Petition for Writ of Certiorari — Cynthia Rollo-Carlson, as Trustee for Jeremiah Flackus-Carlson, Deceased, Petitioner v. United States

Supreme Court briefMar 22, 2021

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 19-1815

Cynthia Rollo-Carlson, as Trustee for Jeremiah Flackus-Carlson, deceased

Appellant

United States of America

Appellee

Appeal from U.S. District Court for the District of Minnesota

(0:18-cv-02842-ECT)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

October 23, 2020

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Appellate Case: 19-1815 Page: 1 Date Filed: 10/23/2020 Entry ID: 4969043

APPENDIX B

Gnited States Court of Appeals

For the Eighth Circuit

No. 19-1815

Cynthia Rollo-Carlson, as Trustee for Jeremiah Flackus-Carlson, deceased

Plaintiff - Appellant

United States of America

Defendant - Appellee

Appeal from United States District Court

for the District of Minnesota

Submitted: June 17, 2020

Filed: August 19, 2020

Before KELLY, ERICKSON, and STRAS, Circuit Judges.

KELLY, Circuit Judge.

Cynthia Rollo-Carlson brought a Federal Tort Claims Act (FTCA) claim against

the government, alleging that the Department of Veterans Affairs (VA) provided

negligent psychiatric care that resulted in her son’s death. The district court’

dismissed her complaint for lack of subject-matter jurisdiction. We affirm.

‘The Honorable Eric C. Tostrud, United States District Judge for the District of

Minnesota.

In October 2015, Jeremiah Flackus-Carlson, a veteran of the United States

Army, died from an opiate overdose. Jeremiah developed post-traumatic stress

disorder after he was sexually assaulted while stationed in Korea. Prior to his death,

he was treated by the St. Cloud VA Medical Center in Minnesota.

In September 2017, approximately two years after Jeremiah’ s death, his parents,

Cynthia Rollo-Carlson and Doug Carlson, filed a wrongful-death claim with the VA

(the VA Claim). They submitted a Standard Form 95 (SF-95), claiming Jeremiah died

from medical malpractice and that they were the proper claimants for his wrongful

death claim. They also identified the value of the claim as $10 million. After

receiving the SF-95, the VA requested additional documentation, including medical

and income records. The VA did not, however, request proof that either Rollo-

Carlson or Carlson was an appointed trustee under the Minnesota wrongful-death

Statute.

While the claim was pending before the VA, Rollo-Carlson and Carlson filed

a complaint in federal court, asserting a FTCA wrongful-death claim based on

Jeremiah’s death. Because of the pending federal complaint, the VA decided the VA

Claim was not “amenable to administrative resolution” and issued a final denial on

July 16, 2018. Rollo-Carlson and Carlson subsequently voluntarily dismissed their

complaint in federal court.

Then, on October 2, 2018, Rollo-Carlson was appointed trustee under

Minnesota’s wrongful-death statute. The next day, as the sole plaintiff, she filed the

underlying complaint in federal court, again alleging an FTCA claim against the

government for the wrongful death of Jeremiah.

The government moved to dismiss the complaint for lack of subject-matter

jurisdiction. It argued that the district court lacked jurisdiction because Rollo-Carlson

never presented the VA with her authority to act as a trustee, as required by FTCA,

and that such presentment is a jurisdictional prerequisite. The district court agreed

and dismissed Rollo-Carlson’s complaint. Rollo-Carlson appeals. Having jurisdiction

under 28 U.S.C. § 1291 and applying de novo review, we affirm. See ABF Freight

Sys. v. Int’] Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011) (standard of

review).

Il.

The FTCA is a limited waiver of the United States’ sovereign immunity.

Molzof ex rel. Molzof v. United States, 502 U.S. 301, 305 (1992). It permits persons

injured by federal employees to sue the United States for tort claims in federal district

court. Id. The “extent of the United States’ liability under the FTCA is generally

determined by reference to state law.” Id.; see also 28 U.S.C. §§ 1346(b)(1), 2674.

Before bringing an FTCA claim in federal court, a party must administratively

exhaust their remedies under the FTCA. 28 U.S.C. § 2675(a). As part of this

administrative process, the party “shall have first presented the claim to the

appropriate Federal agency.” Id. The presentment requirement is a jurisdictional

prerequisite to filing an FTCA action in federal court. Mader v. United States, 654

F.3d 794, 808 (8th Cir. 2011) (en banc).

The FTCA does not specify what information must be included in a properly

“presented” claim. Id. at 798. Instead, 28 C.F.R. § 14.2(a) provides the following

clarification for the presentment requirement:

[A] claim shall be deemed to have been presented when a

Federal agency receives from a claimant, his duly

authorized agent or legal representative, [1] an executed

Standard Form 95 or other written notification of an

incident, [2] accompanied by a claim for money damages

in a sum certain for injury to or loss of property, personal

injury, or death alleged to have occurred by reason of the

incident, and [3] 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 as agent,

executor, administrator, parent, guardian, or other

representative.

28 C.F.R. § 14.2(a) (emphasis added).

Both parties agree that in this case Minnesota law governs whether a person has

authority to present a claim. See 28 U.S.C. §§ 1346(b)(1), 2674; see also Mader 654

F.3d at 808; Goodman v. United States, 2 F.3d 291, 292 (8th Cir. 1993) (“In this

FTCA case, we are, of course, bound to apply the law of the state in which the acts

complained of occurred.”). The parties also agree that Minnesota’s wrongful-death

statute requires a court-appointed trustee to bring a wrongful-death action. Minn. Stat.

