Nancy Mader v. United States

In this appeal concerning the Federal Tort Claims Act, we determine whether a purported personal representative may invoke the adjudicatory capacity, that is, the subject-matter jurisdiction of a United States District Court on behalf of statutory beneficiaries if, under 28 U.S.C. § 2675(a), the representative fails or refuses to first present to the appropriate federal agency evidence of her authority to act on behalf of such beneficiaries.

I.

A.

"[S]overeign immunity shields the Federal Government and its agencies from suit." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). If Congress so chooses, however, it may waive the United States's sovereign immunity and "prescribe the terms and conditions on which [the United States] consents to be sued, and the manner in which the suit shall be conducted." Beers v. State, 61 U.S. (20 How.) 527, 529 (1857). In 1946, Congress passed the Federal Tort Claims Act (FTCA), a limited waiver of the United States's sovereign immunity, to permit persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court. Molzof ex rel. Molzof v. United States, 502 U.S. 301, 304 (1992). In relevant part, the FTCA's liability and jurisdiction-conferring language provides that federal district courts have "exclusive jurisdiction" over claims against the United States for money damages for "personal injury or death caused by the negligent or wrongful act or omission" of federal employees "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." 28 U.S.C. § 1346(b)(1); see also id. § 2674. Thus, while "the extent of the United States'[s] liability under the FTCA is generally determined by reference to state law," Molzof, 502 U.S. at 305, the adjudicatory capacity over such claims is strictly limited to the various federal district courts.

In its infancy, the FTCA granted federal agencies little authority to administratively settle FTCA claims, and FTCA claimants could, at their discretion, file suit in federal district court without first subjecting their claims to agency attention. McNeil v. United States, 508 U.S. 106, 112 n.7 (1993). But, in 1966, Congress amended the FTCA and established a new framework for the administrative consideration and settlement of claims. Id. Specifically, Congress broadened the settlement authority of agencies through the enactment of 28 U.S.C. § 2672, which provides that federal agency heads, "in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any [FTCA] claim." Along with § 2672, Congress enacted 28 U.S.C. § 2675(a), which provides that "[a]n [FTCA] action[1] 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." The Supreme Court has recognized that "[t]he most natural reading of [§ 2675(a)] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process." McNeil, 508 U.S. at 112. While § 2675(a) bars suit unless a claim is first "presented" to the appropriate federal agency, the FTCA does not expressly articulate in § 2671, its definitions section, what information must be included in a properly "presented" claim. Purportedly acting pursuant to Congress's grant of rulemaking authority in § 2672, the Attorney General promulgated 28 C.F.R. § 14.2(a) to define the presentment requirement. Specifically, § 14.2(a) provides: 228 U.S.C. § 2401(b) provides:

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 the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

For purposes of the provisions of 28 U.S.C. § 2401(b),[2] 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, [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.

Notwithstanding the Attorney General's regulation, there remains judicial discord over whether § 2675(a) requires the presentation of all of the evidence listed in § 14.2(a). Specifically, courts have disagreed about whether § 2675(a) requires presentation of evidence of a representative's authority to submit a claim on behalf of the claimant. Compare Kanar v. United States, 118 F.3d 527, 530 (7th Cir. 1997) with Warren v. U.S. Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984) (en banc).

A panel from this circuit directly addressed the evidence-of-authority issue in Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977), and held that a representative must submit evidence of his authority to act on behalf of a claimant in order to satisfy § 2675(a)'s jurisdictional presentment requirement. Id. at 225-26. There, third parties attempted to present FTCA claims to a federal agency on behalf of a class of unnamed 3Under Nebraska law, wrongful death actions may be brought for the "exclusive benefit of the widow or widower and next of kin." Neb. Rev. Stat. § 30-810.

Although not in the record below, a computer search reveals a timely published obituary for Mr. Mader which indicates that, in addition to Ms. Mader, he was survived by several children, siblings and other more remote kin. Obituaries, The claimants without evidence of their authority to do so. Id. at 224-25. Noting that "the major reason" for § 2675(a)'s presentment requirement is to "facilitate settlement of [FTCA] cases," id. at 226 (quotations omitted), the panel concluded that the third parties "inadequately presented the claims of unnamed class members because they failed to demonstrate the existence of the necessary agency relationship." Id. Without such evidence, reasoned the court, "the ability of the United States to negotiate a settlement is impeded." Id. (quotation omitted).

Now, some thirty-four years after the Lunsford decision, the facts of the present case bring the evidence-of-authority issue before our en banc court.

