Kinlichee et al v. United States of America

Filing 60

ORDER that Defendant's 47 Motion to Dismiss is denied. Signed by Senior Judge James A Teilborg on 3/11/2013.(LFIG)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Felix H. Kinlichee; et al., Plaintiffs, 10 11 12 No. CV11-8038-PCT-JAT ORDER v. United States of America, Defendant. 13 14 Pending before the Court is Defendant’s Motion to Dismiss certain claims made 15 by Plaintiffs. (Doc. 47). Plaintiffs filed a Response (Doc. 52), and Defendant filed a 16 Reply (Doc. 56). The Court rules on the Motion. 17 I. BACKGROUND 18 From November 5, 2009 to November 8, 2009, Filbert Kinlichee (“Mr. 19 Kinlichee”) went several times to the Emergency Department (“ED”) at Chinle 20 Comprehensive Health Care Facility (“CCHCF”).1 (Doc. 1 at 1, 3-5). During each of the 21 ED visits, CCHCF medical providers evaluated and treated Mr. Kinlichee, and then 22 discharged him to his home. (Id. at 4). On November 8, 2009, Mr. Kinlichee developed 23 respiratory distress, was taken to the CCHCF ED for a third time that day, received 24 unsuccessful resuscitation measures, and died. (Id. at 5). 25 Mr. Kinlichee is survived by five biological children. (Doc. 1 at 2-3). 26 27 28 1 CCHCF is located in Chinle, Arizona. (Doc. 1 at 1). CCHCF lies within the Navajo Nation and is operated by Defendant United States through the Indian Health Services. (Id. at 1, 2). 1 Additionally, in 1992, when Plaintiff Priscilla Davis (“Ms. Davis”) was approximately 2 age six, Mr. Kinlichee became Ms. Davis’s stepfather because her natural mother, 3 Sartreva Blacksheep, married Mr. Kinlichee. (Id.). In 2003, Mr. Kinlichee obtained 4 guardianship of Ms. Davis after his marriage to Ms. Blacksheep ended. (Id.). 5 In May 2010, Scott E. Borg (“Mr. Borg”), Plaintiffs’ attorney, prepared a Standard 6 Form 95 “Claim for Damage, Injury, or Death” for each of Mr. Kinlichee’s biological 7 children, and for Ms. Davis (the “Forms”). (Doc. 45-1 at 1-30). Mr. Borg addressed and 8 sent the Forms to the United States Department of Health & Human Services (“HHS”). 9 (Id. at 3, 5, 8, 10, 13, 15, 18, 20, 23, 25, 28, 30). Mr. Borg signed each of the Forms, 10 “Scott E. Borg for . . . .” (Id.). On one of the Forms, the word “Attorneys” was included 11 next to Mr. Borg’s law firm name. (Id. at 8). The “Amount of Claim” for “Wrongful 12 Death” was listed on each Form as “$10,000,000.00.” (Id.). The Forms described the 13 medical care that Mr. Kinlichee received in the CCHCF ED, the events at the time of 14 Mr. Kinlichee’s death, and the allegation that negligent care led to his death. (Id. at 3-4, 15 8-9, 13-14, 18-19, 23-24, 28-29). 16 “Received.” (Id.). On May 24, 2010, HHS stamped the Forms as 17 From May through December of 2010, HHS sent three letters to Mr. Borg, as well 18 as a fourth letter on March 7, 2011. (Doc. 45-1 at 32-33, 35-36, 39, 42-43). The first 19 letter requested additional information from Mr. Borg, including a letter of 20 representation. (Id. at 32-33). The next three letters reminded Mr. Borg to send HHS the 21 requested information. (Id. at 35-36, 39, 42-43). Each of the four letters contained a 22 warning that under 45 C.F.R. § 35.4(d), HHS could deem Mr. Borg’s clients’ claims 23 abandoned if the requested information was not received within three months. (Id. at 32- 24 33, 35-36, 39, 42-43). Each of the four letters was addressed to “Scott Borg, Esq.,” and 25 referred to “your clients’ claims” in the first sentence. (Id. at 32, 35, 39, 42). 26 On March 14, 2011, approximately ten months after HHS marked the Forms as 27 received, and before Mr. Borg had received a disposition from HHS on his clients’ 28 claims, Mr. Borg filed a wrongful death complaint (the “Complaint”) in this Court on -2- 1 behalf of Mr. Kinlichee’s five biological children and Ms. Davis. (Doc. 1). Plaintiffs 2 alleged that negligence on the part of CCHCF employees resulted in Mr. Kinlichee’s 3 death. (Id. at 5-8). 4 On May 26, 2011, HHS sent Mr. Borg a fifth letter. (Doc. 59 at 1). HHS 5 addressed the letter to “Scott E. Borg, Esquire.” (Id.). The letter stated that it was a 6 “notice of final determination on the claim,” and informed Mr. Borg that because his 7 clients filed a lawsuit, their claims made to HHS were denied. (Id.). 