§ 573.02; see also Regie de I’assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85,

89-90 (Minn. 1987).

Rollo-Carlson concedes she was not the appointed trustee under Minnesota law

and was only Jeremiah’s next-of-kin at the time she filed a claim with the VA.

Nevertheless, she argues that she satisfied the presentment requirement.’ First, she

argues that under Minnesota law, there is a difference between a “claim” and an

“action.” And because the wrongful-death statute requires that a wrongful-death

action—not claim—be filed by an appointed trustee, her status as next-of-kin at the

time she filed the VA Claim satisfied Minnesota law. But we are unaware of any legal

authority stating that Minnesota law contemplates a distinction between a “claim” and

an “action” for purposes of wrongful death cases, and Rollo-Carlson provides none.

Indeed, Minnesota courts use “claim” and “action” interchangeably when discussing

*Rollo-Carlson also invites us to overrule Mader, an en banc decision, and hold

that presentment is not jurisdictional. We cannot do so. United States v. Lucas, 521

F.3d 861, 867 (8th Cir. 2008) (“A panel of this court may not overrule the decision of

the en banc court; only the en banc court may overrule prior circuit precedent.”).

_4-

the wrongful-death statute. See e.g., Ortiz v. Gavenda, 590 N.W.2d 119 (Minn.

1999); Jensen, 399 N.W.2d at 89-90.

Second, Rollo-Carlson contends the VA had actual notice of her authority to

bring a claim because it granted her a burial allowance; acknowledged her claim for

insurance; responded to her requests for medical records; provided information

regarding the circumstance surrounding Jeremiah’ s death; received a death certificate

listing Jeremiah as single and never married; and replied to her request for Jeremiah’ s

file. As a result, she argues, the VA knew she had the authority to act on behalf of

Jeremiah. But Rollo-Carlson’s status as next-of-kin is not synonymous with her status

as appointed trustee under Minnesota law.’ To the extent she argues that she is

excused from her obligation to show she was the appointed trustee because the VA

had evidence indicating she had authority to act on Jeremiah’s behalf in another

capacity and in other contexts, the presentment requirement contains no such

exception, and Rollo-Carlson provides no legal support for one. See 28 C.F.R. §

14.2(a).

Third, she alleges that the government is precluded from arguing she failed to

satisfy the presentment requirement because it did not raise the issue during the VA’s

review. We disagree. Preclusion does not apply where, as here, a party must

administratively exhaust her claim before filing suit in court. See Astoria Fed. Sav.

& Loan Ass’n v. Solimino, 501 U.S. 104, 110-11 (1991).

For the foregoing reasons, the district court properly dismissed Rollo-Carlson’s

complaint for lack of subject-matter jurisdiction. We affirm.

*The VA could not have had evidence of Rollo-Carlson’s authority as appointed

trustee when she filed the VA Claim because she undisputedly was not the appointed

trustee until October 2018—approximately one year after she filed the VA Claim and

three months after the VA denied it.

CASE 0:18-cv-02842-ECT-ECW Document 18 Filed 03/18/19 Page 1 of 14

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Cynthia Rollo-Carlson, as trustee for File No. 18-cv-02842 (ECT/ECW)

Jeremiah Flackus-Carlson, deceased, |

Plaintiff,

MEMORANDUM OPINION

v. AND ORDER

United States of America,

Defendant.

Brian Lewis, Francis White Law, Woodbury, MN, for plaintiff Cynthia Rollo-Carlson.

Ana Voss, Erica MacDonald, United States Attorney’s Office, Minneapolis, MN, for

defendant the United States of America.

Jeremiah Flackus-Carlson (“Jeremiah”), a veteran of the United States Army, died

from an opiate overdose in October 2015. In this case, Jeremiah’s mother, Plaintiff Cynthia

Rollo-Carlson (“Cynthia”), asserts a claim under the Federal Tort Claims Act (“FTCA”)

alleging that Jeremiah’s death resulted from negligent psychiatric care provided by the

Department of Veterans Affairs (“the VA”) through the VA Health Care System in

St. Cloud, Minnesota. The Government seeks dismissal for lack of subject-matter

jurisdiction because, it says, evidence of Cynthia’s authority to act as trustee for the claim

was not administratively presented to the VA as required by the FTCA. The requirement

to present this evidence is jurisdictional, Mader v. United States, 654 F.3d 794 (8th Cir.

2011) (en banc), and because it was not met in this case, the Government’s motion must

be granted.

CASE 0:18-cv-02842-ECT-ECW Document18 Filed 03/18/19 Page 2 of 14

The FTCA is “a limited waiver of the United States’s sovereign immunity” that

allows “persons injured by federal-employee tortfeasors to sue the United States for

damages in federal district court.” Mader v. United States, 654 F.3d 794, 797 (8th Cir.

2011) (en banc) (citing Molzof ex rel. Molzof v. United States, 502 U.S. 301, 304 (1992)).

Federal courts have exclusive jurisdiction over claims for “death caused by the negligent

or wrongful act or omission” of federal employees “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.” 28 U.S.C. § 1346(b)(1); see id. § 2674. Here, the parties agree

that “the law of the place where the act or omission occurred” is Minnesota’s

wrongful-death statute, Minn. Stat. § 573.02.

Though the FTCA incorporates state law to determine the Government’s liability,

federal law governs the federal courts’ adjudicatory capacity over such claims. See

Goodman v. United States, 2 F.3d 291, 292 (8th Cir. 1993) (“In this FTCA case, we are, of

course, bound to apply the law of the state in which the acts complained of occurred.”