B. Robert L. Mader (Mr. Mader) was treated for depression and paranoia at the Veterans Affairs (VA) Medical Center in Lincoln, Nebraska. On August 3, 2004, approximately two months after a VA doctor altered his course of treatment, Mr. Mader died of a self-inflicted gunshot wound. Via Standard Form 95, Nancy Mader (Ms. Mader), his widow, purporting to act as the "Personal Representative of the Estate of Robert L. Mader," sought to present a wrongful death claim to the VA on August 3, 2006, the two-year anniversary of Mr. Mader's death. Ms. Mader's attorney signed the form and mailed it to the VA. Although Form 95, which recites the language of 28 C.F.R. § 14.2(a), expressly required Ms. Mader to submit evidence of her authority to present the claim on behalf of the claim's statutorily designated beneficiaries,3 no such evidence was ever presented to the VA in this case. Independent, Aug. 6, 2004, http://www.theindependent.com/articles/2004/08/06/ obituaries/20040806-archive2.txt.

Indeed, on August 21, 2006, the VA sent Ms. Mader's lawyer a letter requesting evidence of Ms. Mader's status as personal representative. Neither Ms. Mader nor her attorney responded to this entreaty. The VA later telephoned Ms. Mader's counsel at least four times asking for the information but, again, neither Ms. Mader nor her lawyer replied.4 On September 19, 2007, the VA denied the claim in writing due to Ms. Mader's repeated failure to submit the required authority evidence. In the alternative, the VA denied the claim on its merits.

In March 2008, Ms. Mader–again claiming to be the personal representative of Mr. Mader's estate, and purportedly acting on behalf of statutory beneficiaries–filed a wrongful death action against the United States in federal district court under the FTCA. Upon the government's Federal Rule of Civil Procedure 12(b)(1) motion, the district court applied Lunsford and dismissed the action for want of subject-matter jurisdiction because Ms. Mader failed to present the requisite evidence of authority to the VA under 28 U.S.C. § 2675(a). Mader appealed the dismissal to a panel of this court.

A divided panel reversed the district court, holding that § 2675(a) did not require Ms. Mader to present to the VA evidence of her authority to act on behalf of the claim's beneficiaries. According to the panel majority, Lunsford's interpretation of § 2675(a)'s presentment requirement is in irreconcilable conflict with the so-called "minimal notice" interpretation of § 2675(a) articulated in Farmers State Savings Bank v. Farmers Home Administration, 866 F.2d 276 (8th Cir. 1989). In Farmers, the court explained that a claimant may satisfy the presentment requirement by submitting: (1) sufficient information for the agency to investigate the claim; and (2) the amount of damages sought.5 Id. at 277. Although Lunsford was decided first (and was even approvingly cited in Farmers), the panel majority disregarded Lunsford and, instead, applied the "minimal notice" standard articulated in Farmers because it represented the "better rule." Mader ex rel. Mader v. United States, 619 F.3d 996, 999, 1001-02 (8th Cir. 2010). The government filed a petition for rehearing by the en banc court. We granted the government's petition for en banc review, vacating the panel majority's opinion. We now affirm the district court.

II.

Before we address the parties' arguments regarding the construction of § 2675(a)'s presentment requirement, we address this circuit's "peculiar approach to conflicting prior panel opinions." Williams v. Nat'l Football League, 598 F.3d 932, 934 (8th Cir. 2009) (Colloton, J., dissenting from denial of rehearing en banc). "It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel." Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002). But, when faced with conflicting panel opinions, panels "are free to choose which line of cases to follow." Meyer v. Schnucks Mkts., Inc., 163 F.3d 1048, 1051 (8th Cir. 1998). Following this practice, the panel majority chose to follow Farmers instead of Lunsford, even though Lunsford was decided first.

We definitively rule today, in accordance with the almost universal practice in other federal circuits, McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (collecting cases), that when faced with conflicting panel opinions, the earliest opinion must be followed "as it should have controlled the subsequent panels that created the conflict." T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006). Thus, as a matter of proper appellate review, the panel majority should have applied Lunsford's first-in-time interpretation of § 2675(a). But, because the en banc court is not bound by Lunsford's interpretation of § 2675(a), we now interpret the statute anew.

III.