8 On June 22, 2012, the Family Court of the Navajo Nation in Chinle, Arizona 9 entered its “Order Validating Navajo Common Law Adoption.” (Doc. 52-1 at 1-10). 10 That Navajo Nation court order established Mr. Kinlichee as Ms. Davis’s adoptive father. 11 (Id. at 10). The order was posthumous (as to Mr. Kinlichee) and retroactive to 2003. 12 (Id.). 13 On June 11, 2012, Defendant filed the pending Motion to Dismiss Plaintiffs’ 14 wrongful death claims. (Doc. 47). On June 28, 2012, Mr. Borg filed a Response on 15 behalf of Plaintiffs. (Doc. 52). On July 9, 2012, Defendant filed a Reply. (Doc. 56). 16 II. DISCUSSION 17 In its Motion to Dismiss, Defendant makes two arguments for why the Court 18 should dismiss Plaintiffs’ claims. (Doc. 47 at 2-3). First, Defendant argues that all of 19 Plaintiffs’ wrongful death claims should be dismissed for lack of subject matter 20 jurisdiction under Rule 12(b)(1). (Id. at 2). Second, Defendant argues that Ms. Davis’s 21 wrongful death claim should be dismissed under Rule 12(b)(1) for lack of subject matter 22 jurisdiction because she lacks standing to be a plaintiff. (Id. at 2-3). 23 Rule 12(b)(1) “allows litigants to seek the dismissal of an action from federal 24 court for lack of subject matter jurisdiction.” Tosco Corp. v. Comtys. for a Better Env’t, 25 236 F.3d 495, 499 (9th Cir. 2001). Allegations raised under Rule 12(b)(1) should be 26 addressed before other reasons for dismissal because if the complaint is dismissed for 27 lack of subject matter jurisdiction, other defenses raised become moot. See Wright and 28 Miller, Federal Practice and Procedure: Civil 2d § 1350, 209-10 (1990). -3- 1 “The party asserting jurisdiction [i.e., Plaintiff] has the burden of proving all 2 jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 3 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In 4 effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. Stock 5 West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). 6 An allegation of lack of subject matter jurisdiction may be raised at any time by 7 the parties or the court. Fed. R. Civ. P. 12(h)(3). A Rule 12(b)(1) motion to dismiss “for 8 lack of subject matter jurisdiction may either attack the allegations of the complaint or 9 may be made as a ‘speaking motion’ attacking the existence of subject matter jurisdiction 10 in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 (9th Cir. 1979). 11 In resolving a “speaking motion” or “factual attack” under Rule 12(b)(1), the court 12 is not limited to the allegations in the pleadings if the jurisdictional issue is separable 13 from the merits of the case. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 14 Instead, the court may view evidence outside the record, and no presumptive truthfulness 15 is due to the complaint’s allegations that bear on the subject matter jurisdiction of the 16 court. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). Indeed, “the 17 district court is [] free to hear evidence regarding jurisdiction and to rule on that issue 18 prior to trial, resolving factual disputes where necessary.” Id. However, if the court 19 resolves a Rule 12(b)(1) motion on declarations alone, without an evidentiary hearing, it 20 must accept the complaint’s factual allegations as true. McLachlan v. Bell, 261 F.3d 908, 21 909 (9th Cir. 2001). 22 A. Exhaustion of Administrative Remedies 23 Defendant argues that this Court lacks subject matter jurisdiction over all of 24 Plaintiffs’ claims because Plaintiffs failed to exhaust their administrative remedies with 25 HHS before filing their wrongful death claims in Federal court. (Doc. 47 at 2). 26 Generally, the United States is immune from suit unless it expressly consents to be 27 sued. See United States v. Dalm, 494 U.S. 596, 608 (1990). The Federal Tort Claims Act 28 (“FTCA”) constitutes a limited waiver of this sovereign immunity and it must be strictly -4- 1 construed. McNeil v. United States, 508 U.S. 106, 111 (1993). The FTCA, 5 is the exclusive legal remedy for claims against the United States for damages based on . . . death caused by the negligent or wrongful act or omission of any employee of the Government 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. 6 28 U.S.C. § 1346(b)(1) (2012). The purpose of the FTCA is for a government agency 7 (potentially liable to an injured party) to evaluate and/or settle the injured party’s claim at 8 an early stage and before a lawsuit is filed in Federal court. 