(citation omitted)); Mader, 654 F.3d at 797 (discussing “the FTCA’s liability and

jurisdiction-conferring language” that gives federal courts exclusive jurisdiction). On that

front, the FTCA requires “complete exhaustion of [administrative] remedies before

invocation of the judicial process.” McNeil v. United States, 508 U.S. 106, 112 (1993).

An FTCA lawsuit “shall not be instituted . . . 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” or the agency shall have failed “to make final disposition of a claim

CASE 0:18-cv-02842-ECT-ECW Document18 Filed 03/18/19 Page 3 of 14

within six months after it is filed.” 28 U.S.C. § 2675(a). The FTCA itself does not identify

explicitly what particular information must be submitted to satisfy the presentment

requirement of 28 U.S.C. § 2675(a). See Mader, 654F.3d at 798. A regulation

promulgated by the Attorney General under authority of the FTCA provides guidance. Id.

(citing 28 C.F.R. § 14.2). The regulation identifies three components of presentment:

(1) “an executed Standard Form 95 or other written notification of an incident”; (2) “a

claim for money damages in a sum certain”; and (3) “the title or legal capacity of the person

signing . . . accompanied by evidence of his authority to present a claim on behalf of the

claimant as agent, executor, administrator, parent, guardian, or other representative.”

28 C.F.R § 14.2(a).

In Mader, our Eighth Circuit Court of Appeals, sitting en banc, addressed the

evidence-of-authority requirement and held that federal courts lack subject-matter

jurisdiction over FTCA suits unless the claim presented to the agency includes evidence of

the claimant’s authority to act on behalf of a claim’s beneficiaries. 654 F.3d at 801

(“[Section] 2675(a) requires the presentment of evidence of a personal representative’s

authority to act on behalf of a claim’s beneficiaries, something totally essential to

meaningful agency consideration.”), 805 (“We have long held that compliance with

§ 2675(a)’s presentment requirement is a jurisdictional precondition to filing an FTCA suit

in federal district court.” (citations omitted)).

Determining what constitutes evidence of authority to act on behalf of a claim’s

beneficiaries requires examining the law under which the claimant purports to have

“authority to act.” See Mader, 654 F.3d at 801-02 (reviewing Nebraska law to conclude

CASE 0:18-cv-02842-ECT-ECW Document 18 Filed 03/18/19 Page 4 of 14

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“Mader lacked the requisite authority to file a claim with the VA or to file a wrongful death

action against the United States in federal district court”). Here, Cynthia asserts that she

has authority to act by virtue of her appointment as trustee pursuant to Minnesota’s

wrongful-death statute, Minn. Stat. § 573.02. See Compl. | 17 [ECF No. 1]. That statute

says that only a trustee, “appointed as provided in subdivision 3,” may maintain a

wrongful-death action. Minn. Stat. § 573.02, subd. 1. Subdivision 3, in turn, provides:

Subd. 3. Trustee for action. Upon written petition by the

surviving spouse or one of the next of kin, the court having

jurisdiction of an action falling within the provisions of

subdivisions 1 or 2, shall appoint a suitable and competent

person as trustee to commence or continue such action and

obtain recovery of damages therein. The trustee, before

commencing duties shall file a consent and oath. Before

receiving any money, the trustee shall file a bond as security

therefor in such form and with such sureties as the court may

require.

Minn. Stat. § 573.02, subd. 3. The Minnesota Supreme Court has held that “next of kin”

means “blood relatives who are members of the class from which beneficiaries may be

chosen under the intestacy statute”—i.e., those persons in the set created by Minn. Stat.

§ 524.2-103(2), not merely those who would actually recover at the moment of intestacy.

Wynkoop v. Carpenter, 574 N.W.2d 422, 426-27 (Minn. 1998) (en banc) (citation omitted)

(“[W]e concluded [in Martz v. Revier, 170 N.W.2d 83, 87 (Minn. 1969)] that a deceased

child’s siblings could recover under the wrongful death statute even though they would not

have been . . . beneficiaries under the intestacy statute because [the] father was still

living.”).

CASE 0:18-cv-02842-ECT-ECW Document 18 Filed 03/18/19 Page 5 of 14

lla

To summarize, subject-matter jurisdiction exists over Cynthia’s FTCA claim here

if and only if: (1) she obtained authority to act on behalf of the asserted claim’s .

beneficiaries by being appointed as trustee under Minnesota’s wrongful-death statute;

(2) she timely presented evidence of that authority to the Department of Veterans Affairs

before commencing this action; and (3) the VA either denied the claim in writing or failed

to make final disposition of the claim within six months after it was filed.

“Jurisdictional issues, whether they involve questions of law or of fact, are for the

court to decide.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation .

omitted). “A court deciding a motion under Rule 12(b)(1) must distinguish between a |

‘facial attack’ and a ‘factual attack.’” Id. at 729 n.6 (citations omitted). “In a facial attack,

the court merely needs to look and see if plaintiff has sufficiently alleged a basis of subject

matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th

Cir. 2015) (alteration, citation, and internal quotation marks omitted). “Conversely, in a

factual attack, the existence of subject matter jurisdiction is challenged in fact, irrespective

of the pleadings, and matters outside the pleadings . . . are considered.” Id. at 914-15

(alteration, citation, and internal quotation marks omitted).

Here, a facial attack might have been appropriate because Cynthia’s complaint

creates serious doubt regarding her compliance with the FTCA’s presentment requirement.

