Brady v. USA
| Decision Date | 12 April 2000 |
| Docket Number | No. 99-15135,99-15135 |
| Citation | 211 F.3d 499 |
| Parties | (9th Cir. 2000) CLARISSA BRADY,Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Warner Hagen, District Judge, Presiding COUNSEL: David D. Loreman, Elko, Nevada, for the plaintiff-appellant.
Shirley Smith, Assistant United States Attorney, Reno, Nevada, for the defendant-appellee.
Appeal from the United States District Court for the District of Nevada
Before: A. Wallace Tashima, and Susan P. Graber, Circuit Judges, and Alicemarie H. Stotler, 2 District Judge.
Opinion by Judge Graber
Plaintiff Clarissa Brady, acting as personal representative of the estate of her late son, sued the United States for wrongful death under the Federal Tort Claims Act (FTCA). She alleged that three doctors at a federal clinic were negligent in failing to prevent her son from committing suicide. After setting aside a clerk's default against the government, the district court dismissed Plaintiff's action on the ground that Plaintiff had failed to exhaust her administrative remedies by presenting an administrative claim to the appropriate federal agency before filing her complaint in district court. We affirm.
Plaintiff has filed two similar complaints, both alleging wrongful death based on her son's suicide. She filed her first complaint on June 28, 1996, naming a number of defendants, including the United States Department of Health and Human Services. The district court dismissed that complaint because Plaintiff had failed to exhaust her administrative remedies, as required by the FTCA. See 28 U.S.C. S 2675(a). The district court allowed Plaintiff 20 days within which to file an amended complaint. After she did not refile during that period, the court dismissed the complaint without prejudice.
On August 12, 1997, Plaintiff filed her second complaint, which is the subject of this appeal. That complaint names only the United States as a defendant. In her second complaint, Plaintiff alleges that she complied with the administrative claim requirements of 28 U.S.C. S 2675(a). Although it is not explicit in the second complaint, Plaintiff's argument was, and is, that she complied with that requirement by serving Defendant with her first complaint in 1996.
On December 8, 1997, Defendant moved to dismiss Plaintiff's second complaint, again on the ground that Plaintiff had failed to file an administrative claim. However, Defendant did not attach proof of service to its motion and, on February 3, 1998, the district court struck the motion. On February 11, a clerk's default was entered against Defendant for failing to respond to Plaintiff's complaint in a timely manner.
Defendant asserts that it did not receive a copy of the clerk's default until June 9, 1998. After receiving it, Defendant moved on June 15 to have the default set aside, arguing that its failure to include the proof of service was a clerical error that had not prejudiced Plaintiff. Defendant also argued, in its reply memorandum, that the district court lacked jurisdiction over Plaintiff's complaint, because Plaintiff had not satisfied the jurisdictional requirement of filing an administrative claim under the FTCA. Defendant further argued that, because the court lacked jurisdiction over the complaint, it necessarily also lacked jurisdiction to enter a default judgment. On July 27, 1998, the district court set aside the default without comment.
Defendant had filed a second motion to dismiss, this one complete with proof of service, on March 5, 1998, while the clerk's default was in force. After granting Defendant's motion to set aside the default, the district court agreed to consider that second motion and directed Plaintiff to reply. Plaintiff replied. On December 22, 1998, the district court granted Defendant's motion to dismiss. In dismissing Plaintiff's complaint, the court concluded that Plaintiff again had failed to comply with the FTCA requirement that she file an administrative claim before suing the federal government. Because Plaintiff had failed to comply with that requirement, the court held that it lacked subject-matter jurisdiction over Plaintiff's action.
Plaintiff timely filed a notice of appeal. On January 12, 1999, she also filed an administrative claim with the Department of Health and Human Services. That administrative claim, which was presented on a standard Form 95 (Claim for Damage, Injury, or Death), alleges the same wrongful conduct that was the foundation of this action and of Plaintiff's first action.
Dismissal for lack of subject-matter jurisdiction is reviewed de novo. See United States ex rel. Newsham v. Lockheed Missiles & Space Co., 171 F.3d 1208, 1213 (9th Cir.), petition for cert. filed, 68 U.S.L.W. 3411 (U.S. Dec. 21, 1999) (No. 991060). We review for abuse of discretion a district court's decision to set aside an entry of default. See O'Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 1994).
The requirement that a party file an administrative claim before filing an action under the FTCA arises from 28 U.S.C. S 2675(a), which provides in part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
The requirement of an administrative claim is jurisdictional. See Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). Because the requirement is jurisdictional, it Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992) (citations and internal quotation marks omitted).
Plaintiff did not present an administrative claim to the Department of Health and Human Services until after her first and second complaints were dismissed. Accordingly, she does not satisfy the statutory requirements that she first file such a claim, and have it finally denied by the agency in writing, before filing her complaint in district court. Nevertheless, she argues that she satisfied the requirements of 28 U.S.C. S 2675(a) in this case, because her first complaint put the agency on notice of all the essential elements of her claim. In Plaintiff's view, the service of that first judicial complaint on the agency, in 1996, amounted to the presentation of an administrative claim to the agency, thus satisfying the jurisdictional prerequisite for her second complaint.
Plaintiff points out that she was not required to present her claim to the agency on Form 95, so long as she presented the functional equivalent of that form. She also suggests that this court has interpreted 28 U.S.C. S 2675(a) as requiring only "minimal notice" to an agency, citing Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982). Avery held that a "skeletal" administrative claim that informed the agency of the nature of the alleged injury and the amount of damages was sufficient under the FTCA. See id. at 610-11.
Plaintiff's argument misses the mark. The difficulty with her complaints is not that they are too "skeletal" but, rather, that she filed them in district court without first filing any claim whatsoever with the agency. The purpose of the FTCA's administrative claim procedure is "to encourage administrative settlement of claims against the United States and thereby to prevent an unnecessary burdening of the courts." Jerves, 966 F.2d at 520. As the Supreme Court noted in McNeil v. United States, 508 U.S. 106, 112 (1993):
Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes some burden on the judicial sys tem and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the stat ute governs the processing of a vast multitude of claims.
(Footnote omitted.)
The plaintiffs in Avery satisfied the purpose of the requirement because their administrative claim, while imperfect, was an administrative claim. It put...
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