Halvorson v. United States of America

Filing 25

ORDER denying 7 Motion to Dismiss for Lack of Jurisdiction; adopting in part and rejecting in part 22 Report and Recommendation; overruling in part and sustaining in part 23 Objection to Report and Recommendation. Signed by Chief Judge Jeffrey L. Viken on 3/31/19. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 18-5032-JLV

RONDA HALVORSON, as Special
Administrator of the Estate of
KENNETH HOLST, Deceased,

ORDER

Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
INTRODUCTION

This case stems from decedent Kenneth Holst’s alleged wrongful death.
Plaintiff Ronda Halvorson brought suit under the Federal Tort Claims Act
(“FTCA”), alleging decedent’s death was caused by employee negligence at the
Department of Veterans Affairs (“VA”) Fort Meade hospital in Sturgis, South
Dakota.

(Docket 1 at ¶¶ 31-39).

As defendant, the United States moves to

dismiss plaintiff’s complaint on the grounds it was filed untimely, resulting in a
lapse of the FTCA’s waiver of sovereign immunity.
the motion.

(Docket 7).

Plaintiff resists

(Docket 16).

The court referred the pending motion to Magistrate Judge Veronica L.
Duffy pursuant to the court’s standing order of October 16, 2014, and 28 U.S.C.
§ 636(b)(1) for a report and recommendation (“R&R”).

(Docket 21).

The

magistrate judge issued an R&R concluding defendant’s motion to dismiss
should be granted.

(Docket 22).

Plaintiff timely objected to the R&R and

defendant responded to the objections.

(Dockets 23 & 24).

Under the Federal

Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the
magistrate judge’s proposed findings and recommendations, the district court is
required to “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”
Id. The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. For the reasons given
below, the court overrules plaintiff’s objections in part and sustains them in part.
The court denies defendant’s motion to dismiss.
ANALYSIS
I.

Facts
Neither party objected to the magistrate judge’s factual findings.

(Dockets 23 at p. 1 & 24 at p. 2). The court accordingly adopts the facts recited
by the magistrate judge. (Docket 22 at pp. 2-6). For the purposes of resolving
plaintiff’s objections to the R&R, the court need only recite a few key facts.
On May 19, 2015—when he was 84 years old—decedent went to the Fort
Meade VA hospital for post-operative care. Id. at p. 3. On that day, he fell
while in the hospital and fractured his pelvis. Id. at pp. 3-4. Plaintiff alleges
the VA’s negligence caused the fall and resulted in further injury, including
pneumonia and a stroke. Id. at p. 4. This negligence shortened decedent’s life
span and caused his “untimely and wrongful death[.]” Id. at pp. 4-5; Docket 1
at ¶ 35. Decedent died on June 3, 2016. (Docket 17).
2

Plaintiff was appointed special administrator of decedent’s estate on May
9, 2017. (Docket 1 at ¶ 8). She presented her claim to the VA for
administrative adjudication on May 17. Id. at ¶ 10. The six-month mark after
plaintiff filed her administrative claim passed on November 17. 1 Plaintiff filed
the present case with this court on May 10, 2018. (Docket 1).
II.

Plaintiff’s Objections
Plaintiff objects to two of the magistrate judge’s legal conclusions. As

summarized by the court, the objections argue:
1.

The two-year limit for medical malpractice claims imposed by
a South Dakota statute of repose, SDCL § 15-2-14.1, was
tolled by an extender statute, SDCL § 29A-3-109. (Docket 23
at pp. 2-4).

2.

The FTCA’s timing provisions preempt the South Dakota
statute of repose. Id. at pp. 4-8.

The court will examine each objection in turn.
III.

Discussion
A.

Legal standards
1.

Rule 12(b)(1)

Defendant argues the court lacks subject matter jurisdiction over
plaintiff’s FTCA claim. (Docket 7). Under Federal Rule of Civil Procedure
12(b)(1), a defendant has the right to challenge the “lack of subject-matter
jurisdiction . . . .”
1The

Fed. R. Civ. P. 12(b)(1). While considering a Rule 12(b)(1)

six-month mark is relevant because “[t]he 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[.]” 28 U.S.C. § 2675(a).
3

motion to dismiss for lack of subject matter jurisdiction, the court must “accept
all factual allegations in the pleadings as true and view them in the light most
favorable to the nonmoving party.”

