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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1011
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.
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 Decided: March 12, 2024
Before GREGORY, WYNN, and RUSHING, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Gregory joined. Judge Rushing wrote a dissenting opinion.
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 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 2 of 28
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
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WYNN, Circuit Judge:
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 28 U.S.C. § 2672 do not
impose distinct jurisdictional requirements in addition to those contained in 28 U.S.C
§ 2675, we reverse as to six of the plaintiffs and remand for further proceedings. But
because one plaintiff, Imelda Crovetto, failed to satisfy one of the jurisdictional
requirements listed in § 2675, we affirm as to her claims.
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.
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B.
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.
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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The Government answered the complaint. And on October 1, 2021, it served
discovery requests, including requests for information about “the specific steps Ms.
Crovetto took to become properly qualified as the personal representative of Ms. Van
Emburgh’s estate, the court in which she was qualified as the personal representative, and
the date(s) on which she was so qualified.” J.A. 174.
Under Virginia law, a wrongful death action “shall be brought by and in the name
of the personal representative of such deceased person.” Va. Code § 8.01-50(C); Johnston
Mem. Hosp. v. Bazemore, 672 S.E.2d 858, 860 (Va. 2009) (same); see also Va. Code
§ 64.2-511 (“A person named in a will as executor shall not exercise the powers of executor
until he qualifies as such by taking an oath and giving bond in the court or before the clerk
where the will or an authenticated copy thereof is admitted to record, except that he may
provide for the burial of the testator, pay reasonable funeral expenses, and preserve the
estate from waste.”). Up to this point, however, Crovetto had not been formally qualified
under Virginia law to serve as an executor because an employee at a local court had
informed Plaintiffs they likely did not need to formally qualify since the Estate was small.
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
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a substantively similar lawsuit to comply with what they understood as the requirements
for litigating an FTCA claim “in Federal Court.” J.A. 182.
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 Rule 12(b)(6) for untimeliness. In its
motion to dismiss for lack of subject matter jurisdiction, the Government argued that
Plaintiffs failed to satisfy the FTCA’s administrative exhaustion requirement because, at
the time they submitted the administrative claims to the Government, neither Crovetto nor
James had been properly qualified as administrator of the Estate.
After briefing, the district court dismissed the complaint for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). Est. of Van Emburgh v. United States, No. 2:21-CV-
00603, 2022 WL 3581678, at *3–4 (E.D. Va. Aug. 18, 2022). The district court found that
the Navy’s FTCA regulations imposed administrative exhaustion requirements in addition
to those found in the text of the FTCA, and that Plaintiffs failed to satisfy those additional
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requirements because Crovetto was not formally qualified as the Estate’s executor when
she submitted the administrative claim on behalf of the Estate.
Plaintiffs filed a motion for reconsideration pursuant to Rule 59(e), arguing for the
first time that the FTCA’s administrative exhaustion requirements are not jurisdictional.
The district court denied Plaintiffs’ motion, and Plaintiffs timely appealed.
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.
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.
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Because we must be sure of our power to review a case under Article III, a
defendant’s failure to raise our lack of jurisdiction is of no importance—we must consider
the matter sua sponte. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). By contrast, a plaintiff
may forfeit an argument in favor of subject matter jurisdiction. E.g., Mayor & City Council
of Balt. V. BP P.L.C., 31 F.4th 178, 202 (4th Cir. 2022) (holding argument in support of
removal jurisdiction was forfeited because it was not sufficiently developed in the notice
of removal or before the district court), cert. denied, 143 S. Ct. 1795 (2023).
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, 32 C.F.R. § 750.5(b),
creates a jurisdictional administrative exhaustion requirement. Est. of Van Emburgh, 2022
WL 3581678, at *3. In doing so, it attempted to distinguish cases from other circuits
holding that the related requirements in similar FTCA regulations are nonjurisdictional. Id.
at *3 n.2 (citing Zywicki v. United States, No. CIV.A. 88-1501-T, 1991 WL 128588 (D.
