# Lenoir v. United States

> District Court, W.D. Oklahoma · November 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10389287

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

MICHELLE LENOIR GAULDING, )
representative of the estate of )
GARLAND G. LENOIR, JR., )
)
Plaintiffs, )
)
v. ) Case No. CIV-20-01072-PRW
)
UNITED STATES OF AMERICA, )
)
Defendant. )

ORDER
Before the Court is the United States’ Motion to Dismiss (Dkt. 24), seeking
dismissal of Plaintiff’s wrongful death claim and request for attorneys’ fees. For the
reasons stated below, the Court GRANTS the motion.
Background
Garland Lenoir was a patient at the United States Department of Veterans Affairs
Medical Center in Oklahoma City (the “VA”). Between 2018 and 2019, the VA examined
Mr. Lenoir and failed to detect that he suffered from lung cancer.1 The VA ultimately did
not diagnose that Mr. Lenoir suffered from lung cancer until April of 2019, at which point
it had progressed to stage IV cancer. One year later, Mr. Lenoir filed an administrative
complaint against the VA alleging that VA employees breached their duty of care to him

1 The Court notes that at this time, the United States has not filed an answer to any of the
three complaints. The Court thus summarizes the facts as presented by the Plaintiff.
by negligently failing to diagnose and treat his lung cancer in a timely manner. After six
months elapsed without an answer from the VA, Mr. Lenoir sued the VA pursuant to Title

28 U.S.C. § 2671 of the Federal Tort Claims Act (the “FTCA”). While the case was
pending, Mr. Lenoir died. The Court entered an administrative closing order but later
reopened the case after Mr. Lenoir’s daughter—Michelle Lenoir Gaulding—substituted
herself to continue the case on behalf of Mr. Lenoir’s estate. Ms. Gaulding filed an
Amended Complaint (Dkt. 17), including allegations and an additional claim that the VA’s
negligence caused Mr. Lenoir’s wrongful death. 2 The United States filed a Motion to

Dismiss (Dkt. 18) under Rule 12(b)(1) and Rule 12(b)(6), prompting Ms. Gaulding to file
a Second Amended Complaint (Dkt. 22) to address the deficient pleadings. Now, the
United States has filed a second Motion to Dismiss (Dkt. 24), again under Rule 12(b)(1)
and Rule 12(b)(6), arguing primarily that the Court lacks subject-matter jurisdiction over
the added wrongful-death claim as Ms. Gaulding has not exhausted her administrative

remedies regarding this claim.3

2 In briefing, the United States characterized the relevant material as an added wrongful
death claim, while Ms. Gaulding characterized the relevant material as simply a
continuation of the existing medical negligence personal injury claim. Ms. Gaulding later
observed that Oklahoma law allows for both survivorship claims and wrongful death
claims but did not specify which claim or whether both claims were intended by the added
facts of Mr. Lenoir’s death. The Court’s ruling in this Order necessitates the conclusion
that any separate claim arising from Mr. Lenoir’s death has not been exhausted. However,
for the sake of clarity, the Court adopts the language “wrongful death claim” as shorthand
for any potential future claim arising out of the fact of Mr. Lenoir’s death.
3 In her prayer for relief, Ms. Gaulding also sought that “all costs of this action be cast
against” the United States. To the extent that the costs of the action might include attorneys’
fees, the United States moved to dismiss the potential attorneys’ fees claim. However, Ms.
Gaulding responded that her Second Amended Complaint did not make a claim for
Legal Standard
At its core, the United States’ argument contends that the Court lacks subject-matter

jurisdiction since the FTCA does not waive the United States’ sovereign immunity for non-
administratively-exhausted claims. Sovereign immunity “shields the United States, its
agencies, and officers acting in their official capacity from suit,” and is “jurisdictional in
nature.”4 As such, a motion to dismiss based on sovereign immunity may be presented
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.5 Rule 12(b)(1) motions
generally take one of two forms, either “a facial attack on the sufficiency of the complaint’s

allegations as to subject matter jurisdiction,” or “a challenge to the actual facts upon which
subject matter jurisdiction is based.”6 The legal test applied depends on which type of
challenge the movant asserts. When the 12(b)(1) challenge is a facial attack, the Court
confines itself to review of the complaint and accepts all allegations as true—much like
12(b)(6) review.7 When the (12)(b)(1) challenge is a factual attack, the Court must “resolve

