## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-1025

___________ Nancy Mader, Pers onal 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, GRUENDE R, BENTON, and SHEPHERD, Circuit Judges.

___________ BEAM, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, LOKEN (except as to Part II), COLLOTON (excep t as to Part V), GRUENDER and BENTON, Circuit Judges, join.

In this appeal concerning the Federal To rt 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-2- present to the appropriate federal agency ev idence of her authority to act on behalf of such beneficiaries.

I.

A.

"[S]overeign immunity shields the Fede ral 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 Stat es's sovereign immunity and "prescribe the terms and conditions on which [the Unite d 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 th e 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 Unite d 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 pr ovides that federal district courts have "exclusi ve jurisdiction" over claims against the United States for money damages for "personal injury or d eath 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 cl aimant in accordance w ith 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 refe rence to state law," Molzof, 502 U.S. at 305, the adjudicatory capacity over such claims is stri ctly limited to the various federal district

courts.

In its infancy, the FTCA granted federal agencies little authority to administratively settle FTCA claims, and FT CA claimants could, at their discretion, file suit in federal district court withou t first subjecting their claims to agency1 The 1946 version of the FTCA expressl y 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 th e 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).

-3- attention. McNeil v. United States , 508 U.S. 106, 112 n.7 (1993). But, in 1966, Congress amended the FTCA and establishe d a new framework for the administrative consideration and settlement of claims. Id. Specifically, Congress broadened the settlement authority of agencies thr ough the enactment of 28 U.S.C. § 2672, which provides that federal agency heads, "in acco rdance 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 sh all 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 expre ssly articulate in § 2671, its definitions section, what information must be in cluded in a properly "presented" claim. Purportedly acting pursuant to Congress's gr ant 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 appropriateFederal agency within two years after such claim accrues or unless acti on is begun within six months after the date of mailing, by certified or re gistered mail, of notice of final denial of the claim by the agen cy to which it was presented.

-4- For purposes of the provisions of 28 U.S.C. § 2401(b), [2] 2672, and 2675, a claim shall be deemed to have b een presented whena Federal agency receives from a claimant, his duly authorized agent or legal representative, [1] an executed St andard 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 o ccurred by reason of the incident; and [3] the title or legal capacity of th e person signing, and is accompanied by evidence of his authority to presen t a claim on behalf of the claimant as agent, executor, administrato r, parent, guard ian, 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) withWarren 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 addr essed 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 fede ral agency on behalf of a class of unnamed3 Under Nebraska law, wrongful death acti ons 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 th at, in addition to Ms. Mader, he was survived by several children, siblings and other more remotekin. Obituaries , The

-5- claimants without evidence of th eir authority to do so. Id. at 224-25. Noting that "the major reason" for § 2675(a)'s presentment re quirement is to "facilitate settlement of [FTCA] cases," id. at 226 (quotations omitted), the panel concluded that the third parties "inadequately presented the clai ms of unnamed class members because they failed to demonstrate the existence of th e necessary agency relationship." Id. Without such evidence, reasoned the court, "the ab ility of the United States to negotiate a settlement is impeded." Id. (quotation omitted).

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

B.

Robert L. Mader (Mr. Mader) was treat ed for depression a nd paranoia at the Veterans Affairs (VA) Medical Center inLincoln, Nebraska. On August 3, 2004, approximately two months after a VA docto r altered his course of treatment, Mr. Mader died of a self-inflicted gunshot wound. Via Standard Fo rm 95, Nancy Mader (Ms. Mader), his widow, purporting to act as the "Personal Representative of the Estate of Robert L. Made r," sought to presen t 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), expressl y 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 pres ented to the VA in this case.Independent, Aug. 6, 2004, http ://www.theindependent.c om/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. Neith er Ms. Mader nor her attorney responded to this entreaty. Th e 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 th e 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 st atutory beneficiaries–filed a wrongful death action against the United St ates in federal district court under the FTCA. Upon the government's Federal Rule of Civil Procedure 12(b)(1) motion, the district court applied Lunsfordand dismissed the action for want of subject-matter jurisdiction because Ms. Mader failed to pr esent the requisite evidence of authority to the VA under 28 U.S.C. § 2675(a). Mader app ealed 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 evid ence of her authority to act on behalf of the claim's beneficiaries. Accord ing to the panel majority, Lunsford 's interpretation of § 2675(a)'s presentment requirement is inirreconcilable conflic t with the so-called "minimal notice" interpretati on of § 2675(a) articulated in Farmers State Savings Bank v. Farmers Home Administration , 866 F.2d 276 (8th Cir. 1989). In Farmers , the court5 Notably, unlike in Lunsford , the claimant in Farmers (a bank) presented a claim on its own behalf and the evidence-o f-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.").

