United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1025

___________

Nancy Mader, Personal Representative *

of the Estate of Robert Mader *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

United States of America, *

*

Appellee. *

___________

Submitted: October 22, 2009

Filed: August 31, 2010

___________

Before BYE, BEAM and SHEPHERD, Circuit Judges.

___________

BYE, Circuit Judge.

Nancy Mader sued the United States under the Federal Tort Claims Act,

alleging the Department of Veterans Affairs (VA) acted negligently in providing

medical treatment to her late husband, Robert Mader. The district court granted the

government’s motion to dismiss for lack of subject matter jurisdiction, Fed. R. Civ.

P. 12(b)(1), holding Mader’s failure to provide the VA with proof of her status as the

legal representative of her husband’s estate, as well as proof of Mader’s attorney’s

authority to bring a claim on her behalf, precluded jurisdiction. We conclude a

plaintiff meets the Act’s jurisdictional prerequisites when she provides the relevant

agency with “(1) sufficient information for the agency to investigate the claims . . .
This opinion will alternatively refer to Nancy Mader as simply “Mader.” All 1

references to Robert Mader will include his full name.

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and (2) the amount of damages sought.” Farmers State Sav. Bank v. Farmers Home

Admin., 866 F.2d 276, 277 (8th Cir. 1989). Because Mader met these requirements,

we reverse and remand.

I

Robert Mader received medical care at the Veterans Affairs Medical Center in

Lincoln, Nebraska. On or about May 28, 2004, a physician instructed Mr. Mader to

taper off his previously prescribed medicine of Paxil by taking half a tablet daily for

one week and then stopping entirely. Mr. Mader was then instructed to begin taking

Seroquel. Mr. Mader followed these instructions. On or about August 3, 2004, Mr.

Mader died due to a self-inflicted gunshot wound to the head.

Nancy Mader first sought an administrative remedy, filing a complaint with 1

the VA, alleging negligence in the VA’s medical care of her husband. After receiving

the complaint, the VA requested proof of Mader’s status as the legal representative

of her husband’s estate, as well as proof of Mader’s attorney’s authority to bring a

claim on her behalf. Neither Mader nor her attorney responded to this request. The

VA denied Mader’s administrative claim on both procedural and substantive grounds.

First, the VA found that Mader, by failing to submit the requested agency

information, had failed to perfect a claim. Second, and in the alternative, the VA

found that even if Mader had submitted a valid claim, no negligence occurred in the

care of Robert Mader.

Nancy Mader filed suit in district court under the Federal Tort Claims Act. The

United States brought a motion to dismiss pursuant to Federal Rules of Civil

Procedure 12(b)(1). The district court granted the government’s motion, holding that

Mader, by failing to answer the VA’s request for information, had failed to satisfy the
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jurisdictional prerequisites to bringing an action in federal court. Accordingly, the

district court dismissed Mader’s complaint without prejudice. Mader appeals the

dismissal of her case.

II

This court reviews the district court’s subject matter jurisdiction de novo. See

Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir. 1990).

The United States enjoys sovereign immunity except to the extent it has

consented to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941); Iowa

Pub. Serv. Co. v. Iowa State Commerce Com’n, 407 F.2d 916, 920 (8th Cir. 1969).

A corollary to the immunity doctrine is the rule that the United States may define the

conditions under which actions are permitted against it. Peterson v. United States,

428 F.2d 368, 369 (8th Cir. 1970).

The condition at issue here is the requirement found at 28 U.S.C. § 2675(a) that

a claim be properly presented to the appropriate federal agency and denied before an

action can be brought in federal district court. This court has held that the

administrative exhaustion requirement of 28 U.S.C. § 2675(a) is jurisdictional, Melo

v. United States, 505 F.2d 1026, 1028 (8th Cir. 1974); Meeker v. United States, 435

F.2d 1219, 1220 (8th Cir. 1970), and thus, it cannot be waived.

Section 2675(a)states, in relevant part: “An action shall not be instituted upon

a claim against the United States . . . unless the claimant shall have first presented the

claim to the appropriate Federal agency . . . .” The statute is silent on the meaning of

the phrase “presented the claim.”

The relevant legislative history described the administrative exhaustion

requirement as:
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intended to ease court congestion and avoid unnecessary litigation,

while making it possible for the Government to expedite the fair

settlement of tort claims asserted against the United States. In

accomplishing these purposes, the more expeditious procedures

provided by this bill will have the effect of reducing the number of

pending claims which may become stale because of the extended time

required for their consideration. The committee observes that the

improvements contemplated by the bill would not only benefit private

litigants, but would also be beneficial to the courts, the agencies, and the

Department of Justice itself.

S. Rep. No. 89-1327 (1966), as reprinted in 1966 U.S.C.C.A.N 2515, 2516. 

The Department of Justice has promulgated regulations governing the

presentment process which the government contends govern the sufficiency of notice

for jurisdictional purposes. The relevant regulation, 28 C.F.R. § 14.2, states, in

relevant part:

a claim shall be deemed to have been presented when a Federal agency

receives from a claimant, his duly authorized agent or legal

representative, an executed Standard Form 95 or other written

notification of an incident, accompanied by a claim for money damages

in a sum certain for injury to or loss of property, personal injury, or

death alleged to have occurred by reason of the incident; and the title or

legal capacity of the person signing, and is accompanied by evidence of

his authority to present a claim on behalf of the claimant as agent,

executor, administrator, parent, guardian, or other representative.