Kan. June 20, 1991) (collecting and analyzing cases from other circuits)). Since the scope
of the FTCA’s administrative exhaustion requirement was central to the district court’s
decision, and because the issue concerns our subject matter jurisdiction, we would exercise
our discretion to address the issue even if we decided that Plaintiffs had failed to timely
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raise it. Accordingly, we will proceed to evaluate whether the district court properly
dismissed this case for lack of subject matter jurisdiction.
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 28 U.S.C. §§ 1346(b)(1), 2674.
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. 28 U.S.C. § 2675. 2
This administrative exhaustion requirement contains three elements. First, a
plaintiff must “present[ their] claim to the appropriate Federal agency[.]” Id. § 2675(a).
Second, when a plaintiff presents their claim to the agency, the plaintiff must state the sum
2 The requirement may be best described as a “presentment requirement,” rather than an administrative exhaustion requirement, because plaintiffs must present their claims to the agency but do not always need to wait until the agency rules on their administrative claim before proceeding in federal court. See 28 U.S.C. § 2675. However, because our cases primarily use the term “exhaustion requirement” to describe § 2675, we employ that terminology as well.
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they are seeking for their claim. Id. § 2675(b) (“A[n a]ction under this section shall not be
instituted for any sum in excess of the amount of the claim presented to the federal
agency[.]”). Third, the plaintiff must wait either for the claim to be “finally denied by the
agency” or for the agency to fail “to make final disposition of [the] claim within six months
after it is filed.” Id. § 2675(a).
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 § 2675 also incorporates state law. See Oral Arg. at 16:30–17:45,
19:00–21:20, 22:20–23:20 (citing 28 U.S.C. §§ 1346, 2672 & 2674), available at
https://www.ca4.uscourts.gov/OAarchive/mp3/23-1011-20231207.mp3.
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 § 2675. By contrast, references to the “law of the place”
where the act or omission occurred are noticeably absent from § 2675. Thus, we conclude
that the only statutory requirements for administrative exhaustion are the three contained
in the plain text of § 2675.
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Further, each of these three statutory requirements is jurisdictional. 3 See McNeil v.
United States, 508 U.S. 106, 111–13 (1993); Henderson, 785 F.2d at 123; Ahmed, 30 F.3d
at 517. Thus, the first question in evaluating whether subject matter jurisdiction exists is
whether Plaintiffs satisfied these three requirements. We conclude that all but one of the
Plaintiffs did.
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.
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.
3 Plaintiffs argue that the Supreme Court’s decision in United States v. Wong, 575 U.S. 402 (2015), shows that the administrative exhaustion requirements in § 2675 are nonjurisdictional. But Wong addressed the statute of limitations applicable to the FTCA, 28 U.S.C. § 2401, not its administrative exhaustion requirements. Id. at 407–20. Wong provided no indication that the Supreme Court intended to overturn its decision in McNeil.
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Because the claims in this case arose at a medical facility operated by the Navy, two
sets of regulations are relevant to our discussion. First are the Attorney General’s FTCA
regulations. See 28 C.F.R. §§ 14.1–14.11. Those regulations provide in part that an FTCA
“claim based on death may be presented by the executor or administrator of the decendent’s
estate, or by any other person legally entitled to assert such a claim in accordance with
applicable State law.” 28 C.F.R. § 14.3(c).
Second are the Navy-specific regulations, which supplement the Attorney General’s
regulations. See 28 C.F.R. § 14.11 (“Each agency is authorized to issue regulations and
establish procedures consistent with the regulations in this part.”); 32 C.F.R. § 750.24
(“The Attorney General of the United States has issued regulations on administrative
claims filed under the FTCA at 28 CFR part 14. If the provisions of this section and the
Attorney General’s regulations conflict, the Attorney General’s regulations prevail.”). The
Navy’s regulations provide that “[a] claim . . . shall be presented[,] . . . in the case of death,
by the properly appointed legal representative of the deceased’s estate or survivor where
authorized by State law.” 32 C.F.R. § 750.5(b); see 32 C.F.R. § 750.26(a) (incorporating
this definition of “claim” into the Navy’s FTCA regulations).