73 A.L.R. Fed. 338 (West 9 2012) (quoting 1966 U.S. Code Congressional and Administrative News 2516). This 10 enables evaluation of the claim by the agency possessing the best information about the 11 incident, eases court congestion, and prevents unnecessary litigation. Id. 2 3 4 12 The FTCA provides for this waiver of sovereign immunity and allows a tort 13 claimant to sue the United States in Federal court only after the claimant exhausts his 14 administrative remedies with the Federal agency that is responsible for the injury. 15 Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983) (citations omitted); Caton 16 v. United States, 495 F.2d 635, 638 (9th Cir. 1974). The Congressional prerequisite that 17 a claimant exhaust his administrative remedies before suing the United States is found in 18 28 U.S.C. § 2675(a). This statute provides, 19 20 21 22 23 24 [a]n action shall not be instituted upon a claim against the United States for money damages for . . . death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency . . . . 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 . . . 25 28 U.S.C. § 2675(a) (2012) (emphasis added). The Supreme Court has said that 26 § 2675(a) means that Congress intended to require complete exhaustion of other remedies 27 before allowing an injured party to invoke the judicial process. McNeil, 508 U.S. at 112. 28 In § 2675(a), Congress prescribed two requirements for a claimant to exhaust his -5- 1 administrative remedies. 28 U.S.C. § 2675(a). First, the claimant must properly present 2 his injury claim to the Federal agency whose employee’s negligence caused the injury 3 (“presentment”). Id. Second, the claimant must receive from that Federal agency a final 4 denial of his claim (“final denial”). Id. Therefore, a Federal court has subject matter 5 jurisdiction over a tort claim against the United States only after the claimant fulfills the 6 requirements of presentment and final denial. Id. 7 This case is a tort claim against the United States because it involves wrongful 8 death medical malpractice allegations against a hospital operated by HHS, a Federal 9 agency. (Doc. 1 at 1); § 2675(a). Thus, under the FTCA, this Court has subject matter 10 jurisdiction over Plaintiffs’ claims only if they exhausted their administrative remedies 11 before filing the Complaint in this Court. § 2675(a). Plaintiffs exhausted their 12 administrative remedies only if they fulfilled the requirements of (1) presentment (to 13 HHS), and (2) final denial (from HHS). Id. Therefore, this Court must dismiss the 14 Complaint for lack of subject matter jurisdiction unless Plaintiffs properly presented their 15 claims to, and received a final denial from, HHS. Fed. R. Civ. P. 12(b)(1). 16 Accordingly, the Court considers whether Plaintiffs fulfilled the requirements of 17 presentment and final denial. 18 1. Presentment Requirement 19 Defendant argues that this Court should dismiss all of Plaintiffs claims for a 20 failure to properly present their claims to HHS. (Doc. 47 at 1-2, 10-13). Defendant 21 alleges that the claims were not properly presented because Mr. Borg did not provide 22 HHS with the “evidence of [his] authority” to represent Plaintiffs that HHS requested. 23 (Id. at 2, 10). 24 necessary for proper presentment. (Doc. 47 at 9-19; Doc. 52 at 2-14). Thus, the Court 25 must decide if “evidence of authority” is a necessary element. 26 The parties disagree whether “evidence of authority” is an element a. Statutory Elements 27 A tort claimant must properly present his injury claim to the responsible Federal 28 agency in order to exhaust his administrative remedies and become entitled to the -6- 1 jurisdiction of a Federal court. 28 U.S.C. § 2675(a). Congress has the power to create 2 such a jurisdictional requirement. U.S. Const. art 3, § 1. Congress mandated only two 3 elements necessary for proper presentment of a claim: (1) notice (to the agency) and (2) 4 a sum certain (as to damages). § 2675(a). Congress did not include “evidence of 5 authority” as an element necessary for presentment. See Id. “Evidence of authority” is 6 an additional element for presentment promulgated by the Department of Justice 7 (“DOJ”), including the Attorney General. See infra, 28 C.F.R. § 14.2(a) (2012). The 8 Constitution did not grant the DOJ, including the Attorney General, the same power to 9 create a jurisdictional requirement that it granted to Congress. See U.S. Const. art 3, § 1. 