Great Rivers Habitat All. v. Fed. Emergency

Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010).

The court “has authority to

consider matters outside the pleadings when subject matter jurisdiction is
challenged under Rule 12(b)(1). . . . This does not . . . convert the 12(b)(1) motion
to one for summary judgment.”
638 (8th Cir. 2003).

Harris v. P.A.M. Transp., Inc., 339 F.3d 635,

“The burden of proving federal court jurisdiction is on the

party seeking to invoke federal jurisdiction.” Mitchael v. Colvin, 809 F.3d 1050,
1053 (8th Cir. 2016) (citing Great Rivers, 615 F.3d at 988).
2.

FTCA

“The United States is immune from suit unless it consents. Congress
waived the sovereign immunity of the United States by enacting the FTCA, under
which the federal government is liable for certain torts its agents commit in the
course of their employment.
exception applies.”

The United States is, nevertheless, immune if an

Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011).

“Where the United States has not waived sovereign immunity under the FTCA,
the district court lacks subject matter jurisdiction to hear the case.”

Id.

“The

FTCA confers subject matter jurisdiction for suits against the United States in
‘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

4

occurred.’ ”

Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018)

(quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)).
The FTCA contains an interconnected statute of limitation and
administrative adjudication requirement.
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 action is begun within
six months after . . . notice of final denial of the claim by the agency
to which it was presented.
28 U.S.C. § 2401(b).
An action shall not be instituted upon a claim against the United
States . . . 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 in writing and sent by certified or registered
mail. The failure of an agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant
any time thereafter, be deemed a final denial of the claim for
purposes of this section.
Id. at § 2675(a).
These statutes create the following procedural schedule for FTCA
plaintiffs.
1.

The claim must be presented to the federal agency for
administrative adjudication within two years of the claim’s
accrual. Id. at § 2401(b).

2.

If the agency does not make a final disposition of a claim
within six months, it is deemed denied and the plaintiff may
file suit in federal court. Id. at §§ 2401(b), 2675(a).

3.

If the plaintiff chooses to pursue the administrative
adjudication process to its conclusion and the agency denies
her claim, she must file her suit in federal court within six
months of the denial. Id. at § 2401(b).
5

The FTCA requires plaintiffs to attempt administrative adjudication but leaves to
their discretion whether to file suit at six months after the agency receives the
claim—under the deemed denial provision—or within six months of the agency’s
actual final denial of the claim. If a plaintiff chooses to participate in the entire
administrative adjudication process, the FTCA sets no time limit on that process.
B.

Extender statute objection

Plaintiff’s first objection argues the two-year limit set by South Dakota’s
statute of repose was tolled by a separate statute.

The magistrate judge

concluded this argument failed under controlling South Dakota case law and
was contrary to the plain terms of the statute.

The court agrees.

The issue arises from South Dakota’s medical malpractice statute of
repose.

The statute states “an action against a [health care professional],

whether based upon contract or tort, can be commenced only within two years
after the alleged malpractice . . . occurred.” 2

SDCL § 15-2-14.1.

However, the

extender statute suspends “[t]he running of any statute of limitations on a cause
of action belonging to a decedent . . . for one year[.]”

SDCL § 29A-3-109.

Defendant’s alleged negligence occurred on May 19, 2015, but plaintiff did not
file this suit until May 10, 2018.

Plaintiff’s suit is untimely under the statute of

repose but would be timely if the repose deadline is subject to the extender
statute.
2The

parties do not contest that the Fort Meade VA hospital employees
allegedly responsible for decedent’s fall and subsequent death fit within the types
of health care professionals listed in the statute.
6

A South Dakota Supreme Court case squarely resolves this objection. In
Pitt-Hart v. Sanford USD Med. Ctr., the South Dakota Supreme Court
unequivocally affirmed that SDCL § 15-2-14.1 is a statute of repose which “will
not be tolled for any reason.”

