USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 1 of 28

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

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,

(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,

, 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,

(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.

A.

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,

, 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.,

(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,

(2023).

Even so, we retain broad discretion to excuse a party’s failure to timely raise an

argument. Singleton v. Wulff,

(1976); accord Manning v. Caldwell,

(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,

(internal quotation marks and citations omitted).

In this case, the district court held that an FTCA regulation,

(b),

creates a jurisdictional administrative exhaustion requirement. Est. of Van Emburgh,

, at *3. In doing so, it attempted to distinguish cases from other circuits

holding that the related requirements in similar FTCA regulations are nonjurisdictional.

at *3 n.2 (citing Zywicki v. United States, No. CIV.A. 88-1501-T,

(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.

B.

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,

(4th Cir. 2005)

(citing United States v. Sherwood,

(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

(b)(1), 2674.

When filing suit under the FTCA, plaintiffs must satisfy certain jurisdictional

prerequisites. See Henderson v. United States,

(4th Cir. 1986). One such

jurisdictional prerequisite is the administrative exhaustion requirement.

. 2

This administrative exhaustion requirement contains three elements. First, a

plaintiff must “present[ their] claim to the appropriate Federal agency[.]”

§ 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

. 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

, 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,

, 111–13 (1993); Henderson,

; Ahmed,

. 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.

C.

The district court found that Navy regulations impose additional jurisdictional

elements as part of the administrative exhaustion requirement. Est. of Van Emburgh,

, at *3. That was error.

3 Plaintiffs argue that the Supreme Court’s decision in United States v. Wong,

(2015), shows that the administrative exhaustion requirements in § 2675 are nonjurisdictional. But Wong addressed the statute of limitations applicable to the FTCA,

, not its administrative exhaustion requirements.

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

.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.”

(c).

Second are the Navy-specific regulations, which supplement the Attorney General’s

regulations. See

(“Each agency is authorized to issue regulations and

establish procedures consistent with the regulations in this part.”);

(“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.”

(b); see

(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

(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

, 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,

, 74 (9th Cir. 1982). Similarly, the Navy’s implementing regulations were not enacted to

interpret § 2675(a). See

, 750.26 (enacted pursuant to

,

552 and

, 5148, each of which lays out the Navy’s rulemaking authority

in general);

(permitting the Navy and other agencies to enact regulations

that supplement those enacted by the Attorney General pursuant to

).

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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. 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.,

(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,

(5th Cir.), decision clarified on denial of reh’g,

(5th Cir. 1980); Warren v. U.S. Dep’t of Interior Bureau of Land Mgmt.,

, 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.,

(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,

, § 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,

(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,

(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.,

, 919–20 (D.C. Cir.);

Collins v. United States,

(2d Cir. 2021); Tucker,

(3d

Cir.); Adams,

(5th Cir.); Knapp v. United States,

, 377–80

(6th Cir. 1988); Charlton v. United States,

, 559–62 (7th Cir. 1984); Warren,

724 F.2d at 777–80 (9th Cir.); Free v. United States,

(11th Cir. 1989).

But see Mader v. United States,

(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,

.

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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,

; Kokotis v. U.S. Postal Serv.,

(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

(a), an Attorney

General regulation enacted pursuant to § 2672. See Ahmed, 30 F.3d at 516–17 (citing

, 2675;

); Kokotis,

(citing

;

). 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

and

as the statutory basis of the administrative exhaustion requirement. See Ahmed,

(stating the administrative exhaustion requirement is based on both § 2675 and § 2401); Kokotis,

(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.”

(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,

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,

(relying heavily on the discussion of

jurisdictional requirements in GAF Corp.,

); Kokotis, 223 F.3d at 278–79

(citing Adkins v. United States,

(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,

, 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

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

(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,

. 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,

, 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,

, 654–55 (4th Cir. 2021) (quoting Pittston Co. v. United States,

(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

. Since

and

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

(b). In response, Plaintiffs ask us to hold that the limitations

period—which is nonjurisdictional, United States v. Wong,

, 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,

, at *3–4. “[W]e are a court of review, not first

view[.]” United States v. Frank,

(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.

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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

. 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.

I.

The FTCA waives the sovereign immunity of the United States for certain torts

committed by federal employees. FDIC v. Meyer,

(1994); see

(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.”

(a). This requirement is jurisdictional. Henderson

v. United States,

(4th Cir. 1986).

In Ahmed v. United States,

(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).

. 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.

Specifically, we defined “presented” in

Section 2675(a) by reference to

(a).

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

21 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 22 of 28

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.”

(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,

.

After articulating this standard, the Ahmed Court then “turn[ed] to the facts of this

case to determine if these requirements were met.”

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.”

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.

.

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.,

(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.”

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

(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

(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

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,

. “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.

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,

(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,

, 262 n.4

(4th Cir. 2014); see also MacDonald, Sommer & Frates v. Yolo Cnty.,

, 346

n.4 (1986); United States v. Fulks,

, 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,

(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,

(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

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.

(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.

(a). Those decisions

remain good law in this Circuit and cannot be distinguished away. Therefore, I must

respectfully dissent.

II.

Bound by this Court’s precedent, the district court correctly dismissed the complaint

for lack of jurisdiction.

As previously mentioned,

(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

25 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 26 of 28

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.”

(a); see also

. 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.”

(b);

§ 750.26(a); see also

(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,

(Va. 2009) (quoting

-

50) (wrongful death); Kittrell v. Fowler,

, 213–214 (Va. 2022) (citing

) (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,

(Va. 2015) (citing

). A person

named in a will as executor cannot “exercise the powers of executor until he qualifies as

such” in court.

; cf. Douglas v. Chesterfield Cnty. Police Dep’t,

(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).

26 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 27 of 28

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,

(b), or “entitled

to assert such a claim in accordance with applicable State law,”

(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,

(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,

, 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,

; Ahmed, 30

27 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 28 of 28

F.3d at 516; see

(a). No “properly appointed legal representative” of the

estate had submitted a wrongful death claim on its behalf,

(b), nor did

any claim submitted include “evidence of . . . authority to present a claim on behalf of” the

estate as “executor [or] administrator,”

(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,

; Ahmed, 30 F.3d at 516–517; cf.

Rollo-Carlson as Tr. for Flackus-Carlson v. United States,

(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.

28