28 C.F.R. § 14.2(a).

There is a split of authority among courts regarding the scope of the

jurisdictional prerequisites necessary to hear claims brought pursuant to the Federal

Tort Claims Act. The majority of courts have held that a plaintiff must give the

applicable agency “minimal notice,” which includes (1) a written statement
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sufficiently describing the injury to enable the agency to begin its own investigation,

and (2) a sum-certain damages claim. See, e.g., GAF Corp. v. United States, 818 F.2d

901, 919 (D.C. Cir. 1987). A minority of courts have imposed a more stringent

standard, holding that a plaintiff must comply with each of the regulatory

requirements found in 28 C.F.R. § 14.2, which include evidence of “the title or legal

capacity of the person signing . . . accompanied by evidence of his authority to

present a claim on behalf of the claimant as agent, executor, administrator, parent,

guardian, or other representative.” See, e.g., Kanar v. United States, 118 F.3d 527,

528-29 (7th Cir. 1997).

The leading case for the majority position is GAF Corp. There, the D.C.

Circuit examined the statutory text, structure of the statute, and legislative history

before concluding that Congress did not authorize the Department of Justice to create

jurisdictional hurdles above and beyond those created explicitly by statute. GAF

Corp., 818 F.2d at 919 (“[I]t is apparent that the presentment requirement imposes on

claimants a burden of notice, not substantiation, of claims.”). In support of this

position, the GAF Corp. court noted that while Congress gave executive agencies the

authority to promulgate regulations regulating the claims settlement process, see 28

U.S.C. § 2672, executive agencies were given no authority by Congress to set the

jurisdictional hurdles to bringing an action in federal court. Thus, according to the

GAF Corp. court, while the regulations defining the presentation of a claim are valid

insofar as the regulations dictate what a plaintiff must submit before the government

will consider entering into a settlement, the regulations are invalid insofar as they

purport to alter the Federal Tort Claims Act’s jurisdictional requirements. GAF

Corp., 818 F.2d at 919. The majority position has been adopted in the Ninth Circuit,

see Warren v. United States Dep’t of Interior Bureau of Land Mgmt., 724 F.2d 776,

780 (9th Cir. 1984) (en banc), the Third Circuit, see Tucker v. United States Postal

Serv., 676 F.2d 954, 959 (3d Cir.1982), the Fifth Circuit,see Adams v. United States,

615 F.2d 284, 289 (5th Cir.) clarified, reh’g denied, 622 F.2d 197 (5th Cir. 1980), the
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Sixth Circuit, see Douglas v. United States, 658 F.2d 445, 447 (6th Cir. 1981), and

the Eleventh Circuit, see Bush v. United States, 703 F.2d 491, 494 (11th Cir. 1983).

The leading case for the minority position is Kanar. There, the Seventh Circuit

held 28 C.F.R. § 14.2 does indeed supply the definition of presenting a claim for

jurisdictional purposes. Kanar, 118 F.3d at 529. According to the Seventh Circuit,

GAF Corp. and other courts read Congress’ grant of authority too narrowly,

“cover[ing] only the means of claims-processing, and not the identification of

‘claims’ in the first place.” Id. Indeed, according to the Kanar court, the process of

settling claims is inextricable from the presentation of claims itself; a poorly

presented claim cannot realistically be settled. Therefore, the statutory grant of

authority, according to the Kanar court, is broad enough to cover setting the terms for

the presentation of claims. Id.

The Eighth Circuit is commonly cited in other circuits as an example of a court

having adopted the minority position. See, e.g., Kanar, 118 F.3d at 529. However,

a review of the two apposite Eighth Circuit cases leaves this court’s established

position far from clear. In short, while Lunsford v. United States, 570 F.2d 221 (8th

Cir. 1977), arguably holds that following the regulatory requirements for presenting

a claim is a jurisdictional prerequisite to filing a suit under the Federal Tort Claims

Act, Farmers State Savings Bank v. Farmers Home Administration, 866 F.2d 276 (8th

Cir. 1989), adopts the “minimal notice” rule accepted by the majority of our sister

circuits.

In Lunsford, a group of plaintiffs attempted to bring a class action lawsuit

against the federal government under the Federal Tort Claims Act. Lunsford, 570

F.2d at 222. Although five of the named plaintiffs first presented claims to the

Bureau of Reclamation, the named plaintiffs attempted to file suit on behalf of a

substantial class of unnamed, similarly-situated plaintiffs. Id. The district court

dismissed the case for lack of jurisdiction with respect to the unnamed plaintiffs,
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reasoning that they had never presented a claim to the appropriate administrative

agency. Id. This court affirmed, citing three reasons why the district court lacked

jurisdiction: (1) the named plaintiffs never attempt to present claims on behalf of

unnamed class members to the Bureau of Reclamation, (2) the named plaintiffs failed

to state a sum certain with respect to the class claims, and (3) the named plaintiffs

failed to establish authority to act as agents and present claims on behalf of unnamed

class members. Id. at 225-27.