878 N.W.2d 406, 413 (S.D. 2016) (quotation

omitted) (emphasis in original).

The two-year repose period created by SDCL

§ 15-2-14.1 cannot be tolled for any reason under Pitt-Hart, including by
operation of the extender statute.

Id. In any case, as the magistrate judge

noted, the extender statute by its plain terms applies only to statutes of
limitation, not statutes of repose.

SDCL § 29A-3-109 (“The running of any

statute of limitations . . . .”) (emphasis added).
Plaintiff refers the court to her argument in response to defendant’s
motion to dismiss that the extender statute’s use of the term “statute of
limitations” should be interpreted to include statutes of repose.

(Docket 16 at

pp. 2-6). She noted the South Dakota Supreme Court used the terms
interchangeably on occasion and that “there is no evidence that the South
Dakota Legislature used the term ‘statute of limitation’ in a technical legal sense
and intended the statute to suspend statutes of limitation but not statutes of
repose[.]”

Id. at p. 3.

It is true “[i]nconsistency has persisted in almost all of [the South Dakota
Supreme Court’s] decisions involving SDCL 15-2-14.1.”
at 413.

Pitt-Hart, 878 N.W.2d

This inconsistency motivated the South Dakota Supreme Court in

Pitt-Hart to “correct the past practice of referring to SDCL 15-2-14.1 as a statute
7

of limitation in contravention of its status as a statute of repose.” Id. at 415-16.
The court will not base its statutory analysis on since-corrected mistakes in past
case law.
The extender statute on its face applies only to statutes of limitation.
SDCL § 29A-3-109.

South Dakota courts

adhere to two primary rules of statutory construction. The first
rule is that the language expressed in the statute is the paramount
consideration. The second rule is that if the words and phrases in
the statute have plain meaning and effect, [courts] should simply
declare their meaning and not resort to statutory construction.
Winslow v. Fall River Cty., 909 N.W.2d 713, 717 (S.D. 2018) (quotation and
citation omitted).

These rules easily lead the court to conclude the extender

statute means what it says and applies only to statutes of limitation.

Plaintiff

cites no authority permitting the court to infer the South Dakota Legislature
secretly intended the extender statute to include statutes of repose.
She does cite a principle of South Dakota statutory construction holding
“[w]ords used in the South Dakota Codified Laws are to be understood in their
ordinary sense[.]”

Pitt-Hart, 878 N.W.2d at 410 (quoting SDCL § 2-14-1).

Plaintiff does not explain how the court, understanding the words of the statute
in their ordinary sense, is to construe the extender statute’s use of the term
statute of limitation to refer to statutes of repose.

Aside from being composed of

different words, the two terms refer to entirely different concepts. Id. at 413-14.
The “technical legal sense” of the term statute of limitations is the same as its

8

ordinary sense in that neither encompass statutes of repose.

(Docket 16 at

p. 3).
The extender statute does not toll the statute of repose.

Plaintiff’s

objection is overruled, and the R&R is adopted on this point.
C.

Preemption objection

Plaintiff’s second objection concedes the statute of repose would bar her
claim but argues the time limitation provisions of the FTCA preempt the statute
of repose. (Docket 23 at pp. 4-8).

Resolving this objection requires the court to

wade into a contested and developing area of FTCA law.

After thoroughly

surveying the legal landscape on this point, the magistrate judge concluded the
South Dakota statute of repose is a substantive state tort law incorporated by
the FTCA.

(Docket 22 at pp. 18-21, 24-31).

The court agrees the statute of

repose is a substantive state tort law but concludes it cannot be reconciled with
the FTCA’s administrative adjudication provisions. The court holds the FTCA
preempts the application of the statute of repose to plaintiff’s claim.
1.

Conflict of authority

Given the importance of this issue both to plaintiff and for FTCA plaintiffs
in South Dakota more broadly, the court will outline the competing legal theories
on FTCA preemption of state statutes of repose.

In general, courts finding no

preemption have focused on the FTCA’s explicit incorporation of state
substantive law.