attorneys’ fees. The United States replied that with this concession, it “does not contest
Plaintiff’s requested relief.” The Court therefore finds that the attorneys’ fees portion of
the original motion to dismiss has been withdrawn.
4 Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002) (first citing United States
v. Mitchell, 463 U.S. 206, 212 (1983), then citing FDIC v. Meyer, 510 U.S. 273, 280
(1983)).
5 FED. R. CIV. P. 12(b)(1) (“[A] party may assert the following defense[] by motion: (1)
lack of subject-matter jurisdiction.”).
6 Ruiz v. McDonell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citing Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995)).
7 See United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001); Holt, 46
F.3d at 1002.
[the] disputed facts” and has “wide discretion to allow affidavits, other documents, [or] a
limited evidentiary hearing” to do so.8

Turning to sovereign immunity, “[t]he United States and its officers enjoy immunity
from suit except in instances where the United States has expressly waived that
protection.”9 Not only must this waiver of sovereign immunity be “unequivocally
expressed,”10 but any Congressional enactment purportedly waiving sovereign immunity
must be “strictly construed ‘in favor of the sovereign.’”11 This suit arises under the FTCA,
where Congress created a “limited waiver of sovereign immunity” by “making the Federal

Government liable to the same extent as a private party for certain torts of federal
employees.”12 However, the FTCA’s waiver of sovereign immunity is not without
exceptions—“an action shall not be instituted . . . against the United States for . . . personal
injury or death caused by the negligent or wrongful act or omission of any employee of the
Government . . . unless the claimant shall have first presented the claim to the appropriate

8 Holt, 46 F.3d at 1003; see also Paper, Allied-Indus., Chem. & Energy Workers Int’l Union
v. Cont’l Carbon Co., 428 F.3d 1285, 1292–93 (10th Cir. 2005).
9 Flute v. United States, 808 F.3d 1234, 1239 (10th Cir. 2015); see also United States v.
Testan, 424 U.S. 392, 399 (“It long has been established . . . that the United States, as
sovereign, is immune from suit save as it consents to be sued . . . .”).
10 Flute, 808 F.3d at 1239 (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33
(1992).
11 Id.; see also United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922, 930
(10th Cir. 1996) (“If waiver is not unequivocal from the [statutory] text, the government
retains its sovereign immunity.”)
12 Ohlsen v. United States, 998 F.3d 1143, 1153 (10th Cir. 2021) (citing United States v.
Orleans, 425 U.S. 807, 813 (1976)).
Federal agency.”13 This administrative exhaustion requirement “mandates that a claimant
must first present the claim to the appropriate Federal agency” before filing suit.14 Thus,

failure to properly exhaust administrative remedies deprives this Court of subject-matter
jurisdiction to entertain claims brought under the FTCA.
Discussion
Here, the United States brought both a 12(b)(1) facial challenge and a 12(b)(1)
factual challenge, but Ms. Gaulding does not dispute the material facts, so the Court need
only consider the 12(b)(1) facial challenge. The parties agree that Mr. Lenoir properly filed

his negligent medical care claim with the VA, waited six months, then filed suit under the
FTCA.15 The parties also agree that Ms. Gaulding added a wrongful death claim—which
was fundamentally based on the same operative facts as the existing negligent medical care
claim—without submitting the new claim to the VA or waiting for administrative remedies
to exhaust. Therefore, the issue before the Court is purely a matter of law: does the

administrative exhaustion requirement of the FTCA require the estate of a plaintiff to refile
and exhaust administrative remedies for a wrongful death claim that is based on the same
operative facts as an existing and properly-exhausted medical negligence claim?
The United States argues that since the new wrongful death claim was not submitted
to the VA, it has not been exhausted and must be dismissed for lack of jurisdiction. It relies