10 However, Defendant contends that Congress gave the Attorney General power to 11 create a jurisdictional element for presentment. (Doc. 47 at 11-12). Defendant argues 12 that Congress gave the Attorney General this power when Congress said that a Federal 13 agency has authority to settle tort claims presented against it “in accordance with 14 regulations prescribed by the Attorney General.” 28 U.S.C. § 2672 (2012) (emphasis 15 added). The presentment regulations prescribed by the Attorney General are found in 28 16 C.F.R. § 14.2(a): 17 18 19 20 21 22 For purposes of . . . 28 U.S.C. 2401(b),2 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 . . . [and] money damages in a sum certain for . . . death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant . . . 28 C.F.R. § 14.2(a) (emphasis added). 23 Therefore, Defendant relies on a combination of Congressional and DOJ 24 requirements to argue that more than notice and a sum certain—in particular, “evidence 25 of authority”—is required for properly presenting a tort claim to a Federal agency. (Doc. 26 27 28 2 A tort claim against the United States must be presented to the appropriate federal agency within two years after the claim accrues, or the action must begin within six months after that agency’s final denial of the claim. 28 U.S.C. § 2401(b) (2012). -7- 1 47 at 10-12). Defendant combines 28 U.S.C. § 2675(a) (properly presenting a claim 2 requires notice to the agency and a sum certain as to damages), 28 U.S.C. § 2672 (an 3 agency has authority to settle claims against it “in accordance with regulations prescribed 4 by the Attorney General”), and 28 C.F.R. § 14.2(a) (properly presenting a claim requires 5 notice, a sum certain, title or legal capacity of the person signing, and “evidence of 6 [signer’s] authority” to represent the claimant). Therefore, Defendant alleges that under 7 this combination of Congressional and DOJ requirements, Plaintiffs’ claims to HHS were 8 inadequately presented because Mr. Borg did not provide the “evidence of authority” that 9 HHS requested. (Doc. 47 at 10). 10 Contrary to Defendant’s combined use of § 2672, § 2675, and § 14.2(a), Plaintiffs 11 argue that Congress did not delegate authority to the Attorney General to create 12 jurisdictional hurdles under the FTCA. (Doc. 52 at 8). Plaintiffs contend that Mr. Borg 13 properly presented their claims to HHS because only Congress can create a jurisdictional 14 requirement, Congress requires only notice and a sum certain, and Mr. Borg provided 15 notice and a sum certain to HHS. (Doc. 52 at 2-3, 5); § 2675(a). Therefore, Plaintiffs 16 maintain that they exhausted their administrative remedies, and are entitled to this 17 Court’s jurisdiction over their claims. Id. 18 Defendant argues that a 1987 DOJ revision to the Attorney General’s regulations 19 confirms that more than notice and a sum certain are required for presentment, 20 exhaustion, and jurisdiction. (Doc 47 at 11-14). In 1987, the DOJ revised former 28 21 C.F.R. § 14.3(e) and converted it to § 14.2(a). 52 Fed. Reg. 7411 (Mar. 11, 1987). The 22 1987 DOJ amendment added the words, “[f]or purposes of . . . 28 U.S.C. 2401(b), 2672, 23 and 2675” to the first line of § 14.3(e), which then became § 14.2(a). 28 C.F.R. § 14.3(e) 24 (1986); 28 C.F.R. § 14.2(a) (emphasis added). Defendant says that by reference to 25 § 2672 and § 2675(a), the DOJ amendment confirmed the intent for the additional 26 requirements in § 14.2(a)—including “evidence of authority”—to be jurisdictional 27 elements for presentment and administrative remedies exhaustion. (Doc. 47 at 11-12). 28 The Court resolves the parties’ dispute over the elements necessary for -8- 1 presentment by looking to the Circuit Courts of Appeals. b. 2 Case Law 3 For decades, the Circuit Courts of Appeals have disagreed about the elements 4 necessary for proper presentment and thus, exhaustion of administrative remedies and 5 Federal court jurisdiction. See generally Swift v. United States, 614 F.2d 812 (1st Cir. 6 1980) cf. Adams v. United States, 615 F.2d 284 (5th Cir. 1980) and Blair v. IRS, 304 F.3d 7 861 (9th Cir. 2002) cf. Mader v. United States, 654 F.3d 794 (8th Cir. 2011). That history 8 is important to the determination in this case. 9 Before 1987, the Circuit Courts of Appeals disagreed about whether the Attorney 10 General’s presentment requirements in then § 14.3(e) (now § 14.2(a)) are jurisdictional. 