United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1025

___________

Nancy Mader, Personal Representative *

of the Estate of Robert Mader, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

United States of America, *

*

Appellee. *

*

___________

Submitted: April 13, 2011

Filed: September 7, 2011

___________

Before RILEY, Chief Judge, WOLLMAN, BEAM, LOKEN, MURPHY, BYE,

MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit

Judges.

___________

BEAM, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, LOKEN

(except as to Part II), COLLOTON (except as to Part V), GRUENDER and BENTON,

Circuit Judges, join.

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
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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
1

The 1946 version of the FTCA expressly made the Federal Rules of Civil

Procedure applicable to actions against the United States. 28 U.S.C. § 932 (1946).

United States v. Reynolds, 345 U.S. 1, 6 n.10 (1953). But, in 1948, Congress

removed this express language "as unnecessary because the Rules of Civil Procedure

. . . shall apply to all civil actions." United States v. Yellow Cab Co., 340 U.S. 543,

553 n.9 (1951) (internal quotation omitted). Note, however, that FTCA actions must

be tried to a judge, not a jury. 28 U.S.C. § 2402; Buchanan v. United States, 305 F.2d

738, 740 (8th Cir. 1962).

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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:
2

28 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.

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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
3

Under 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

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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. 

4

Ms. Mader's attorney explained at oral argument that he did not respond to the

VA because, in his experience, he did not believe the VA would settle the claim prior

to suit. 

-6-

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
5

Notably, unlike in Lunsford, the claimant in Farmers (a bank) presented a

claim on its own behalf and the evidence-of-authority question was, therefore, not at

issue. See Streu v. Dormire, 557 F.3d 960, 964 (8th Cir. 2009) ("[W]e are generally

not bound by a prior panel's implicit resolution of an issue that was neither raised by

the parties nor discussed by the panel."). 

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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. 
-8-

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). 
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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
6

Nebraska's wrongful death statute further provides that the proceeds from a

wrongful death verdict or judgment "shall be paid to and distributed among the widow

or widower and next of kin in the proportion that the pecuniary loss suffered by each

bears to the total pecuniary loss suffered by all such persons." Neb. Rev. Stat. § 30-

810. Moreover, the personal representative "shall not compromise or settle a claim

for damages [specified in § 30-810] until the court by which he or she was appointed

shall first have consented to and approved the terms thereof." Id. The amounts

received through settlement or judgment must be reported to the court and, if so

ordered, paid to the court for distribution to the beneficiaries after a hearing. Id.

Notice of this hearing must be given to all interested persons by publication in a legal

newspaper, id., and the proceeds from a wrongful death judgment or settlement are not

subject to any claims against the decedent's estate. Id. Interpreting these provisions,

the Nebraska Supreme Court has explained that "no apparent heir or beneficiary under

the wrongful death statute has any vested right to any of the proceeds recovered in

said action until after a hearing has been held before the county court, and a

determination made by the court as to who is entitled to receive the proceeds and how

much." Hickman v. Southwest Dairy Suppliers, Inc., 230 N.W. 2d 99, 104 (Neb.

1975). Thus, "[i]t may well be that one who appears to be a probable recipient of

benefits of a wrongful death action may turn out not to be so at all, and may not

receive any of such benefits." Id. at 105. 

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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
7

Because there existed a question of subject-matter jurisdiction in the court

below, on November 4, 2009, at the request of the panel, Ms. Mader's lawyer finally

filed a copy of her "Letters of Personal Representative" with this court. At that time,

Ms. Mader's lawyer also notified the panel that "there was an informal closing of the

Estate by verified statement, but no discharge of the Personal Representative, on July

8, 2005." Because Ms. Mader did not include a copy of the July 8, 2005, verified

statement, a member of the panel requested the document from the County Court of

Hall County on November 18, 2009. That document suggested that Ms. Mader's

appointment as personal representative terminated on July 8, 2006. It was only after

these documents finally came to light, and after the panel majority reversed the district

court, that Ms. Mader finally conceded at oral argument before the en banc court that

her appointment as personal representative terminated sometime before she attempted

to present a claim to the VA on August 3, 2006.

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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
8

Wrongful death claims, which did not exist at common law, are established,

substantively and procedurally, by legislative act. Moragne v. State Marine Lines,

Inc., 398 U.S. 375, 390 (1970). In 1846, in derogation of the common law, Lord

Campbell's Act was passed in England, granting recovery to families of persons killed

by certain tortious conduct. Id. at 389. Soon, state legislatures across the United

States began to enact similar wrongful death statutes, Lorenzen v. Continental Baking

Co., 141 N.W.2d 163, 168 (Neb. 1966), and now, all states have statutes permitting

recovery for wrongful death. Morange, 398 U.S. at 390. Thus, "[t]he right to

maintain an action for wrongful death . . . exists in Nebraska, as in other states, solely

by statute." Paulk v. Central Laboratory Assocs., P.C., 636 N.W.2d 170, 180 (Neb.

2001). 

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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.
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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
9

In its opening paragraph, the dissent cryptically lays out the logic for its

contrary conclusion as follows: "When a statute contains elements A and B and

mentions no other elements, and a regulation arguably promulgated under the same

statute expressly insists on element C, the natural inference is that it is the regulation,

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consider FTCA claims with an eye towards settlement if representatives fail to first

present evidence of their authority to act on behalf of claims' beneficiaries. 

