Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

Nos. 12-2342

12-2343

DANIEL ROSARIO-GONZÁLEZ, ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES, ET AL.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Kayatta, Circuit Judges.

Daniel Rosario González and Juan Vélez Padilla, on brief for

appellants.

Freddie O. Torres Gomez and Roberto Sueiro Del Valle, on brief

for appellee, Clinical Medical Services for VA.

Leila Castro Moya and Rovira-Rodríguez Group Law Offices, on

brief for appellee, Servicios de Salud en El Hogar y Hospicio San

Lucas, Inc.

Nelson Pérez-Sosa, Assistant U.S. Attorney, Juan Carlos ReyesRamos, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Vélez,

United States Attorney, on brief for appellee United States, VAMC,

San Juan and U.S. Department of Veterans Affairs, Regional Office.

November 8, 2013
Per Curiam. Daniel Rosario-González ("Rosario") and Juan

Vélez-Padilla ("Vélez") appeal from the district court's judgment

in favor of the United States, other federal defendants, and two

non-federal medical care providers. See Rosario-González v. United

States, 898 F. Supp. 2d 410 (D.P.R. 2012). We vacate the judgment

in part and affirm in part as indicated herein.

We review the district court's ultimate legal conclusions

on the jurisdictional issues in the case de novo, but its factual

findings, insofar as they depend on materials outside the

pleadings, for clear error. U.S. ex rel. Ondis v. City of

Woonsocket, 587 F.3d 49, 54 (1st Cir. 2009) (citing, inter alia,

Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001)

(describing the standards applicable to Fed. R. Civ. P. 12(b)(1)

motions to dismiss based on factual challenges to the district

court's jurisdiction). We review the court's rulings under Fed. R.

Civ. P. 12(b)(6) de novo, Manning v. Boston Medical Center Corp.,

725 F.3d 34, 43 (1st Cir. 2013) (citations omitted), and apply the

same standard of review to its rulings based on Fed. R. Civ. P.

56(a). Sun Capital Partners III, LP v. N.E. Teamsters & Trucking

Indus. Pension Fund, 724 F.3d 129, 138 (1st Cir. 2013) (citation

omitted).

Our reasons for affirming in part and vacating and

remanding in part are as follows:

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1. Appellants raise no objection to the district court's

determination that appellant Vélez lacked standing to sue, thereby

waiving or forfeiting any claim of error. See Manning v. Boston

Med. Ctr. Corp., 725 F.3d 34, 58 (1st Cir. 2013) (claims of error

are deemed waived on appeal if no analysis or developed argument is

presented). In any event, we find no error. In the rest of our

opinion, we refer only to appellant Rosario.

2. We agree that the Veterans' Judicial Review Act

("VJRA") deprived the district court of jurisdiction over any

claims by Rosario challenging the July 30, 2008 rating decision by

the Department of Veterans Affairs ("DVA"). See 38 U.S.C. §§

511(a), 7252(a), 7292(c) (final agency decisions regarding benefits

for veterans and their dependents or survivors are exclusively

reviewable by the Court of Appeals for Veterans Claims, and then,

as specified, by the Court of Appeals for the Federal Circuit and

the Supreme Court). Nor has Rosario raised any claim of error as

to the district court's treatment of his veterans benefits claims. 

We therefore see no need to address the district court's

alternative ruling based on the discretionary function exception of

the Federal Tort Claims Act ("FTCA"). See Jones v. United States,

727 F.3d 844, 849 & n.4 (8th Cir. 2013) (bypassing a district court

ruling based on § 2680(a) where affirming based on its VJRA ruling

was appropriate); 28 U.S.C. § 2680(a) (claims "based upon the

exercise or performance or the failure to exercise or perform a

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discretionary function or duty" are excepted from the FTCA's waiver

of sovereign immunity).