Ms. Mader asserts that a claim is properly "presented" to the appropriate federal agency under 28 U.S.C. § 2675(a) if it includes: (1) sufficient information for the agency to investigate the claim; and (2) the amount of damages sought. The government agrees that § 2675(a) requires such information but contends that, in addition, personal representatives must also present evidence of their authority to submit a wrongful death claim on behalf of statutory beneficiaries–the evidence Ms. Mader failed to present in this case. We review questions of statutory interpretation de novo, which requires us to examine the text of the statute as a whole by considering its context, object, and policy. Am. Growers Ins. Co. v. Fed. Crop Ins. Corp., 532 F.3d 797, 803 (8th Cir. 2008). Ultimately, "[o]ur objective in interpreting a federal statute is to give effect to the intent of Congress." United States v. Vig, 167 F.3d 443, 447 (8th Cir. 1999). We must also keep in mind that § 2675(a) is a condition to the United States's waiver of sovereign immunity under the FTCA, and we should not "extend the waiver beyond that which Congress intended," or "assume the authority to narrow the waiver that Congress intended." United States v. Kubrick, 444 U.S. 111, 118 (1979).

As earlier noted, the FTCA does not expressly define the term "presented" under § 2675(a), but "[i]t is a fundamental canon of statutory construction that the words of a statute must be read . . . with a view to their place in the overall statutory scheme." Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989). As discussed above, in 1966, Congress enacted §§ 2675(a) and 2672 to create a new framework for the administrative consideration and settlement of FTCA claims. When § 2675(a) is read in light of its sister statute, it becomes readily apparent that the administrative presentment requirement serves a practical purpose–it provides federal agencies a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit. See McNeil, 508 U.S. at 112 ("The most natural reading of [§ 2675(a)] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process." (emphasis added)).

It naturally follows, then, that § 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.

The facts of this case demonstrate why Ms. Mader's proposed interpretation of the presentment requirement, which would excuse her failure to present such evidence-of-authority, fails to give full effect to § 2675(a)'s manifest purpose and fails to take into account the realities of the administrative consideration process contemplated in §§ 2675(a) and 2672. Under § 2672, a federal agency may only settle or compromise an FTCA claim "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with [applicable state law]." As mentioned above, the FTCA's liability and jurisdiction-conferring language similarly provides that federal district courts have "exclusive jurisdiction" over FTCA claims "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with [applicable state law]." 28 U.S.C. § 1346(b)(1); see also id. § 2674. In Nebraska, the relevant locale here, wrongful death actions are statutorily authorized, Neb. Rev. Stat. § 30-809, but may only "be brought by and in the name of the [decedent's] personal representative for the exclusive benefit of the widow or widower and next of kin."6 Id. § 30-810; Spradlin v. Dairyland Ins. Co., 641 N.W.2d 634, 637-38 (Neb. 2002). Indeed, under Nebraska law, a private tortfeasor "cannot be legally liable" to a non-personal representative for the wrongful death of a decedent. Spradlin, 641 N.W.2d at 638.

On August 12, 2004, Ms. Mader was appointed personal representative of Mr. Mader's estate in the County Court of Hall County, Nebraska. On July 8, 2005, after administering the estate for nearly a year, Ms. Mader filed a verified statement in the County Court to informally close the estate. Under Nebraska law, if no proceedings involving the personal representative are pending in the County Court one year after the filing of such a statement, the appointment of the personal representative terminates. Neb. Rev. Stat. §§ 30-24,117(b), 30-2453(a). Importantly, such termination "ends the right and power pertaining to the office of personal representative," including her right to serve in a representative capacity "in any pending or future proceeding." Id. § 30-2451. At oral argument before the en banc court, Ms. Mader's lawyer conceded for the first time that Ms. Mader's appointment as personal representative terminated sometime before she submitted the wrongful death claim to the VA, and before she filed suit against the United States in federal district court.

Thus, after five years of consideration at the administrative, trial and appellate court levels, it has only recently become clear that Ms. 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. This critical fact was concealed due to Ms. Mader's repeated refusal to disclose evidence of her status as personal representative to the VA.7 Without the opportunity to review such evidence, the VA was unable to ascertain that, even if it wished to settle the statutory beneficiaries' wrongful death claim, it could not do so because Ms. Mader's state-law authority to act on behalf of the beneficiaries had expired. See 28 U.S.C. § 2672 (granting agencies authority to settle claims "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with [state law]"). Without such evidence, the VA also could not definitively discern that any negotiations by Ms. Mader or any agreements with her on behalf of the claim's beneficiaries, including a release of claims, would have been ineffective. See, e.g., Reo v. U.S. Postal Serv., 98 F.3d 73, 76, 78 (3d Cir. 1996) (holding that because parents had no state-law authority to settle their child's FTCA claim, the administrative settlement was "incomplete as a matter of state law" and the child's subsequent FTCA action was not barred). Being ultra vires in nature, such negotiations with Ms. Mader would have improperly jeopardized the time, treasure and superintendence responsibilities of the VA.