For the foregoing reasons, we hold that a properly "presented" claim under §

2675(a) must include evidence of a representative's authority to act on behalf of the

claim's beneficiaries under state law. The presentation of such evidence is not a

pointless administrative hurdle–it is fundamental to the meaningful administrative

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
not the statute, that is the source for requiring C." Post at 22. By "statute," the dissent

presumably refers to § 2675(a)'s presentment requirement, and by elements "A" and

"B," the dissent is apparently referring to the minimal notice standard, that is, (A) a

written statement sufficiently describing the injury to enable the agency to begin its

own investigation, and (B) a sum-certain damages claim. And finally, by element "C,"

the dissent seemingly refers to the evidence-of-authority requirement. When this key

is applied to decipher the dissent's opening statement, the flaws in the dissent's logic

become apparent. 

From the outset, the dissent fails to prove its own assertion that § 2675(a)

expressly "mentions" or "contains" the minimal notice standard (elements "A" and

"B"). The "written statement" requirement (element "A"), the dissent avers, is "selfexplanatory" based on § 2675(a)'s plain language. Post at 25-26. But, § 2675(a) does

not mention written presentation any more than it mentions telephonic or other verbal

methods of presentation. Instead, the "written statement" requirement is gleaned from

the FTCA's statute of limitations, 28 U.S.C. § 2401(b), which provides that an FTCA

claim is barred "unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues." (emphasis added). Similarly, § 2675(a)

does not expressly mention the sum-certain requirement (element "B"). This

requirement derives from § 2675(b)'s edict that an FTCA action "shall not be

instituted for any sum in excess of the amount of the claim presented to the federal

agency," which amount is, in turn, implicit in the information necessitated by § 2672.

Lunsford, 570 F.2d at 226 n.9 (explaining that the sum-certain requirement derives

from §§ 2675(b) and 2672). Thus, while the dissent necessarily looks elsewhere in

the FTCA to define § 2675(a)'s presentment requirement, it asserts that the court may

not read § 2675(a) in light of § 2672–a fellow 1966 amendment that, together with §

2675(a), established a new framework for the administrative consideration and

settlement of FTCA claims–to determine the purpose and most natural reading of the

presentment requirement.

Additionally, while emphasizing that the evidence-of-authority requirement

(element "C") is located in the Attorney General's regulation, 28 C.F.R. § 14.2(a), the

dissent fails to mention that the minimal notice standard is also located in the

regulation. Indeed, § 14.2(a) contains the dissent's so-called elements "A," "B," and

"C." If the dissent's opening-paragraph logic is given full force, the "natural

inference" is apparently that elements A, B, and C originate from the regulation and

-15-
not the FTCA itself. But, such a conclusion disregards the "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, 489 U.S. at 809. We have properly

applied this familiar canon to § 2675(a) and, having done so, we are convinced that

the Attorney General's regulation is merely a paraphrase of the inherent statutory

elements of claim presentation.

10The Supreme Court rejected a nearly identical argument in McNeil, 508 U.S.

106. There, the claimant failed to follow the edicts of § 2675(a) when he filed an

FTCA suit in federal district court before presenting a claim to the appropriate federal

agency and before the agency denied his claim. Id. at 111. The claimant argued that

his FTCA action should nevertheless be allowed to proceed in federal district court

because the agency ultimately considered and denied his claim before "substantial

progress" had been made in the litigation. Id. at 110-12. The Court disagreed,

concluding that "[t]he interest in orderly administration of this body of litigation is

best served by adherence to the straightforward statutory command" of § 2675(a). Id.

at 112. To support its conclusion, the Court emphasized that each premature FTCA

action "imposes some burden on the judicial system and on the Department of Justice

which must assume the defense of such actions. Although the burden may be slight

in an individual case, [§ 2675(a)] governs the processing of a vast multitude of

claims." Id. In the same vein, Ms. Mader failed to strictly comply with § 2675(a)'s

requirements prior to filing suit and, therefore, her action is barred notwithstanding

the VA's decision to alternatively deny her claim on the merits. See United States v.

N.Y. Rayon Importing Co., 329 U.S. 654, 660 (1947) ("It has long been settled that

officers of the United States possess no power through their actions to waive an

-16-

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
immunity of the United States or to confer jurisdiction on a court in the absence of

some express provision by Congress.").

-17-

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
-18-

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
-19-

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
-20-

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
11We note that, even under the relatively claimant-friendly Social Security Act,

see Henderson, 131 S. Ct. at 1204, federal courts do not have jurisdiction to review

social security claims unless "a claim for benefits" has first been "presented" to the

Social Security Administration. Mathews v. Eldridge, 424 U.S. 319, 328 (1976)

(discussing the jurisdictional requirements of 42 U.S.C. § 405(g)). 

12If, as the dissent suggests, Ms. Mader's recent concession undermines her

"cause of action" and not her "standing," see post at 39, the result is the same. It is

undisputed that Ms. Mader is not the personal representative of Mr. Mader's estate and

"[w]e may affirm the district court's dismissal on any basis supported by the record."

Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005).

-21-

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
-22-

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.

 

VI.

We affirm the district court.

BYE, Circuit Judge, dissenting, with whom MURPHY, MELLOY, SMITH and

SHEPHERD, Circuit Judges, join. 

When a statute contains elements A and B and mentions no other elements, and

a regulation arguably promulgated under the same statute expressly insists on element

C, the natural inference is that it is the regulation, not the statute, that is a source for

requiring C. Through the reasoning which impermissibly blurs the lines between

claim presentment and claim settlement, the majority manages to read element C into

the statute itself. The significance of this reading is to deprive the plaintiff in this and

many future cases of the remedy under the Federal Tort Claims Act (FTCA). Another

net effect of this interpretation is to contract the scope of this court's jurisdiction,
-23-

something a court is not allowed to do. Kanar v. United States, 118 F.3d 527, 530

(7th Cir. 1997). Because I disagree with the majority's assumptions used to elevate

the evidence-of-authority requirement to a jurisdictional precondition to filing a suit,

I respectfully dissent. 