The Government argues that § 2675 incorporates these regulations and, therefore,
that a claim is only properly “presented” for purposes of § 2675 if it complies with the
requirements in the regulations. See 28 U.S.C. § 2675(a). And it argues that Plaintiffs did
not comply with these additional requirements because Crovetto was not qualified under
Virginia law as the representative of the Estate at the time Plaintiffs presented their claims
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to the Navy. So, the Government would have us conclude that federal courts lack
jurisdiction over this case.
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 § 2675.
The relevant Attorney General regulation, “28 C.F.R. § 14.3[,] was promulgated
pursuant to 28 U.S.C. § 2672, a statute which deals exclusively with the authority of federal
agencies to settle claims; the regulation was not drafted as an interpretation of § 2675[],
the jurisdictional section of the Tort Claims Act.” Graves v. U.S. Coast Guard, 692 F.2d
71, 74 (9th Cir. 1982). Similarly, the Navy’s implementing regulations were not enacted to
interpret § 2675(a). See 32 C.F.R. §§ 750.5, 750.26 (enacted pursuant to 5 U.S.C. §§ 301,
552 and 10 U.S.C. §§ 5013, 5148, each of which lays out the Navy’s rulemaking authority
in general); 28 C.F.R. § 14.11 (permitting the Navy and other agencies to enact regulations
that supplement those enacted by the Attorney General pursuant to 28 U.S.C. § 2672).
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[.]
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28 U.S.C. § 2672. That language does not implicate the jurisdictional requirements in
§ 2675. It instead “governs agency conduct, including administrative settlement and
adjustment of properly presented claims, once notice has been given pursuant to section
2675.” Tucker v. U.S. Postal Serv., 676 F.2d 954, 959 (3d Cir. 1982) (citation omitted).
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.), 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 § 2672 for establishing
settlement procedures does not authorize regulations that expand on the jurisdictional
requirements in § 2675. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)
(“It is axiomatic that an administrative agency’s power to promulgate legislative
regulations is limited to the authority delegated by Congress.”).
Nor does the text of § 2672 provide an independent basis for imposing jurisdictional
requirements. While § 2675’s statement that “[a]n action shall not be instituted” unless a
plaintiff complies with its requirements is “unambiguous[ly]” jurisdictional, McNeil, 508
U.S. at 111, § 2672 includes no such command. Therefore, “[a] claimant’s refusal to settle
his or her claim will not deprive the federal court of jurisdiction, if the claimant has
provided the statutorily required notice [described in § 2675]. Although many claimants
will rationally elect to settle their claims, Congress clearly did not deem settlement
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mandatory.” Adams, 615 F.2d at 291 (footnote omitted). “To conflate the mandatory
presentment requirement of Section 2675(a) with the settlement procedures of Section
2672, and require claimants to substantiate claims for settlement purposes as a prerequisite
to filing suit, is to compel compliance with settlement procedures contrary to congressional
intent.” GAF Corp. v. United States, 818 F.2d 901, 919 (D.C. Cir. 1987).
Recognizing that § 2672 and § 2675 operate separately, nearly every circuit to have
addressed this issue has recognized that the regulations enacted pursuant to § 2672 do not
impose jurisdictional requirements. See GAF Corp., 818 F.2d at 905, 919–20 (D.C. Cir.);
Collins v. United States, 996 F.3d 102, 115 (2d Cir. 2021); Tucker, 676 F.2d at 957 (3d
Cir.); Adams, 615 F.2d at 290 (5th Cir.); Knapp v. United States, 844 F.2d 376, 377–80
(6th Cir. 1988); Charlton v. United States, 743 F.2d 557, 559–62 (7th Cir. 1984); Warren,
724 F.2d at 777–80 (9th Cir.); Free v. United States, 885 F.2d 840, 843 (11th Cir. 1989).
But see Mader v. United States, 654 F.3d 794, 805 (8th Cir. 2011) (en banc) (holding that
regulations enacted pursuant to § 2672 are jurisdictional); id. at 809 (Bye, J., dissenting)
(“My colleagues in the majority started off on the wrong foot by concluding the burden of
furnishing evidence of one’s representative authority comes directly from the FTCA.”).
