Francis Watson v. Ryan Molchan

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2019
• Docket: 17-16114
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCIS G. WATSON, No. 17-16114

Plaintiff-Appellant, D.C. No. 2:16-cv-00608-RFB-CWH v.

RYAN P. MOLCHAN, Doctor; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted January 18, 2019** San Francisco, California

Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.

Francis Watson appeals from the district court’s dismissal for lack of

jurisdiction of his Federal Tort Claims Act action against the United States. We

have jurisdiction under 28 U.S.C. § 1291, and we conclude that the district court

did not lack jurisdiction. We therefore reverse and remand the case to the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court.

Watson brought a medical malpractice suit in Nevada state court on April

30, 2015, alleging the professional negligence of Dr. Ryan Molchan. Molchan

worked at Nellis Air Force Base, so Watson also presented an administrative claim

to the federal government. The claim was eventually received by the Air Force,

and thus properly “presented” for administrative review, on May 18, 2015. See 28

C.F.R. § 14.2(b)(1) (“A claim shall be presented as required by 28 U.S.C. §

2401(b) as of the date it is received by the appropriate agency”). At the latest, this

claim was deemed “finally denied” six months later, when the Air Force had not

yet acted. See 28 U.S.C. § 2675(a) (“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”).

On February 19, 2016, the Attorney General certified that Molchan was

acting within the scope of his employment for the United States. The case was

removed to Nevada District Court on March 18, 2016 and the United States was

substituted as a defendant for Molchan. See 28 U.S.C. § 2679(d)(1). The district

court dismissed the case for lack of jurisdiction because Watson had filed his

complaint in state court before his claim was finally denied by the Air Force. See

28 U.S.C. § 2675(a).

2 The district court did not lack jurisdiction. “[J]urisdiction under section

2675(a) is determined as of the date that the Attorney General removes the suit to

federal court, rather than the date the plaintiff files the action against the

[individual defendant] in state court.” Staple v. United States, 740 F.2d 766, 768

(9th Cir. 1984). Here, the Attorney General removed the action on March 18, 2016,

four months after Watson exhausted his administrative remedies with the Air

Force. The claim was therefore exhausted. The United States’ attempts to

distinguish this clear precedent are unpersuasive.

REVERSED and REMANDED.