Courts taking the opposite view have emphasized the conflict

9

between the FTCA’s administrative adjudication requirement and state statutes
of repose.
The United States Court of Appeals for the Eighth Circuit has not yet
determined whether the FTCA preempts state statutes of repose.
court concurrence found preemption.

One appellate

In Kennedy v. United States Veterans

Admin., the Sixth Circuit reversed a district court’s order dismissing a FTCA
claim because of Ohio’s statute of repose.
2013).

526 F. App’x 450, 451 (6th Cir.

The majority reasoned Ohio law allowed vested tort claims to survive the

repose deadline, avoiding the preemption question. Id. at 455.

In

concurrence, Judge White would have reversed the district court on preemption
grounds, arguing:
[I]it is clear that Congress intended the administrative process to be
the preferred method for resolving tort claims against the federal
government and that a plaintiff engaging in that process have six
months after the agency denial to evaluate his or her position.
Because the Ohio medical-malpractice statute of repose operates in
this case to undercut the federal procedure, it “stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress” and thus does not apply under conflict
preemption principles.
Id. at 458 (quoting Arizona v. United States, 567 U.S. 387, 399 (2012)).

She

feared agencies might “delay notices of denial in order to allow the statute of
repose to extinguish a plaintiff’s claim” if the FTCA did not preempt state
statutes of repose. Id. at 458-59.
view.

Numerous district courts have followed this

See, e.g., Eiswert v. United States, 322 F. Supp. 3d 864, 874 (E.D. Tenn.

2018); Romero v. United States, No. CIV 17-0130, 2018 WL 1363833, at *16
10

(D.N.M. Mar. 15, 2018); John Doe VE v. United States, Case No. 17-2331, 2017
WL 4516864, at *3 (D. Kan. Oct. 10, 2017); A.J.J.T. v. United States, No.
3:15-cv-1073, 2016 WL 3406138, at *3-5 (M.D. Tenn. June 21, 2016).
One district court in the Eighth Circuit, developing the analysis later
supported by Judge White’s concurrence in Kennedy, concluded “the FTCA’s
administrative filing requirement and statute of limitations preempt[ed]”
Missouri’s medical malpractice statute of repose.

Ziehr v. United States, Case

No. 10-00299, 2011 WL 13291655, at *2 (W.D. Mo. June 17, 2011); but see Allen
v. United States, Case No. 4:16-CV-607, 2017 WL 1355492, at *2-3 (E.D. Mo.
Apr. 13, 2017) (finding no preemption and applying Missouri medical
malpractice statute of repose).

The court in Ziehr documented the 1966

amendment to the FTCA which added the administrative adjudication
requirement, concluding “[i]t is clear that by adding the administrative filing
requirement Congress changed the way that claims against the United States
were to commence. . . . Congress wanted claimants to exhaust their
administrative remedies before . . . bringing the issue to the courts.” Ziehr,
2011 WL 13291655 at *2.

The private person analogue did not persuade the

court to conclude the FTCA incorporated Missouri’s statute of repose because
the FTCA “also requires claims to begin with agencies, not courts,” a requirement
not applicable to private parties in Missouri. Id. at *3.
One Court of Appeals rejected the preemption argument on facts
analogous to this case and three have less definitively adopted that position.
11

See Augutis v. United States, 732 F.3d 749 (7th Cir. 2013); Huddleston v. United
States, 485 F. App’x 744 (6th Cir. 2012); Anderson v. United States, 669 F.3d
161 (4th Cir. 2011); Smith v. United States, 430 F. App’x 246 (5th Cir. 2011). 3
The most recent of these cases, Augutis, is also the authority most squarely
addressing the preemption question. In Augutis, the plaintiff timely filed his
administrative claim and timely filed suit in federal district court.
751.

732 F.3d at

The district court dismissed the case because it was filed outside the

Illinois repose period.

Id. at 752. In affirming the judgment, the Seventh

Circuit noted Illinois courts construed the statute at issue as a statute of repose
creating “a substantive limit on liability, not a procedural bar to suit.”
753.