We agree with the analysis adopted by the majority of circuits, and therefore hold
that § 2675 is the sole source of jurisdictional requirements for the FTCA’s administrative
exhaustion requirement. To decide otherwise would permit agencies to impose
jurisdictional requirements without congressional authorization, in contravention of
Supreme Court precedent. See Bowen, 488 U.S. at 208.
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In so concluding, we take care to distinguish two of our prior decisions, Ahmed v.
United States and Kokotis v. United States Postal Service, in which we addressed the
jurisdictional requirement that plaintiffs provide a valuation of their claim when they
submit the claim to an agency. See Ahmed, 30 F.3d at 514; Kokotis v. U.S. Postal Serv.,
223 F.3d 275 (4th Cir. 2000). In both of those cases, our discussion of the jurisdictional
requirement cited both the statutory basis for the administrative exhaustion requirement
and the expression of the “sum certain” requirement in 28 C.F.R. § 14.2(a), an Attorney
General regulation enacted pursuant to § 2672. See Ahmed, 30 F.3d at 516–17 (citing 28
U.S.C. §§ 2401, 2675; 28 C.F.R. § 14.2); Kokotis, 223 F.3d at 278 (citing 28 U.S.C. § 2401;
28 C.F.R. § 14.2). 4 In other words, a reader could mistakenly assume that our reference in
those cases to the statute and the regulation meant that both independently impose
jurisdictional requirements.
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
4 When Kokotis and Ahmed were decided, we interchangeably cited 28 U.S.C. § 2675 and 28 U.S.C. § 2401 as the statutory basis of the administrative exhaustion requirement. See Ahmed, 30 F.3d at 516 (stating the administrative exhaustion requirement is based on both § 2675 and § 2401); Kokotis, 223 F.3d at 278 (stating that the jurisdictional requirement is based on § 2401). Section 2401 provides in relevant part that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless [the] action is begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Because the Supreme Court has since held that the statute of limitations in § 2401 is nonjurisdictional, see Wong, 575 U.S. at 407, we now recognize that the statutory basis for the administrative exhaustion requirement rests solely in § 2675 and that our prior holdings are abrogated to the extent they held § 2401 was jurisdictional.
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from § 2675(b) that a plaintiff provide an exact valuation of their claim. See Adams, 615
F.2d at 292 n.17 (“Section 2675(b) anticipates that the claim will be for a definite
amount.”). This understanding is confirmed by the fact that, in both cases, our discussion
of the jurisdictional requirement cited to cases from other circuits that held § 2675, not
regulations enacted pursuant to § 2672, established the jurisdictional administrative
exhaustion requirement. See Ahmed, 30 F.3d at 517 (relying heavily on the discussion of
jurisdictional requirements in GAF Corp., 818 F.2d at 919); Kokotis, 223 F.3d at 278–79
(citing Adkins v. United States, 896 F.2d 1324, 1326 (11th Cir. 1990)). Since the sum
certain requirement in the regulations is duplicative of the statutory requirement spelled
out in § 2675(b), neither Ahmed nor Kokotis required us to decide whether a requirement
found only in a regulation enacted pursuant to § 2672 is jurisdictional.
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 28 C.F.R. § 14.2 that an individual
submitting an administrative claim under the FTCA must include documentation that they
are the legal representative of the claimant. However, we did not focus our analysis on that
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issue and instead focused on the sum certain requirement, stating that “[s]ection 2675(a) of
Title 28 and 28 C.F.R. § 14.2(a) require two elements for sufficient presentment of a claim
to an agency: 1) written notice sufficient to cause the agency to investigate, and 2) a sum-
certain value on the claim.” Ahmed, 30 F.3d at 517. We never stated that the documentation
requirement provided an alternative basis for our holding, nor that our decision would have
remained the same had it rested solely on that portion of the regulation. Indeed, it is telling
that while the district court in Ahmed found the documentation issue dispositive on its own,
Ahmed v. United States, No. CIV. JFM-92-3258, 1993 WL 726255, at *3 (D. Md. July 28,
1993), we thought it necessary to focus on the sum certain requirement.