I.

My colleagues in the majority started off on the wrong foot by concluding the

burden of furnishing evidence of one's representative authority comes directly from

the FTCA. I see the genesis of this requirement in the Department of Justice's (DOJ)

regulation outlining requirements of presentment for the purposes of exhausting

executive remedies under section 2675 of the Act. That regulation, entitled

"Administrative claim; when presented," expressly calls for "evidence of [the

signator's] 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). It is

unsurprising, given the clarity of this language, that other courts which have

considered the pedigree of the evidence-of-authority requirement have traced it to the

DOJ regulation. Kanar, 118 F.3d at 531; Ahmed v. United States, 30 F.3d 514, 517

(4th Cir. 1994); Knapp v. United States, 844 F.2d 376, 379-80 (6th Cir. 1988); Warren

v. U.S. Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 778 (9th Cir. 1984);

cf. Avila v. INS, 731 F.2d 616, 619 (9th Cir. 1984) (tracing the evidence-of-authority

requirement to 28 C.F.R. § 14.3(e), which contained the evidence-of-authority

language prior to 1987); Transco Leasing Corp. v. United States, 896 F.2d 1435, 1444

(5th Cir. 1990) (same).

The precision of that regulation stands in stark contrast with the generic

language in sections 2675, 2672, or 1346 of the FTCA, which make no mention of the

evidence of authority. Section 1346, used by the majority to establish the

jurisdictional nature of claim presentation under the FTCA, simply confers upon

federal courts exclusive jurisdiction over claims under the FTCA, "[s]ubject to the
-24-

provisions of chapter 171 of this title." 28 U.S.C. § 1346(b)(1). Section 2675,

comprised within chapter 171, establishes the general requirement of presenting a

claim "to the appropriate Federal agency" and suspends the claimant's right to file a

complaint in court until either the claim is "denied by the agency in writing and sent

by certified or registered mail" or the agency fails to make a "final disposition of a

claim within six months after it is filed." 28 U.S.C. § 2675. The text of section 2672,

likewise a part of chapter 171, is similarly unilluminating. It merely empowers federal

agencies to settle the FTCA claims "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. § 2672. Even with the most

charitable reading of these sections, I cannot discern in them any basis for requiring

"evidence of a personal representative's authority to act on behalf of a claim's

beneficiaries." On a textual level, the majority's suggestion that 28 C.F.R. § 14.2(a)

simply parrots what is already "inherent" in section 2675 strikes me as disingenuous.

The majority's reading of section 2675 also breaks a new path in law and puts

this court at odds with other circuits. To my knowledge, no other court has read

section 2675 to require a proof of one's authority to represent the claimant. Rather,

the judicial consensus is that section 2675 mandates only “minimal notice" consisting

of "(1) a written statement sufficiently describing the injury to enable the agency to

begin its own investigation, and (2) a sum-certain damages claim." GAF Corp. v.

United States, 818 F.2d 901, 905 (D.C. Cir. 1987); see also Ahmed, 30 F.3d at 516-

17; Santiago-Ramirez v. Sec. of the Dep't of Defense, 984 F.2d 16, 19 (1st Cir. 1993);

Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991); Tidd v. United States,

786 F.2d 1565, 1567-68 (11th Cir. 1986); Johnson ex rel. Johnson v. United States,

788 F.2d 845, 848-49 (2d Cir. 1986), overruled on other grounds by Sheridan v.

United States, 487 U.S. 392 (1988); Warren, 724 F.2d at 780; Douglas v. United
13 In this circuit, the two key decisions interpreting claim presentation in the

context of section 2675 of the FTCA are Lunsford v. United States, 570 F.2d 221 (8th

Cir. 1977), and Farmers State Savings Bank v. Farmers Home Administration, 866

F.2d 276 (8th Cir. 1989). In the earlier of the two, Lunsford, the court considered

whether claims brought on behalf of unnamed class members passed muster of

presentment under section 2675. Having concluded the claims of unnamed class

members were unidentifiable, did not state a sum certain, and "none of the named

plaintiffs asserted authority to present claims on behalf of the unnamed class

members," the court dismissed the claims for want of exhaustion. Lunsford, 570 F.2d

at 225. Notably, the named class members were allowed to proceed with their

individual causes of action. 570 F.2d at 224.

In a more recent decision in Farmers State, this court reversed dismissal of the

plaintiff's case for failure to exhaust administrative remedies under section 2675(a)

where the plaintiff "identified itself and clearly detailed the bases for its claims [and]

specified that $80,000 was the amount it sought to recover." 866 F.2d at 277.

Farmers State characterized this circuit as being among the majority of courts in the

minimal-notice camp, and formulated the presentment test to require a claimant to

"provide[] in writing (1) sufficient information for the agency to investigate the

claims, and (2) the amount of damages sought." 866 F.2d at 277. Inviting some

measure of confusion, Farmers State cited Lunsford with approval.

Considering this legal landscape, we reject the majority's charge that "the panel

majority should have applied Lunsford's first-in-time interpretation of § 2675(a)." See

ante at 8. To begin with, Lunsford was unique in that it was "an attempt to bring a

class action under the FTCA." Knapp, 844 F.2d at 380. A common issue that arises

in class actions under the FTCA is whether "each claimant must submit an

independent and separate claim to the appropriate administrative agency" or if the

named class members can satisfy these requirements on behalf of the unnamed

members. Pennsylvania v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11, 23-24 (3d Cir.

1975), overruled on other grounds by Pennsylvania v. Porter, 659 F.2d 306 (3d Cir.

1981). This circuit appears to have opted for the separate and individual satisfaction

approach, but this choice is of no consequence to this individual-plaintiff case.

