D. L. v. United States

Filing

FILED OPINION (MARSHA S. BERZON, RICHARD R. CLIFTON and ROBERT S. LASNIK) REVERSED AND REMANDED. Judge: RSL Authoring. FILED AND ENTERED JUDGMENT. [10458763]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

D. L., a minor by and through his
Guardian Ad Litem, Kari Ann Junio,
Plaintiff-Appellant,

No. 15-15542

v.

1:14-cv-00824AWI-BAM

MARGARET VASSILEV, M.D.;
RODOLFO VICENTE, M.D.; MARK
WISEMAN, M.D.; PAVEL MUNDL,
M.D.; COUNTY OF TULARE; KAWEAH
DELTA HEALTHCARE DISTRICT;
SANDRA BOSMAN, M.D.; LORI ANN
M. BOKEN, M.D.; T. PLUNKETT,
RNC; D. BRACKETT, RNC;
B. BROWN, RNFA; CHRISTOPHER
BENCOMO, M.D.,
Defendants,

D.C. No.

OPINION

and
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding

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D.L. V. UNITED STATES
Argued and Submitted February 13, 2017
San Francisco, California
Filed June 5, 2017

Before: Marsha S. Berzon and Richard R. Clifton, Circuit
Judges, and Robert S. Lasnik,* District Judge.
Opinion by Judge Lasnik

SUMMARY**

Exhaustion / Federal Tort Claims Act
The panel reversed the district court’s dismissal for lack
of subject-matter jurisdiction on exhaustion grounds of a
Federal Tort Claims Act (“FTCA”) claim brought by a minor
plaintiff, alleging that his mother died of postpartum
hemorrhage due to medical malpractice by a physician, who
was a deemed employee of the U.S. Public Health Service.
The panel held that plaintiff’s initial failure to exhaust his
administrative remedies as to a defendant whom the plaintiffs
reasonably did not know was covered by the FTCA did not
deprive the federal courts of subject-matter jurisdiction over
that plaintiff’s FTCA claim where the plaintiff dismissed his

*

The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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D.L. V. UNITED STATES

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initial suit against that defendant, and then exhausted his
administrative remedies before amending his complaint in
state court to add the defendant again.
The panel held that the district court erred in dismissing
for lack of subject-matter jurisdiction plaintiff’s
administratively exhausted FTCA claim following the United
States’ second removal.

COUNSEL
Mark W. Coleman (argued), Nutall & Coleman, Fresno,
California, for Plaintiff-Appellant.
Victoria L. Boesch (argued) and Bobbie J. Montoya,
Assistant United States Attorneys; United States Attorney’s
Office, Sacramento, California; for Defendant-Appellee.

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D.L. V. UNITED STATES
OPINION

LASNIK, District Judge:
This case presents the question whether, under the Federal
Tort Claims Act (FTCA), a plaintiff’s initial failure to
exhaust his administrative remedies as to a defendant whom
the plaintiff reasonably did not know was covered by the
FTCA deprives the federal courts of subject-matter
jurisdiction over that plaintiff’s FTCA claim even after the
plaintiff dismisses his initial suit against that defendant, and
then exhausts his administrative remedies before amending
his complaint in state court to add the defendant again. On
appeal, Plaintiff-Appellant D.L. argues that the district court
erred in dismissing his FTCA claim on exhaustion grounds.
We agree.
BACKGROUND
A. Statutory Background
The FTCA, 28 U.S.C. §§ 1346, 2671–80, waives the
United States’ sovereign immunity for tort actions and vests
the federal district courts with exclusive jurisdiction over
suits arising from the negligence of government employees.
Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992).
Before a plaintiff can file an FTCA action in federal court,
however, he must exhaust the administrative remedies for his
claim. 28 U.S.C. § 2675(a). An administrative claim is
deemed exhausted once the relevant agency finally denies it
in writing, or if the agency fails to make a final disposition of
the claim within six months of the claim’s filing. Id. The
FTCA’s exhaustion requirement is jurisdictional and may not
be waived. Jerves, 966 F.2d at 519.

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The Federally Supported Health Centers Assistance Act
(FSHCAA) provides that the exclusive remedy for damages
resulting from the performance of medical functions by
employees of the U.S. Public Health Service acting within the
scope of their employment is a claim against the United
States under the FTCA. See 42 U.S.C. § 233(g). Upon
certification that the defendant employee was acting within
the scope of his employment at the time of the incident giving
rise to the suit, the case must be removed and the proceeding
deemed a tort action brought against the United States under
the FTCA. 42 U.S.C. § 233(c).
B. Facts
In March 2012, D.L., a minor, by and through his
Guardian Ad Litem, brought this medical malpractice case in
Tulare County Superior Court. D.L. alleged that his mother,
Lisa Junio, had died of postpartum hemorrhage shortly after
giving birth to him on December 17, 2010. He sued his
mother’s medical providers for negligence. While some
defendants were named, others were listed as Does 1 to 50.
In November 2012, D.L. amended his complaint to
substitute additional named defendants for Does 1 to 9. One
of the newly named defendants was Christopher Bencomo,
M.D.
In March 2013, citing the FSHCAA and Dr. Bencomo’s
status as a deemed employee of the U.S. Public Health
Service, the United States removed D.L.’s action to federal
court and substituted itself as a defendant in place of Dr.
Bencomo. Upon removal, because D.L. had not satisfied the
FTCA’s exhaustion requirement with regard to Dr. Bencomo,
the parties stipulated to the dismissal without prejudice of