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 § 2672 are jurisdictional. We
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accordingly grant the issue the more exacting review that was unnecessary in those prior
cases and conclude the regulations are not jurisdictional.
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 28 U.S.C. § 2675. Since 28 C.F.R.
§ 14.3 and 32 C.F.R. § 750.5 are nonjurisdictional, the Plaintiffs did not need to satisfy the
requirements set forth therein before filing suit in order for federal courts to have
jurisdiction to review their claims. 5
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 28 U.S.C. § 2401(b). In response, Plaintiffs ask us to hold that the limitations
period—which is nonjurisdictional, United States v. Wong, 575 U.S. 402, 407 (2015)—
was equitably tolled.
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
5 Because we decide the relevant regulations do not impose jurisdictional requirements, we do not address whether Plaintiffs complied with the requirements that the regulations incorporate from Virginia law.
19 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 20 of 28
and citations omitted). We therefore remand the case to permit the district court to consider
in the first instance the timeliness of Plaintiffs’ claims or other matters as it sees fit.
III.
The Estate and five of the six individual Plaintiffs satisfied the jurisdictional
administrative exhaustion requirements laid out in 28 U.S.C. § 2675. Since § 2675 is the
only source of the jurisdictional administrative exhaustion requirements, those Plaintiffs
satisfied the bare minimum jurisdictional requirements when they submitted their claims
to the agency, included a specific valuation of their claims, and waited until after their
claims were denied before filing suit. We therefore reverse the dismissal for lack of subject
matter jurisdiction of the claims brought by the Estate, James Michael Van Emburgh,
James Alan Van Emburgh, Amy Rivera, Alexis Navarro, and Rafael Navarro, and remand
for further proceedings consistent with this opinion.
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
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RUSHING, Circuit Judge, dissenting:
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.
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 28 U.S.C.
§ 1346(b). Before suing under the FTCA, a “claimant [must] have first presented the claim
to the appropriate Federal agency and his claim shall have been finally denied by the
agency in writing.” 28 U.S.C. § 2675(a). This requirement is jurisdictional. Henderson
v. United States, 785 F.2d 121, 123 (4th Cir. 1986).
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 28 C.F.R. § 14.2(a). Id. That regulation states that, “[f]or
purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed
to have been presented when a Federal agency receives from a claimant . . . an executed
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Standard Form 95 or other written notification of an incident, accompanied by a claim for
money damages in a sum certain . . . 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.” 28 C.F.R. § 14.2(a). After reviewing the regulation, we concluded: “In
summary, in order to present a personal injury claim to the appropriate administrative
agency, the claimant must present it to the agency in writing by means of an SF 95 or an
equivalent; the writing must include a claim for money damages in a sum certain; [and] if
the claimant is represented, the representative’s authorization must be demonstrated.”
Ahmed, 30 F.3d at 517.
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
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failure to fulfill the regulatory requirements “deprives a district court of jurisdiction over
any subsequently filed FTCA suit.” Id.
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 28 C.F.R. § 14.2(a) for the “sum certain” requirement, implying that the Court
did not consider the regulation by itself sufficient to impose a jurisdictional hurdle. See
supra, at 16–17. Quite to the contrary, Section 2675 does not appear anywhere in the
Kokotis decision. The Court did not cite that statute a single time. Instead, the Court relied
exclusively on the regulation for the sum certain requirement, and it gave that requirement
jurisdictional significance. See Kokotis, 223 F.3d at 278–279. The majority is
“mistaken[]” to “assume” that our holding in Kokotis rested on a statute the opinion never
mentioned. Supra, at 16–17.
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 28 C.F.R. § 14.2(a) to give
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content to that requirement. See Ahmed, 30 F.3d at 516–517. It was there, in the regulation,
that the Court found a sum certain requirement, which it enforced as a component of
Section 2675(a)’s jurisdictional presentment prerequisite. See id.