-7- explained that a claimant may satisfy th e presentment requirement by submitting: (1) sufficient information for the agency to i nvestigate the claim; and (2) the amount of damages sought. 5 Id. at 277. Although Lunsfordwas decided first (and was even approvingly cited in Farmers ), the panel majority disregarded Lunsfordand, instead, applied the "minimal notice" st andard 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' argumen ts 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 fro m denial of reheari ng 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 Lunsfordwas decided first.-8- We definitively rule today, in accordan ce 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 controlle d 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 revie w, 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 properl y "presented" to the appropriate federal agency under 28 U.S.C. § 2675(a) if it include s: (1) sufficient information for the agency to investigate th e 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 al so 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 textof the statute as a whole by considering its context, object, and policy. Am. Grow ers Ins. Co. v. Fed. Crop Ins. Corp. , 532 F.3d 797, 803 (8th Cir. 2008). Ultimately, "[ o]ur objective in in terpreting 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 inmind that § 2675(a) is a condition to the United States's waiver of sovereign i mmunity under the FTCA, and we should not "extend the waiver beyond that which Congr ess intended," or "assume the authority to narrow the waiver that Congress in tended." United States v. Kubrick , 444 U.S. 111, 118 (1979).-9- As earlier noted, the FTCA does not expr essly 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 r ead . . . with a view to thei r 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 settleme nt of FTCA claims. When § 2675(a) is read in light of its sister statute, it beco mes readily apparent that the administrative presentment requirement serves a practical purpose–it provides federal agencies a fair opportunity to meaningfully consider, ascert ain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit. SeeMcNeil , 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 judici al process." (emphasis added)). It naturally follows, then, that § 2675(a) requires the presentment of evidence of a personal representative's authority to acton behalf of a claim's beneficiaries, something totally essential to meaningful agency consideration.

The facts of this case demonstrate w hy Ms. Mader's proposed interpretation of the presentment requirement, which woul d excuse her failure to present such evidence-of-authority, fails to give full eff ect to § 2675(a)'s manifest purpose and fails to take into account the r ealities of the administrative consideration process contemplated in §§ 2675(a) and 2672. Unde r § 2672, a federal agency may only settle or compromise an FTCA claim "under circ umstances where the United States, if a private person, would be liable to the cl aimant in accordance w ith [applicable state law]." As mentioned above, the FTCA's liability and jurisdic tion-conferring language similarly provides that federal district courts have "exclusive jurisdiction" over FTCA claims "under circumstances where the Unite d 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 rele vant 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] pers onal representative for the exclusive benefit6 Nebraska's wrongful death statute further provides that the proceeds from a wrongful death verdict or judgment "shall bepaid 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 th e court by which he or she was appointed shall first have consen ted 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 a ll interested persons by publication in a legal newspaper, id. , and the proceeds from a wrongful d eath judgment or settlement are not subject to any claims agains t the decedent's estate. Id. Interpreting these provisions, the Nebraska Supreme Court ha s explained that "no apparent heir or beneficiary under the wrongful death statute ha s any vested right to any of the proceeds recovered in said action until after a hearing has beenheld before the county court, and a determination made by the c ourt 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 w ho appears to be a probable recipient of benefits of a wrongful death action may turnout not to be so at all, and may not receive any of such benefits." Id. at 105.

-10- 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 appoi nted personal representative of Mr. Mader's estate in the County Court of Hall County, Nebraska. On July 8, 2005, after administering the estate for n early 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 pe nding 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 personal7 Because there existed a question of subj ect-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 "Le tters of Personal Representative" w ith this court. At that time, Ms. Mader's lawyer also notified the panel th at "there was an informal closing of the Estate by verified statement, but no discharge of the Personal Rep resentative, on July 8, 2005." Because Ms. Mader did not incl ude a copy of the July 8, 2005, verified statement, a member of the panel reque sted the document from the County Court of Hall County on November 18, 2009. That document suggested that Ms. Mader's appointment as personal representative termin ated on July 8, 2006. It was only after these documents finally came to light, and after the panel ma jority 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.