Id. at

Relying on this distinction, the court held “[t]he FTCA does not expressly

preempt state statutes of repose, nor does it impliedly preempt state substantive
law; to the contrary, it expressly incorporates it.” Id. at 754. It further noted
the plaintiff could “have satisfied the requirements” of both the FTCA and the
Illinois statute of repose, creating “no conflict between state and federal law[.]”
Id.

Although acknowledging the plaintiff’s choice to “continue pursuing his

administrative claim . . . extinguish[ed] his nascent federal claim,” the court
3In

Huddleston, the plaintiff did not file his administrative claim within the
repose deadline and the Sixth Circuit left open the question whether his claim
would have survived the statute of repose if it were timely presented to the
agency. 485 F. App’x at 746. In Anderson, the Fourth Circuit suggested, but
did not hold, a Maryland statute could bar an FTCA claim. 669 F.3d at 164-65.
It certified a question to the Court of Appeals of Maryland to determine whether
the statute was one of repose or limitations. Id. at 162. And in Smith, a four
paragraph per curiam opinion, the Fifth Circuit merely applied the Texas statute
of repose without any preemption analysis. 430 F. App’x. at 246-47.
12

evidently did not consider that outcome to be a conflict between state and federal
law.

Id.

The court did not otherwise examine the FTCA’s administrative

adjudication provisions.

It instead applied the Illinois statute of repose,

determining a private person would not be liable in like circumstances and
barring the FTCA claim. Id. at 755.
2.

Preemption law

“The Supremacy Clause invalidates state laws that interfere with, or are
contrary to, federal law.” Qwest Corp. v. Minn. Pub. Utils. Comm’n., 684 F.3d
721, 726 (8th Cir. 2012) (citations and quotations omitted).

“Conflict

preemption occurs when compliance with both federal and state laws is
impossible, and when a state law ‘stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.’ ” 4

Keller v. City

of Fremont, 719 F.3d 931, 940 (8th Cir. 2013) (quoting Arizona, 567 U.S. at
399)).

“What is a sufficient obstacle is a matter of judgment, to be informed by

examining the federal statute as a whole and identifying its purpose and
intended effects[.]”
(2000).

Crosby v. Nat’l. Foreign Trade Council, 530 U.S. 363, 373

“In preemption analysis, courts should assume that the historic police

powers of the States are not superseded unless that was the clear and manifest
purpose of Congress.”

Arizona, 567 U.S. at 400 (internal quotations omitted).

“The case for federal pre-emption is particularly weak where Congress has
4The

parties do not argue the other types of preemption—field preemption
and express preemption—apply to this case. See Murphy v. Nat’l. Collegiate
Athletic Ass’n., 138 S. Ct. 1461, 1480-81 (2018) (explaining the three types of
preemption). The court limits its analysis only to conflict preemption.
13

indicated its awareness of the operation of state law in a field of federal interest,
and has nonetheless decided to stand by both concepts and to tolerate whatever
tension there is between them.”

CTS Corp. v. Waldburger, 573 U.S. 1, 18 (2014)

(quoting Wyeth v. Levine, 555 U.S. 555, 575 (2009)).
3.

FTCA preempts South Dakota statute of repose

The court distills the following principles from the authority discussed
above:
1.

South Dakota’s statute of repose is a substantive limit on
liability for torts originating in medical malpractice. CTS
Corp., 573 U.S. at 16-17 (“A statute of repose can be said to
define the scope of the cause of action, and therefore the
liability of the defendant.”); Pitt-Hart, 878 N.W.2d at 413
(“[S]tatutes of repose are substantive, not merely semantic.”)
(citation omitted).

2.

The FTCA expressly incorporates state substantive tort law
through the private person analogue provisions. 28 U.S.C.
§§ 1346(b)(1), 2674; Moss, 895 F.3d at 1097.

3.

The FTCA also requires plaintiffs to undergo at least six
months of administrative adjudication before filing in federal
court and is intended to encourage administrative resolution
of tort claims. 28 U.S.C § 2401; McNeil v. United States, 508
U.S. 106, 112 n.7 (1993).

4.

A state law that obstructs the purposes of Congress is
impliedly preempted. Arizona, 567 U.S. at 399. Courts
determine if such obstruction exists by reference to
congressional intent. Crosby, 530 U.S. at 373.

