FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

D. L., a minor by and through his

Guardian Ad Litem, Kari Ann Junio,

Plaintiff-Appellant,

v.

MARGARET VASSILEV, M.D.;

RODOLFO VICENTE, M.D.; MARK

WISEMAN, M.D.; PAVEL MUNDL,

M.D.; COUNTY OF TULARE; KAWEAH

DELTA HEALTHCARE DISTRICT;

SANDRA BOSMAN, M.D.; LORI ANN

M. BOKEN, M.D.; T. PLUNKETT,

RNC; D. BRACKETT, RNC;

B. BROWN, RNFA; CHRISTOPHER

BENCOMO, M.D.,

Defendants,

and

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 15-15542

D.C. No.

1:14-cv-00824-

AWI-BAM

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding
2 D.L. V. UNITED STATES

Argued and Submitted February 13, 2017

San Francisco, California

Filed June 5, 2017

Before: Marsha S. Berzon and Richard R. Clifton, Circuit

Judges, and Robert S. Lasnik,*

 District Judge.

Opinion by Judge Lasnik

SUMMARY**

Exhaustion / Federal Tort Claims Act

The panel reversed the district court’s dismissal for lack

of subject-matter jurisdiction on exhaustion grounds of a

Federal Tort Claims Act (“FTCA”) claim brought by a minor

plaintiff, alleging that his mother died of postpartum

hemorrhage due to medical malpractice by a physician, who

was a deemed employee of the U.S. Public Health Service.

The panel held that plaintiff’s initial failure to exhaust his

administrative remedies as to a defendant whom the plaintiffs

reasonably did not know was covered by the FTCA did not

deprive the federal courts of subject-matter jurisdiction over

that plaintiff’s FTCA claim where the plaintiff dismissed his

*The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
D.L. V. UNITED STATES 3

initial suit against that defendant, and then exhausted his

administrative remedies before amending his complaint in

state court to add the defendant again. 

The panel held that the district court erred in dismissing

for lack of subject-matter jurisdiction plaintiff’s

administratively exhausted FTCA claim following the United

States’ second removal.

COUNSEL

Mark W. Coleman (argued), Nutall & Coleman, Fresno,

California, for Plaintiff-Appellant.

Victoria L. Boesch (argued) and Bobbie J. Montoya,

Assistant United States Attorneys; United States Attorney’s

Office, Sacramento, California; for Defendant-Appellee.
4 D.L. V. UNITED STATES

OPINION

LASNIK, District Judge:

This case presents the question whether, under the Federal

Tort Claims Act (FTCA), a plaintiff’s initial failure to

exhaust his administrative remedies as to a defendant whom

the plaintiff reasonably did not know was covered by the

FTCA deprives the federal courts of subject-matter

jurisdiction over that plaintiff’s FTCA claim even after the

plaintiff dismisses his initial suit against that defendant, and

then exhausts his administrative remedies before amending

his complaint in state court to add the defendant again. On

appeal, Plaintiff-Appellant D.L. argues that the district court

erred in dismissing his FTCA claim on exhaustion grounds. 

We agree.

BACKGROUND

A. Statutory Background

The FTCA, 28 U.S.C. §§ 1346, 2671–80, waives the

United States’ sovereign immunity for tort actions and vests

the federal district courts with exclusive jurisdiction over

suits arising from the negligence of government employees. 

Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). 

Before a plaintiff can file an FTCA action in federal court,

however, he must exhaust the administrative remedies for his

claim. 28 U.S.C. § 2675(a). An administrative claim is

deemed exhausted once the relevant agency finally denies it

in writing, or if the agency fails to make a final disposition of

the claim within six months of the claim’s filing. Id. The

FTCA’s exhaustion requirement is jurisdictional and may not

be waived. Jerves, 966 F.2d at 519.
D.L. V. UNITED STATES 5

The Federally Supported Health Centers Assistance Act

(FSHCAA) provides that the exclusive remedy for damages

resulting from the performance of medical functions by

employees of the U.S. Public Health Service acting within the

scope of their employment is a claim against the United

States under the FTCA. See 42 U.S.C. § 233(g). Upon

certification that the defendant employee was acting within

the scope of his employment at the time of the incident giving

rise to the suit, the case must be removed and the proceeding

deemed a tort action brought against the United States under

the FTCA. 42 U.S.C. § 233(c).

B. Facts

In March 2012, D.L., a minor, by and through his

Guardian Ad Litem, brought this medical malpractice case in

Tulare County Superior Court. D.L. alleged that his mother,

Lisa Junio, had died of postpartum hemorrhage shortly after

giving birth to him on December 17, 2010. He sued his

mother’s medical providers for negligence. While some

defendants were named, others were listed as Does 1 to 50.

In November 2012, D.L. amended his complaint to

substitute additional named defendants for Does 1 to 9. One

of the newly named defendants was Christopher Bencomo,

M.D.

In March 2013, citing the FSHCAA and Dr. Bencomo’s

status as a deemed employee of the U.S. Public Health

Service, the United States removed D.L.’s action to federal

court and substituted itself as a defendant in place of Dr.

