Pers. Representative Of The Estate Of Robert Mader v. USA

• Decision Date: 31 August 2010
• Docket Number: No. 09-1025.,09-1025.
• Citation: 619 F.3d 996
• Parties: Nancy MADER, Personal Representative of the Estate of Robert Mader, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

619 F.3d 996

Nancy MADER, Personal Representative of the Estate of Robert Mader, Appellant,

v.UNITED STATES of America, Appellee.

No. 09-1025.

United States Court of Appeals,Eighth Circuit.

Submitted: Oct. 22, 2009.

Filed: Aug. 31, 2010.

John P. Ellis, argued, D.C. Bradford, on the brief, Omaha, NE, for appellant.

Lynnett Wagner, AUSA, argued, Frederick D. Franklin, AUSA, on the brief, Omaha, NE, for appellee.

Before BYE, BEAM and SHEPHERD, Circuit Judges.

BYE, Circuit Judge.

Nancy Mader sued the United States under the Federal Tort Claims Act, alleging the Department of Veterans Affairs (VA) acted negligently in providing medical treatment to her late husband, Robert Mader. The district court granted the government's motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), holding Mader's failure to provide the VA with proof of her status as the legal representative of her husband's estate, as well as proof of Mader's attorney's authority to bring a claim on her behalf, precluded jurisdiction. We conclude a plaintiff meets the Act's jurisdictional prerequisites when she provides the relevant agency with “(1) sufficient information for the agency to investigate the claims ... and (2) the amount of damages sought.” Farmers State Sav. Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir.1989). Because Mader met these requirements, we reverse and remand.

I

Robert Mader received medical care at the Veterans Affairs Medical Center in Lincoln, Nebraska. On or about May 28, 2004, a physician instructed Mr. Mader to taper off his previously prescribed medicine of Paxil by taking half a tablet daily for one week and then stopping entirely. Mr. Mader was then instructed to begin taking Seroquel. Mr. Mader followed these instructions. On or about August 3, 2004, Mr. Mader died due to a self-inflicted gunshot wound to the head.

Nancy Mader ¹ first sought an administrative remedy, filing a complaint with the VA, alleging negligence in the VA's medical care of her husband. After receiving the complaint, the VA requested proof of Mader's status as the legal representative of her husband's estate, as well as proof of Mader's attorney's authority to bring a claim on her behalf. Neither Mader nor her attorney responded to this request. The VA denied Mader's administrative claim on both procedural and substantive grounds. First, the VA found that Mader, by failing to submit the requested agency information, had failed to perfect a claim. Second, and in the alternative, the VA found that even if Mader had submitted a valid claim, no negligence occurred in the care of Robert Mader.

Nancy Mader filed suit in district court under the Federal Tort Claims Act. The United States brought a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1). The district court granted the government's motion, holding that Mader, by failing to answer the VA's request for information, had failed to satisfy the jurisdictional prerequisites to bringing an action in federal court. Accordingly, the district court dismissed Mader's complaint without prejudice. Mader appeals the dismissal of her case.

II

This court reviews the district court's subject matter jurisdiction de novo. See Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir.1990).

The United States enjoys sovereign immunity except to the extent it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Iowa Pub. Serv. Co. v. Iowa State Commerce Com'n, 407 F.2d 916, 920 (8th Cir.1969). A corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it. Peterson v. United States, 428 F.2d 368, 369 (8th Cir.1970).

The condition at issue here is the requirement found at 28 U.S.C. § 2675(a) that a claim be properly presented to the appropriate federal agency and denied before an action can be brought in federal district court. This court has held that the administrative exhaustion requirement of 28 U.S.C. § 2675(a) is jurisdictional, Melo v. United States, 505 F.2d 1026, 1028 (8th Cir.1974); Meeker v. United States, 435 F.2d 1219, 1220 (8th Cir.1970), and thus, it cannot be waived.

Section 2675(a) states, in relevant part: “An action 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....” The statute is silent on the meaning of the phrase “presented the claim.”

The relevant legislative history described the administrative exhaustion requirement as:

intended to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States. In accomplishing these purposes, the more expeditious procedures provided by this bill will have the effect of reducing the number of pending claims which may become stale because of the extended time required for their consideration. The committee observes that the improvements contemplated by the bill would not only benefit private litigants, but would also be beneficial to the courts, the agencies, and the Department of Justice itself.

S.Rep. No. 89-1327 (1966), as reprinted in 1966 U.S.C.C.A.N. 2515, 2516.

The Department of Justice has promulgated regulations governing the presentment process which the government contends govern the sufficiency of notice for jurisdictional purposes. The relevant regulation, 28 C.F.R. § 14.2, states, in relevant part:

a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, 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 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.

28 C.F.R. § 14.2(a).

There is a split of authority among courts regarding the scope of the jurisdictional prerequisites necessary to hear claims brought pursuant to the Federal Tort Claims Act. The majority of courts have held that a plaintiff must give the applicable agency “minimal notice,” which includes (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim. See, e.g., GAF Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987). A minority of courts have imposed a more stringent standard, holding that a plaintiff must comply with each of the regulatory requirements found in 28 C.F.R. § 14.2, which include evidence of “the title or legal capacity of the person signing ... accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.” See, e.g., Kanar v. United States, 118 F.3d 527, 528-29 (7th Cir.1997).

The leading case for the majority position is GAF Corp. There, the D.C. Circuit examined the statutory text, structure of the statute, and legislative history before concluding that Congress did not authorize the Department of Justice to create jurisdictional hurdles above and beyond those created explicitly by statute. GAF Corp., 818 F.2d at 919 (“[I]t is apparent that the presentment requirement imposes on claimants a burden of notice, not substantiation, of claims.”). In support of this position, the GAF Corp. court noted that while Congress gave executive agencies the authority to promulgate regulations regulating the claims settlement process, see 28 U.S.C. § 2672, executive agencies were given no authority by Congress to set the jurisdictional hurdles to bringing an action in federal court. Thus, according to the GAF Corp. court, while the regulations defining the presentation of a claim are valid insofar as the regulations dictate what a plaintiff must submit before the government will consider entering into a settlement, the regulations are invalid insofar as they purport to alter the Federal Tort Claims Act's jurisdictional requirements. GAF Corp., 818 F.2d at 919. The majority position has been adopted in the Ninth Circuit, see Warren v. United States Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir.1984) (en banc), the Third Circuit, see Tucker v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir.1982), the Fifth Circuit, see Adams v. United States, 615 F.2d 284, 289 (5th Cir.) clarified, reh'g denied, 622 F.2d 197 (5th Cir.1980), the Sixth Circuit, see Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981), and the Eleventh Circuit, see Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983).

The leading case for the minority position is Kanar. There, the Seventh Circuit held 28 C.F.R. § 14.2 does indeed supply the definition of presenting a claim for jurisdictional purposes. Kanar, 118 F.3d at 529. According to the Seventh Circuit, GAF Corp. and other courts read Congress' grant of authority too narrowly, “cover[ing] only the means of claims-processing, and not the identification of ‘claims' in the first place.” Id. Indeed, according to the Kanar court, the process of settling claims is inextricable from the presentation of claims itself; a poorly presented claim cannot realistically be settled. Therefore, the statutory grant of authority, according to the Kanar court, is broad enough to cover setting the terms for the presentation of claims. Id.

The Eighth Circuit is commonly cited in other circuits as an example of a court having adopted the minority position. See, e.g., Kanar, 118 F.3d at 529. However, a review of the two apposite Eighth Circuit cases leaves this court...