-25-

States, 658 F.2d 445, 447 (6th Cir. 1981); Adams v. United States, 615 F.2d 284, 289-

90 (5th Cir. 1980).13 The requirement of the written statement describing the injury
Even if Lunsford were relevant, it was not binding on this case. The Lunsford

court required all class members to present their claims either personally or through

an authorized representative, and concluded the absent class members did not satisfy

even the irreducible requirements of presentment – having an identifiable claimant and

requesting a sum certain – under either route. 570 F.2d at 226-27. Thus, to the extent

Lunsford found the members' claims deficient for failure to present the evidence of

authority, this conclusion was peripheral to the court's core holding and therefore not

binding on future panels. United States v. Northshore Mining Co., 576 F.3d 840, 847

n.4 (8th Cir. 2009).

-26-

is self-explanatory: it comes from the language of section 2675(a) requiring that the

claimant not institute an action in court “unless [he] shall have first presented the

claim to the appropriate Federal agency and his claim shall have been finally denied

by the agency in writing.” 28 U.S.C. § 2675(a) (emphasis added); see also 28 U.S.C.

§ 2401(b) (establishing a statute of limitations for actions under the FTCA, pursuant

to which such actions are barred “unless it is presented in writing to the appropriate

Federal agency within two years”). The sum-certain requirement also comes from the

language of section 2675, which prohibits claimants from bringing an action "for any

sum in excess of the amount of the claim presented to the federal agency." 28 U.S.C.

§ 2675(b); see White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457-58 (3d Cir. 2010)

(characterizing the sum-certain requirement as jurisdictional because it is mentioned

in section 2675(b), which is, in turn, incorporated into a jurisdiction grant for the

FTCA claims contained in section 1346); Blair v. IRS, 304 F.3d 861, 865 (9th Cir.

2002) (same). Not so with the evidence of authority, which is not mentioned

anywhere in the statute. Even the one circuit traditionally cited for rejecting the

minimal notice approach to exhaustion embraced by the majority of the courts – the

Seventh Circuit – did not treat section 2675 as requiring the evidence of authority.

Kanar, 118 F.3d at 530; see also Charlton v. United States, 743 F.2d 557, 559-60 (7th

Cir. 1984). Instead, it acknowledged the requirement came directly from the DOJ

regulation. Kanar, 118 F.3d at 529.
-27-

To compensate for the absence of textual support in the statute, the majority

stresses the close relationship between the concepts of presentment and settlement to

engraft section 2672 standards onto section 2675. The two sections were added to the

FTCA in 1966 "as part of a package of amendments designed to facilitate out-of-court

settlement of claims" and, true enough, the "presentment requirement of [s]ection

2675(a) was a key element in the new procedure for claims resolution." GAF Corp.,

818 F.2d at 905. But while sections 2675 and 2672 should be considered in tandem,

they are not perfectly coextensive, for they serve different goals. Section 2675

requires an FTCA claimant to give the agency an opportunity to consider a claim

before the claimant takes it to court, McNeil v. United States, 508 U.S. 106, 111 n.7

(1993) (describing the intent of the 1966 amendments as merely to "make it possible

for the claim first to be considered by the agency"); section 2672 merely authorizes

the government to enter into a settlement if the claimant is willing to accept it.

"Although many claimants will rationally elect to settle their claims, Congress

clearly did not deem settlement mandatory." Adams, 615 F.2d at 291. Section 2675

allows the claimant to file a complaint in federal court at the expiration of six months

even in the absence of the agency response. See S. Rep. No. 89-1327, 89th Cong., 2d

Sess. 2, reprinted in 1966 USCCAN 2515, 2518-19 (1966) (explaining that, "even

though th[e] 6-month period may prove insufficient in some instances [to enter into

the ultimate settlement], the committee does not believe that this period ought to be

enlarged to attempt to insure time for final decision on all claims"). Nothing in

sections 2675 or 2672 affects the truism that agencies will not settle the bulk of the

claims before them, particularly where such claims involve complex issues of liability

and damages. Id. at 2520 (acknowledging many cases alleging medical malpractice,

drug and products liability, or arising out of aviation accidents are not amenable to

settlement and will continue to be litigated). And nothing in those sections compels

the claimant to accept the agency's settlement, no matter how generous. Adams, 615

F.2d at 290 (rejecting "the erroneous conclusion that claimants must settle with the
-28-

relevant federal agency, if the agency so desires, and must provide that agency with

any and all information requested in order to preserve their right to sue"). In the end,

the settlement-oriented framework of the FTCA was only meant to "encourage

claimants and their attorneys to make use of this new administrative procedure,"

S. Rep. No. 89-1327, at 2524 (speaking about the provision raising allowable

attorney's fees), and "[e]ncouragement would hardly have been thought necessary if

the administrative procedures under section 2672 were mandatory or were, through

section 2675, a jurisdictional prerequisite to suit." Adams, 615 F.2d at 290 n.11.

Usurping the duties reserved to Congress, the majority concludes that the proofof-authority requirement "naturally follows" from section 2672's settlement

authorization and is "totally essential to meaningful agency consideration." See ante

at 9. Absent the evidence of one's authority to represent the claimant, the majority

maintains, "agencies simply cannot meaningfully consider the FTCA claims with an

eye towards settlement." See ante at 13-14. But what is “totally essential" to

settlement consideration varies in the proverbial eye of the beholder, and the

majority's standard in this regard turns out to be more demanding than that of virtually

any other circuit.