In Farmers State Savings Bank, the plaintiff alleged Farmers Home

Administration, an executive agency, failed to make a promised loan, which resulted

in monetary loss to the plaintiff. Farmers State Sav. Bank, 866 F.2d at 276. Prior to

filing suit, the plaintiff sent a series of letters to the Farmers Home Administration

detailing its grievance and seeking a settlement. Id. Unable to settle the matter, the

plaintiff filed suit under the Federal Tort Claims Act. The district court dismissed the

case for lack of jurisdiction, and this court reversed and remanded. Id. at 277. In

contrast to Lunsford, the Farmers court held that “a claimant satisfies the notice

requirement of section 2675 if he provides in writing (1) sufficient information for

the agency to investigate the claims. . . and (2) the amount of damages sought.” Id.

(citations omitted).

Putting aside momentarily Eighth Circuit precedent, it is evident the majority

of our sister circuits have reached the more persuasive result in holding that the

presentation of a claim, as contemplated by section 2675, requires nothing more than

sufficient information for the agency to investigate the claims and the amount of

damages sought. This comports with the natural and ordinary meaning of presenting

a claim. With respect to the regulations promulgated by the Department of Justice,

we agree 28 U.S.C. § 2672 does not delegate the authority to set the jurisdictional

requirements of a Federal Tort Claims Act suit; rather, Congress merely authorized
The dissent would conclude that compliance with the regulatory requirements 2

found in 28 C.F.R. § 14.2 is a mandatory prerequisite to jurisdiction. But the

dissent’s assertion that “today’s holding impedes the expeditious and fair settlement

of FTCA claims” misses the core issue presented by this case. We cast no doubt

today on the validity of 28 C.F.R. § 14.2 insofar as the rule sets out requirements

plaintiffs must follow as a prerequisite to an administrative settlement. Congress

clearly authorized the promulgation of rules for this purpose. See 28 U.S.C. § 2672.

However, nowhere in 28 U.S.C. § 2672 or any other statute did Congress authorize

the Department of Justice to constrict the jurisdiction of the federal courts by adding

jurisdictional requirements beyond what is required by section 2675(a).

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the Department of Justice to promulgate rules regulating the settlement of potential

claims.2

Further, the Eighth’s Circuit’s position is unsettled. Plainly, the Lunsford court

was of the opinion that the claim presentation rules found in 28 C.F.R. § 14.2 are

jurisdictional; otherwise, the court would not have cited the absence of proof of an

agency relationship on its way to affirming the dismissal of the plaintiffs’ class action

suit. However, the Lunsford court never justified its position that complying with the

Department of Justice’s regulations is mandatory; rather the court asserted the point

with no discussion. Finally, it is worth noting that the Lunsford court’s primary

holding–class action suits are not cognizable under the Federal Tort Claims Act–is

not contingent on a threshold determination that plaintiffs must follow all of the

requirements in 28 C.F.R. § 14.2. Indeed, two of the Lunsford court’s reasons for

rejecting the suit–the named plaintiffs’failure to present claims on behalf of unnamed

class members and failure to state a sum certain with respect to the class claims–are

valid reasons for rejecting class action suits even under the less-stringent

jurisdictional standard adopted by the majority of other circuits. See, e.g., Caidin v.

United States, 564 F.2d 284, 286 (9th Cir. 1977).

The same flaws in the Lunsford opinion are evident in Farmers State Savings

Bank. Similar to Lunsford, the Farmers court adopted the minimal notice standard
The dissent would interpret Lunsford to “define[] what constitutes sufficient 3

information to investigate the claim when a third party presents a claim on the

claimant’s behalf,” thereby purporting to harmonize Lunsforth with the minimal

notice standard announced in Farmers. This interpretation of Lunsford is not

persuasive. At the outset, it is difficult to see how evidence of authority to bring a

claim could affect the “sufficient information” prong of the minimal notice

requirement, which requires nothing more than “a written statement sufficiently

describing the injury to enable the agency to begin its own investigation.” GAF

Corp. v. United States, 818 F.2d 901, 919 (D.C. Cir. 1987) (emphasis added). In

Lunsford, the court had no information whatsoever about the injuries of the unnamed

plaintiffs. This case, by contrast,further undercuts the dissent’s reasoning. Although

the VA sought from Mader evidence of her authority to bring a claim, Mader’s refusal

to provide the information did not hinder the VA from investigating the claim on the

merits and making a formal determination that no negligence occurred in the care of

Robert Mader.

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without meaningful discussion. In addition, the final result in Farmers was not

contingent on a resolution of the jurisdictional standard; rather, the court’s

conclusion–that letters sent to the appropriate executive agency are sufficient to

provide the substance of a claim–would be the same under either jurisdictional

standard, provided the letters included the necessary information.

In light of Lunsford and Farmers, this case presents difficulties in following the

“cardinal rule in our circuit that one panel is bound by the decision of a prior panel.”