These principles lead the court to reject the magistrate judge’s conclusion the
FTCA does not preempt South Dakota’s statute of repose.
To begin, the magistrate judge correctly concluded South Dakota’s statute
of repose is a substantive state tort law.
14

(Docket 22 at pp. 11-14).

Plaintiff’s

argument to the contrary is unpersuasive and wholly contradicted by South
Dakota case law.

(Docket 23 at pp. 4-5) (arguing the “fundamental flaw” in the

R&R is “the conflation of the concepts of substantive law and procedural law.”).
Ordinarily, the FTCA incorporates state substantive tort law.
§§ 1346(b)(1), 2674; Moss, 895 F.3d at 1097.

28 U.S.C.

However, the clash between

South Dakota’s statute of repose and the FTCA’s administrative adjudication
requirement necessitates an implied conflict preemption analysis before the
court can conclude the FTCA incorporates the statute of repose.

It is here the

court disagrees with the R&R.
The magistrate judge concluded no absolute conflict existed between the
statute of repose and the FTCA’s administrative adjudication provisions because
a plaintiff can comply with both.

(Docket 22 at p. 28).

It is certainly true that a

South Dakota FTCA plaintiff in the abstract can comply with both.

The statute

of repose sets a two-year deadline and the FTCA’s administrative adjudication
requirement only subtracts six months from that total.
this case show the illusory nature of that possibility.

However, the facts of

The decedent here was

injured by the VA’s alleged malpractice on May 19, 2015, and passed away on
June 3, 2016. 5

Plaintiff was appointed administrator of decedent’s estate on

May 9, 2017, a mere ten days before the two-year period the FTCA allows for
5“[I]n

medical malpractice cases, the [FTCA] claim accrues when the
plaintiff actually knew, or in the exercise of reasonable diligence should have
known, the cause and existence of his injury.” Motley v. United States, 295
F.3d 820, 822 (8th Cir. 2002). Plaintiff does not contest that her claim accrued
on May 19, 2015.
15

claimants to file their administrative claim expired.

The repose period likewise

expired on May 19, 2017, while plaintiff was just beginning her mandatory
administrative adjudication.

She could not have maintained her wrongful

death FTCA claim and complied with the statute of repose. 6

As plaintiff’s

experience illustrates, applying the statute of repose would convert the FTCA’s
administrative adjudication provisions into a trap, requiring all but the most
diligent wrongful death plaintiffs to undergo adjudication which would inevitably
result in the barring of their claims if a settlement was not reached.
For plaintiff, this is a case “where compliance with both federal and state
regulations [was] a physical impossibility,” but the court acknowledges some
plaintiffs may be able to comply with both statutes. Arizona, 567 U.S. at 399.
The court therefore must determine whether incorporating the South Dakota
statute of repose “stands as an obstacle to the accomplishment and execution of
the full purposes and objectives” of the FTCA’s administrative adjudication
requirement.

Id.

Looking to the “purpose and intended effects” of the administrative
adjudication requirement, the court cannot conclude Congress intended this
result when it added the requirement to the FTCA in 1966.
6The

Crosby, 530 U.S. at

record contains no information regarding plaintiff’s diligence in
pursuing appointment as the administrator of decedent’s estate. The court
does not believe the 11-month period between decedent’s death and plaintiff’s
appointment as estate administrator indicates any blameworthy tardiness. In
fact, the frequently lengthy process of gaining control over a decedent’s
estate—and acquiring the concomitant right to bring a wrongful death suit—will
inevitably further delay all FTCA wrongful death plaintiffs, pushing many past
the repose deadline.
16

373.

FTCA plaintiffs must adjudicate their claim administratively for at least

six months.

28 U.S.C. §§ 2401(b), 2675(a).

The statute encourages plaintiffs

to remain in the administrative process by allowing them to bring their claims in
federal court at any time within six months of “notice of final denial of the claim
by the agency”—no matter how long the agency takes to adjudicate the claim.
Id. at § 2401(b). Importing the statute of repose into this scheme directly upsets
Congress’ choice to encourage administrative adjudication.

