Mader v. U.S.

Decision Date07 September 2011
Docket NumberNo. 09–1025.,09–1025.
PartiesNancy MADER, Personal Representative of the Estate of Robert Mader, Appellant,v.UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

654 F.3d 794

Nancy MADER, Personal Representative of the Estate of Robert Mader, Appellant,
UNITED STATES of America, Appellee.

No. 09–1025.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2011.Filed: Sept. 7, 2011.

[654 F.3d 796]

John P. Ellis, argued, D.C. Bradford, on the brief, Omaha, NE, for appellant.Melissa N. Patterson, argued, Civil Division, USDOJ, Washington, DC, Frederick D. Franklin, AUSA, Omaha, NE, Lynett M. Wagner, AUSA, Omaha, NE, Thomas M. Bondy, Civil Division, USDOJ, Washington, DC, on the brief, for appellee.Before RILEY, Chief Judge, WOLLMAN, BEAM, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges.BEAM, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, LOKEN (except as to Part II), COLLOTON (except as to Part V), GRUENDER and BENTON, Circuit Judges, join.

In this appeal concerning the Federal Tort Claims Act, we determine whether a purported personal representative may invoke the adjudicatory capacity, that is, the subject-matter jurisdiction of a United States District Court on behalf of statutory beneficiaries if, under 28 U.S.C. § 2675(a), the representative fails or refuses to first present to the appropriate

[654 F.3d 797]

federal agency evidence of her authority to act on behalf of such beneficiaries.

“[S]overeign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). If Congress so chooses, however, it may waive the United States's sovereign immunity and “prescribe the terms and conditions on which [the United States] consents to be sued, and the manner in which the suit shall be conducted.” Beers v. State, 61 U.S. (20 How.) 527, 529, 15 L.Ed. 991 (1857). In 1946, Congress passed the Federal Tort Claims Act (FTCA), a limited waiver of the United States's sovereign immunity, to permit persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court. Molzof ex rel. Molzof v. United States, 502 U.S. 301, 304, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). In relevant part, the FTCA's liability and jurisdiction-conferring language provides that federal district courts have “exclusive jurisdiction” over claims against the United States for money damages for “personal injury or death caused by the negligent or wrongful act or omission” of federal employees “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.” 28 U.S.C. § 1346(b)(1); see also id. § 2674. Thus, while “the extent of the United States'[s] liability under the FTCA is generally determined by reference to state law,” Molzof, 502 U.S. at 305, 112 S.Ct. 711, the adjudicatory capacity over such claims is strictly limited to the various federal district courts.

In its infancy, the FTCA granted federal agencies little authority to administratively settle FTCA claims, and FTCA claimants could, at their discretion, file suit in federal district court without first subjecting their claims to agency attention. McNeil v. United States, 508 U.S. 106, 112 n. 7, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). But, in 1966, Congress amended the FTCA and established a new framework for the administrative consideration and settlement of claims. Id. Specifically, Congress broadened the settlement authority of agencies through the enactment of 28 U.S.C. § 2672, which provides that federal agency heads, “in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any [FTCA] claim.” Along with § 2672, Congress enacted 28 U.S.C. § 2675(a), which provides that “[a]n [FTCA] action [[1 shall not be instituted upon a claim against the United States ... 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.” The Supreme Court has recognized that “[t]he most natural reading of [ § 2675(a) ] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process.” McNeil, 508 U.S. at 112, 113 S.Ct. 1980.

[654 F.3d 798]

While § 2675(a) bars suit unless a claim is first “presented” to the appropriate federal agency, the FTCA does not expressly articulate in § 2671, its definitions section, what information must be included in a properly “presented” claim. Purportedly acting pursuant to Congress's grant of rulemaking authority in § 2672, the Attorney General promulgated 28 C.F.R. § 14.2(a) to define the presentment requirement. Specifically, § 14.2(a) provides:

For purposes of the provisions of 28 U.S.C. § 2401(b),2 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, [1] an executed Standard Form 95 or other written notification of an incident, [2] accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and [3] the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

Notwithstanding the Attorney General's regulation, there remains judicial discord over whether § 2675(a) requires the presentation of all of the evidence listed in § 14.2(a). Specifically, courts have disagreed about whether § 2675(a) requires presentation of evidence of a representative's authority to submit a claim on behalf of the claimant. Compare Kanar v. United States, 118 F.3d 527, 530 (7th Cir.1997) with Warren v. U.S. Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir.1984) (en banc).