United States v. Betcher, 534 F.3d 820, 823-24 (8th Cir. 2008). Lunsford and

Farmers each applied a materially different standard; compliance with both prior

decisions appears to be logically impossible. When this court has confronted 3

intracircuit splits of authority, the court has not considered itself bound by either

position; instead, this court has endeavored to determine the “better approach.” See,

e.g., United States v. LeBrun, 363 F.3d 715, 719 (8th Cir. 2004). But see Williams

v. Nat’l Football League, Nos. 09-2247, 09-2462, 09-2249, 2009 WL 6044000, at

*2-3 (Dec. 14, 2009) (Colloton, J., dissenting from denial of rehearing en banc)
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(pointing out that other circuits have concluded the better practice normally is to

follow the earliest opinion).

Adopting the “better rule” here, we conclude a plaintiff meets the Federal Tort

Claims Act’s jurisdictional prerequisites when she provides the relevant agency with

“(1) sufficient information for the agency to investigate the claims . . . and (2) the

amount of damages sought.” Farmers State Savings Bank, 866 F.2d at 277. Because

it is undisputed Mader met these requirements, we conclude the district erred when

it determined it lacked jurisdiction.

III

Although not addressed by the parties or the district court below or either party

on appeal, Judge Beam, in his dissent, would conclude the district court lacked

jurisdiction for the independent reason that Mader’s claim was untimely. Although

we agree with the dissent that the applicable statute of limitations is jurisdictional and

therefore an appropriate subject of inquiry by this court, we conclude Mader’s

complaint was timely filed.

The relevant statute of limitations is contained in 28 U.S.C. § 2401(b), which

provides that a Federal Tort Claims Act claim “shall be forever barred unless it is

presented in writing to the appropriate Federal agency within two years after such

claim accrues.”

Nancy Mader’s claim accrued on August 3, 2004, the day Robert Mader died.

The VA received Mader’s claim via mail on August 3, 2006. Accordingly, Mader

presented her claim on August 3, 2006–two years to the day after the claim accrued.

The question presented, therefore, is whether the last day to file a claim was

August 2, 2006, or August 3, 2006. That question, in turn, is largely resolved by
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determining whether the date the claim accrued–August 3, 2004–counts as “day zero”

or “day one” for purposes of the limitations clock. Previous opinions of this court

strongly suggest that when filing a Federal Tort Claims Act claim, the date the claim

accrues counts as day zero. See, e.g., Wilson ex rel. Wilson v. Gunn, 403 F.3d 524,

526 (8th Cir. 2005) (“Since Wilson’s administrative claim [under the FTCA] was

presented on January 28, 2002, it is time-barred if it accrued before January 28,

2000.”); McDuffee v. United States, 769 F.2d 492, 494 (8th Cir. 1985) (excluding the

date the action accrued when calculating the Federal Tort Claims Act statute of

limitations).

Typically, calculating a statute of limitations period under federal law is done

by reference to Federal Rule of Civil Procedure 6(a). See Fed. R. Civ. P. 6(a) (“The

following rules apply in computing any time period specified in these rules, in any

local rule or court order, or in any statute that does not specify a method of computing

time.”). Rule 6(a)(1)(A) directs courts as follows: “When the period is stated in days

or a longer unit of time . . . exclude the day of the event that triggers the period . . . .”

Although Rule 6(a) cannot expand or constrict the jurisdiction of federal courts, see

Mattson v. U.S. W. Commc’ns, Inc., 967 F.2d 259, 262 (8th Cir. 1992), the rule may

provide a useful “means of determining the beginning and end of a statute of

limitations prescribed elsewhere in law.” Bartlik v. U.S. Dept. of Labor, 62 F.3d 163,

166 (6th Cir. 1995) (en banc); cf. Union Nat’l Bank v. Lamb, 337 U.S. 38, 40-41

(1949) (“Since [Rule 6(a) ] had the concurrence of Congress, and since no contrary

policy is expressed in the statute governing this review, we think that the

considerations of liberality and leniency which find expression in Rule 6(a) are

equally applicable to [the federal statute at issue].”).

The dissent would conclude the two-year statute of limitations governing

Mader’s claim expired on August 2, 2006. For support, the dissent relies solely on

Mattson. In Mattson, The statute of limitations required plaintiffs to bring actions

under the Fair Debt Collection Practices Act “within one year from the date on which
See generally Teresa D. Caskey Locke, Note, Oh, What a Difference a Day 4

Makes: Mattson v. U.S. West Communications, Inc., 62 UMKC L. Rev. 227 (1993)

(criticizing Mattson for “depart[ing] from the traditional and clearly defined method

of calculating time” and “add[ing] confusion to an area of the law that must be

absolutely clear and certain to ensure potential litigants the full scope of their

statutory rights”).

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the violation occurs.” 15 U.S.C. § 1692k(d); see Mattson, 967 F.2d at 260. The

violation in Mattson occurred on November 27, 1989, and the claimant filed suit on

November 27, 1990. Mattson, 967 F.2d at 260-62. Over a sharp dissent by Judge

McMillian, id. at 262-64 (McMillian, J., dissenting), we interpreted the phrase

“within one year from [the violation date]” to give the claimant 365 days beginning

on the violation date to bring her action, and ultimately concluded the plaintiff’s

claim was untimely. Id. at 262 (majority opinion).