-11- representative," including her right to se rve 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 cl ear 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. See28 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 any8 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, granti ng recovery to familie s 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).

-12- agreements with her on behalf of the cl aim'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 subsequentFTCA 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 problempresented in this case could easily be repeated in jurisdictions across the United States. SeeMcNeil , 508 U.S. at 112 ("[§ 2675(a)] governs the processing of a vast mu ltitude of claims."). Like Nebraska's wrongful death statute, "[a] great number of wrongful death statutes require that [a claim] must be instituted and prosecute d by the decedent's personal representative only." 8 12 Am. Jur. Trials Wrongful Death Actions § 10. The FTCA seemingly apprehends this common state-law require ment 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 adde d). 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.-13- Similar representation problems may also extend beyond the wrongful death context. Indeed, FTCA claims involvi ng questions of age, competency and numerosity, among others, will often require th e 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 attemp ted to present FTCA claims to federal agencies on behalf of the same claimants.

Our interpretation of § 2675(a)'s presentm ent 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 dir ectly 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 thatthe 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 atthem.") (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 a nd possible settlement before a court action [may] be instituted."). And, the legisla tive history of § 2672 suggests that Congress intended to "grant[] the agencies of Gove rnment 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 meaningfully9 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 regul ation arguably promulgated under the same statute expressly insists on element C, the natural inference is that it is the regulation,

-14- consider FTCA claims with an eye towards settlement if representatives fail to first present evidence of their authority to acton 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 fundame ntal to the meaningful administrative consideration and settlement proce ss 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 applicablestate 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). Th e parties devoted much attention in their briefs to the question of whether Congre ss's express grant of rulemaking authority under § 2672 authorized the Attorney Gene ral 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 l east, Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944). But, in th is case, there is "no occas ion 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. 9not the statute, that is th e source for requiring C." Postat 22. By "statute," the dissent presumably refers to § 2675(a)'s presentm ent 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 in jury 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 eviden ce-of-authority requirement. When this key is applied to decipher the di ssent'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 mi nimal notice standard (elements "A" and "B"). The "written statement" requirement (e lement "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 me ntions telephonic or other verbal methods of presentation. Instead, the "wr itten 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 edic t 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, implic it in the information necessitated by § 2672. Lunsford , 570 F.2d at 226 n.9 (explaining that th e 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 fe llow 1966 amendment that, together with § 2675(a), established a new framework for the administrative consideration and settlement of FTCA claims–to determine th e 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 th e dissent's so-called elements "A," "B," and "C." If the dissent's openi ng-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 statut e 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.

10 The Supreme Court rejected a near ly 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 allowe d to proceed in federal district court because the agency ultimatel y 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 intere st in orderly administration of this body of litigation is best served by adherence to the straight forward 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, ther efore, her action is barred notwithstanding the VA's decision to alternatively deny her claim on the merits. SeeUnited 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 dismi ssed her suit under Rule 12(b)(1) because compliance w ith the presentment requireme nt is not jurisdictional. Following this logic, she contends that her failure to strictly comply with the requirement was harmless and may be excu sed because the VA ultimately investigated and denied the beneficiaries' claim on the merits. 10The government contends that theimmunity of the United States or to conf er jurisdiction on a court in the absence of some express provision by Congress.").

-17- district court properly dismissed Ms. Made r'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 w ith § 2675(a)'s presentment requirement is a jurisdictional precondition to filing an FT CA 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 ag ree, although, as noted above, these courts do not necessarily apply the same de finition of "presented." SeeSimpkins v. D.C. Gov't
, 108 F.3d 366, 371 (D.C. Cir. 1997); Rick's Mu shroom 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 Suprem e Court has attempted to "bring some discipline" to the use of the term "juris dictional." 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 dras tic litigatory influence and the Court has clarified that the labe l 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 "juris dictional," we look to the Supreme Court's recent holding in Hendersonfor guidance.