Unfortunately, the representation problem presented in this case could easily be repeated in jurisdictions across the United States. See McNeil, 508 U.S. at 112 ("[§ 2675(a)] governs the processing of a vast multitude of claims."). Like Nebraska's wrongful death statute, "[a] great number of wrongful death statutes require that [a claim] must be instituted and prosecuted by the decedent's personal representative only."8 12 Am. Jur. Trials Wrongful Death Actions § 10. The FTCA seemingly apprehends this common state-law requirement when it acknowledges that the United States may be liable for wrongful death "to the persons . . . for whose benefit the action was brought." 28 U.S.C. § 2674 (emphasis added). In any one of these many jurisdictions, federal agencies are unable to meaningfully settle, consider, or even fully ascertain a wrongful death claim under § 2672 without first receiving evidence of the personal representative's authority to act on behalf of the claim's beneficiaries.

Similar representation problems may also extend beyond the wrongful death context. Indeed, FTCA claims involving questions of age, competency and numerosity, among others, will often require the appointment of an agent or trustee. And, as the government pointed out at oral argument, there are currently some 500,000 FTCA claims pending in the wake of the Hurricane Katrina disaster, a number of which have representation issues. In fact, according to the government, in some cases up to four lawyers have attempted to present FTCA claims to federal agencies on behalf of the same claimants.

Our interpretation of § 2675(a)'s presentment requirement is also buttressed by the legislative history of §§ 2675(a) and 2672. Legislative discussions pertaining to § 2675(a) indicate that Congress enacted the provision to "require someone who [previously] ha[d] a right to go to court directly first to deal with [the appropriate] administrative agency." Improvement of Procedures in Claims Settlement and Government Litigation: Hearing Before Subcomm. No. 2 of the H. Comm. on the Judiciary, 89th Cong. 18 (1966) (statement of William Hungate, Member, H. Comm. on the Judiciary); see also id. at 19 ("[O]ne thought is that the sovereign is waiving its immunity in connection with tort claims, and that it is not unreasonable to say that for 6 months the agency should have a crack at them.") (statement of John W. Douglas, Assistant Attorney General); S. Rep. No. 89-1327, at 2, reprinted in 1966 U.S.C.C.A.N. 2515, 2517 ("[Section 2675(a)] require[s] all claims to be presented to the appropriate agency for consideration and possible settlement before a court action [may] be instituted."). And, the legislative history of § 2672 suggests that Congress intended to "grant[] the agencies of Government sufficient authority to make the administrative settlements a meaningful thing." S. Rep. No. 89-1327, at 3. Such history supports our conclusion that, by enacting §§ 2675(a) and 2672, Congress intended to give agencies the first opportunity to meaningfully consider and settle FTCA claims. And, as discussed above, agencies simply cannot meaningfully consideration and settlement process contemplated in §§ 2675(a) and 2672. Moreover, we note that the presentation of such evidence is far from burdensome. Assuming a representative is, in fact, duly authorized to present an FTCA claim on behalf of beneficiaries under applicable state law, evidence of such authority is uniquely in the representative's possession.

We recognize that our interpretation of § 2675(a) is consistent with the Attorney General's regulation, 28 C.F.R. § 14.2(a). The parties devoted much attention in their briefs to the question of whether Congress's express grant of rulemaking authority under § 2672 authorized the Attorney General to define § 2675(a)'s presentment requirement. We are strongly inclined to think that it did. If so, the regulation is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984), or, at least, Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). But, in this case, there is "no occasion to defer and no point in asking what kind of deference, or how much," because § 14.2(a)'s interpretation of § 2675(a) is the interpretation "we would adopt even if there were no formal rule and we were interpreting the statute from scratch." Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002). The Attorney General's regulation is, in essence, merely a paraphrase of the inherent requirements of §§ 2675(a) and 2672.9


IV.

Ms. Mader asserts that, notwithstanding our interpretation of § 2675(a)'s presentment requirement, the district court erroneously dismissed her suit under Rule 12(b)(1) because compliance with the presentment requirement is not jurisdictional.