We note that in the eighteen years since Mattson was decided, the case has

been rejected by every appellate court that has considered adopting its holding on

calculating statutes of limitations. See American Canoe Ass’n, Inc., Sierra Club v.

Attalla, 363 F.3d 1085, 1089 n. 4 (11th Cir. 2004) (noting that Mattson “appears to

stand alone”); Johnson v. Riddle, 305 F.3d 1107, 1115 (10th Cir. 2002) (stating that

“[a]pparently, every other circuit to have weighed in on the issue has rejected the

position adopted by Mattson”); Maloy v. Phillips, 64 F.3d 607 (11th Cir. 1995) (“We

. . . adopt the approach used in Mattson, save for the calculation of the days from the

mailing of the collection letter.”). At least two federal courts of appeals have

described the position adopted by Mattson as “frivolous.” United Mine Workers v.

Dole, 870 F.2d 662, 665 (D.C.Cir. 1989); Frey v. Woodard, 748 F.2d 173, 175 (3d

Cir. 1984). In addition, we also note that the single case Mattson relied on to support

its position, Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980), has

subsequently been unanimously overruled by the Sixth Circuit sitting en banc. See

Bartlik v. U.S. Dept. of Labor, 62 F.3d 163, 166 (6th Cir. 1995) (en banc) (referring

to Rust as “erroneous”).4
The dissent’s interpretation of the statute would also lead to potentially absurd 5

results. Consider a hypothetical statute–identical to the Federal Tort Claims Act

statute of limitations except for the length of time involved–requiring a claimant to

take action “within one day after such claim accrues.” The dissent would necessarily

interpret the phrase “one day after such claim accrues” to mean the same day the

claim accrued. Such a reading confounds common sense.

Of course, such one-day periods of limitations are common across many areas

of law. Consider 18 U.S.C. § 922, the familiar federal statute criminalizing firearm

possession in a number of different circumstances. Section 922(s)(1)(A)(i)(III)

provides:

Beginning on the date that is 90 days after the date of enactment of this

subsection and ending on the day before the date that is 60 months after

such date of enactment, it shall be unlawful for any licensed importer,

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Whatever the continuing vitality of Mattson, we decline to apply its reasoning

to the statute of limitations at issue in this case. As the dissent concedes, the

language of the Federal Tort Claims Act’s statute of limitations differs from the

limitations language contained in the Fair Debt Collection Practices Act and analyzed

in Mattson. While the Fair Debt Collection Practices Act’s statute of limitations

requires filing suit “within one year from the date on which the violation occurs,” 15

U.S.C. § 1692k(d), the Federal Tort Claims Act requires claimants to present their

claims “within two years after such claim accrues.” 28 U.S.C. § 2401(b) (emphasis

added). The presence of the word “after” conclusively demonstrates that Congress

did not intend the date the claim accrued to count as the first day of the limitations

period. See Johnson v. Meyers, 54 F. 417, 417 (8th Cir. 1893) (construing a statute

of limitations stating “that no appeal . . . in the circuit court of appeals . . . shall be

taken or sued out except within six months after the entry of the order, judgment, or

decree sought to be reviewed,” and holding that “[a]s the decree sought to be

reviewed here was entered May 27, 1892, the last day within the six months after its

entry was November 27, 1892.”). See also Wilson, 403 F.3d at 526; McDuffee, 769

F.2d at 494. We therefore conclude that Mader’s claim was timely filed. 5
licensed manufacturer, or licensed dealer to sell, deliver, or transfer a

handgun . . . to an individual who is not licensed under section 923,

unless . . . the transferor has . . . within 1 day after the transferee

furnishes the statement, provided notice of the contents of the statement

to the chief law enforcement officer of the place of residence of the

transferee . . . .

18 U.S.C. § 922(s)(1)(A)(i)(III) (emphasis added). The rules governing the

procedures of the National Labor Relations Board contain a similar one-day period

of limitations. Those rules provide that “[w]ithin one day after a vote to close a

meeting . . . the agency shall make publicly available a full written explanation of its

action closing the meeting . . . .” 29 C.F.R. § 102.141 (emphasis added). Similarly,

the rules governing the procedures of the Federal Trade Commission state that, in the

course of filing an interlocutory appeal, “[t]he party [seeking review] may file an

application for review with the Commission within 1 day after notice that the

Administrative Law Judge has issued the requested determination . . . . 16 C.F.R.

§ 3.23 (emphasis added). Section 3553(b)(1) of Competition in Contracting Act of

1984 requires the Government Accountability Office to notify the “Federal agency

involved” “[w]ithin one day after the receipt of a protest.” 31 U.S.C. § 3553(b)(1)

(emphasis added). See also Conn. Gen. Stat. § 9-445 (under Connecticut election

law, “there shall be a recanvass of the returns of the voting machine . . . unless within

one day after the primary. . . the defeated candidate . . . file[s] a written statement

waiving this right to such recanvass”) (emphasis added); Ala. Code § 35-11-371 (“[A]

claimant shall also within one day after the filing of such claim or lien, mail a copy

thereof by registered or certified mail, postage prepaid, for each person, firm or

corporation so claimed to be liable on account of such injuries . . . .”) (emphasis

added); Minn. R. Civ. P. 63.03 (1984) (“he affidavit shall be served and filed . . . in

any district having two or more judges, within one day after it is ascertained which

judge is to preside at the trial or hearing.”) (emphasis added); Or. Rev. Stat. § 652.140