I have a different view of what is essential to the agency's realistic assessment

of settlement possibilities. Like the vast majority of the courts, I would subscribe to

"an eminently pragmatic" test of presentment focusing on whether the agency received

"notice that the agency should investigate the possibility of particular (potentially

tortious) conduct and includes a specification of damages sought." Ramirez-Carlo v.

United States, 496 F.3d 41, 46-47 (1st Cir. 2007). Such notice is sufficient to

"activate the [settlement] machinery," and the statute requires no more. See Kanar,

117 F.3d at 531 (analogizing claim presentment under the FTCA to the formalities

prescribed for tax refund claims where, once a taxpayer "activate[s] the refund

machinery," he is "not defeated by foibles in the refund application") (citing United

States v. Kales, 314 U.S. 186, 194 (1941), and United States v. Memphis Cotton Oil

Co., 288 U.S. 62, 67 (1933)). Section 2675 does not "allow an agency to insist on
-29-

proof of a claim to its satisfaction before the claimant becomes entitled to a day in

court." Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982). Nor should section

2675 require a claimant to reveal potential defenses to a prospective defendant. Even

before the 1966 amendments, agencies were expected to conduct their own

independent investigations of presented claims, and the agencies' investigative duties

did not change with the adoption of sections 2675 and 2672. GAF Corp., 818 F.2d

at 919 n.105.

Eventually, when and if the parties take a real interest in the settlement, but

before making a full-fledged commitment, the agency will be well advised to obtain

the evidence of the claimant's authority to present a claim, among many other

evidentiary items. The agency has authority to request these items by virtue of the

DOJ's regulations in 28 C.F.R. § 14.1-14.11. The government concedes it takes

advantage of this authority frequently, for it is a rare claim that the agency can settle

on the basis of Standard Form 95 alone. It also concedes it cannot insist on

production of evidentiary materials listed in section 14.4 as a prerequisite to filing a

suit. It argues, however, that the evidence of authority is categorically different from

the “substantiation" evidence listed in section 14.4.

I fail to see the suggested distinction. Supplying the evidence of authority is

as much a part of "establish[ing a claim] by proof or competent evidence" – a

dictionary definition of substantiation, see Random House Webster's College

Dictionary (2d ed. 1999) – as bills and physicians' reports verifying the extent of the

claimant's asserted injuries, full names of decedent's survivors entitled to recovery

(particularly relevant here), proof of ownership of the property, or other quintessential

substantiation items listed in 28 C.F.R. § 14.4. The obligation to produce any of these

items should not spring into action until the parties are serious about settling the

claim, particularly where one's failure to produce them could prejudice the claimant's

ability to bring an action in court. Santiago-Ramirez, 984 F.2d at 19 ("Only after the
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process of settlement has been initiated does the additional information required by

the regulations become relevant.").

The majority's overzealous adherence to the FTCA's legislative preference

toward the settlement of tort claims against the United States sacrifices another stated

goal of the Act: "to provide 'fair and equitable treatment of private individuals and

claimants when they deal with the Government or are involved in litigation with their

Government.'" Id. at 18 (quoting S. Rep. No. 89-1327, at 2516). As the First Circuit

has observed, "Congress manifested no interest whatsoever in restricting claimants'

rights under the Federal Tort Claims Act or in restricting their access to the courts.

To the contrary, Congress identified private litigants as the primary beneficiaries of

the amendments." GAF Corp., 818 F.2d at 917; see also Exec. Jet Aviation, Inc. v.

United States, 507 F.2d 508, 515 (6th Cir. 1974) ("The purpose of the amendment was

not to make recovery from the Government technically more difficult."). The

legislative history also reveals congressional intent to model the exhaustion

mechanism under the FTCA after state statutes permitting suits against municipalities,

which Congress understood to require only minimum notice. Avery, 680 F.2d at 610-

11 (citing S. Rep. No. 89-1327, at 2517). Just as these statutes permit exhaustion only

to the extent necessary for a municipality to investigate the claim, this court should

interpret section 2675 of the FTCA to require the minimum notice to enable the

agency's own investigation. See Warren, 724 F.2d at 779 (relying on congressional

intent to mirror statutes governing tort claims against municipalities in interpreting

section 2675 of the FTCA).

Through its expansive reading of section 2675 and its treatment of the section

as jurisdictional, my colleagues are adding one more item to the "checklist which,

when not fully observed, permits the termination of claims regardless of their merits."

Erxleben v. United States, 668 F.2d 268, 273 (7th Cir. 1981) (quoting Koziol v.

United States, 507 F. Supp. 87, 91 (N.D. Ill. 1981)). By so redefining section 2675,

the majority runs afoul of two established principles of statutory construction. First,
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it neglects the interpretive maxim that jurisdictional statutes are to be construed "with

precision and with fidelity to the terms by which Congress has expressed its wishes."

Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968). Second, it undermines the

principle that "when the federal government waives its immunity, the scope of the

waiver is construed to achieve its remedial purpose." Blair, 304 F.3d at 867-68. The

net effect is that the majority's interpretation runs counter to the overarching purpose

of the FTCA, which is to provide compensation to those injured by the government's

torts. Richards v. United States, 369 U.S. 1, 6 (1962).

The underlying facts demonstrate why the skeletal notice comports with the

statutory scheme Congress put in place through the 1966 amendments. The

Department of Veterans Affairs received Standard Form 95 filled out by Nancy

Mader's counsel on behalf of Nancy Mader, who claimed to be a "Personal

Representative of the Estate of Robert L. Mader, Deceased." In the form, the

decedent's widow informed the agency of the events giving rise to her claim and

estimated the value of her claim at $750,000. As is typical for cases alleging medical

negligence in the context of a wrongful death action, Mader's case presented complex

issues on nearly every element of the claim. Congress predicted that, "unlike routine

cases, medical malpractice cases 'involve difficult legal and damage questions,' . . .

that are not always amenable to settlement." Adams, 615 F.2d at 290-91 (citing

S. Rep. No. 89-1327, at 2518, 2520). Mader's claim was no exception, and the agency

proceeded to deny it on the merits.