11 See Swift, 614 F.2d at 814 cf. Adams, 615 F.2d at 287-88. In Swift, the First Circuit Court 12 of Appeals held that when an attorney failed to provide an agency with additional 13 information that the agency requested, the attorney interfered with the claim’s review 14 process, failed to exhaust his client’s administrative remedies, and was properly denied 15 Federal court jurisdiction. 614 F.2d at 814. Conversely, in Adams, the Fifth Circuit 16 Court of Appeals held that failure to provide information required by the Attorney 17 General in § 14.3(e)—e.g., “evidence of authority”—did not preclude Federal court 18 jurisdiction because the Attorney General cannot promulgate a jurisdictional 19 requirement.3 615 F.2d at 287-88. 20 In 1982, the Ninth Circuit Court of Appeals took a position in the split by directly 21 addressing the conflict between Swift and Adams. Avery v. United States, 680 F.2d 608, 22 609-10 (9th Cir. 1982). In Avery, the Court of Appeals expressly adopted Adams, the 23 majority view among the Circuit Courts of Appeals, that only the notice and a sum 24 certain required by § 2675(a) are jurisdictional. Id. at 610. In Avery, two injured 25 plaintiffs made administrative claims and then failed to provide the supporting 26 27 28 3 The Fifth Circuit Court of Appeals held in Adams that only 28 U.S.C. § 2675(a) contained jurisdictional requirements, which included: (1) notice to the agency sufficient for investigation; and (2) a sum certain as to damages. Id. at 289 (citations omitted). -9- 1 information that was requested by the agency (medical records, bills, etc.). Id. at 609-10. 2 Both plaintiffs filed lawsuits without providing the information. Id. The lower courts 3 dismissed the plaintiffs’ cases for lack of jurisdiction due to a failure to exhaust 4 administrative remedies. Id. In Avery, and relying upon the legislative history for 5 § 2675(a)—which is unquestionably jurisdictional—the Ninth Circuit Court of Appeals 6 chose the Adams interpretation that the Attorney General’s additional requirements in 7 § 14.3(e) (now § 14.2(a)) are not jurisdictional. Id. 8 However, before 1987, there was a split within the Ninth Circuit as well. In 9 Warren v. United States Department of the Interior Bureau of Land Management, 724 10 F.2d 776 (9th Cir. 1984) (en banc), the Ninth Circuit Court of Appeals resolved the 11 disagreement between House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 12 1978) and Graves v. United States Coast Guard, 692 F.2d 71 (9th Cir. 1982). Warren, 13 724 F.2d at 776. 14 The House court upheld dismissal of multiple complaints after a mine fire because 15 claimants’ representatives did not provide “evidence of authority.” 573 F.2d at 609, 617. 16 The court found that failure to provide “evidence of authority” precluded administrative 17 remedies exhaustion and, thus, Federal court jurisdiction. 18 “evidence of authority” to be a jurisdictional requirement. Id. Id. The court deemed 19 Conversely, the Graves court found that the holding in House was dicta only and 20 that failure to provide “evidence of authority” precluded neither exhaustion nor 21 jurisdiction. 692 F.2d at 74, 75. The Graves court also noted that the attorney in that 22 case wrote “Attorney for . . .” on his client’s claim. Id. at 74. The court said this was 23 significant because an attorney’s appearance on behalf of his client “raises a presumption 24 that the attorney has the authority to act on that [client’s] behalf.” Id. (citations omitted). 25 The Warren case involved an attorney who submitted a claim form but did not 26 provide extrinsic “evidence of authority.” 724 F.2d at 777. The Warren court expressly 27 overruled House and affirmed Graves. Id. The court reasoned that Congress modeled 28 tort claims presentment after municipal law, which requires only minimal claim notice. - 10 - 1 Id. Thus, the Ninth Circuit Court of Appeals held that in § 2675(a) Congress intended no 2 more than minimal notice and a sum certain for claim presentment, administrative 3 remedies exhaustion, and Federal court jurisdiction. Id. at 779-80 (citations omitted). A 4 lengthy dissent followed the majority en banc opinion in Warren. 