The complaint pleads in one paragraph that the requirement was satisfied: “Pursuant to

28 U.S.C. §§ 2672 and 2675(a), the claims made herein were filed with and presented

CASE 0:18-cv-02842-ECT-ECW Document 18 Filed 03/18/19 Page 6 of 14

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administratively to the Defendant’s agency, the Department of Veterans Affairs, on

September 5, 2017.” Compl. 49. Several paragraphs later, however, the complaint alleges

that Cynthia was appointed trustee under Minnesota’s wrongful-death statute on “October

2, 2018.” Compl. { 17. The complaint in this case was filed the very next day, on October

3, 2018. Jd. at 27. If October 2, 2018, was the first day of Cynthia’s appointment as

trustee—in other words, if she never had been appointed as trustee under Minnesota’s

wrongful-death statute on some earlier date—then it would seem the one day between her

appointment and the filing of this case could not have left enough time to present evidence

of her authority as trustee to the VA and to permit the VA to consider and issue a final

denial of the claim. This chronology plainly could not have resulted in a situation where

the VA failed “to make final disposition of a claim within six months after it is filed.”

28 U.S.C. § 2675(a).

Regardless of the potential for a facial attack, the United States characterizes its

motion as a factual attack on subject-matter jurisdiction. Mem. in Supp. at 4 [ECF No. 9]

(“This is a factual challenge to the jurisdiction of the Court to hear this claim.”). It contends

that Plaintiff failed in fact to present her claim because she failed to submit evidence to the

VA of her authority as trustee. Id. at 6-10. In this procedural posture, a plaintiff does “not

enjoy the benefit of the allegations in its pleadings being accepted as true.” Branson Label,

793 F.3d at 915 (citation omitted). Instead, materials beyond the four corners of the

complaint will be assessed to verify whether the presentment requirement was actually

satisfied. See Osborn, 918 F.2d at 730 (“[T]he trial court is free to weigh the evidence and

satisfy itself as to the existence of its power to hear the case. ... and the existence of

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13a

disputed material facts will not preclude the trial court from evaluating for itself the merits

of jurisdictional claims.” (quoting Mortensen vy. First Fed. Sav. & Loan Ass ‘n, 549 F.2d

884, 891 (3d Cir. 1977))); see also Harris v. United States, No. 18-0424-CV-W-BP, 2018

WL 5726212, at *2 (W.D. Mo. Nov. 1, 2018) (“[T]he Court can consider the SF-95 . ..

when determining whether Plaintiff properly presented the claim.”).

The Parties’ submissions establish that Plaintiff failed to present evidence of her

authority to act on behalf of the asserted claim’s beneficiaries to the VA as required by

28 U.S.C. § 2675(a). Before filing this action, Cynthia and her husband timely submitted

a Standard Form 95 (“SF-95”) to the VA on September 5, 2017. Crewe-Allen Decl. ] 4

[ECF No. 10]; id, Ex. 1 (“SF-95”) at 1 [ECF No. 10-1]; see 28 U.S.C. § 2401(b). The

SF-95 identified the “claimant” as “Cynthia and Doug Carlson (Rep. by Brian K. Lewis,

Esq.),” and described the nature of their claim as wrongful death due to medical

malpractice. See SF-95 at 1. They identified $10 million as the value of their claim. Id.

The form was signed by Brian Lewis (“Lewis”), their attorney both then and now. Id.

Attached to the form was a letter from Lewis, along with a copy of his “Letter of

Representation,” verifying that he was “retained to prosecute Mr. & Mrs. Douglas

Carlson’s claim for the wrongful death of their son.” Jd. at 3. It is undisputed that proof

of Cynthia’s appointment as trustee was not presented to the VA at that time. See Mem. in

Opp’n at 2 [ECF No. 15] (“Subsequent to the denial of the administrative claim, the

Plaintiff sought, and was granted by the Minnesota court, appointment as the trustee of the

decedent in order to bring the wrongful death action.”). Again, assuming October 2, 2018,

was the first day of Cynthia’s appointment as trustee, it would have been impossible for

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her or anyone acting on her behalf to present that evidence with the SF-95 claim form when

it was submitted to the VA almost a year prior on September 5, 2017.

The VA acknowledged receipt of the SF-95 form the next month. See Mem. in

Opp’n, Ex. 1 [ECF No. 15-2]. The VA requested a variety of documentation, including

medical records and income records, but did not request proof of Cynthia’s status as trustee.

See id. at 1-2; cf Mem. in Opp’n at 2 (“During the administrative claim process, no issues

were raised by the Defendant regarding presentment.”). The VA’s correspondence,

however, warned: “[a] combination of Federal and state laws govern FTCA claims; some

state laws may limit or bar a claim or lawsuit. VA legal staff handling FTCA claims work

for the Federal government, and cannot provide legal advice on state or Federal law or on

filing requirements.” Mem. in Opp’n, Ex. 1, at 2.

On April 12, 2018, a little more than seven months after filing the SF-95, Cynthia

and her husband filed a complaint in this judicial district asserting an FTCA claim arising

from Jeremiah’s death. That case was assigned file number 18-cv-00996 (WMW/LIB).

Before the Government answered, however, the case was dismissed voluntarily under

Federal Rule of Civil Procedure 41(a)(1)(A)(i). On October 2, 2018, Cynthia was

appointed trustee by the Benton County District Court. Compl., Ex. 1 [ECF No. 1-1]; see

Minn. Stat. § 573.02, subds. 1, 3; Compl. 17. As described earlier, this lawsuit was filed

the very next day with Cynthia as the only plaintiff.