(“When an employer discharges an employee or when employment is terminated by

mutual agreement, all wages earned and unpaid at the time of the discharge or

termination become due and payable not later than the end of the first business day

after the discharge or termination.”) (emphasis added); N.Y. Real Prop. Acts. Law

§ 735 (“[S]ervice of the notice of petition and petition shall be made by personally

delivering them to the respondent . . . and in addition, within one day after such

delivering to such suitable person or such affixing or placement, by mailing to the

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respondent both by registered or certified mail and by regular first class mail . . . .)

(emphasis added).

If adopted, the reasoning of the dissent would compel the conclusion that the

action required by each of these and other similar laws be accomplished the same day

as the triggering event, possibly within mere minutes of the triggering event. But the

plain language of the laws quoted above simply does not tolerate such a

counterintuitive construction.

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IV

Reversed and remanded.

BEAM, Circuit Judge, dissenting.

Because I would affirm the district court's correct conclusion that Personal

Representative Nancy Mader (Mader) is jurisdictionally barred from advancing her

FTCA claim, I respectfully dissent.

In its quest to formulate a result that the panel majority apparently finds more

favorable to its exotic legal and policy notions, the court summarily rejects clearly

established law and precedent applicable to three issues presented. Specifically, the

majority rejects two instances of binding Eighth Circuit precedent and, in addition,

snubs clearly formulated Nebraska law as established by legislative mandate and

Nebraska Supreme Court opinion. With this approach, I disagree.

I.

First and foremost, the court very reluctantly and incorrectly, addresses whether

Mader timely presented her FTCA claim. "Federal subject matter jurisdiction . . .

must be raised sua sponte by a federal court when there is an indication that

jurisdiction is lacking." Alumax Mill Prods., Inc. v. Congress Fin. Corp., 912 F.2d
Mader's Standard Form 95, Claim for Damage, Injury, or Death similarly

6

asserts that Mr. Mader committed suicide on August 3, 2004. 

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996, 1002 (8thCir. 1990) (quotation omitted). Because Mader's compliance with the

FTCA's statute of limitations is a jurisdictional prerequisite to bringing a suit against

the United States, T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961 (8th Cir.

2006), and there is a question as to whether Mader timely presented her claim, we

must begin, not end, with this issue.

28 U.S.C. § 2401(b) provides that an FTCA claim "shall be forever barred

unless it is presented in writing to the appropriate Federal agency within two years

after such claim accrues." An FTCA claim accrues when "the plaintiff knows or

reasonably should know both the existence and cause of the injury." Slaaten v.

United States, 990 F.2d 1038, 1041 (8th Cir. 1993). In death cases, "it is fair for the

claim to accrue at the time of death." Clifford ex rel. Clifford v. United States, 738

F.2d 977, 980 (8th Cir. 1984). Here, Mr. Mader's death certificate reports that he died

at 11:00 p.m. on August 3, 2004, immediately following a self-inflicted gunshot to

the head. Thus, Mader's claim accrued on August 3, 2004. 6

Next, an FTCA claim is "presented" when the appropriate federal agency

receives the claim, not when it is mailed. See 28 C.F.R. § 14.2(a); Drazan v. United

States, 762 F.2d 56, 58 (7th Cir. 1985) ("[M]ailing [an FTCA claim] is not presenting;

there must be receipt."). The record reveals that Mader's attorney mailed a Standard

Form 95, Claim for Damage, Injury, or Death to the Department of Veteran Affairs

(VA) via overnight mail on August 2, 2006, and the VA received the form on August

3, 2006. Accordingly, Mader purports to have "presented" her alleged claim on

August 3, 2006. 

Thus, Mader's claim accrued on August 3, 2004, if she timely became the

personal representative (PR) of Mr. Mader's estate, and was presented on August 3,

2006, if she remained the PR on that date. This raises the question of whether the
The calendar-year method counts the accrual date as the first day of 7

computation whereas the anniversary method counts the day following the accrual

date as the first day of computation. See United States v. Marcello, 212 F.3d 1005,

1008-10 (7th Cir. 2000) (discussing the "calendar-year" and "anniversary" methods

of calculating limitations periods). 

-17-

final allowable day to present Mader's claim under § 2401(b) was (1) August 2,

2006–i.e., two "calendar years" from the date of Mr. Mader's death; or (2) August 3,

2006–i.e., the "anniversary date" of Mr. Mader's death. If the calendar-year method 7

of computation applies, Mader presented her claim one day late; if the anniversary

method applies, Mader timely presented her claim on the anniversary date of Mr.

Mader's death. 

Several of our sister circuits have applied Federal Rule of Civil Procedure 6(a),

which embodies the anniversary method, to calculate § 2401(b)'s limitation periods.

See, e.g., Maahs v. United States, 840 F.2d 863, 866-67 (11th Cir. 1988); Hart v.