Bencomo. Upon removal, because D.L. had not satisfied the

FTCA’s exhaustion requirement with regard to Dr. Bencomo,

the parties stipulated to the dismissal without prejudice of
6 D.L. V. UNITED STATES

D.L.’s claims against the United States arising from Dr.

Bencomo’s actions. The district court remanded the state law

claims against the other defendants to Tulare CountySuperior

Court.

In July 2013, D.L. filed an administrative tort claim under

the FTCA with the U.S. Department of Health and Human

Services. The agency denied D.L.’s claim on November 15,

2013.

On April 1, 2014, D.L. amended his complaint in the

Tulare CountySuperior Court case to substitute Dr. Bencomo

for Doe 9. As before, the United States removed the action

to federal court and substituted itself as a defendant in place

of Dr. Bencomo, citing the FSHCAA and the FTCA.

In federal court, the United States moved to dismiss the

claims against it for lack of subject-matter jurisdiction,

arguing that D.L.’s initial failure to exhaust his FTCA

remedies before naming Dr. Bencomo as a defendant in

November 2012 had not been cured by D.L.’s subsequent

FTCA exhaustion in November 2013. Over D.L.’s opposition,

the district court concluded that it lacked subject-matter

jurisdiction over D.L.’s claims arising from Dr. Bencomo’s

actions, dismissed those claims without prejudice, and once

again remanded the state claims against the individual

defendants to Tulare County Superior Court. D.L. timely

appealed.

DISCUSSION

On appeal, D.L. argues that the district court erred in

holding that his initial failure to exhaust his administrative

remedies deprived the court of subject-matter jurisdiction
D.L. V. UNITED STATES 7

even after D.L. had exhausted his administrative remedies. 

The United States argues that the FTCA’s complete

exhaustion requirement demands that D.L. file a new suit

after exhaustion, rather than amend his premature complaint.

We review de novo the district court’s order granting a

motion to dismissfor lack of subject-matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). Mills v. United

States, 742 F.3d 400, 404 (9th Cir. 2014). We review for

clear error the district court’s factual findings on

jurisdictional issues. Viewtech, Inc. v. United States,

653 F.3d 1102, 1103–04 (9th Cir. 2011).

In general, the FTCA’s exhaustion requirement demands

that a plaintiff exhaust his administrative remedies before he

files an FTCA claim in federal court. In McNeil v. United

States, 508 U.S. 106 (1993), the Supreme Court clarified that

a prematurely filed FTCA claim must be dismissed even if

the plaintiff ultimately exhausts his administrative remedies

before “substantial progress” has occurred in the case. Id. at

110, 113. There, the plaintiff filed an FTCA claim against the

United States in federal court before exhausting his

administrative remedies. After exhausting his remedies, the

plaintiff notified the district court that his administrative

claim had been denied. The district court granted the United

States’ motion to dismiss plaintiff’s complaint as premature

due to the failure to exhaust before filing. The Supreme

Court affirmed, settling a circuit split over whether a

premature FTCA complaint could survive dismissal if

administrative exhaustion occurred before “substantial

progress” had been made in the federal litigation. Id. at

110–13.
8 D.L. V. UNITED STATES

We have held, however, that the FTCA’s exhaustion

requirement does not prevent a plaintiff from amending a

previously filed federal complaint over which there is

jurisdiction to add an FTCA claim once he has exhausted his

administrative remedies. In Valadez-Lopez v. Chertoff,

656 F.3d 851 (9th Cir. 2011), the plaintiff filed suit in federal

court alleging claims under 42 U.S.C. § 1983 and Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971), against

parties other than the United States. Separately, the plaintiff

filed an administrative claim under the FTCA. After six

months elapsed without a response from the agency, the

plaintiff amended his complaint to add an FTCA claim

against the United States. Subsequently, the plaintiff received

a notice of claim denial from the agency. The district court

granted the Unites States’ motion to dismiss the FTCA claims

for lack of subject-matter jurisdiction, because the plaintiff

had filed a complaint in district court before he

administratively exhausted. On appeal, this court reversed,

holding that the plaintiff had exhausted his administrative

remedies prior to initiating an FTCA action and that the

district court therefore had subject-matter jurisdiction over

that claim. 656 F.3d at 854–58.

D.L. argues that this court’s decision in Valadez-Lopez

permits him to amend an existing complaint to add claims

covered by the FTCA following administrative exhaustion. 

The United States responds that this case is controlled by

McNeil, because McNeil concerned a prematurelyfiled FTCA

claim, while Valadez-Lopez did not.

We do not agree that McNeil controls here. Unlike the

plaintiff in McNeil, D.L. first filed his malpractice suit in state

court; at the time, he was not aware that one of the defendants

was an employee of the United States. Accordingly, D.L. did
D.L. V. UNITED STATES 9

not institute an action “upon a claim against the United

States” before exhausting his administrative remedies when

he first filed suit. See 28 U.S.C. § 2675(a). And when it

became clear from the United States’ removal that D.L.’s

claim against Dr. Bencomo was subject to the FTCA’s

exhaustion requirement, the district court, unlike the court in

McNeil, did not retain jurisdiction over the premature FTCA

complaint until it ripened upon administrative exhaustion. 