To summarize, though Cynthia obtained authority to act on behalf of the asserted

claim’s beneficiaries by obtaining appointment as trustee under Minnesota’s

wrongful-death statute, the allegations of the complaint and the evidence submitted by the

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parties show that she did not timely present evidence of that authority to the VA before

commencing this action. As a result, under 28 U.S.C. § 2675(a) and the Eighth Circuit’s

interpretation of that statute in Mader, subject-matter jurisdiction does not exist over this

case.

Plaintiff asserts essentially four arguments to distinguish this case from Mader, but

the law does not support these arguments. First, Plaintiff says that under the Minnesota

Tort Claims Act (“MTCA”), Minn. Stat. § 3.736, “the administrative claim ‘may be

presented by the .. . next of kin,”” and that “[i]t is not until an action is commenced that a

trustee must be appointed.” Mem. in Opp’n at 3. Plaintiff argues that the FTCA should be

interpreted in line with the MTCA not to require evidence of authority beyond a next-ofkin relationship at the administrative-presentment stage. Jd. Assuming Plaintiff's

interpretation of the MTCA is correct, this argument nonetheless misapprehends the

interaction of federal and state law in FTCA cases generally and in this case in particular.

See Reply Mem. at 3-4 [ECF No. 16]. The FTCA requires presentment of evidence of

authority to act on behalf of a claim’s beneficiaries, and determining what constitutes

evidence of authority in this context requires examining the law under which the claimant

purports to have obtained “authority to act.” See Mader, 654 F.3d at 801-02. Cynthia does

not contend that she obtained authority to act under the MTCA. (It would not make sense

for her to have sought authority under the MTCA because that statute authorizes tort claims

against the state, and Cynthia asserts no claim against the state.) As explained earlier,

Cynthia maintains that she has authority to act by virtue of her appointment as trustee

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16a

pursuant to Minnesota’s wrongful-death statute because that is the “law of the place where

the act or omission occurred” that would have determined the liability of the United States

if this case were to proceed. 28 U.S.C. § 1346(b)(1); see id. § 2674. Minnesota’s

wrongful-death statute says that only a trustee, “appointed as provided in subdivision 3,”

may maintain a wrongful-death action. Minn, Stat. § 573.02, subd. 1. Though it is clear

that possessing a next-of-kin relationship to the decedent would make one eligible under

subdivision 3 of the statute to seek appointment as trustee, it is just as clear that possessing

a next-of-kin relationship alone is not enough to authorize an individual to prosecute a

claim. See id., subd. 3. For these same reasons, Plaintiffs request that “this Court certify

the question [to the Minnesota Supreme Court] of whether or not the appointment of a

trustee is necessary at the administrative claim stage in order to satisfy presentment issues”

will be denied. See Mem. in Opp’n at 6 (citing Minn. Stat. § 480.065).

Second, Plaintiff argues that the VA had actual notice of her status as next of kin

because it granted her application for Jeremiah’s burial benefits, responded to her request

for his medical records, and possessed a copy of Jeremiah’s death certificate listing him as

single and never married. Mem. in Opp’n at 4—5; see id. Exs. 2-8. The notice Plaintiff

describes is not the evidence of authority required by the FTCA. As explained earlier, a

decedent’s surviving parent is not automatically appointed trustee under Minnesota’s

wrongful-death statute. See Minn. Stat. § 573.02, subd. 3 (“Upon written petition by the

surviving spouse or one of the next of kin, the court . . . shall appoint a suitable and

competent person as trustee to commence or continue such action and obtain recovery of

damages therein.”). Though the “written petition” for appointment of a trustee must be

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filed by the surviving spouse or one of the next of kin, the statute permits appointment of

any “suitable and competent person” to serve as trustee. Id. In other words, notifying the

VA that an individual is a decedent’s parent or other next of kin does not tell the VA that

individual has authority to prosecute a claim under Minnesota’s wrongful-death statute.

Plaintiff does not identify—and cites no authority that might justify attempting to

fashion——an exception to the FTCA’s presentment requirement. See Runs After v. United

States, 511 F. App’x 596, 597 (8th Cir. 2013) (per curiam) (“Because providing evidence

to satisfy the presentment requirement is far from burdensome, and [plaintiff] presents no

authority for this court to create an extenuating circumstances exception, we decline to

create one here.” (alteration, citation, and internal quotation marks omitted)); see also Runs

After v. United States, No. Civ 10-3019-RAL, 2012 WL 2951556, at *6 (D.S.D. July 19,

2012) (“There is nothing in . . . Mader to suggest that an effort by an FTCA claimant that

falls short of providing proof of representative authority . . . is sufficient to avoid

dismissal.”), aff'd, 511 F. App’x 596. |

Third, Plaintiff cites a case from another district within the Eighth Circuit,

Dobrinska v. United States, No. 3:11-cv-3015, 2012 WL 113037 (W.D. Ark. Jan. 13,

2012), that she says declined to follow Mader. Mem. in Opp’n at 4n.17. Plaintiff suggests

that here, as in Dobrinska, Mader need not be followed or applied to result in the dismissal

ofher claim. Jd. at 4. In Dobrinska, the court cited Farmers State Savings Bank v. Farmers

Home Administration, 866 F.2d 276 (8th Cir. 1989), for the rule that there is a two-part

“minimal notice requirement” under the FTCA that includes merely written notice of

(1) the alleged claim and (2) the alleged value of the claim. Jd. at *2. It held that the

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plaintiff, Dobrinska, satisfied that minimal requirement when her automobile-insurance

carrier submitted correspondence to a federal agency describing Dobrinska’s claim. Id. at

*3. Dobrinska is distinguishable because it did not address the primary issue in this case—

i.e., whether an FTCA plaintiff had presented evidence of her authority to pursue a claim.