The question in Henderson was whether a former servi ceman's failure to file a notice of appeal with the United States C ourt 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-p rocessing rules"–rules that seek to promote the orderly progress of litigation by requiring th at 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 con ceded, 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 neednot use "magic words" to do so. Id. "'[C]ontext, including [the] Court's interpre tation 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 jurisdictiona l 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 Ve terans 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 pr actice in American courts." Id. at 1203 (quotation omitted). Thus, Hendersoncontrasted the ordinary civil litigation in Bowles with the serviceman-friendly syst em that Congress had created for adjudication of veterans claims. Id. at 1204-05. In addition, Hendersonalso 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 Hendersonto the issues in this case. In doing so, we strictly abide by th e 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-conf erring language of § 1346(b)(1) indicates that an FTCA claim perfected under § 2675(a) is w ithin 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, a nd not judicially actionable.

In addition to the relatively clear language of § 1346(b)(1), Supreme Court precedent suggests that § 2675(a) is properly cl assified 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 intende d to require complete exhaustion of Executive remedies before-20- invocation of the judicial process ." 508 U.S. at 112 (emphasi s 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 prer equisite 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, th e 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 defi ne 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 Un ited States waiving sovereign immunity . . . together with a cl aim 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 presentm ent 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 i mmunity 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 fo r processing veterans' benefits claims discussed in Henderson , the FTCA is adversarial and cannot be reasonably classified11 We 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)).

12 If, as the dissent suggests, Ms. Ma der's recent concession undermines her "cause of action" and not her "standing," seepostat 39, the result is the same. It is undisputed that Ms. Mader is not the persona l representative of Mr. Mader's estate and "[w]e may affirm the district court's di smissal 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 reinfor ce 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 c onformity with § 2675(a) is a jurisdictional term of the FTCA's limited waiver of sovereign immunity. Since there was no such compliance inthis 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. 12See Williams v. Bradshaw , 459 F.3d 846, 848-49 (8th Cir. 2006) (hol ding 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 b ecause they were not participants, beneficiaries, or fiduciaries of th e 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, th e 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 th e place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); id. § 2674. And, under Nebraska law, onlya personal representative may file a wrongful death action. SeeNeb. Rev. Stat. § 30-810; Spradlin , 641 N.W.2d at 637-38.

VI.

We affirm the district court.

BYE, Circuit Judge, dissenting, w ith whom MURPHY, MELLOY, SMITH and SHEPHERD, Circuit Judges, join.

When a statute contains el ements 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 thatit 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 significan ce of this reading is to deprive the plaintiff in this and many future cases of the remedy under the Fe deral Tort Claims Ac t (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 th e 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 require ment in the Department of Justice's (DOJ) regulation outlining re quirements 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 be half of the claimant as agent, executor, administrator, parent, guardian, or other re presentative." 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 th e evidence-of-authority require ment 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), wh ich 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, us ed by the majority to establish the jurisdictional nature of claim presen tation under the FTCA, simply confers upon federal courts exclusive ju risdiction over claims under th e 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. Th e text of section 2672, likewise a part of chapter 171, is similarly unilluminating. It merely empowers federal agencies to settle the FTCA claims "unde r circumstances where the United States, if a private person, would be liable to the cl aimant 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 cannotdiscern in them any basis for requiring "evidence of a personal representative's au thority to act on behalf of a claim's beneficiaries." On a textua l 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 th e claimant. Rather, the judicial consensus is that section 2675 mandates only “minimal notice" consisting of "(1) a written statement sufficiently desc ribing the injury to enable the agency to begin its own investigation, and (2) a su m-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. United13 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 c oncluded the claims of unnamed class members were unidentifiable, did not stat e 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 cl early detailed the base s for its claims [and] specified that $80,000 was the amount it sought to recover." 866 F.2d at 277. Farmers Statecharacterized this circuit as being among the majority of courts in the minimal-notice camp, and formulated the pr esentment test to require a claimant to "provide[] in writing (1) sufficient inform ation 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 Lunsfordwith approval.