Although the agency requested verification for Mader's assertion she is a

personal representative of her husband's estate, the absence of such verification did

not hinder the agency's ability to evaluate the merits of the claim and rule out the

settlement route. In this respect, Mader's case is typical, since the claimant's failure

to produce the evidence of authority hardly prevents the agency from investigating the

claim and attempting a compromise. Executive Jet Aviation, Inc., 507 F.2d at 515

(expressing skepticism about the likelihood of settling a complex claim, but noting the
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agency is in no way "prevented from attempting a compromise simply because the

insurers did not join in [the insureds'] administrative claim"). "'No harm, no foul' is

a maxim of the law of torts [which] is equally apt in administering the apparatus for

seeking compensation after a tort." Kanar, 118 F.3d at 531. "By denying [her] claims

on the merits, the [Department] demonstrated that they had sufficient notice to initiate

investigation." Warren, 724 F.2d at 779.

To be sure, Mader's case is somewhat peculiar because it was filed on the last

day before the expiration of the statute of limitations. By operation of a Nebraska

statute, Mader's authority to act as a personal representative of her husband's estate

lapsed on July 8, 2006, less than a month before she filed her claim with the

Department of Veterans Affairs. See Neb. Rev. Stat. § 30-24,117(b). Under another

Nebraska statute, see Neb. Stat. Ann. § 30-24,122, Mader could have applied for

reappointment as a personal representative in time for commencement of proceedings

in federal court, but she did not. And by the time she filed her lawsuit on the last day

of the statute of limitations period, she ran out of time to correct the deficiency.

It is hard to feel badly for this claimant and particularly her counsel, for

"attorneys who wait until the last day of a statute-of-limitations period to file a

complaint have only themselves to blame when Murphy's Law comes knocking."

Kellum v. Comm'r, 295 F. App'x 47, 52 (6th Cir. 2008). But given the outcome the

majority reaches today, Murphy's Law will come knocking on the doors of less

culpable claimants who have the misfortune of residing in the Eighth Circuit and fail

to comply with the evidence-of-authority requirement by reason of not reading the

regulations. While passing section 2675, Congress expressly rejected the idea that

complying with the requirement of presentment will necessitate assistance of a lawyer.

Warren, 724 F.2d at 788 (Sneed, J., dissenting) (quoting Improvement of Procedures

in Claims Settlement and Gov't Litig.: Hearings on H.R. 13650, 13651, 13652, and

14182 Before Subcomm. No. 2 of the House Comm. on the Judiciary, 89th Cong., 2d

Sess. 13 (1966) (statement by John W. Douglas, Assistant Attorney General)).
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Considering the "premium placed upon the careful observance of the settlement

regulations" by the court's ruling today, however, claimants will be well advised to

hire counsel to maximize their chances of preserving their right to sue. Id. at 779 n.6.

Courts will bear their part of the burden too, becoming bogged down in "ancillary

matters of fact whenever the agency rejected a claim as incomplete." Avery, 680 F.2d

at 611. Whatever efficiencies can be gained by the agencies in obtaining the evidence

of authority at the outset will be lost by the inefficiencies in the use of judicial

resources and, more important, unfairness of depriving eligible claimants of their right

to recovery. See Henderson ex rel. Henderson v. Shinseki,131 S.Ct. 1197, 1202

(2011) (expressing a concern that "[j]urisdictional rules may . . . result in the waste of

judicial resources and may unfairly prejudice litigants").

II.

This is not to say the regulation requiring a claimant to produce the evidence

as to its authority to pursue the claim, 28 C.F.R. § 14.2(a), is entirely inconsequential.

Its effect is determined by whether it is merely mandatory or jurisdictional in nature,

to borrow the juxtaposition used recently by the Supreme Court. See Henderson,131

S.Ct. at 1202-03. If section 14.2(a) falls within the latter category, this court does not

have subject-matter jurisdiction to hear Mader's claim, and the district court acted

properly in dismissing the action under Federal Rule of Civil Procedure 12(b)(1). See

Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237-38 (11th Cir. 2002). If, however,

section 14.2(a) is classified as mandatory but not jurisdictional (alternatively labeled

as "claim-processing"), the district court had subject-matter jurisdiction over Mader's

action, and its dismissal on Rule 12(b)(1) grounds was in error. Henderson, 131 S.Ct.

at 1202-03. In that latter scenario, the agency's remedy would be to assert noncompliance with the DOJ's presentment regulation as an affirmative defense under

Federal Rule of Civil Procedure 12(b)(6). See Mosely v. Bd. of Educ. of City of

Chicago, 434 F.3d 527, 532-33 (7th Cir. 2006). If the rule is classified as non-
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jurisdictional, compliance with it can be forfeited if not timely asserted. Eberhart v.

United States, 546 U.S. 12, 14 (2005).

In deciding whether the presentment regulation in section 14.2(a) is claimprocessing or jurisdictional, I am persuaded by the reasoning of other courts to

consider the issue. With the arguable exception of this court in Lunsford and the

Third Circuit in Pennsylvania v. National Ass'n of Flood Insurers, 520 F.2d 11 (3d

Cir. 1975), other circuits have characterized the regulation in section 14.2(a) as nonjurisdictional. See Santiago-Ramirez, 984 F.2d at 19; Kanar, 118 F.3d at 531; GAF

Corp., 818 F.2d at 920; Warren, 724 F.2d at 780; Douglas, 658 F.2d at 447-48;

Adams, 615 F.2d at 291-92 n.15. They had good reasons for doing so. First,

Congress did not authorize the Attorney General to promulgate any regulations under

section 2675 of the FTCA. The DOJ purportedly drew its authority from section 2672

of the Act, which empowers the Attorney General to promulgate settlement-related

regulations. But, as noted above, the purposes of section 2672 are distinct from the

purposes of section 2675. Authority to define requirements for a final settlement does

not necessarily translate into authority to define presentment for jurisdictional

purposes in the same way as an offer to settle does not translate into an edict to accept

it.