Further, the case that Dobrinska cites for the rule that the FTCA has a “minimal notice

requirement” (Farmers) was abrogated by Mader. Id. at *2-3; see Mader, 654 F.3d at

799-800.

Finally, Plaintiff argues that the Government is precluded by principles of collateral

and judicial estoppel from challenging her failure to satisfy the FTCA’s presentment

requirement in this case because the VA purportedly denied her claim on other grounds

during the administrative process. Mem. in Opp’n at 7-8. For collateral estoppel (or issue

preclusion) to apply, an issue at least must have been decided in a prior proceeding. See,

e.g., B&B Hardware, Inc. v. Hargis Indus., Inc., 135 8. Ct. 1293, 1303 (2015). Similarly,

before judicial estoppel can apply, the party against whom it is sought at least must have

taken a position in an earlier proceeding. See Amtrust Inc. v. Larson, 388 F.3d 594, 600—

01 (8th Cir. 2004). Here, the VA did neither. It never decided that Plaintiff's evidence of

- authority was sufficient (or, for that matter, insufficient). The VA issued a written denial

of the claim simply because Plaintiff “filed suit,” making the claim, in its judgment, “not

amenable to administrative resolution.” Crewe-Allen Decl., Ex. 2 [ECF No. 10-2]. There

is similarly no evidence that the VA ever asserted as a position or admitted in a proceeding

that Plaintiff's evidence of authority was sufficient.

CASE 0:18-cv-02842-ECT-ECW Document 18 Filed 03/18/19 Page 13 of 14

19a

Cynthia’s complaint contains detailed and unsettling allegations describing

Jeremiah’s military service, trauma he experienced while serving in the military, his health

‘conditions, his treatment with the VA, and his death. See Compl. {] 18-211. These

allegations likely would bear on the merits of Cynthia’s claim under the FTCA that

Jeremiah “died as a result of negligent, substandard, and inadequate psychiatric care by the

[VA].” Compl. J 213. But the Government’s motion to dismiss for lack of subject-matter

jurisdiction does not implicate the merits of Cynthia’s claim. Rather, the Government

challenges only Cynthia’s compliance with the FTCA’s presentment requirement. Mem.

in Supp. at 1. With respect to that issue, it is not enough that evidence of Cynthia’s

relationship with Jeremiah or Lewis’s authority as counsel were presented to the VA. To

satisfy the FTCA’s presentment requirement, the law is clear that Plaintiff was required to

submit to the VA evidence of her authority under Minnesota law to act on behalf of the

claim’s beneficiaries before commencing this action. Mader, 654 F.3d at 801-02. And

the evidence is clear that Plaintiff did not meet this requirement. Therefore, no

subject-matter jurisdiction exists over this suit.

Although the Government seeks dismissal with prejudice, see Proposed Order [ECF

No. 12], dismissal for lack of subject-matter jurisdiction is ordinarily without prejudice,

Hart v. United States, 630 F.3d 1085, 1091 (8th Cir. 2011) (collecting cases) (modifying a

district court’s dismissal of an FTCA claim for lack of subject-matter jurisdiction to be

without prejudice). “[A] court that lacks personal or subject-matter jurisdiction does not

CASE 0:18-cv-02842-ECT-ECW Document18 Filed 03/18/19 Page 14 of 14

20a

have power to enter any kind of a judgment—summary or otherwise.” Pope v. Elabo

GmbH, 588 F. Supp. 2d 1008, 1012 (D. Minn. 2008) (citing 10A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2713 at 239

(3d ed. 1998) (“If the court has no jurisdiction, it has no power to enter a judgment on the

merits and must dismiss the action.”)). “That is why a dismissal for lack of personal or

subject-matter jurisdiction is always without prejudice; such a dismissal implies nothing

about the merits of the dismissed claims because the court is not empowered to address the

merits of the dispute.” Pope, 588 F. Supp. 2d at 1012. Accordingly, this case will be

dismissed without prejudice for lack of subject-matter jurisdiction.

ORDER

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:

1. The Government’s Motion to Dismiss [ECF No. 7] is GRANTED.

2. Plaintiff's action is hereby DISMISSED WITHOUT PREJUDICE in its

entirety with each party to bear its own costs and attorney fees in connection with such

claims.

LET JUDGMENT BE ENTERED ACCORDINGLY.

‘Dated: March 18, 2019 s/ Eric C. Tostrud

Eric C. Tostrud

United States District Court

mtn Arena eet Me A ete

21a

We - , APPENDIX D. Torts Law Group (021)

A US. Department of Veterans Affairs. . $10 Vermont Avenue, N.W.

Office of General Counsel: : Washington, DC 20420

Telephone: (202) 461-4909

Fax: (202) 273-6385

In Reply Refer To: GCL 285903

July 16,2018 . |

Certified Mail.

Brian K. Lewis, Esq. -

Francis White Law, PLLC »

8362 Tamarack Village, Ste. 119-220.

Woodbury, MN 55125 |

ee eee Eee ne ee ee ee en ca gs Ne armenian Heap Tea

ene .

RE: “Administrative Tort a Cla oft Cyathia Rollo-Carison and Douglas Carlson regarding

. Jeremiah Flackus- ‘Carlson, Deceased .