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, 28
C.F.R. § 14.2(a). It is not mentioned anywhere in Section 2675. Yet the Ahmed Court, in
three paragraphs of discussion about the topic, also enforced this regulatory requirement
as jurisdictional.
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.”).
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Third, the majority notes that neither Ahmed nor Kokotis directly addressed the
argument that Congress did not empower executive agencies to promulgate regulations
affecting the jurisdiction of federal courts under Section 2675. That is true. And
assumptions in prior decisions do not bind us. See Payne v. Taslimi, 998 F.3d 648, 654
(4th Cir. 2021). But reasoning necessary to a precedent’s outcome does bind us, even if
we consider it faulty in view of counterarguments that were left unaddressed. See id. at
654 n.2. Ahmed and Kokotis unquestionably reasoned that the FTCA’s implementing
regulations inform what it means to have “presented [a] claim to the appropriate Federal
agency” for purposes of Section 2675’s jurisdictional requirement. 28 U.S.C. § 2675(a).
That reasoning was necessary to the outcome in each case by its own terms and so binds
us here.
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. 28 U.S.C. § 2675(a). Those decisions
remain good law in this Circuit and cannot be distinguished away. Therefore, I must
respectfully dissent.
Bound by this Court’s precedent, the district court correctly dismissed the complaint
for lack of jurisdiction.
As previously mentioned, 28 C.F.R. § 14.2(a) provides that “a claim shall be
deemed to have been presented” for purposes of Section 2675 when a federal agency
receives written notification of an incident from a claimant, stating a claim for money
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damages in a sum certain, along with “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, . . . or other representative.” 28 C.F.R. § 14.2(a); see also
32 C.F.R. § 750.26. Relevant regulations identify the proper claimant “in the case of
death” as “the properly appointed legal representative of the deceased’s estate or survivor
where authorized by State law.” 32 C.F.R. § 750.5(b); id. § 750.26(a); see also 28 C.F.R.
§ 14.3(c) (“A claim based on death may be presented by the executor or administrator of
the decendent’s [sic] estate, or by any other person legally entitled to assert such a claim in
accordance with applicable State law.”).
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 Va. Code Ann. § 8.01-
50) (wrongful death); Kittrell v. Fowler, 870 S.E.2d 210, 213–214 (Va. 2022) (citing Va.
Code Ann. § 8.01-25) (survival). The “personal representative” “includes the executor or
administrator of a decedent’s estate who has been qualified by a court to hold the position.”
In re Woodley, 777 S.E.2d 560, 563 (Va. 2015) (citing Va. Code Ann. § 1-234). A person
named in a will as executor cannot “exercise the powers of executor until he qualifies as
such” in court. Va. Code Ann. § 64.2-511; cf. Douglas v. Chesterfield Cnty. Police Dep’t,
467 S.E.2d 474, 477 (Va. 1996) (holding that decedent’s wife, who was named executor in
his will, was “not a proper party to file” a tort action on behalf of his estate until she
qualified as personal representative).
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When Imelda Crovetto submitted a wrongful death claim to the Navy on behalf of
the estate of Eleusipa Van Emburgh in April 2020, she had not been qualified by a court
as the estate’s personal representative. Indeed, in October 2021, she waived her “right to
qualify as the executor” of Van Emburgh’s estate. J.A. 232. And in November 2021, the
Circuit Court of Newport News recognized that “no executor or administrator ha[d] been
appointed” to handle Van Emburgh’s estate. J.A. 186. Crovetto therefore was not a
“properly appointed legal representative” of the estate, 32 C.F.R. § 750.5(b), or “entitled
to assert such a claim in accordance with applicable State law,” 28 C.F.R. § 14.3(c).
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
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F.3d at 516; see 28 U.S.C. § 2675(a). No “properly appointed legal representative” of the
estate had submitted a wrongful death claim on its behalf, 32 C.F.R. § 750.5(b), nor did
any claim submitted include “evidence of . . . authority to present a claim on behalf of” the
estate as “executor [or] administrator,” 28 C.F.R. § 14.2(a).
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.