5 Defendant in this case relies upon that dissent. (Doc. 47 at 15). Id. at 780-89. 6 Some of the Circuit Courts of Appeals agree with Defendant that the DOJ’s 1987 7 change to § 14.3(e) made the additional elements in the new § 14.2(a)—including 8 “evidence of authority”—jurisdictional requirements for presentment and exhaustion. 9 See e.g., Mader v. United States, 654 F.3d 794 (8th Cir. 2011). Defendant points to the 10 Mader opinion to support its view that the additional § 14.2(a) elements—including 11 “evidence of authority”—are jurisdictional requirements for presentment. Id. at 804; 12 (Doc. 47 at 13-14). 13 authority” is jurisdictional because § 2672 says that an agency has power to settle a 14 § 2675(a) claim “in accordance with regulations prescribed by the Attorney General.” 15 (Id.); 654 F.3d at 84. Mader also contains a lengthy dissent, which is in line with the 16 Ninth Circuit Court of Appeals majority opinion in Warren. Id. at 808-19. Defendant uses Mader to support its view that “evidence of 17 Defendant argues that Warren is distinguishable from Mader because 18 Warren was decided before the 1987 DOJ change to the Code of Federal Regulations and 19 because significant cases that disagree with Warren were decided after 1987. (Doc. 47 at 20 11-13); See e.g., Mader, 654 F.3d 794. Defendant further relies on the Seventh Circuit 21 Court of Appeals opinion in Kanar v. United States, 118 F.3d 527, 528, 529-30 (7th Cir. 22 1997) (holding that an administrative claim has four elements for presentment (notice, a 23 sum certain, title/capacity of person signing, and “evidence of authority”) rather than the 24 two elements found in Warren (minimal notice and a sum certain)). (Doc. 47 at 11-12). 25 Without question, after 1987, the Circuit Courts of Appeals remain in 26 disagreement as to whether the Attorney General’s requirements in § 14.2(a) are 27 jurisdictional. See e.g., Blair v. IRS, 304 F.3d 861, 865 (9th Cir. 2002) cf. Mader v. 28 United States, 654 F.3d 794 (8th Cir. 2011). Defendant asks the Court to compare Vacek - 11 - 1 v. United States Postal Service, 447 F.3d 1248 (9th Cir. 2006) with Warren in an attempt 2 to show that after 1987, there continues to be disagreement within the Ninth Circuit over 3 whether the § 14.2(a) elements (e.g., “evidence of authority”) are jurisdictional. (Doc. 47 4 at 12); Warren, 724 F.2d 776. 5 Unlike this case, Vacek addressed whether the mailbox rule applies to FTCA claim 6 presentment, i.e. whether notice sent, but not received, was adequately presented. 447 7 F.3d at 1251. Vacek did not address whether the additional § 14.2(a) elements were 8 necessary for presentment. Id. Defendant’s use of Vacek is not persuasive in this case. 9 Additionally, of note, is the fact that Vacek states, 10 11 12 13 14 We have repeatedly held that the exhaustion requirement is jurisdictional in nature and must be interpreted strictly: This is particularly so since the [FTCA] waives sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions. Given the clarity of the statutory language, we cannot enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit. 15 16 Vacek, 447 F.3d at 1251 (quoting Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 17 1992)) (emphasis added). 18 The problem with Defendant’s reliance on the minority Circuits and the Warren 19 dissent, is that even after 1987, the Ninth Circuit Court of Appeals has continued to 20 affirm the holding in Warren. See e.g., Blair v. IRS, 304 F.3d 861, 865 (9th Cir. 2002) 21 (confirming Warren and holding that per § 2675(a) only notice and a sum certain are 22 jurisdictional elements of presentment, and that the additional elements found in § 14.2(a) 23 are instructional only); and Goodman v. United States, 298 F.3d 1048, 1055 (9th Cir. 24 2002) (relying upon Warren and Avery and holding that only notice and a sum certain are 25 jurisdictional elements for presentment). Likewise, the Arizona District Courts have 26 continually followed Warren and Avery after 1987. See e.g., Salt River Pima-Maricopa 27 Indian Cmty. v. United States, 266 F.R.D. 375 (D. Ariz. 