Dear Mr. Lewis: |

This i is in reference to Standard Form 95, Claim for Damage, Injury, or Death, signed by your

_ clients and received in this office on September 5, 2017.

Since you have filed suit in Federal District Court for the District of Minnesota, we > have

determined that the claim is not amenable to administrative resolution. Accordingly, we must deny

the claim. This notice constitutes final administrative action on this claim under the Federal Tort |

Claims Act RTCA) against the United States.

As you are aware, when an agency denies an. adniinistrative FTCA claim, the claimant has the

option of seeking reconsideration with the agency .and seeking judicial redress in U.S. District

Court. You must exercise either remedy within six months of this denial, as shown by the date of.

this letter, or those remedies are barred. You have chosen the judicial remedy.

Sincerely,

| Aamabihens Ole

Pamela Crewe-Allen

Deputy Chief Counsel, Torts Law Group

22a -

APPENDIX E> | |

S. } e Aftai Torts Law Group (02)

U.S. Department of Veterans Affairs 4800 Memorial Drive, Bldg. 92

Office of General Counsel Waco, TX 76711

Telephone: 214-857-0045

Fax: 202-495-6287

In Reply Refer To: GCL 285963

October 19, 2017

Brian K. Lewis, Esq. .

8362 Tamarack Village, Suite 119-220

Woodbury, MN 55125

RE: Administrative Tort Claim for Jeremiah Flackus-Carlson

Dear Mr. Lewis:

The U. S. Department of Veterans Affairs (VA), Office of General Counsel - Torts

Law Group, received your clients’ Standard Form (SF) 95, Claim for Damage,

Injury, or Death, on September 5, 2017. The claimant seeks $10,000,000.00 in

damages.

As you are aware, under the Federal Tort Claims Act (FTCA), 28 U. S.C.

§§ 1346(b) and 2671-2680, VA has six months to consider a claim before you

have the. option to file suit on behalf of your client in U.S. District Court.

28 U.S.C. § 2675. ‘We will make every effort to meet that goal while thoroughly

investigating the claim.

Under 28 C.F.R. § 14.4, which implements the FTCA, we are requesting that you .

provide the following information to the investigator assigned as soon as possible

_ unless previously provided:

1. ‘Copies of any non-VA medical records related to the alleged

injury or injuries, if applicable. :

2. Copies of medical bills from non-VA providers related. to the

alleged injury or injuries, if applicable. .

3. Sources and amounts of income to include Social Security,

retirement, pensions, VA benefits and copies of past federal income tax

returns.

4, — If claiming any loss of time from employment, a written.

_ Statement from the employer listing time off work and the wages lost -

_' because of the injury. If claiming | a i loss of self-employment, evidence of

_ the earnings lost. _ ;

23a °

- Page 2

5. Any other information and documents that may support the

claim, including a medical opinion, if obtained. :

The investigator assigned to the claim is:

Lucy Gray, Attorney

810 Vermont Ave,

Washington, DC 20420

202-461-4900

Under 28 U.S.C. § 2678, attorney fees are limited to 20 percent of any award, —

‘ compromise, or settlement of an administrative claim and to 25 percent of the

recovery following the filing of a lawsuit.

.. A.combination of Federal and state laws govern FTCA claims; some. state laws. -

may limit or bar a claim or lawsuit. VA legal staff handling FTCA claims work for

the Federal government, and cannot provide legal advice on state or Federal law

or on filing requirements. ,

If you have any questions or concerns, you may communicate’ directly. with the

investigator, who will be happy to assist. Thank you for your cooperation. We

look forward to working with you to resolve your client's claim.

Sincerely, —

LaDonis Alexander

Representational Paralegal Specialist

Torts Law Group

24a

APPENDIX F

28 U.S.C.A. § 2672

-§ 2672. Administrative adjustment of claims

Currentness

The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may

consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury

or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the

agency while acting within the scope of his office or employment, under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred: Provided,

That any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the

Attorney General or his designee. Notwithstanding the proviso contained in the preceding sentence, any award, compromise,

or settlement may be effected without the prior written approval of the Attorney General or his or her designee, to the extent

that the Attorney General delegates to the head of the agency the authority to make such award, compromise, or settlement.

Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims

for money damages against the United States. Each Federal agency may use arbitration, or other alternative means of dispute

resolution under the provisions of subchapter IV of chapter 5 of title 5, to settle any tort claim against the United States, to the

extent of the agency's authority to award, compromise, or settle such claim without the prior written approval of the Attorney

General or his or her designee.

Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award,

compromise, settlement, or determination shall be final and conclusive on all officers of the Government, except when procured

by means of fraud.

Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to this section shall be paid by the head of

the Federal agency concerned out of appropriations available to that agency. Payment of any award, compromise, or settlement

in an amount in excess of $2,500 made pursuant to this section or made by the Attorney General in any amount pursuant to

section 2677 of this title shall be paid in a manner similar to judgments and compromises in like causes and appropriations or

funds available for the payment of such judgments and compromises are hereby made available for the payment of awards,

compromises, or settlements under this chapter.

The acceptance by the claimant of any such award, compromise, or settlement shal] be final and conclusive on the claimant, and

shall constitute a complete release of any claim against the United States and against the employee of the government whose

act or omission gave rise to the claim, by reason of the same subject matter.

CREDIT(S)

(June 25, 1948, c. 646, 62 Stat. 983; Apr. 25, 1949, c. 92, § 2(b), 63 Stat. 62; May 24, 1949, c. 139, § 125, 63 Stat. 106; Sept.