Under defendant’s

theory of the case, plaintiffs are strongly encouraged to cut short the
administrative process at the six-month mark in order to avoid the statute of
repose.

The court cannot endorse a theory which harmonizes the FTCA’s

incorporation of substantive state tort law and its administrative adjudication
requirements by penalizing plaintiffs who take up Congress’ invitation to engage
in lengthy settlement negotiations at the agency level.

Defendant’s theory

presents a serious obstacle to Congress’ encouragement of administrative
adjudication.
The legislative history of the 1966 FTCA amendment, for those who
consider it, confirms the court’s statutory interpretation.

In the Supreme

Court’s telling,
the Department of Justice proposed that Congress amend the FTCA
to “requir[e] all claims to be presented to the appropriate agency for
consideration and possible settlement before a court action could be
instituted. This procedure would make it possible for the claim first
to be considered by the agency whose employee's activity allegedly
caused the damage. That agency would have the best information
concerning the activity which gave rise to the claim. Since it is the
one directly concerned, it can be expected that claims which are
17

found to be meritorious can be settled more quickly without the
need for filing suit and possible expensive and time-consuming
litigation.”
The Senate Judiciary Committee further noted that “the
improvements contemplated by [the 1966 amendments] would not
only benefit private litigants, but would also be beneficial to the
courts, the agencies, and the Department of Justice itself.”
McNeil, 508 U.S. at 112 n.7 (quoting S. Rep. No. 89-1327, at 2-3 (1966)).
Adopting defendant’s theory would undercut Congress’ purpose of encouraging
settlement of meritorious claims and avoiding litigation. In fact, it encourages
the opposite, incentivizing plaintiffs to rush their cases to federal court at the
earliest opportunity.
Moreover, medical malpractice claims are among the most complex and
time-consuming actions in FTCA litigation.

The claimant must fully investigate

the alleged medical malpractice, must compile years of medical records, and
must retain one or more medical experts specializing in the field of medical care
at issue.

All this must be accomplished by the claimant before or during the

FTCA administrative adjudication phase.

Likewise, the responding agency

must independently develop this information in order to settle or deny the FTCA
administrative claim.

These realities, well understood by any attorney

competent to practice FTCA medical malpractice law, will often extend agency
proceedings past the mandatory six months.

Under defendant’s theory, many

medical malpractice cases would lose the benefit of administrative adjudication
because plaintiffs would need to cut the agency proceedings short and file in
federal court to avoid the repose deadline.
18

The court cannot reconcile these

practical consequences of defendant’s theory with Congress’ choice to encourage
administrative adjudication.
The Supreme Court’s oft-expressed presumption against implied
preemption of “the historic police powers of the States” does not dislodge the
court’s statutory analysis.

See Arizona, 567 U.S. at 400.

Tort law is a

traditional state law concern, which would seem to invoke the presumption at its
height.

CTS Corp., 573 U.S. at 19.

However, state tort law traditionally had no

place in suits against the United States, due to sovereign immunity. Rayonier
Inc. v. United States, 352 U.S. 315, 319 (1957) (“[T]he very purpose of the Tort
Claims Act was to waive the Government’s traditional all-encompassing
immunity from tort actions[.]”).

The court is considering how to resolve the

conflict between Congress’ choice to incorporate state tort law and its choice to
encourage administrative resolution of tort claims, which are federal matters.
When this precise issue is more specifically framed, it is much less clear that the
presumption against preemption carries significant weight. Even if the
presumption applies with full force, the court holds it is rebutted by the
insuperable conflict between South Dakota’s statute of repose and the FTCA’s
administrative adjudication provisions.

The presumption cannot lead the court

to penalize FTCA plaintiffs for complying with federal law.
In holding the FTCA did not preempt the South Dakota statute of repose,
the magistrate judge concluded the FTCA’s administrative adjudication
provisions were not “so important to the objective of the statute as a whole that
19

[they] should displace any substantive state statute of repose with which [they]
might conflict.”

(Docket 22 at p. 28).

support this theory.

