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Rollo-Carlson v. United States

United States District Court, D. Minnesota

March 18, 2019

Cynthia Rollo-Carlson, as trustee for Jeremiah Flackus-Carlson, deceased, Plaintiff,
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.


          Eric C. Tostrud United States District Court.

         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.


         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 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, 654 F.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 “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.”).

         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.



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