13 28 U.S.C. § 2675(a).
14 Ohlsen, 998 F.3d at 1154 (cleaned up).
15 Administrative remedies are exhausted either when the agency denies the claim or fails
to make a final disposition of the claim within six months of the claim being filed. See 28
U.S.C. § 2675(a).
heavily on Warrum v. United States,16 where the Seventh Circuit confronted a similar
situation and concluded that the filing an exhaustion of a pre-death medical negligence

claim did not satisfy the exhaustion requirement for a subsequent wrongful death action.
Ms. Gaulding answers that the FTCA requires exhaustion of administrative remedies only
once and all facts relevant to the wrongful death claim were already exhausted via the
medical negligence claim. She cites Brown v. United States,17 where the Eleventh Circuit
concluded an estate representative did not need to exhaust a subsequent wrongful death
claim where the decedent had previously exhausted a personal injury claim. Neither party

identified precedent from this Court or the Tenth Circuit that completely controls the issue.
Upon review of the parties’ arguments and the relevant precedent, the Court
concludes that the text of the FTCA, the purpose of the exhaustion requirement, and the
separate and independent nature of personal injury actions and wrongful death actions all
lead to the singular conclusion that administrative exhaustion of a personal injury claim

cannot serve as exhaustion for a subsequent wrongful death claim, even when the wrongful
death claim is based on the same operative facts.
Where “Congress specifically mandates, exhaustion is required” and “may not be
dispensed with merely by a judicial conclusion of futility.”18 Unlike the discretion that
accompanies some judicially-created exhaustion doctrines, federal courts are not at liberty

to add or subtract from clear exhaustion requirements codified into federal statutes. Here

16 427 F.3d 1048 (7th Cir. 2005).
17 838 F.2d 1157 (11th Cir. 1988).
18 McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
the statute states “an action shall not be instituted upon a claim against the United States
for money damages for . . . personal injury or death . . . unless the claimant shall have first

presented the claim to the appropriate Federal agency.”19 A straightforward reading
indicates that this statute requires presentation of the specific claim to the agency, not
merely Mr. Lenoir’s presentation of a claim containing operative facts that might also
support a variety of different future claims by Ms. Gaulding. The FTCA’s grant of federal
jurisdiction over specific claims does not confer jurisdiction over related claims, even if
the other claims “derive from a common nucleus of operate fact” and consideration of the

related claims would promote “judicial economy and efficiency.”20
This specific-claim-centric approach fits with the purpose of the FTCA’s exhaustion
requirement, which the Supreme Court has noted was intended “to facilitate the
administrative evaluation of tort claims by the agency whose activity gave rise to the claim
and permit settlement of meritorious claims more quickly and without litigation.”21 The

19 28 U.S.C. § 2675(a); see also Warrum, 427 F.3d at 1049–50.
20 Finley v. United States, 490 U.S. 545, 550–52 (1989), superseded by statute, JUDICIAL
IMPROVEMENTS ACT OF 1990, PL 101–650, December 1, 1990, 104 Stat 5089. In Finley,
the Court rejected the exercise of jurisdiction over common claims against pendant parties,
which was later superseded by statute. However, the general inflexibility of the FTCA’s
jurisdictional provision remains a foundational principle.
21 Warrum, 427 F.3d at 1050 (summarizing the Supreme Court’s discussion of the purpose
of the FTCA exhaustion requirement); see also McNeil v. United States, 508 U.S. 106, 112,
112 n.7 (1993) (noting “[t]he most natural reading of the statute indicates that Congress
intended to require complete exhaustion of Executive remedies before invocation of the
judicial process” and that the FTCA exhaustion requirement was codified to “make it
possible for the claim first to be considered by the agency whose employee’s activity
allegedly caused the damage,” which “would have the best information concerning the
activity which gave rise to the claim” and allow “claims which are found to be meritorious
Tenth Circuit further clarified the purpose of the statutory exhaustion requirement in
Haceesa v. United States22 when it observed that “[t]he only way that the Estate’s claims

could be considered valid would be if the administrative claims filed . . . were sufficient to
place the Government on notice that they were seeking to assert a wrongful death claim on
behalf of the Estate.”23 Thus, proper exhaustion occurs when the agency is on notice that a
party seeks to assert a specific claim against the United States.24
Considering this purpose of placing the relevant agency on notice, the exhaustion
of one specific claim cannot operate as a stand-in for exhaustion of another separate and

independent claim. Yet while Mr. Lenoir properly exhausted his medical negligence
personal injury claim, the substantive nature of a medical negligence claim and a wrongful
death claim differ greatly. Under Oklahoma law, personal injury actions and wrongful
death actions are separate and quite distinct.25 A wrongful death claim “necessarily