Second, an administrative agency is not at liberty to contract or expand the

scope of the courts' jurisdiction; only Congress can do so. Kontrick v. Ryan, 540 U.S.

443, 452 (2004) ("Only Congress may determine a lower federal court's subject-matter

jurisdiction."); cf. Harris v. U.S. R.R. Ret. Bd., 198 F.3d 139, 142 (4th Cir. 1999)

("This court may not base its jurisdictional predicate on the authority of an

administrative agency instead of on the authority of the United States Congress.").

"There is no evidence that Congress wished to restrict access to the courts in cases

where settlement was not possible by creating jurisdictional obstacles during the

settlement process." Warren, 724 F.2d at 779 n.6. Because the FTCA lacks the

congressional blessing to alter the extent of the courts' jurisdiction by way of
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regulations, the DOJ's actions in extending section 14.2 to section 2675 are a nullity

for the purposes of interpreting exhaustion under section 2675.

It is true Congress authorized the Attorney General to establish procedures to

be observed in the event of a settlement, and the DOJ did so in 28 C.F.R. § 14.1-

14.11. The government does not argue that all of these requirements can be used to

divest the court of jurisdiction; it asserts that only section 14.2, entitled

"Administrative claim; when presented," is of jurisdictional significance. Yet it

struggles to articulate the difference between that section and, for example, section

14.4, entitled, "Administrative claims; evidence and information to be submitted."

Both of these regulations are promulgated on the basis of the same congressional grant

of authority contained in section 2672. Congress did not endow the Attorney General

with any more authority to promulgate section 14.2 than it did to pass section 14.4.

It would be thus improper to accord greater significance to requirements in section

14.2 than to requirements in section 14.4.

Third, the regulation at issue looks, smells, and tastes like a classic claimprocessing rule. The FTCA itself does not call on the claimant to present particular

evidentiary materials in order to discharge his obligations under section 2675, and the

evidentiary obligations memorialized in the regulations are not connected to the

concept of jurisdiction even by virtue of section 1346. See Kontrick, 540 U.S. at 448

(referencing the absence of any time limits from the statute as a reason for concluding

the time requirement established through the court rule was not jurisdictional). There

is no sign, much less a "clear indication," as to Congress requiring the rule to be

jurisdictional. Henderson, 131 S.Ct. at 1205. The proposed treatment of the rule as

affecting the courts' jurisdiction has been repeatedly rejected by the courts. Cf.

Bowles v. Russell, 551 U.S. 205, 209-11 (2007) (affirming jurisdictional treatment of

the time limitation for filing a notice of appeal contained in 28 U.S.C. § 2107(a) based

on a long line of the Supreme Court decisions left undisturbed by Congress).

Together, these characteristics lead me to conclude that, like other regulations
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promulgated under section 2762, section 14.2 establishes a claim-processing rule

merely "seek[ing] to promote the orderly progress of litigation by requiring that the

parties take certain procedural steps at certain specified times." Henderson, 131 S.Ct.

at 1203.

III.

Finally, I write to address the last point raised by the majority sua sponte –

Mader's lack of standing. After an exhaustive discussion and the determinative ruling

on the evidence-of-authority subject, the majority invokes the prudential element of

standing to conclude, in the alternative, Mader does not have standing. This

invocation is ironic, for the whole purpose of prudential standing, as explained by the

Supreme Court, is to absolve courts from having to decide "abstract questions of wide

public significance even though other governmental institutions may be more

competent to address the questions and even though judicial intervention may be

unnecessary to protect individual rights." Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 12 (2004). Far from avoiding the issue, the majority devotes ninety-five

percent of its discussion to the very subject it deems abstract and unnecessary to

address.

Considered on the merits, the standing issue is a red herring. In concluding

Mader lacks standing, the majority adopts a myopic view of this complex term. In

general, "standing is a question of whether a plaintiff is sufficiently adversary to a

defendant to create an Art. III case or controversy, or at least to overcome prudential

limitations on federal-court jurisdiction." Davis v. Passman, 442 U.S. 228, 239 n.18

(1979). The doctrine of prudential standing, upon which the majority relies,

comprises "the general prohibition on a litigant's raising another person's legal rights,

the rule barring adjudication of generalized grievances more appropriately addressed

in the representative branches, and the requirement that a plaintiff's complaint fall

within the zone of interests protected by the law invoked." Allen v. Wright, 468 U.S.
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737, 751 (1984). Although it is not clear which of these three rules the majority

invokes, it is safe to say its ruling does not rest on the prohibition against filing

generalized grievances.

Out of the two remaining rules within the prudential standing umbrella, the first

ensures the plaintiff "assert[s] his own legal rights and interests, and [does not] rest

his claim to relief on the legal rights or interests of third parties." Duke Power Co. v.

Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978). As the decedent's widow

and thus a direct beneficiary of a wrongful death action under Nebraska law, Mader

undoubtedly satisfies this requirement. See Neb. Stat. Ann. § 30-810 ("Every

[wrongful death] action . . . shall be brought by and in the name of the person's

personal representative for the exclusive benefit of the widow or widower and next

of kin."). The Nebraska Supreme Court explained the cause of action in the state's

wrongful death statute inures solely to the widow or the next of kin. Corona de

Camargo v. Schon, 776 N.W.2d 1, 9 (Neb. 2009); Rhein v. Caterpillar Tractor Co.,

314 N.W.2d 19, 22 (Neb. 1982). Albeit authorized to bring a claim in court, a

personal representative who is neither a widow nor the next of kin does not share in

the proceeds of recovery at all. Perez v. Stern, 777 N.W.2d 545, 554 (Neb. 2010)

("The personal representative's sole task is to distribute any recovery in accordance

with the statute, to the discrete and identifiable class of beneficiaries that the

Legislature has specifically designated."). Another critical point under the Nebraska

wrongful death law is that the statutory beneficiary is reimbursed for his own loss, as

opposed to the decedent's damages. Nelson v. Dolan, 434 N.W.2d 25, 29 (Neb. 1989).

It is therefore hard to imagine a person with a more direct stake in the recovery than

a decedent's widow.

The remaining prudential standing test looks at whether the plaintiff's grievance

"arguably falls within the zone of interests protected or regulated by the statutory

provision invoked in the suit." Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031,

1036 (8th Cir. 2002). The application of this test "varies according to the provisions
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of law at issue." Bennett v. Spear, 520 U.S. 154, 163 (1997). The statutory provision

invoked in this suit is the FTCA, which allows the plaintiff to recover 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,

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) (emphasis added).

To the extent state law is incorporated into section 1346 analysis, see Devlin

v. United States, 352 F.3d 525, 531-34 (2d Cir. 2003) (debating whether a phrase

"injury or loss of property," as used in section 1346 of the FTCA, should be

interpreted as a matter of federal common law or state law), the Nebraska wrongful

death statute allows Mader to recover for the loss she “sustained after [her husband's]

death by reason of being deprived of what [she] would have received from [her

husband] from the date of his . . . death, had he . . . lived out a full life expectancy."

Corona de Camargo, 776 N.W.2d at 7. Indeed, the interests of the beneficiaries under

the Nebraska statute are so direct that even a lawyer hired by a personal representative

to pursue a wrongful death action owes an independent duty to these beneficiaries,

notwithstanding a lack of privity between the lawyer and the beneficiaries. Perez, 777

N.W.2d at 550-52. Since the wrongful death statute so closely guards the interests of

widows and next of kin, Mader's grievance more than "arguably" falls within the zone

of interests protected by section 1346. Cf. Van Fossen v. United States, 430 F. Supp.

1017, 1021 (N.D. Cal. 1977) (concluding it would be "specious to argue that persons

who are named as statutory beneficiaries with a right to an accounting from their

personal representatives are not legally entitled to assert a claim for wrongful death"

to exhaust their claims under section 2675); see also Jones v. Prince George's County,

Maryland, 348 F.3d 1014, 1017-18 (D.C. Cir. 2003) (allowing intervention of the
14In addition, the majority’s reliance on Andrews v. Neer, 253 F.3d 1052 (8th

Cir. 2001) is unjustified because of the differences between the Nebraska wrongful

death statute involved here and the Missouri wrongful death statute implicated in

Andrews. Unlike the Nebraska statute, the Missouri wrongful death statute vests the

right to bring an action directly in the hands of its beneficiaries and, significantly for

our purposes, to the exclusion of the decedent’s estate. Mo. Rev. Stat. § 537.080; see

Sullivan v. Carlisle, 851 S.W.2d 510, 513 (Mo. 1993). In contrast to the Nebraska

statute, therefore, under the Missouri statute the right to sue is not divorced from the

right to recover. Finally, the majority’s citation to an ERISA case, Hastings v.

Wilson, 516 F.3d 1055 (8th Cir. 2008), is unavailing because the plaintiffs in that case

simply failed to satisfy the standing requirement that the complaint fall within the

zone of interests protected by the statute. As I have explained earlier, this charge does

not fairly apply to this case.

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beneficiary in a wrongful death suit brought by a personal representative of the

decedent's estate and rejecting the argument as to state law restricting the right to

commence an action to a personal representative deprived the beneficiary-intervenor

of standing).

The analytical mistake in the majority's reasoning lies in conflating the

standards for evaluating standing with those for measuring sufficiency of the cause

of action. The Supreme Court has urged lower courts to keep "standing" and "cause

of action" conceptually distinct. Bond v. United States, 131 S.Ct. 2355, 2362 (2011).

The former concept goes to justiciability, while the latter affects merits. Id. Whatever

this court has held with respect to section 1983 actions, see Erlin v. United States, 364

F.3d 1127, 1132 (9th Cir. 2004) (emphasizing differences between the FTCA and

section 1983),14 the deficiencies in Mader's status as a personal representative of her

deceased husband's estate relate to the classic cause-of-action inquiry "whether a

particular plaintiff is a member of the class of litigants that may, as a matter of law,

appropriately invoke the power of the court." Davis, 442 U.S. at 239 n.18. These

deficiencies do not undermine Mader's "sufficiently adversary" interest in recovery

as the most likely beneficiary under the Nebraska wrongful death statute. Id.

Accordingly, any flaws in Mader's appointment as a personal representative must be
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timely asserted by the government in a motion under Rule 12(b)(6), and not sua sponte

by the appellate court at this late juncture in the judicial proceedings. Arbaugh v.

Y&H Corp., 546 U.S. at 506; see also Day v. McDonough, 547 U.S. 198, 217 (2006)

("Ordinary civil practice does not allow a forfeited affirmative defense whose

underlying facts were not developed below to be raised for the first time on appeal.").

IV.

For the foregoing reasons, I respectfully dissent.

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