Estate of Van Emburgh v. United States

95 F.4th 795

ESTATE OF Eleusipa VAN EMBURGH, BY AND THROUGH its Administrator James Michael VAN EMBURGH;James Michael Van Emburgh, Individually;James Alan Van Emburgh, Individually; Imelda Crovetto, Individually;Amy Rivera, Individually; Alexis Navarro, Individually;Rafael Navarro, Individually, Plaintiffs - Appellants, v. UNITED STATES of America, Defendant - Appellee.

No. 23-1011

United States Court of Appeals, Fourth Circuit

Argued: December 7, 2023

Decided: March 12, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:21 - cv - 00603 - RAJ - LRL)

ARGUED: Benjamin Aaron Beliles, BELILES & ASSOCIATES, PLLC, Richmond, Virginia, for Appellants. Daniel Patrick Shean, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Anna M. McKenzie, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Before GREGORY, WYNN, and RUSHING, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Gregory joined. Judge Rushing wrote a dissenting opinion.

WYNN, Circuit Judge:

Plaintiffs brought this action against the United States pursuant to the Federal Tort Claims Act ("FTCA"), asserting negligence, wrongful death, and survival claims arising from Eleusipa Van Emburgh's death after she was treated at a Navy medical center. The district court dismissed their claims for lack of subject matter jurisdiction, and this appeal followed. Because we hold that regulations enacted pursuant to 28 U.S.C. § 2672 do not impose distinct jurisdictional requirements in addition to those contained in 28 U.S.C § 2675, we reverse as to six of the plaintiffs and remand for further proceedings. But because one plaintiff, Imelda Crovetto, failed to satisfy one of the jurisdictional requirements listed in § 2675, we affirm as to her claims.

I.

A.

On October 2, 2019, Van Emburgh underwent an operation at a Navy medical center in Virginia. During the operation, she suffered a surgical perforation that Van Emburgh's estate ("the Estate"), her spouse, and her five children (collectively, "Plaintiffs") allege resulted from and was worsened by negligent care. Van Emburgh was eventually transferred to a hospital that was not affiliated with the Navy or Department of Defense. After several weeks at the second hospital, she was discharged to her home. On November 9, 2019, three days after returning home, she died from complications related to the surgical perforation.

B.

On April 27, 2020, each of the seven Plaintiffs submitted an administrative claim to the Navy for damages, alleging that Van Emburgh's medical complications and death were the result of substandard care she received at the Navy medical center. The claims each listed $25,000,000 in damages sought for wrongful death, except for the claim by Van Emburgh's daughter Imelda Crovetto in her individual capacity, which listed no damages. The claim submitted on behalf of the Estate was signed by Crovetto, whom Van Emburgh's will named as executor of the Estate.

After more than 10 months of investigation, on March 11, 2021, the Government denied all seven claims because it found that "the applicable standard of care was met by each of [Van Emburgh's] Navy health care providers" and therefore "[t]he damages [Plaintiffs] alleged did not result from any negligent act or omission on the part of an employee of the United States." J.A. 167.¹ The letter denying the claims also stated Plaintiffs should "be advised" that they "ha[d] six months from the date of mailing of th[e] letter to file suit in the appropriate Federal district court" if they wanted to pursue their claims. Id.

Less than four months later, Plaintiffs filed suit under the FTCA, asserting negligence, wrongful death, and survival claims. When the case was filed, the complaint identified the Estate as proceeding "by and through its executor Imelda Crovetto," whom the complaint alleged was the Estate's representative. J.A. 5.

The Government answered the complaint. And on October 1, 2021, it served discovery requests, including requests for information about "the specific steps Ms. Crovetto took to become properly qualified as the personal representative of Ms. Van Emburgh's estate, the court in which she was qualified as the personal representative, and the date(s) on which she was so qualified." J.A. 174.