The court’s statutory analysis does not

There is no need to elevate the FTCA’s private person

analogue over its administrative adjudication requirement to resolve a conflict
engendered by a state statute of repose.

The conflict can be resolved without

doing violence to Congress’ intent in crafting both parts of the FTCA by
preempting the incorporation of the state statute.

See Food & Drug Admin. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must
. . . interpret the statute as a symmetrical and coherent regulatory scheme and
fit, if possible, all parts into a harmonious whole.”) (quotations and citations
omitted).
The magistrate judge also noted allowing the plaintiff to proceed with her
suit would “completely defeat[]” the purpose of the state statute of repose.
(Docket 22 at p. 31).

True enough, but the purpose of the state statute is of

lesser concern in a preemption analysis.

The purpose of the federal statute

controls, because that purpose determines whether the state statute constitutes
a sufficient obstacle to merit preemption. Arizona, 567 U.S. at 399-400.

Here,

one key purpose of the FTCA is to require plaintiffs to undergo at least six
months of administrative adjudication and encourage them to stick with the
administrative process through its conclusion, no matter how long that might
take.

That purpose is severely and fatally undermined by the South Dakota

20

statute of repose.

The court must uphold the federal purpose where, as here, it

is in conflict with a state statute.
The magistrate judge relied on CTS Corp., a case holding an express
preemption provision in the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”) did not preempt North Carolina’s
general tort statute of repose.

573 U.S. at 5-7.

The Supreme Court concluded

the express preemption provision, which referred only to statutes of limitation,
did not preempt state statutes of repose.

Id. at 18.

The FTCA does not

expressly preempt either statutes of limitation or repose, making CTS Corp. an
inexact fit for this case, where the primary question is whether importing the
statute of repose obstructs Congress’ purpose expressed in the FTCA’s
administrative adjudication provision.

Nevertheless, the Court reiterated there

its reminder that “[t]he case for federal pre-emption is particularly weak where
Congress has indicated its awareness of the operation of state law in a field of
federal interest, and has nonetheless decided to stand by both concepts and to
tolerate whatever tension there [is] between them.” Id.
The court might agree with the magistrate judge’s reliance on CTS Corp. if
only tension existed between the statute of repose and the FTCA’s administrative
adjudication provision.

The facts of this case show that the interplay between

these two statutes is more aptly described as open conflict. Under defendant’s
theory, plaintiff’s compliance with the FTCA’s administrative requirements
doomed her case from the outset.

While Congress may have intended to tolerate
21

some tension between state substantive tort law and the FTCA, the court cannot
conclude Congress intended to allow state law to eviscerate the administrative
adjudication provision.

The better approach is to give full effect to the

administrative adjudication provision by holding it preempts South Dakota’s
statute of repose to the extent the two conflict.

The court concludes applying

the statute of repose would create “an obstacle to the accomplishment of the full
purposes and objectives of Congress[.]” Arizona, 567 U.S. at 399.
Plaintiff’s objection is sustained.
IV.

Conclusion
The court holds the FTCA preempts South Dakota’s statute of repose to

the extent that statute curtails plaintiff’s FTCA claim.

Plaintiff alleges the

negligence causing the decedent’s death occurred on May 19, 2015.
at ¶ 19).

(Docket 1

Plaintiff filed her administrative claim on May 17, 2017, within the

two-year period provided by the FTCA.

Id. at ¶ 10.

The VA failed to act on

plaintiff’s administrative claim within six months and she accordingly brought
this action.

As plaintiff’s case was timely brought under the FTCA and that

statute preempts the South Dakota statute of repose, the court holds the United
States’ waiver of sovereign immunity created by the FTCA applies to this case.
The court has subject matter jurisdiction.
ORDER
For the reasons given above, it is
ORDERED that plaintiff’s objections to the report and recommendation
(Docket 23) are overruled in part and sustained in part.
22

IT IS FURTHER ORDERED that the report and recommendation (Docket
22) is adopted in part and rejected in part, as described in this order.
IT IS FURTHER ORDERED that defendant’s motion to dismiss the
complaint (Docket 7) is denied.
Dated March 31, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

23