United States, 817 F.2d 78, 80 (9th Cir. 1987) (per curiam); Frey v. Woodard, 748

F.2d 173, 175 (3d Cir. 1984). But, this circuit does not apply the Rule 6(a)

anniversary date to compute jurisdictional statutes of limitations, it uses the calendaryear method. See Mattson v. U.S. W. Commc'ns, Inc., 967 F.2d 259, 262 (8th Cir.

1992). Given that § 2401(b) is a jurisdictional statute of limitations, T.L. ex rel.

Ingram, 443 F.3d at 961, this panel cannot apply Rule 6(a) to resolve the timeliness

issue presented in this case. 

Although Rule 6(a) does not apply, some still argue that the language of

§ 2401(b) adopts the anniversarymethod of calculation. See Maahs, 840 F.2d at 865-

66 (discussing various possible interpretations of § 2401(b)). However, our decision

in Mattson forecloses this argument. The statute of limitations at issue in Mattson

required claimants to bring actions under the Fair Debt Collection Practices Act

(FDCPA) "within one year from the date on which the [FDCPA] violation occurs."

15 U.S.C. § 1692k(d); see Mattson, 967 F.2d at 260. There, the FDCPA violation
Random House Webster's Unabridged Dictionary (2d ed. 1997), provides the

8

following relevant definitions of the words: From–"used to specify a starting point

in an expression of limits," id. at 770; After–"later in time than," id. at 36. As used

in sections 1692k(d) and 2401(b), the words present a distinction without a difference

and to reject Mattson's binding effect by seeing such a difference in the use of these

two words borders on the extreme. 

-18-

in question occurred on November 27, 1989, and the claimant brought her action on

November 27, 1990. Mattson, 967 F.2d at 260-62. The court interpreted the phrase

"within one year from [the violation date]" to give the claimant 365 days beginning

on the violation date to bring her action. Id. at 262. In other words, the calendar-year

method was applied and the claimant was deemed to have filed her claim one day

late. Id. 

While the statute in Mattson required a claimant to bring her FDCPA action

"within one year from [the violation date]," § 2401(b) required Mader to present her

FTCA claim "within two years after such claim accrues." The only relevant

difference between these phrases is § 2401(b)'s use of the term "after" instead of

"from." "The words 'from' and 'after' are frequently employed as adverbs of time, and

when used with reference to time are generally treated as having the same meaning."

86 C.J.S. Time § 17 (2006). Notably, there is "some difference of opinion as to 8

whether the words are used as inclusive or exclusive of the day or event from which

the time is computed." Id. In Mattson, the court read the term "from" as inclusive of

the violation date, and I see no reason to read "after" as exclusive of the accrual date

specified in § 2401(b). Indeed, when the limitation is tied to the words "claim

accrue[d]" as in the FTCA, an even stronger argument for Mattson's relevance can be

made. 

Thus, because the calendar-year method of computation applies to § 2401(b)'s

two-year statute of limitations, the last day for Mader to present her claim was August
In the majority's footnote 5, it incorporates a hypothetical one-day FTCA 9

statute of limitations in arguing that Mattson's "calendar-day" method "confounds

common sense." Ante at 13 n.5. To the contrary, it is the majority's hypothetical

(which is superficial, misbegotten and wholly unconstitutional, Wilson ex rel. Wilson

v. Gunn, 403 F.3d 524, 527 (8th Cir. 2005); Fields v. Legacy Health Sys., 413 F.3d

943, 956-57 (9th Cir. 2005)), that "confounds common sense." And, so far as I know,

there is no purported "confounds common sense" test (especially an unconstitutional

one) that permits a panel majority to disregard long-established circuit precedent.

-19-

2, 2006. Given that Mader presented her claim on August 3, 2006, her claim is timebarred.

9

A fair reading of the opinion for the court discloses that the panel majority

actually recognizes that Mattson precedent controls the outcome of this case, but

chooses to ignore it anyway as a matter of discretion. In this regard, the majority says

"[w]e note that in the eighteen years since Mattson was decided, the case has been

rejected by every appellate court that has considered adopting its holding on

calculating statutes of limitations." Ante at 12. The court then further says

"[w]hatever the continuing vitality of Mattson, we decline to apply its reasoning to

the statute of limitations at issue in this case." Id. at 13. This attempted disconnect,

of course, is not the panel majority's prerogative as dictated by even more firmly

embedded binding precedent of this circuit. As former Chief Judge Lay states in his

concurrence and dissent in United States v. Stewart, 7 F.3d 1350 (8th Cir. 1993), even

if all other circuits disagree with our established precedent, it may not be disregarded

by a panel of this court until it has been overruled by the court en banc. Id. at 1354

(Lay, J., concurring and dissenting). Mattson has never been overruled by an en banc

court of this circuit and must be respected by the panel majority in this case. 

II.