Considering this legal landscape, we reject the majority's charge that "the panel majority should haveapplied Lunsford 's first-in-time interpretation of § 2675(a)." See ante at 8. To begin with, Lunsfordwas 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 clai m 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 conse quence 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 writte n statement describing the injuryEven if Lunsfordwere relevant, it was not bindi ng on this case. The Lunsford court required all class members to present their claims either personally or through an authorized representative, and conclude d the absent class members did not satisfy even the irreducible requirements of presen tment – having an identifiable claimant and requesting a sum certain – under either route. 570 F.2d at 226-27. Thus, to the extent Lunsfordfound the members' claims deficient for failure to present the evidence of authority, this conclusion wa s 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 langua ge 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 a nd 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 limitati ons 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 cl aimants from bringing an action "for any sum in excess of the amount of the claim pr esented to the federa l 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 embr aced 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 abse nce 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 am endments 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 proce dure 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 am endments as merely to "make it possible for the claim first to be considered by th e agency"); section 26 72 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 th e 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 thatagencies 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 matte r how generous. Adams , 615 F.2d at 290 (rejecting "the e rroneous conclusion that clai mants 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 th eir right to sue"). In the end, the settlement-oriented framework of th e FTCA was only meant to "encourage claimants and their attorneys to make us e of this new administrative procedure," S. Rep. No. 89-1327, at 2524 (speaking about the provision raising allowable attorney's fees), and "[e]ncouragement w ould hardly have been thought necessary if the administrative procedures under sec tion 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 meaningf ully 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 ag ency's realistic assessment of settlement possibilities. Like the vast ma jority of the courts, I would subscribe to "an eminently pragmatic" test of presentment focusing on whether the agency received "notice that the agency should investigat e the possibility of particular (potentially tortious) conduct and includes a specificati on 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. SeeKanar
, 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 foible s 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 beforethe 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 de fenses to a prospective defendant. Even before the 1966 amendments, agencies were expected to conduct their own independent investigations of presented cl aims, and the agencies ' investigative duties did not change with th e adoption of sections 2675 and 2672. GAF Corp. , 818 F.2d at 919 n.105.

Eventually, when and if the parties takea real interest in the settlement, but before making a full-fledged commitment, th e 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 clai m] by proof or competent evidence" – a dictionary definition of substantiation, see Random House Webster's College Dictionary (2d ed. 1999) – as bills and physic ians' 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 prope rty, 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 th e 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-30- 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 agains t 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 Governme nt 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 manife sted 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 privat e 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 Governme nt technically more difficult."). The legislative history also reveals congre ssional 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 re quire 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 cl aims against municipalities in interpreting section 2675 of the FTCA).

Through its expansive reading of secti on 2675 and its treatment of the section as jurisdictional, my colleagues are addi ng 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,-31- it neglects the interpretive maxim that jurisd ictional statutes are to be construed "with precision and with fidelity to the terms by which Congress has e xpressed 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 achieveits remedial purpose." Blair , 304 F.3d at 867-68. The net effect is that the majority's interpre tation runs counter to the overarching purpose of the FTCA, which is to provide compen sation 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 am endments. The Department of Veterans Affairs receive d Standard Form 95 filled out by Nancy Mader's counsel on behalf of Nancy Mader, who clai med 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 d eath action, Mader's case presented complex issues on nearly every elemen t of the claim. Congress pr edicted that, "unlike routine cases, medical malpractice cases 'involve di fficult 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 verifica tion 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-32- agency is in no way "prevented from atte mpting 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 equa lly 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] demonstratedthat 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 pe rsonal 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 representativ e in time for commencement of proceedings in federal court, but she di d not. And by the time she file d her lawsuit on the last day of the statute of limitations period, she ra n out of time to correct the deficiency.

It is hard to feel badly for this cl aimant 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 bl ame 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 misfortuneof 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, C ongress 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. D ouglas, Assistant Attorney General)).-33- 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 clai m as incomplete." Avery , 680 F.2d at 611. Whatever efficiencies can be gain ed 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]urisdic tional rules may . . . result in the waste of judicial resources and may unfairly prejudice litigants").

II.