Under Virginia law, a wrongful death action "shall be brought by and in the name of the personal representative of such deceased person." Va. Code § 8.01-50(C); Johnston Mem. Hosp. v. Bazemore, 277 Va. 308, 672 S.E.2d 858, 860 (2009) (same); see also Va. Code § 64.2-511 ("A person named in a will as executor shall not exercise the powers of executor until he qualifies as such by taking an oath and giving bond in the court or before the clerk where the will or an authenticated copy thereof is admitted to record, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste."). Up to this point, however, Crovetto had not been formally qualified under Virginia law to serve as an executor because an employee at a local court had informed Plaintiffs they likely did not need to formally qualify since the Estate was small.

After receiving the Government's discovery requests, Plaintiffs attempted to qualify Crovetto as the Estate's executor. Administrative difficulties, caused in part by the COVID-19 pandemic, prevented Plaintiffs from properly qualifying Crovetto, who was living in Japan at the time and could not travel to complete the process. So, Plaintiffs ultimately qualified Van Emburgh's spouse, James Michael Van Emburgh ("James"), as administrator of the Estate for purposes of the lawsuit. During that process, Plaintiffs informed the Government's counsel they would withdraw their original lawsuit and refile a substantively similar lawsuit to comply with what they understood as the requirements for litigating an FTCA claim "in Federal Court." J.A. 182.

Once James was formally qualified as the Estate's administrator, Plaintiffs filed the present lawsuit and stipulated to dismissal of the original lawsuit. The instant action contains the same factual allegations and asserts the same negligence, wrongful death, and survival claims as the original suit. The complaint in this case identified the Estate as proceeding "by and th[r]ough its Administrator James Michael Van Emburgh," J.A. 42, and alleged that James "is . . . the duly appointed Administrator of the Estate of Eleusipa Van Emburgh," J.A. 44 ¶ 8.

C.

A month after the stipulated dismissal of the first case, the Government moved to dismiss the present case for lack of subject matter jurisdiction and moved in the alternative for summary judgment or dismissal pursuant to Rule 12(b)(6) for untimeliness. In its motion to dismiss for lack of subject matter jurisdiction, the Government argued that Plaintiffs failed to satisfy the FTCA's administrative exhaustion requirement because, at the time they submitted the administrative claims to the Government, neither Crovetto nor James had been properly qualified as administrator of the Estate.

After briefing, the district court dismissed the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Est. of Van Emburgh v. United States, No. 2:21-CV-00603, 2022 WL 3581678, at *3-4 (E.D. Va. Aug. 18, 2022). The district court found that the Navy's FTCA regulations imposed administrative exhaustion requirements in addition to those found in the text of the FTCA, and that Plaintiffs failed to satisfy those additional requirements because Crovetto was not formally qualified as the Estate's executor when she submitted the administrative claim on behalf of the Estate.

Plaintiffs filed a motion for reconsideration pursuant to Rule 59(e), arguing for the first time that the FTCA's administrative exhaustion requirements are not jurisdictional. The district court denied Plaintiffs' motion, and Plaintiffs timely appealed.

II.

"Since the district court's dismissal of the complaint under [Rule] 12(b)(1) is a legal determination, we review its judgment de novo." Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (emphasis omitted).

Plaintiffs contend that the district court erred in dismissing the case for lack of subject matter jurisdiction because, in their view, they satisfied the minimum jurisdictional requirements imposed by the FTCA. We largely agree because Congress has not authorized regulations that impose additional jurisdictional requirements beyond those the statute itself imposes; thus, the regulations on which the Government relies are nonjurisdictional. Accordingly, we look only to the requirements provided by the statute and hold that all but one Plaintiff satisfied the FTCA's jurisdictional requirements.

A.

From the outset, we address the question of whether Plaintiffs' argument about the scope of the FTCA's jurisdictional requirements is properly before us. The Government argues that Plaintiffs failed to preserve this argument because they first raised it in their motion for reconsideration. We conclude that even if that is true, it is appropriate and desirable for us to consider the matter.

Because we must be sure of our power to review a case under Article III, a defendant's failure to raise our lack of jurisdiction is of no importance—we must consider the matter sua sponte. Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). By contrast, a plaintiff may forfeit an argument in favor of subject matter jurisdiction. E.g., Mayor & City Council of Balt. v. BP P.L.C., 31 F.4th 178, 202 (4th Cir. 2022) (holding argument in support of removal jurisdiction was forfeited because it was not sufficiently developed in the notice of removal or before the...