “present[ their] claim to the appropriate Federal agency[.]”
At oral argument, the Government argued that these three requirements are not the only exhaustion-related jurisdictional requirements imposed by the text of the FTCA. Specifically, the Government argued that because certain provisions of the FTCA reference the “law of the place” where the act or omissions giving rise to the claim occurred, the exhaustion requirement in
We disagree. The provisions that the Government references explicitly incorporate state law for purposes of determining the scope of the government‘s liability. Those statutes have nothing to do with the proper procedure for presentment of the claim to the federal agency, which is governed by
Each of the seven Plaintiffs filed a claim with the Navy, seeking damages related to harms arising from Van Emburgh‘s death. Each of the claims stated a valuation of $25,000,000—save for the individual claim submitted by Crovetto, which did not include a valuation. And each of the Plaintiffs waited until after the Navy denied their claims before filing the original complaint. Therefore, each plaintiff—besides Crovetto—satisfied the three statutory elements of the administrative exhaustion requirement.
Since most Plaintiffs satisfied the basic administrative exhaustion requirements listed in the statute, the question becomes whether the FTCA‘s implementing regulations provide additional, more stringent requirements.
C.
The district court found that Navy regulations impose additional jurisdictional elements as part of the administrative exhaustion requirement. Est. of Van Emburgh, 2022 WL 3581678, at *3. That was error.
Second are the Navy-specific regulations, which supplement the Attorney General‘s regulations. See
The Government argues that
We disagree. Section 2675 does not empower the Attorney General or the Navy to adopt jurisdiction-defining requirements via regulation. Rather, the regulations in question relate only to an agency‘s ability to settle claims once they have been presented in compliance with
The relevant Attorney General regulation, “28 C.F.R. § 14.3[,] was promulgated pursuant to
Section 2672 provides that
[t]he head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred[.]
Accordingly, “[t]he requirements of section 2675 and of section 2672 are . . . independent. Presentation of a claim and its settlement are distinct processes[.]” Adams v. United States, 615 F.2d 284, 290 (5th Cir. 1980), decision clarified on denial of reh‘g, 622 F.2d 197 (5th Cir. 1980); Warren v. U.S. Dep‘t of Interior Bureau of Land Mgmt., 724 F.2d 776, 779 (9th Cir. 1984) (en banc) (“Congress intended the requirements of section 2675 to function independently of section 2672.“). Since the two statutory provisions are completely independent, the grant of rulemaking authority in
Nor does the text of
Recognizing that
We agree with the analysis adopted by the majority of circuits, and therefore hold that
But the citation in Ahmed and Kokotis to both the statute and regulation only goes to show that the regulatory sum certain requirement reiterates the statutory requirement
In Ahmed, we also briefly mentioned one requirement that derives solely from the regulations. But we understand our reference to that second requirement as dictum. We may, of course, sometimes issue alternative holdings that have precedential effect. Gestamp S.C., LLC v. NLRB, 769 F.3d 254, 262 n.4 (4th Cir. 2014). However, our brief reference in Ahmed to an additional argument did not come close to establishing an alternative holding.
The reference came as a brief point in our more thorough discussion of the sum certain requirement, and the additional requirement had no impact on our conclusion. Specifically, we mentioned a requirement from
Because the Ahmed plaintiffs’ failure to include a sum certain with their claim resolved the case, our brief discussion of the documentation requirement could have been deleted without any impact on the analytical foundations of the decision. With neither context nor an express statement supporting a conclusion that we issued an alternative holding based on the documentation requirement, we conclude that brief portion of the opinion is dictum and therefore does not control our analysis. See Payne v. Taslimi, 998 F.3d 648, 654–55 (4th Cir. 2021) (quoting Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir. 1999)); id. at 655 (“If necessary to the outcome, a precedent‘s reasoning must be followed; otherwise, we are not so bound.“). We therefore read Ahmed for no more than what it is: a decision stating that a plaintiff failed to comply with a host of statutory and regulatory requirements, at least some of which were jurisdictional.
This case, unlike Ahmed and Kokotis, squarely presents the question of whether requirements found only in regulations enacted pursuant to
In sum, we agree with the substantial majority of other circuits that the FTCA‘s implementing regulations do not impose jurisdictional requirements related to administrative exhaustion beyond those specified in
D.
The Government suggests that we should alternatively affirm on the ground that Plaintiffs’ second lawsuit was filed more than six months after the Navy denied their claims. See
The district court dismissed Plaintiffs’ claims for lack of subject matter jurisdiction, and therefore did not address whether the claims would otherwise have been timely. See Est. of Van Emburgh, 2022 WL 3581678, at *3–4. “[W]e are a court of review, not first view[.]” United States v. Frank, 8 F.4th 320, 333 (4th Cir. 2021) (internal quotation marks
III.
The Estate and five of the six individual Plaintiffs satisfied the jurisdictional administrative exhaustion requirements laid out in
Because Imelda Crovetto filed her individual administrative claim without providing a valuation of the claim, however, we affirm the district court‘s dismissal of her claim for lack of subject matter jurisdiction.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
The majority concludes that the regulatory standards for presenting a claim against the United States do not inform our reading of the Federal Tort Claims Act‘s jurisdictional presentment requirement. If we were writing on a clean slate, that might be a fine conclusion. But our Court has long applied the FTCA implementing regulations when enforcing the statute‘s jurisdictional presentment requirement. Because the majority opinion contradicts our Circuit‘s precedent, I must respectfully dissent.
I.