Rather, D.L. stipulated to dismissal of the premature FTCA

claim, and the district court remanded the remaining state-law

negligence claims against the other defendants. No

premature FTCA claim against the United States remained

pending in federal court. Though the United States analyzes

the federal case initiated by the second removal as if it were

a continuation of the federal case initiated by the first, the

second removal actually constituted a new federal case, with

a new case number and a new docket in the federal district

court.

Federal jurisdiction under the FTCA is determined at the

time of removal. This court noted in Staple v. United States,

740 F.2d 766 (9th Cir. 1984), that the FTCA’s exhaustion

requirement does not extend to state court suits against nongovernment defendants. Id. at 768. From that premise, we

concluded that:

It follows that the issue of federal court

jurisdiction under section 2675(a) does not

arise until after removal to district court, for

only there does the action become one against

the United States. Here the Attorney

General’s certification and removal of the

state court action occurred well after the

USPS denied Staple’s claim on January 9,
10 D.L. V. UNITED STATES

1981, thereby exhausting plaintiff’s

administrative remedy. We hold, therefore,

that jurisdiction under section 2675(a) is

determined as of the date that the Attorney

General removes the suit to federal court,

rather than the date the plaintiff files the

action against the driver in state court.

Id. Accordingly, we held in Staple that the federal district

court had jurisdiction over a case that was removed after

exhaustion had occurred, even though the plaintiff had filed

the suit in state court before exhausting her administrative

remedies. Id.

McNeil, which was decided after Staple, did not address

this issue and therefore did not overturn Staple. In McNeil,

the Court was careful to clarify that, “As the case comes to

us, we assume that the Court of Appeals correctly held that

nothing done by petitioner after the denial of his

administrative claim on July 21, 1989, constituted the

commencement of a new action. The narrow question before

us is whether his action was timely either because it was

commenced when he lodged his complaint with the District

Court on March 6, 1989, or because it should be viewed as

having been ‘instituted’ on the date when his administrative

claim was denied.” 508 U.S. at 110–11. McNeil, thus, did

not speak to whether the Government’s removal of an

amended state court complaint would qualify as the

institution of an action under § 2675(a).

Similar to Staple, in this case, when the United States

removed D.L.’s action for the second time, that removal

properly “invoked the federal court’s jurisdiction under the

FTCA” only after D.L. had exhausted his administrative
D.L. V. UNITED STATES 11

remedies. Valadez-Lopez, 656 F.3d at 856 (quoting McNeil,

508 U.S. at 108) (internal quotation marks omitted).

Moreover, as D.L. points out, in Valadez-Lopezthis court

rejected the very argument that the United States now makes

in this case – that the FTCA’s exhaustion requirement

demands that a plaintiff institute an entirely new action after

exhausting his administrative remedies. The court

summarized the government’s argument this way:

Although it portrays its argument . . . as one

founded on failure to exhaust administrative

remedies, the government’s central thesis is

that “[t]he filing of an amended complaint is

not the equivalent to instituting an action

following the exhaustion of administrative

remedies.” (Emphasis added.) The

government reasons that the court is required

to dismiss the FTCA claim in the amended

complaint and to require the plaintiff to file an

entirely new lawsuit founded on the same

nucleus of facts.

656 F.3d at 855–56. This argument, the court concluded,

“finds support in neither the plain language of the statute nor

in the law of our circuit.” Id. at 856. Specifically,

There is nothing in the statute or our case law

that would prevent a plaintiff from amending

an existing complaint asserting non-FTCA

claims to name the United States as a

defendant and include FTCA claims once

those claims have been administratively

exhausted. . . . McNeil ought not be read as
12 D.L. V. UNITED STATES

preventing a plaintiff who wishes to state a

number of federal and state law claims against

an array of defendants from filing a complaint

alleging common facts and amending it after

exhaustion to state an additional claim under

the FTCA. Such a reading would require

undue acrobatics of such a plaintiff, given the

different statutes of limitations at play.

Id. at 856–57. Indeed, the FSHCAA’s removal provision

specifically contemplates that tort claims inadvertently

brought against federal public health workers will be

converted to federal FTCA cases through substitution and

removal, not through dismissal and the filing of a second,

separate case. 42 U.S.C. § 233(c). And the exhaustion

requirement’s goal of “reduc[ing] unnecessary congestion in

the courts,” McNeil, 508 U.S. at 112 & n.8, would be

undermined, not served, by a rule requiring FTCA litigants to

maintain parallel malpractice suits, against different

defendants but involving the same events, in state and federal

court.

Accordingly, we hold that the district court erred in

dismissing for lack of subject-matter jurisdiction D.L.’s

administratively exhausted FTCA claim following the United

States’ second removal.

REVERSED AND REMANDED.