can be settled more quickly without the need for filing suit and possible expensive and
time-consuming litigation”).
22 309 F.3d 722 (10th Cir. 2002).
23 Id. at 734.
24 See generally Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998) (per curium)
(“A claim must be specific enough to serve the purpose of the FTCA to enable the federal
government to expedite the fair settlement of tort claims.”).
25 See Deep Rock Oil Corp. v. Sheridan, 173 F.2d 186, 190 (10th Cir. 1949) (“Two separate
and distinct causes of action arose if the injury to and the death of the deceased was caused
by the negligence of Deep Rock. One was for injury to his person, such as pain and
suffering. This action, under the Oklahoma law survives and may be brought
notwithstanding the death of the injured person. The other, an independent cause of action,
is for damages resulting from the death of the injured person. The damages in such a case
inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin.”);
see also Gaasch Estate of Gaasch v. St. Paul Fire & Marine Insurance Co., 412 P.3d 1151,
1155 n.11 (Okla. 2018) (citing and adopting Deep Rock Oil).
involves causation and damages questions distinct from those at issue in a [medical
negligence] claim that does not involve death,”26 and allows recovery of a wide variety of
damages not available in personal injury cases.27 And an essential element of a wrongful

death claim is the death itself. Before receiving notice of Mr. Lenoir’s death, the VA could
neither contemplate nor reasonably calculate merits or settlement potential of such a future
claim. Thus, since Oklahoma treats a wrongful death claim stemming from medical
negligence as substantively independent and distinct from the underlying personal injury
claim, Mr. Lenoir’s exhaustion of the personal injury claim was not sufficient nor specific

enough to also exhaust or put the VA on notice of the future potential wrongful death
claim.28
Ms. Gaulding invokes the Eleventh Circuit’s opinion in Brown v. United States to
argue that here, like there, “[r]equiring [Ms. Gaulding] to exhaust the administrative claim
procedure again would serve no useful purpose.”29 Yet this functionalist approach has since

been firmly rejected by the Supreme Court. The “mandatory language” of statutory
exhaustion provisions “means a court may not excuse a failure to exhaust, even to take

26 Warrum, 427 F.3d at 1052.
27 McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 n.26 (Okla. 1987) (listing
“medical and burial expenses, loss of consortium and grief of the surviving spouse, mental
pain and anguish suffered by the decedent, pecuniary loss to the survivors, [and] grief and
loss of companionship of the children and the decedent” as categories of recovery in a
wrongful death action); see also Carroll v. United States, 227 F. Supp. 3d 1242, 1247
(W.D. Okla. 2017).
28 Accord Warrum, 427 F.3d at 1051.
29 Brown, 838 F.2d at 1161.
[equitable] circumstances into account.”30 Mandatory exhaustion provisions, such as
section 2675(a) of the FTCA, “establish mandatory exhaustion regimes, foreclosing
judicial discretion.”31 This Court is “not free to rewrite the statutory text” where Congress

strictly “bar[red] [Ms. Gaulding] from bringing suit in federal court until [she] exhausted
[her] administrative remedies.”32
Ms. Gaulding’s remaining efforts fair no better. Her argument that the causes of
action survive the death of the original plaintiff is misplaced, as the question before the
Court was not whether either cause of action survives Mr. Lenoir’s death, but simply

whether the wrongful death claim was properly exhausted before being brought to this
Court. Likewise, her arguments analogizing Title VII cases are incomparable to the current
situation, as those cases either did not involve an entirely unexhausted new claim or else
implicated the private sector, not the United States and the required steps preceding waiver
of sovereign immunity.

Considering the statutory text, the exhaustion requirement’s purpose, and the
separate and independent nature of the Oklahoma personal injury and wrongful death
claims, the Court concludes that exhaustion of an underlying personal injury claim does
not satisfy the exhaustion requirement for a subsequent wrongful death claim. Ms.
Gaulding therefore has not exhausted the wrongful death claim in this case and this Court

is without jurisdiction to entertain the claim at this time.

30 Ross v. Blake, 578 U.S. 632, 639 (2016).
31 Id.
32 McNeil, 508 U.S. at 111, 113.
Conclusion
Accordingly, the Court finds that it lacks subject-matter jurisdiction over the
unexhausted wrongful death claim of the Second Amended Complaint, GRANTS the
United States’ Motion to Dismiss (Dkt. 24), and DISMISSES the wrongful death claim
from the Second Amended Complaint (Dkt. 22). The case will proceed on the properly-
exhausted personal injury medical negligence claim.
IT IS SO ORDERED this 22nd day of November 2021.
nme
UNITED STATES DISTRICT JUDGE

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389287. Public record. Not legal advice.