A panel from this circuit directly addressed the evidence-of-authority issue in Lunsford v. United States, 570 F.2d 221 (8th Cir.1977), and held that a representative must submit evidence of his authority to act on behalf of a claimant in order to satisfy § 2675(a)'s jurisdictional presentment requirement. Id. at 225–26. There, third parties attempted to present FTCA claims to a federal agency on behalf of a class of unnamed claimants without evidence of their authority to do so. Id. at 224–25. Noting that “the major reason” for § 2675(a)'s presentment requirement is to “facilitate settlement of [FTCA] cases,” id. at 226 (quotations omitted), the panel concluded that the third parties “inadequately presented the claims of unnamed class members because they failed to demonstrate the existence of the necessary agency relationship.” Id. Without such evidence, reasoned the court, “the ability of the United States to negotiate a settlement is impeded.” Id. (quotation omitted).

Now, some thirty-four years after the Lunsford decision, the facts of the present case bring the evidence-of-authority issue before our en banc court.


Robert L. Mader (Mr. Mader) was treated for depression and paranoia at the Veterans Affairs (VA) Medical Center in Lincoln, Nebraska. On August 3, 2004, approximately two months after a VA doctor altered his course of treatment, Mr. Mader died of a self-inflicted gunshot wound. Via Standard Form 95, Nancy Mader (Ms. Mader), his widow, purporting

[654 F.3d 799]

to act as the “Personal Representative of the Estate of Robert L. Mader,” sought to present a wrongful death claim to the VA on August 3, 2006, the two-year anniversary of Mr. Mader's death. Ms. Mader's attorney signed the form and mailed it to the VA. Although Form 95, which recites the language of 28 C.F.R. § 14.2(a), expressly required Ms. Mader to submit evidence of her authority to present the claim on behalf of the claim's statutorily designated beneficiaries,3 no such evidence was ever presented to the VA in this case.

Indeed, on August 21, 2006, the VA sent Ms. Mader's lawyer a letter requesting evidence of Ms. Mader's status as personal representative. Neither Ms. Mader nor her attorney responded to this entreaty. The VA later telephoned Ms. Mader's counsel at least four times asking for the information but, again, neither Ms. Mader nor her lawyer replied.4 On September 19, 2007, the VA denied the claim in writing due to Ms. Mader's repeated failure to submit the required authority evidence. In the alternative, the VA denied the claim on its merits.

In March 2008, Ms. Mader—again claiming to be the personal representative of Mr. Mader's estate, and purportedly acting on behalf of statutory beneficiaries—filed a wrongful death action against the United States in federal district court under the FTCA. Upon the government's Federal Rule of Civil Procedure 12(b)(1) motion, the district court applied Lunsford and dismissed the action for want of subject-matter jurisdiction because Ms. Mader failed to present the requisite evidence of authority to the VA under 28 U.S.C. § 2675(a). Mader appealed the dismissal to a panel of this court.

A divided panel reversed the district court, holding that § 2675(a) did not require Ms. Mader to present to the VA evidence of her authority to act on behalf of the claim's beneficiaries. According to the panel majority, Lunsford's interpretation of § 2675(a)'s presentment requirement is in irreconcilable conflict with the so-called “minimal notice” interpretation of § 2675(a) articulated in Farmers State Savings Bank v. Farmers Home Administration, 866 F.2d 276 (8th Cir.1989). In Farmers, the court explained that a claimant may satisfy the presentment requirement by submitting: (1) sufficient information for the agency to investigate the claim; and (2) the amount of damages sought.5 Id. at 277. Although Lunsford was decided first (and was even approvingly cited in Farmers), the panel majority disregarded Lunsford and, instead, applied the...

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