This is not to say the regulation requi ring 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 me rely mandatory or juri sdictional in nature, to borrow the juxtaposition used r ecently by the Supreme Court. See Henderson ,131 S.Ct. at 1202-03. If section 14.2(a) falls w ithin the latter category, this court does not have subject-matter jurisdiction to hear Ma der's claim, and the district court acted properly in dismissing the action under Federa l 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 di strict 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 pr esentment 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--34- jurisdictional, compliance with it can be fo rfeited if not timely asserted. Eberhart v. United States , 546 U.S. 12, 14 (2005).

In deciding whether the presentment re gulation in section 14.2(a) is claimprocessing or jurisdictional, I am persua ded by the reasoning of other courts to consider the issue. With the arguabl e exception of this court in Lunsfordand the Third Circuit in Pennsylvania v. National Ass'n of Flood Insurers , 520 F.2d 11 (3d Cir. 1975), other circuits have characterizedthe 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 Ge neral 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 defi ne 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 se ttle 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 determin e a lower federal c ourt'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 jurisdic tional predicate on the authority of an administrative agency insteadof 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-35- regulations, the DOJ's actions in extendi ng section 14.2 to section 2675 are a nullity for the purposes of interpreting exhaustion under section 2675.

It is true Congress authorized the Atto rney 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; ev idence 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. C ongress did not endow the Attorney General with any more authority to promulgate s ection 14.2 than it did to pass section 14.4. It would be thus improper to accord great er significance to requirements in section 14.2 than to requirements in section 14.4.

Third, the regulation at issue looks, sm ells, and tastes like a classic claimprocessing rule. The FTCA itself does not call on the claimant to present particular evidentiary materials in order to discharg e 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. SeeKontrick , 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 c ourt 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) (affirmi ng jurisdictional treatment of the time limitation for filing a notice of app eal contained in 28 U.S.C. § 2107(a) based on a long line of the Supreme Court decisions left undisturbed by Congress). Together, these characteristic s lead me to conclude that, like other regulations-36- 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 ma jority invokes the prudential element of standing to conclude, in the alternativ e, 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 ha ving 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 s ubject it deems abstract and unnecessary to address.

Considered on the merits, the standing i ssue is a red herring. In concluding Mader lacks standing, the majority adopts a myopic view of this complex term. In general, "standing is a questi on of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or contr oversy, or at least to overcome prudential limitations on federal-court juri sdiction." 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 litigan t's raising another person's legal rights, the rule barring adjudication of generalized grievances more appr opriately addressed in the representative branches, and the requi rement that a plaintiff's complaint fall within the zone of interests protectedby the law invoked." Allen v. Wright , 468 U.S.-37- 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 th e prudential standing umbrella, the first ensures the plaintiff "assert[s ] his own legal rights and in terests, and [does not] rest his claim to relief on the legal rights or inte rests 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 wrongf ul 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 be nefit of the widow or widower and next of kin."). The Nebraska Supreme Court e xplained 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 wi dow 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 r ecovery in accordance with the statute, to the discrete and id entifiable class of beneficiaries that the Legislature has specifically designated."). Another critical point under the Nebraska wrongful death law is that the statutory be neficiary 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 intere sts 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 th is test "varies according to the provisions-38- 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 pers onal 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 St ates, if a private person, would be liable to the claimant in accord ance 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 wh at [she] would have received from [her husband] from the date of his . . . death, ha d he . . . lived out a full life expectancy." Corona de Camargo , 776 N.W.2d at 7. Indeed, the in terests of the beneficiaries under the Nebraska statute are so direct that ev en 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 th e 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, Made r's grievance more than "ar guably" 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 en titled 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 the14 In 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 st atute, 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 deced ent’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 statut e 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 require ment that the complaint fall within the zone of interests protected by the statute. As I have explained ear lier, this charge does not fairly apply to this case.

-39- 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 inthe 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 lo wer courts to keep "standing" and "cause of action" conceptually di stinct. 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 resp ect to section 1983 actions, seeErlin v. United States , 364 F.3d 1127, 1132 (9th Cir. 2004) (emphasizi ng 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 cl assic 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 "suffi ciently 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 pe rsonal representative must be-40- timely asserted by the government in a moti on under Rule 12(b)(6), and not sua sponte by the appellate court at this late junctu re 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 allo w a forfeited affirmative defense whose underlying facts were not devel oped below to be raised for the first time on appeal.").

IV.

For the foregoing reasons, I respectfully dissent.

______________________________