2010); White v. United States, 28 2012 U.S. Dist. LEXIS 92822, 25-27 (D. Ariz. 2012). - 12 - 1 Defendant argues that the lower courts within the Ninth Circuit have struggled to 2 apply the § 14.2(a) requirements as being non-jurisdictional, and says that therefore, the 3 Warren court’s reasoning is irreconcilable with the practical effect of its decision. (Doc. 4 47 at 14-15). This is not persuasive for two reasons. First, the cases that Defendant cited 5 in this regard occurred before Warren was decided. (Id.). Second, in one of the cases 6 Defendant cited, Triplett v. United States, 501 F. Supp. 118 (D. Nev. 1980), the court 7 relied upon House, which Warren expressly overruled. (Id.); Warren, 724 F.2d at 780. 8 This wrongful death case lies in the Ninth Circuit. (Doc. 1). The Ninth Circuit 9 Court of Appeals has made clear, both before and after 1987, its position that only the 10 elements for presentment in § 2675(a) (notice and a sum certain) are jurisdictional and 11 that the additional elements in § 14.2(a) (e.g., “evidence of authority”) are instructional 12 only. See Warren, 724 F.2d 776; Avery, 680 F.2d 608; Graves, 692 F.2d 71; Blair, 304 13 F.3d 861; and Goodman, 298 F.3d 1048. 14 Mr. Borg met the § 2675(a) elements of notice and a sum certain because he 15 completed the Standard Forms 95 for notice, included information sufficient for HHS to 16 investigate, and furnished on each Form a sum certain of $10,000,000 as to damages. 17 (Doc. 52 at 3-4, 8-9, 13-14, 18-19, 23-24, 28-29). Thus, Plaintiffs’ claims presentment 18 to HHS was consistent with the jurisdictional elements for presentment recognized by the 19 Ninth Circuit Court of Appeals. 20 Additionally, even if the Court of Appeals considered “evidence of authority” 21 jurisdictional, Mr. Borg provided such evidence for two reasons. First, like Graves, 22 Mr. Borg appeared on behalf of his clients in several ways. 692 F.2d at 74 (citations 23 omitted). Mr. Borg provided an address on the claim Forms, which contained the name 24 of his law firm. (Doc. 45 at 3, 8, 13, 18, 23, 28). Also, much like Graves, Mr. Borg 25 wrote “attorneys” next to the name of his law firm on one of the Standard Forms 95 and 26 he signed each Form, “Scott E. Borg for . . . .” (Id.); 692 F.2d at 74. Second, HHS 27 acknowledged Mr. Borg’s authority to represent the Plaintiffs. HHS acknowledged Mr. 28 Borg’s authority when it addressed several letters to “Scott E. Borg, Esq.,” included Mr. - 13 - 1 Borg’s law firm name in the address, and referenced “your clients” in the body of the 2 correspondence. (Doc. 45-1 at 32, 35, 39, 42; Doc. 59). Thus, Mr. Borg provided 3 extrinsic “evidence of his authority” to represent the Plaintiffs. 4 For these reasons, the Court finds that Mr. Borg satisfied the elements for 5 presentment required by § 2675(a) and thus, exhausted Plaintiffs’ administrative 6 remedies. Therefore, the Court has subject matter jurisdiction and denies Defendant’s 7 Motion to Dismiss under Rule 12(b)(1). 2. 8 Final Denial Requirement 9 In addition to presentment, in § 2675(a), Congress also required final denial. 10 § 2675(a). That is, a claimant must properly present his claim to the responsible Federal 11 agency and receive a final denial of that claim in order to exhaust his administrative 12 remedies and receive Federal court jurisdiction over the claim. Id. Defendant did not 13 allege that Plaintiffs failed to obtain a final denial of the claim. (Doc. 47). However, 14 because § 2675(a) makes final denial a jurisdictional requirement, the Court briefly raises 15 it sua sponte. 16 A claimant may opt to consider a claim denied if the federal agency to which the 17 claim was presented does not provide a final disposition in writing within six months after 18 presentment. § 2675(a). Also, an agency may deem an administrative claim abandoned, 19 and “thereupon disallowed,” if within three months after requesting additional 20 information from a claimant, the information is not provided. § 35.4(d). In several 21 letters, HHS provided Mr. Borg with this § 35.4(d) warning. (Doc. 45-1 at 33, 35, 39, 22 43). Yet, there is no evidence that HHS ever disallowed Plaintiffs’ claims for a failure to 23 provide additional information. Thus, the Court finds that HHS did not deem the claims 24 abandoned. 