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D.L. V. UNITED STATES

D.L.’s claims against the United States arising from Dr.
Bencomo’s actions. The district court remanded the state law
claims against the other defendants to Tulare County Superior
Court.
In July 2013, D.L. filed an administrative tort claim under
the FTCA with the U.S. Department of Health and Human
Services. The agency denied D.L.’s claim on November 15,
2013.
On April 1, 2014, D.L. amended his complaint in the
Tulare County Superior Court case to substitute Dr. Bencomo
for Doe 9. As before, the United States removed the action
to federal court and substituted itself as a defendant in place
of Dr. Bencomo, citing the FSHCAA and the FTCA.
In federal court, the United States moved to dismiss the
claims against it for lack of subject-matter jurisdiction,
arguing that D.L.’s initial failure to exhaust his FTCA
remedies before naming Dr. Bencomo as a defendant in
November 2012 had not been cured by D.L.’s subsequent
FTCA exhaustion in November 2013. Over D.L.’s opposition,
the district court concluded that it lacked subject-matter
jurisdiction over D.L.’s claims arising from Dr. Bencomo’s
actions, dismissed those claims without prejudice, and once
again remanded the state claims against the individual
defendants to Tulare County Superior Court. D.L. timely
appealed.
DISCUSSION
On appeal, D.L. argues that the district court erred in
holding that his initial failure to exhaust his administrative
remedies deprived the court of subject-matter jurisdiction

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even after D.L. had exhausted his administrative remedies.
The United States argues that the FTCA’s complete
exhaustion requirement demands that D.L. file a new suit
after exhaustion, rather than amend his premature complaint.
We review de novo the district court’s order granting a
motion to dismiss for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). Mills v. United
States, 742 F.3d 400, 404 (9th Cir. 2014). We review for
clear error the district court’s factual findings on
jurisdictional issues. Viewtech, Inc. v. United States,
653 F.3d 1102, 1103–04 (9th Cir. 2011).
In general, the FTCA’s exhaustion requirement demands
that a plaintiff exhaust his administrative remedies before he
files an FTCA claim in federal court. In McNeil v. United
States, 508 U.S. 106 (1993), the Supreme Court clarified that
a prematurely filed FTCA claim must be dismissed even if
the plaintiff ultimately exhausts his administrative remedies
before “substantial progress” has occurred in the case. Id. at
110, 113. There, the plaintiff filed an FTCA claim against the
United States in federal court before exhausting his
administrative remedies. After exhausting his remedies, the
plaintiff notified the district court that his administrative
claim had been denied. The district court granted the United
States’ motion to dismiss plaintiff’s complaint as premature
due to the failure to exhaust before filing. The Supreme
Court affirmed, settling a circuit split over whether a
premature FTCA complaint could survive dismissal if
administrative exhaustion occurred before “substantial
progress” had been made in the federal litigation. Id. at
110–13.

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D.L. V. UNITED STATES

We have held, however, that the FTCA’s exhaustion
requirement does not prevent a plaintiff from amending a
previously filed federal complaint over which there is
jurisdiction to add an FTCA claim once he has exhausted his
administrative remedies. In Valadez-Lopez v. Chertoff,
656 F.3d 851 (9th Cir. 2011), the plaintiff filed suit in federal
court alleging claims under 42 U.S.C. § 1983 and Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971), against
parties other than the United States. Separately, the plaintiff
filed an administrative claim under the FTCA. After six
months elapsed without a response from the agency, the
plaintiff amended his complaint to add an FTCA claim
against the United States. Subsequently, the plaintiff received
a notice of claim denial from the agency. The district court
granted the Unites States’ motion to dismiss the FTCA claims
for lack of subject-matter jurisdiction, because the plaintiff
had filed a complaint in district court before he
administratively exhausted. On appeal, this court reversed,
holding that the plaintiff had exhausted his administrative
remedies prior to initiating an FTCA action and that the
district court therefore had subject-matter jurisdiction over
that claim. 656 F.3d at 854–58.
D.L. argues that this court’s decision in Valadez-Lopez
permits him to amend an existing complaint to add claims
covered by the FTCA following administrative exhaustion.
The United States responds that this case is controlled by
McNeil, because McNeil concerned a prematurely filed FTCA
claim, while Valadez-Lopez did not.
We do not agree that McNeil controls here. Unlike the
plaintiff in McNeil, D.L. first filed his malpractice suit in state
court; at the time, he was not aware that one of the defendants
was an employee of the United States. Accordingly, D.L. did