Following this logic, she contends that her failure to strictly comply with the requirement was harmless and may be excused because the VA ultimately investigated and denied the beneficiaries' claim on the merits.10 The government contends that the district court properly dismissed Ms. Mader's action because strict compliance with § 2675(a) is a jurisdictional prerequisite to suit under the FTCA. We agree with the government.

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. See Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009); Lunsford, 570 F.2d at 224. A vast majority of our sister circuits agree, although, as noted above, these courts do not necessarily apply the same definition of "presented." See Simpkins v. D.C. Gov't, 108 F.3d 366, 371 (D.C. Cir. 1997); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1347 (Fed. Cir. 2008); Corte-Real v. United States, 949 F.2d 484, 485-86 (1st Cir. 1991); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 194, 198 (2d Cir. 1987); White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456-57 (3d Cir. 2010); Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994); Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995); Allen v. United States, 517 F.2d 1328, 1329 (6th Cir. 1975) (per curiam); Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992); Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1463 (10th Cir. 1989); Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006). But see Kanar v. United States, 118 F.3d 527, 529-30 (7th Cir. 1997) (failure to satisfy § 2675(a) did not deprive district court of subject-matter jurisdiction over the FTCA claim).

In recent years, however, the Supreme Court has attempted to "bring some discipline" to the use of the term "jurisdictional." Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011). Specifically, the Court has cautioned that a procedural rule carrying a "jurisdictional" label often has drastic litigatory influence and the Court has clarified that the label should not be attached unless a rule is intended to govern "a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction." Id. Therefore, to determine whether § 2675(a)'s presentation requirement is properly classified as "jurisdictional," we look to the Supreme Court's recent holding in Henderson for guidance.

The question in Henderson was whether a former serviceman's failure to file a notice of appeal with the United States Court of Appeals for Veterans Claims within a statutorily established period of time had jurisdictional consequences. Id. at 1200.

At the outset, the Court noted that "claim-processing rules"–rules that seek to promote the orderly progress of litigation by requiring that parties take certain steps at certain specified times–are not the types of rules that should be described as jurisdictional. Id. at 1203. But, the question before the Court in Henderson (and in this case) was not easily answerable, as the Court conceded, because Congress is free to attach conditions that fasten a "jurisdictional label" to a rule that the Court would prefer to call a claim-processing procedure. Id. And, while Congress must clearly indicate an intention to impart such a brand, it need not use "magic words" to do so. Id.

"'[C]ontext, including [the] Court's interpretation of similar provisions in many years past, is relevant.'" Id. (first alteration in original) (quoting Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1248 (2010)). And, when a long line of the Court's jurisdictional decisions are left undisturbed, Congress is seen to have treated such requirements as jurisdictional and courts should presume that Congress intended to continue to follow that course. Id. (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008)).

Henderson, by way of example, conceded that in Bowles v. Russell, 551 U.S. 205 (2007), the statutory limitation on the length of an extension of time to file a notice of appeal was seen as jurisdictional and, thus, failure to comply with the limitation could not be excused. Henderson, 131 S. Ct. at 1201-02. The Court noted that Bowles, as in this case, but unlike the Veterans Court procedure at issue in Henderson, was an ordinary civil case originally triable in the United States District Court and appealable to the United States Court of Appeals. Id. at 1203-04. Indeed, said the Court, Bowles concerned an appeal from one court to another court involving a "century's worth of precedent and practice in American courts." Id. at 1203 (quotation omitted). Thus, Henderson contrasted the ordinary civil litigation in Bowles with the serviceman-friendly system that Congress had created for adjudication of veterans claims. Id. at 1204-05. In addition, Henderson also noted that the title given to and the substance of various portions of a legislative act can aid in resolving an ambiguity in legislative text. Id. at 1205 (citing INS v. Nat'l Center for Immigrants' Rights, Inc., 502 U.S. 183, 189 (1991)).

We now apply the principles and precedents of Henderson to the issues in this case. In doing so, we strictly abide by the FTCA's language and policy. Ultimately, we are convinced that although § 2675(a) may resemble a claim-processing rule, Congress has attached a jurisdictional label to the statute.