25 Additionally, although Plaintiffs did not receive a final denial from HHS before 26 filing the Complaint, Plaintiffs waited more than six months (and in fact, waited 27 approximately ten months) after presentment before filing the Complaint. (Doc. 45-1 at 28 3, 8, 13, 18, 23, 28; Doc. 1). Although Plaintiffs did not send the additional information - 14 - 1 requested by HHS during that ten month wait, the jurisdictional requirements of 2 § 2675(a) were met. Therefore, six months after providing the notice and a sum certain 3 required by § 2675(a), Plaintiffs were entitled to deem their claims denied. § 2675(a). 4 That the jurisdictional requirements were met is additionally supported by the fifth letter 5 that HHS sent to Mr. Borg after the Complaint was filed. 6 acknowledged that because the Complaint was filed, the claim was denied. (Id.). (Doc. 59). The letter 7 The Court finds that because Plaintiffs waited more than six months after 8 presentment and before filing the Complaint in this Court, Plaintiffs satisfied the final 9 denial requirement of § 2675(a). Consequently, Plaintiffs have met both the presentment 10 and the final denial requirements of § 2675(a) and have exhausted their administrative 11 remedies before filing the Complaint. The Court denies Defendant United States’ Motion 12 to Dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). 13 B. Priscilla Davis’s Standing to be a Plaintiff 14 Defendant makes a second and alternative argument that this Court lacks 15 jurisdiction over Ms. Davis’s claims because she does not have standing to be a party. 16 (Doc. 47 at 2-3). Defendant alleges that Ms. Davis does not have standing because she 17 was neither the biological nor the legally adopted daughter of Mr. Kinlichee. (Id. at 1, 18 19). Defendant states that the Native American common law adoption order obtained by 19 Ms. Davis in Navajo Family Court fails to provide her with a legal adoption for purposes 20 of standing in a wrongful death action in Federal court. (Doc. 56 at 9-11). Thus, 21 Defendant asks the Court to dismiss Ms. Davis’s claims for lack of subject matter 22 jurisdiction because she does not have standing to be a plaintiff. (Id.). 23 Standing is an “irreducible constitutional minimum” for bringing a case into court. 24 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing pertains to a Federal 25 court’s subject matter jurisdiction under Article III of the U.S. Constitution, and it is 26 properly raised in a motion to dismiss under Rule 12(b)(1). White v. Lee, 227 F.3d 1214, 27 1242 (9th Cir. 2000) (citations omitted). 28 It is undisputed that Ms. Davis is a Navajo and that Mr. Kinlichee was as well. - 15 - 1 (Doc. 52-1 at 1-2). It is undisputed that the alleged negligence in this case occurred 2 within the Navajo Nation. (Doc. 1 at 1-2). It is undisputed that Ms. Davis obtained an 3 order in the Family Court of the Navajo Nation validating her Navajo common law 4 adoption by Mr. Kinlichee. (Doc. 52-1 at 1-10). Although the adoption was posthumous 5 as to Mr. Kinlichee and retroactive to 2003, the Navajo court granted the adoption. See 6 (Doc. 52-1 at 1, 10). 7 Additionally, the Ninth Circuit Court of Appeals has held that a state must give 8 full faith and credit to adoption decrees issued by the tribal court of a Native American 9 sovereign. Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 562 (9th Cir. 1991). There is 10 no issue known to the Court, or raised here, suggesting that the Navajo Nation lacks the 11 status of a Native American sovereign, and its tribal court granted Ms. Davis an adoption 12 order. If Ms. Davis had been legally adopted by Mr. Kinlichee in another state, and then 13 became a tort plaintiff in the District of Arizona, that adoption likely would not be 14 questioned, or legally analyzed for its merits, before Ms. Davis would be granted 15 standing. 16 validating Mr. Kinlichee’s adoption of Ms. Davis. Accordingly, this Court must recognize the order of the Navajo court Therefore, as to Ms. Davis, the Court denies Defendant’s Motion to Dismiss for 17 18 lack of standing. 19 III. CONCLUSION 20 Based on the foregoing, 21 IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 47) is denied. 22 Dated this 11th day of March, 2013. 23 24 25 26 27 28 - 16 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?