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not institute an action “upon a claim against the United
States” before exhausting his administrative remedies when
he first filed suit. See 28 U.S.C. § 2675(a). And when it
became clear from the United States’ removal that D.L.’s
claim against Dr. Bencomo was subject to the FTCA’s
exhaustion requirement, the district court, unlike the court in
McNeil, did not retain jurisdiction over the premature FTCA
complaint until it ripened upon administrative exhaustion.
Rather, D.L. stipulated to dismissal of the premature FTCA
claim, and the district court remanded the remaining state-law
negligence claims against the other defendants. No
premature FTCA claim against the United States remained
pending in federal court. Though the United States analyzes
the federal case initiated by the second removal as if it were
a continuation of the federal case initiated by the first, the
second removal actually constituted a new federal case, with
a new case number and a new docket in the federal district
court.
Federal jurisdiction under the FTCA is determined at the
time of removal. This court noted in Staple v. United States,
740 F.2d 766 (9th Cir. 1984), that the FTCA’s exhaustion
requirement does not extend to state court suits against nongovernment defendants. Id. at 768. From that premise, we
concluded that:
It follows that the issue of federal court
jurisdiction under section 2675(a) does not
arise until after removal to district court, for
only there does the action become one against
the United States.
Here the Attorney
General’s certification and removal of the
state court action occurred well after the
USPS denied Staple’s claim on January 9,

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D.L. V. UNITED STATES
1981, thereby exhausting plaintiff’s
administrative remedy. We hold, therefore,
that jurisdiction 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 driver in state court.

Id. Accordingly, we held in Staple that the federal district
court had jurisdiction over a case that was removed after
exhaustion had occurred, even though the plaintiff had filed
the suit in state court before exhausting her administrative
remedies. Id.
McNeil, which was decided after Staple, did not address
this issue and therefore did not overturn Staple. In McNeil,
the Court was careful to clarify that, “As the case comes to
us, we assume that the Court of Appeals correctly held that
nothing done by petitioner after the denial of his
administrative claim on July 21, 1989, constituted the
commencement of a new action. The narrow question before
us is whether his action was timely either because it was
commenced when he lodged his complaint with the District
Court on March 6, 1989, or because it should be viewed as
having been ‘instituted’ on the date when his administrative
claim was denied.” 508 U.S. at 110–11. McNeil, thus, did
not speak to whether the Government’s removal of an
amended state court complaint would qualify as the
institution of an action under § 2675(a).
Similar to Staple, in this case, when the United States
removed D.L.’s action for the second time, that removal
properly “invoked the federal court’s jurisdiction under the
FTCA” only after D.L. had exhausted his administrative

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remedies. Valadez-Lopez, 656 F.3d at 856 (quoting McNeil,
508 U.S. at 108) (internal quotation marks omitted).
Moreover, as D.L. points out, in Valadez-Lopez this court
rejected the very argument that the United States now makes
in this case – that the FTCA’s exhaustion requirement
demands that a plaintiff institute an entirely new action after
exhausting his administrative remedies.
The court
summarized the government’s argument this way:
Although it portrays its argument . . . as one
founded on failure to exhaust administrative
remedies, the government’s central thesis is
that “[t]he filing of an amended complaint is
not the equivalent to instituting an action
following the exhaustion of administrative
remedies.” (Emphasis added.)
The
government reasons that the court is required
to dismiss the FTCA claim in the amended
complaint and to require the plaintiff to file an
entirely new lawsuit founded on the same
nucleus of facts.
656 F.3d at 855–56. This argument, the court concluded,
“finds support in neither the plain language of the statute nor
in the law of our circuit.” Id. at 856. Specifically,
There is nothing in the statute or our case law
that would prevent a plaintiff from amending
an existing complaint asserting non-FTCA
claims to name the United States as a
defendant and include FTCA claims once
those claims have been administratively
exhausted. . . . McNeil ought not be read as

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D.L. V. UNITED STATES
preventing a plaintiff who wishes to state a
number of federal and state law claims against
an array of defendants from filing a complaint
alleging common facts and amending it after
exhaustion to state an additional claim under
the FTCA. Such a reading would require
undue acrobatics of such a plaintiff, given the
different statutes of limitations at play.

Id. at 856–57. Indeed, the FSHCAA’s removal provision
specifically contemplates that tort claims inadvertently
brought against federal public health workers will be
converted to federal FTCA cases through substitution and
removal, not through dismissal and the filing of a second,
separate case. 42 U.S.C. § 233(c). And the exhaustion
requirement’s goal of “reduc[ing] unnecessary congestion in
the courts,” McNeil, 508 U.S. at 112 & n.8, would be
undermined, not served, by a rule requiring FTCA litigants to
maintain parallel malpractice suits, against different
defendants but involving the same events, in state and federal
court.
Accordingly, we hold that the district court erred in
dismissing for lack of subject-matter jurisdiction D.L.’s
administratively exhausted FTCA claim following the United
States’ second removal.
REVERSED AND REMANDED.