To begin with, the FTCA's jurisdiction-conferring statute, 28 U.S.C. § 1346(b)(1), makes the "exclusive jurisdiction" of federal district courts over FTCA actions "[s]ubject to the provisions of chapter 171," which houses §§ 2675(a) and 2672. And, as discussed above, § 2675(a) provides that "[a]n action shall not be instituted upon a claim" in federal district court unless the presentment requirement is satisfied. Thus, the jurisdiction-conferring language of § 1346(b)(1) indicates that an FTCA claim perfected under § 2675(a) is within the "exclusive jurisdiction" of the federal district courts and prosecutable in the judicial district "where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. §§ 1346(b)(1), 1402(b). But, a claim that fails to satisfy § 2675(a)'s requirements remains inchoate, unperfected, and not judicially actionable.

In addition to the relatively clear language of § 1346(b)(1), Supreme Court precedent suggests that § 2675(a) is properly classified as a jurisdictional requirement. In McNeil, the Supreme Court, while not specifically mentioning the word "jurisdiction," recognized that "[t]he most natural reading of [§ 2675(a)] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process." 508 U.S. at 112 (emphasis added). The Court also noted that "at least one objective of [§§ 2675(a) and 2672] was to reduce unnecessary congestion in the courts." Id. at 112 n.8 (internal quotation omitted). Not surprisingly, some courts have cited McNeil for the proposition that compliance with § 2675(a) is a jurisdictional prerequisite to suit. See, e.g., Rasul v. Myers, 563 F.3d 527, 528 n.1 (D.C. Cir. 2009); Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999).

Moreover, for at least seventy years, the Court has recognized that "[t]he United States, as sovereign, is immune from suit save it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) ("Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity . . . together with a claim falling within the terms of the waiver."). As discussed above, the FTCA is a waiver of the United States's sovereign immunity, and the satisfaction of § 2675(a)'s presentment requirement is no doubt a term of that waiver. Cf. Kubrick, 444 U.S. at 117 (explaining that 28 U.S.C. § 2401(b)'s two-year statute of limitations for presenting a claim under § 2675(a) is "a condition of" the United States's waiver of sovereign immunity under the FTCA). Therefore, in accordance with longstanding Supreme Court precedent, § 2675(a) is properly viewed as defining the federal courts' jurisdiction to entertain FTCA suits. We also note that, since 1966, Congress has left § 2675(a) undisturbed in the face of the above Supreme Court precedent and the fact that nearly all circuits have held that compliance with § 2675(a) is a jurisdictional prerequisite to filing an FTCA action in federal district court. Finally, unlike the statutory scheme for processing veterans' benefits claims discussed in Henderson, the FTCA is adversarial and cannot be reasonably classified as claimant-friendly.11 Indeed, the FTCA is replete with mandates, deadlines, requirements and exceptions that reinforce the Act's jurisdictional brand. See generally 28 U.S.C. §§ 1346(b)(1), 2401-02, 2671-2680.

Under the guidance of Henderson, we conclude that conformity with § 2675(a) is a jurisdictional term of the FTCA's limited waiver of sovereign immunity. Since there was no such compliance in this case, the district court properly dismissed the suit for want of subject-matter jurisdiction.

V.

Alternatively, in light of Ms. Mader's recent concession that her appointment as personal representative expired sometime before August 3, 2006, we hold that she does not have standing to assert the wrongful death claim at issue.12 See Williams v. Bradshaw, 459 F.3d 846, 848-49 (8th Cir. 2006) (holding that plaintiff, a non-personal representative, did not have standing to assert a wrongful death claim under 42 U.S.C. § 1983 because applicable state law only permitted the personal representative or all of the decedent's heirs to assert such a claim); Andrews v. Neer, 253 F.3d 1052, 1058 (8th Cir. 2001) (holding that decedent's daughter had standing to assert a wrongful death claim under § 1983 because applicable state law permitted the children of the decedent to bring such actions); Hastings v. Wilson, 516 F.3d 1055, 1060-61 (8th Cir. 2008) (holding that plaintiffs lacked statutory standing to bring a civil action for breach of fiduciary duty under ERISA because they were not participants, beneficiaries, or fiduciaries of the ERISA plan, as required by 29 U.S.C. § 1132(a)(2)); see also Warth v. Seldin, 422 U.S. 490, 500 (1975) (The test for prudential standing is "whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief."). As discussed above, the FTCA's jurisdiction-conferring and liability language provides that the United States may only be liable "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." 28 U.S.C. § 1346(b)(1); id. § 2674. And, under Nebraska law, only a personal representative may file a wrongful death action. See Neb. Rev. Stat. § 30-810; Spradlin, 641 N.W.2d at 637-38.

* * *

See: http://www.ca8.uscourts.gov/opndir/11/09/091025P.pdf

We affirm the district court.