3. For various reasons, the district court concluded

that it lacked jurisdiction under the FTCA over Rosario's claims

against the United States. 898 F. Supp. 2d at 424-27. In arguing

for an affirmance, the government relies exclusively on one of the

district court's rulings--that Rosario's filing of an SF-95 form

the month before he filed this suit amended his prior SF-95s

raising his claims, which had been pending for more than six months

without final agency action, thereby postponing, for six more

months, his time for filing suit under the "deemed denial"

provision in § 2675(a). See 28 U.S.C. § 2675(a) (permitting

claimants to file suit at their option at "any time" if six months

have passed without final agency action on a claim); 28 C.F.R. §

14.2(c) (providing that the claimant's option under § 2675(a)

"shall not accrue until six months after the filing of an

amendment" to a claim). Rosario denies that § 14.2(c) restarts the

statutory deemed denial period.

There is little case law discussing the jurisdictional

import of § 14.2(c), and the government (like the district court)

has not addressed the only reasoned decision that seems precisely

on point. In Seals v. United States, 319 F. Supp. 2d 741, 744-45

(W.D. Texas 2004), the district court rejected the argument the

government makes here. Like Rosario, the plaintiff in Seals had

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filed suit after her initial claim had been pending for more than

six months without final agency action, but the government moved to

dismiss her suit as premature based on § 14.2(c) because the

plaintiff had amended her claim less than six months before filing

her suit. The court declined to dismiss the suit, concluding that

§ 14.2(c) could not deprive the court of jurisdiction it otherwise

had under the deemed denial provision in § 2675(a). The district

court relied primarily on Adams v. United States, 615 F.2d 284 (5th

Cir.), clarified on denial of rehearing, 622 F.2d 197 (5th Cir.

1980), which concluded that a court's power to adjudicate an FTCA

claim depends "solely" on compliance with § 2675(a)'s presentment

requirement, which is satisfied if the claimant has given the

agency written notice of the claim sufficient to enable it to

investigate and has placed a value on the claim. 615 F.2d at 292.

In our cases dealing with the presentment requirement in

§ 2675(a), we have agreed generally with Adams' approach. See

López v. United States, 758 F.2d 806, 809-10 (1985);

Santiago-Ramirez v. Sec'y of Dept. of Def., 984 F.2d 16, 19 (1st

Cir. 1993). We have said that we will approach FTCA cases

"recognizing that individuals wishing to sue the government must

comply with the details of the law, but also keeping in mind that

the law was not intended to put up a barrier of technicalities to

defeat their claims." López, 758 F.2d at 809; accord SantiagoRamirez, 984 F.2d at 19 (citing López). Relative to § 2675(a)'s

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presentment requirement, we have suggested that a "flexible

approach" accords with "the original purpose behind the filing of

an administrative claim: that of allowing the efficient

investigation of a claim by the agency without sacrificing the

entitlement of a claimant to his or her cause of action against the

government." Santiago-Ramirez, 984 F.2d at 19. 8-20. We have also

suggested that we expect the government to apply its FTCA

settlement regulations in a manner consistent with Congress's

purpose in providing for an administrative procedure. López, 758

F.2d at 809 (citation omitted). 

Before filing this suit, Rosario had filed SF-95s

relative to his father's medical care and treatment that had

complied with § 2675(a)'s presentment requirement by giving the

agency "due notice" of the "particular (potentially tortious)

conduct" it should investigate and including "a specification of

the damages sought." See Ramírez-Carlo v. United States, 496 F.3d

41, 47 (1st Cir. 2007) (describing when a claim is properly

presented to an agency under § 2675(a)) (citation omitted). With

the exception of "Claim 33," the SF-95 Rosario had filed the month

before filing this suit, the agency had been considering his claims

for more than six months without having finally disposed of them,

entitling Rosario, under § 2675(a), to deem his claims denied at

his "option," and to file suit "any time thereafter" (that is,

until they were actually denied by the agency, Ellison v. United

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States, 531 F.3d 359, 363 (6th Cir. 2008), which did not occur

until after this suit was filed).