23, 1950, c. 1010, § 9, 64 Stat. 987; Pub.L. 86-238, § 1(1), Sept. 8, 1959, 73 Stat. 471; Pub.L. 89-506, §§ 1, 9(a), July 18, 1966,

80 Stat. 306, 308; Pub.L. 101-552, § 8(a), Nov. 15, 1990, 104 Stat. 2746.)

RSE he FN LE OME, me. fe... mr. & a t . pr oe 2 Or id Fae woe ae ft PEA EL OE! a

25a

Notes of Decisions (24)

28 U.S.C.A. § 2672, 28 USCA § 2672

Current through P.L. 116-259. Some statute sections may be more current, see credits for details.

RMR ORDNTRLY Be ERP AE ca a a fof) ok roe or a ond

26a

28 ULS.C.A. § 2675

§ 2675. Disposition by federal agency as prerequisite; evidence

Currentness

(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property

or personal injury or 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 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. The provisions of this subsection shall

not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim,

or counterclaim.

(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal

agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of

presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.

(c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of

liability or amount of damages.

CREDIT(S)

(June 25, 1948, c. 646, 62 Stat. 983; May 24, 1949, c. 139, § 126, 63 Stat. 107; Pub.L. 89-506, § 2, July 18, 1966, 80 Stat. 306.)

Notes of Decisions (879)

28 U.S.C.A. § 2675, 28 USCA § 2675

Current through P.L. 116-259. Some statute sections may be more current, see credits for details.

ike ROE BONG Be SElie — SER PRON A ER, fee om ¢ - mE ble 2 .of.t FEE Nm. SEAS. 4

27a

APPENDIX G

28 C.E.R. § 14.2

§ 14.2 Administrative claim; when presented.

Currentness

(a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when

a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95

or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss

of property, personal injury, or 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 as agent, executor,

administrator, parent, guardian, or other representative.

(b) (1) A claim shall be presented to the Federal agency whose activities gave rise to the claim. When a claim is presented to

any other Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified .

from the claim, and advise the claimant of the transfer. If transfer is not feasible the claim shall be returned to the claimant. The

fact of transfer shall not, in itself, preclude further transfer, return of the claim to the claimant or other appropriate disposition

of the claim. A claim shall be presented as required by 28 U.S.C. 2401(b) as of the date it is received by the appropriate agency.

(2) When more than one Federal agency is or may be involved in the events giving rise to the claim, an agency with which

the claim is filed shall contact all other affected agencies in order to designate the single agency which will thereafter

investigate and decide the merits of the claim. In the event that an agreed upon designation cannot be made by the affected

agencies, the Department of Justice shall be consulted and will thereafter designate an agency to investigate and decide

the merits of the claim. Once a determination has been made, the designated agency shall notify the claimant that all future

correspondence concerning the claim shall be directed to that Federal agency. All involved Federal agencies may agree

either to conduct their. own administrative reviews and to coordinate the results or to have the investigations conducted

by the designated Federal agency, but, in either event, the designated Federal agency will be responsible for the final

determination of the claim.

(3) A claimant presenting a claim arising from an incident to more than one agency should identify each agency to which

the claim is submitted at the time each claim is presented. Where a claim arising from an incident is presented to more than

one Federal agency without any indication that more than one agency is involved, and any one of the concerned Federal

agencies takes final action on that claim, the final action thus taken is conclusive on the claims presented to the other

agencies in regard to the time required for filing suit set forth in 28 U.S.C. 2401(b). However, ifa second involved Federal

agency subsequently desires to take further action with a view towards settling the claim the second Federal agency may

treat the matter as a request for reconsideration of the final denial under 28 CFR 14.9(b), unless suit has been filed in the

interim, and so advise the claimant.

We REE OG se, NB a ak 6 ee of rn rm. Bla hE a 2. - oF ite mm om re ee oe a

28a

(4) If, after an agency final denial, the claimant files a claim arising out of the same incident with a different Federal agency,

the new submission of the claim will not toll the requirement of 28 U.S.C. 2401(b) that suit must be filed within six months

of the final denial by the first agency, unless the second agency specifically and explicitly treats the second submission as

a request for reconsideration under 28 CFR 14.9(b) and so advises the claimant.

(c) A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to

final agency action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted in

writing and signed by the claimant or his duly authorized agent or legal representative. Upon the timely filing of an amendment

to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the

claimant's option under 28 U.S.C. 2675(a) shall not accrue until six months after the filing of an amendment.

Credits

[Order No. 870-79, 45 FR 2650, Jan. 14, 1980, as amended by Order No. 960-81, 46 FR 52355, Oct. 27, 1981; 52 FR 7411,

March 11, 1987]

SOURCE: Order No. 371-66, 31 FR 16616, Dec. 29, 1966; 52 FR 7411, March 11, 1987; 53 FR 37753, Sept. 28, 1988; 57

FR 21738, May 22, 1992; 73 FR 48299, Aug. 19, 2008; 73 FR 70276, Nov. 20, 2008; 73 FR 70277, Nov. 20, 2008; 73 FR

70278, Nov. 20, 2008, unless otherwise noted.

AUTHORITY: 5 U.S.C. 301; 28 U.S.C. 509, $10, and 2672.

Notes of Decisions (622)

Current through March 18, 2021; 86 FR 14803.

Cl ae Tt rT Ae i ot ae a Ee rr ain ll ao Fo RRL

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.