The FTCA waives the sovereign immunity of the United States for certain torts committed by federal employees. FDIC v. Meyer, 510 U.S. 471, 475 (1994); see
In Ahmed v. United States, 30 F.3d 514 (4th Cir. 1994), this Court addressed what it means for a claimant to have “properly presented” a claim to a federal agency “to satisfy” Section 2675(a). Id. at 516. We answered that question by consulting “[r]egulations promulgated pursuant to the FTCA[, which] provide that a claim is presented” when certain regulatory requirements are met. Id. Specifically, we defined “presented” in Section 2675(a) by reference to
After articulating this standard, the Ahmed Court then “turn[ed] to the facts of this case to determine if these requirements were met.” Id. The Court found the plaintiffs had failed two of these requirements: first, their attorney did not “submit any evidence, along with the SF 95, indicating that he was a duly authorized representative to file [a personal injury] claim” on their behalf, and second, “no sum certain was ever demanded.” Id. Because the plaintiffs “failed to present their personal injury claim” to the agency as required by Section 2675(a), the Court affirmed dismissal of the case for lack of jurisdiction. Id. at 518.
Six years later, we confirmed that “[a]n administrative claim must be properly presented” to a federal agency to satisfy the statutory jurisdictional prerequisite, and the “FTCA‘s implementing regulations” define proper presentment. Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000). Citing Ahmed, the Court acknowledged that
The majority‘s analysis cannot be reconciled with the reasoning of Ahmed or Kokotis. Both of those decisions hinge on the principle that the FTCA‘s implementing regulations inform the meaning of the statute‘s presentment requirement, which is jurisdictional. Both decisions reason, in no uncertain terms, that the FTCA‘s presentment requirement demands a claimant to have properly presented his claim to the agency in accordance with applicable regulations before a federal court may consider it.
The explanations the majority offers for not following this Court‘s precedent do not withstand scrutiny.
First, the majority mischaracterizes Ahmed and Kokotis as relying on both Section 2675(b) and
Similarly, at no point did the Court in Ahmed cite Section 2675(b)—the sum certain provision of the statute—for its jurisdictional holding. Rather, the Court cited Section 2675(a)—the presentment requirement—and then consulted
Second, the majority incorrectly dismisses Ahmed‘s other ground of decision as “dictum.” Supra, at 17. Recall that the Court in Ahmed found that two “requirements” for presenting a personal injury claim to the administrative agency “were [not] met” by the plaintiffs there. Ahmed, 30 F.3d at 517. “In addition” to not satisfying the requirement to demand a sum certain from the agency, the Court also found that the plaintiffs did not “submit any evidence, along with the SF 95, indicating that [the attorney who filed the form] was a duly authorized representative to file [a personal injury] claim” on their behalf. Id. The requirement that a claimant‘s representative submit evidence of his authority to present the claim on the claimant‘s behalf is found only in the regulation—specifically,
The majority wishes this holding away as “brief” “dictum.” Supra, at 18. But “alternative holdings are not dicta.” Gestamp S.C., LLC v. NLRB, 769 F.3d 254, 262 n.4 (4th Cir. 2014); see also MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 346 n.4 (1986); United States v. Fulks, 454 F.3d 410, 434–435 (4th Cir. 2006). The Court in Ahmed gave two reasons for its holding. As a later panel of this Circuit, we are not entitled to overrule either one. See McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc) (“[O]ne panel cannot overrule a decision issued by another panel.“).
The majority‘s conclusion that the FTCA‘s implementing regulations do not bear on whether a claimant has properly “presented the claim” to the appropriate agency cannot be squared with the reasoning of Ahmed or Kokotis.
II.
Bound by this Court‘s precedent, the district court correctly dismissed the complaint for lack of jurisdiction.
As previously mentioned,
In Virginia (the relevant State here), a wrongful death or survival claim “may only ‘be brought by and in the name of the personal representative‘” of the deceased. Johnston Mem‘l Hosp. v. Bazemore, 672 S.E.2d 858, 860 (Va. 2009) (quoting
Other members of Van Emburgh‘s family submitted wrongful death claims to the Navy in their individual capacities—not on behalf of the estate—and, in any event, none of them were personal representatives of the estate either. And Virginia law does not authorize surviving family members to represent the estate without being qualified as a personal representative. See Bolling v. D‘Amato, 526 S.E.2d 257, 259 (Va. 2000) (holding that decedent‘s son “lacked standing to bring [a] wrongful death action” because he had not been properly appointed as personal representative of the estate); Platt v. Griffith, 858 S.E.2d 413, 415 (Va. 2021) (“[T]he personal representative, not a beneficiary of the estate, is the proper party to litigate on behalf of the estate.” (internal quotation marks omitted)). Although the Circuit Court qualified James Van Emburgh as the estate‘s administrator in November 2021, he did not then return to the Navy to properly present a claim for wrongful death on the estate‘s behalf as its personal representative.
Consequently, the estate‘s wrongful death claim was not “properly presented” to the Navy before the plaintiffs filed suit in federal court. Kokotis, 223 F.3d at 278; Ahmed, 30
According to our precedent, the plaintiffs’ failure to properly present the estate‘s wrongful death claim to the Navy deprived the district court of jurisdiction over the subsequently filed FTCA suit. Kokotis, 223 F.3d at 278; Ahmed, 30 F.3d at 516–517; cf. Rollo-Carlson as Tr. for Flackus-Carlson v. United States, 971 F.3d 768, 771 (8th Cir. 2020) (affirming dismissal for lack of jurisdiction because plaintiff was not properly appointed as the estate‘s representative under state law when she filed wrongful death claim with the agency). The district court therefore properly dismissed the complaint, and I would affirm.