Claim 33 did not change the substance of Rosario's

previously filed medical malpractice and wrongful death claims, but

instead demanded what was, on its face, a fantastical sum in

damages. There is no claim by the government that Rosario's filing

of Claim 33 had any prejudicial impact on its ability to properly

investigate his pending tort claims or to determine whether it

should settle them (and no prejudice is apparent), such that giving

the agency another six months in which to consider the claims would

accord with § 2675(a)'s exhaustion requirement. On these facts and

circumstances, we decline to apply § 14.2(c) to this case because

doing so seems tantamount to erecting "a barrier of

technicalities," López, supra, and "sacrificing the entitlement of

a claimant to his or her cause of action against the government"

without a corresponding showing that doing so would promote "the

efficient investigation of a claim by the agency." 

Santiago-Ramirez, supra. Cf. GAF Corp. v. United States, 593 F.

Supp. 703, 707 (D.D.C. 1984) (declining to apply § 14.2(c) where an

amendment was unrelated to the initial claim and the government

could not reasonably contend that the amendment had affected its

investigation of the initial claim), reversed on other grounds, 818

F.2d 901, 920-21 (D.C. Cir. 1987).

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We also find the district court's other reasons for

dismissing the FTCA claims for lack of subject matter jurisdiction

to be unpersuasive. As the government seems to concede on appeal,

the court apparently misapplied or misconstrued the import of the

law review article it relied on, which addressed different deemed

denial situations (this suit was Rosario's first exercise of his

deemed denial option). See 898 F. Supp. 2d at 421-25 (discussing

Ugo Colello, The Case for Borrowing a Limitations Period for

Deemed-Denial Suits Brought Pursuant to the Federal Tort Claims

Act, 35 San Diego L. Rev. 391, 393-94, 407 (Spring 1998)). In

Rosario's case, the six-month limitations period would not have

started running until the agency issued and mailed by certified

mail its final written denial of his pending claims, which occurred

in February 2010, after he had filed this suit (in November 2009).

See 28 U.S.C. § 2401(b). Case law not mentioned by the district

court also indicates that the filing of this suit did not deprive

the agency of its power to consider and finally determine Rosario's

pending claims, although the agency apparently was required to

consult in advance with the Department of Justice ("DOJ"). See

Lehman v. United States, 154 F.3d 1010, 1014 (9th Cir. 1998)

(rejecting a contention that the filing of a suit deprives the

agency of power to act); 3 Lester S. Jayson & Hon. Robert C.

Longstreth, Handling Federal Tort Claims, § 14.06[1], at 14-128 to

-128.1 (2013) (distinguishing situations where claimants have

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formally withdrawn their administrative claims in writing); 28

C.F.R. § 14.6(d)(2) (agencies must consult with the DOJ before

settling or determining a claim based on an incident or transaction

that is being litigated). Nor does it appear that there was any

administrative appeals procedure that Rosario should have exhausted

before filing suit in November 2009. Cf. 28 C.F.R. § 14.9(b) (once

their claims have been finally denied, claimants "may" seek

reconsideration under certain circumstances).

For the above reasons, we vacate the district court's

judgment insofar as it dismissed Rosario's FTCA claims for lack of

jurisdiction and remand to the district court for further

proceedings.

4. We find Rosario's arguments based on the district

court's denial of his motions for default judgments against the

defendants and its alleged violation of one of its standing case

management orders to be meritless.

5. Except as indicated above, we affirm the district

court's findings on the remaining issues essentially for the

reasons it gives and/or because Rosario fails to develop any claim

of error on appeal.

6. We note that it is unclear whether the initial

November 2009 complaint or the March 2010 amended complaint is the

operative one. See, e.g., 898 F. Supp. 2d at 413 (treating the

complaint as the operative pleading); id. at 431 (addressing

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Rosario's "libel" claims, a term that appears only in the amended

complaint). This question should be clarified on remand.

The district court's judgment is affirmed in part and

vacated in part, and the matter is remanded in part as indicated

herein, with costs awarded only to appellees-defendants CMS and San

Lucas.

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