Even assuming that Mader timely presented her claim, I disagree with the

court's conclusion that she fulfilled 28 U.S.C. § 2675(a)'s administrative exhaustion
-20-

requirement despite failing to send the VA (1) proof of her status as personal

representative of Mr. Mader's estate, or (2) proof of her attorney's status as her legal

representative. Ante at 2, 10. Section 2675(a), a jurisdictional administrative

exhaustion requirement, provides that FTCA claimants shall present their claims to

the appropriate federal agency before instituting an action for damages against the

United States. The major reason for this requirement is to "'facilitate settlement of

cases.'" Lunsford v. United States, 570 F.2d 221, 226 (8th Cir. 1977) (quoting Caidin

v. United States, 564 F.2d 284, 286 (9th Cir. 1977)). Although § 2675(a) does not

explain what constitutes the presentation of a claim, 28 C.F.R. § 14.2(a), an

implementational rule adopted at the direction of Congress, see 28 U.S.C. § 2672,

provides, in relevant part, that claims must be "accompanied by evidence of [a third

party's] authority to present a claim on behalf of the claimant as agent . . . or other

representative." 

In Lunsford, third parties attempted to present FTCA claims to a federal agency

on behalf of a class of unnamed claimants (1) without evidence of their authority to

do so, and (2) without stating a sum certain as to damages. Lunsford, 570 F.2d at

224-25. This circuit held that the third parties "inadequately presented the claims of

unnamed class members because they failed to demonstrate the existence of the

necessary agency relationship." Id. at 226 (emphasis added). The court reasoned

that because the purpose of § 2675(a) is to facilitate settlement of cases, evidence of

the existence of one's legal authority to present a claim on behalf of the claimant is

required. Id. Truly, without the presentation of such evidence, "'the ability of the

United States to negotiate a settlement is impeded.'" Id. (quoting Caidin, 564 F.2d

at 286). The court also held that the administrative claims were inadequately

presented because they failed to state a sum certain as to damages. Id.; see 28 C.F.R.

§ 14.2(a) (sum certain requirement). 

Later, in Farmers State Savings Bank v. Farmers Home Administration, 866

F.2d 276, 277 (8th Cir. 1989), this circuit held that the claimant satisfied § 2675(a)'s
-21-

exhaustion requirement. There, a bank, asserting a claim on its own behalf, sent

several letters to a federal agency that (1) stated in detail the events that led to its

asserted claim, and (2) requested relief in the amount of $80,000. Id. at 276. The

court explained that to satisfy § 2675(a), a claimant must present in writing "(1)

sufficient information for the agency to investigate the claims, and (2) the amount of

damages sought." Id. at 277 (internal citations omitted). The panel then clarified that

"two prerequisites for administrative investigation are the identity of the claimants,

see Lunsford, 570 F.2d at 226, and the nature of the claims." Id. (internal citation

omitted). Because the bank identified itself, clearly detailed the basis of its claims,

and specified a sum certain, the bank's letters satisfied § 2675(a). Id.

The panel majority today, by its own admission "[p]utting aside momentarily

Eighth Circuit precedent" in favor of the more relaxed standards of some other

circuits, ante at 7, determines that "Lunsford and Farmers each applied a materially

different standard; compliance with both prior decisions appears to be logically

impossible." Ante at 9. The majority acknowledges that the "cardinal rule in our

circuit [is] that one panel is bound by the decision of a prior panel." United States v.

Betcher, 534 F.3d 820, 823-24 (8th Cir. 2008) (quotation omitted), cert. denied, 129

S. Ct. 962 (2009). But, it claims, when faced with conflicting precedents, "[w]e are

. . . free to choose which line of cases to follow." Kostelec v. State Farm Fire & Cas.

Co., 64 F.3d 1220, 1228 n.8 (8th Cir. 1995). But, in this circuit, "'the better practice

normally is to follow the earliest opinion, asit should have controlled the subsequent

panels that created the conflict.'" United States v. Robertson, 606 F.3d 943, 949 (8th

Cir. 2010) (quoting T.L. ex rel. Ingram, 443 F.3d at 960)). Here, the court disregards

our earlier decision in Lunsford, concluding that Farmers encapsulates the "better

rule"–i.e., when a third party attempts to present a claim to a federal agency on behalf

of an FTCA claimant, she need not submit accompanying evidence of her legal

authority to do so. The court's decision to disregard Lunsford is incorrect for three

reasons.
Given that on itsface Farmers twice approvingly cites Lunsford,see Farmers, 10

866 F.2d at 277, the court's conclusion that it is "logically impossible" to reconcile

these cases immediately raises red flags. 

-22-

First, the court erroneously treats Farmers as binding on the issue of whether

a third party properly presents a claim on behalf of a claimant when the third party

submits no evidence of her legal authority to do so. This issue was never raised,

addressed, or resolved in Farmers because the claimant in that case presented a claim

on its own behalf. "[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." Streu

v. Dormire, 557 F.3d 960, 964 (8th Cir. 2009). In contrast to Farmers, the precise

issue raised in the present case was explicitly raised, addressed, and resolved in

Lunsford. Accordingly, the panel must adhere to our circuit's cardinal rule and follow

Lunsford.

Next, the court erroneously concludes that it is "logically impossible" to

reconcile Lunsford and Farmers. Indeed, a proper reading of these cases reveals no

10

genuine conflict. Under Farmers, a claimant satisfies § 2675(a) if she presents in

writing (1) sufficient information to investigate the claim, and (2) the amount of

damages sought. Farmers, 866 F.2d at 276. Lunsford simply defines what constitutes

sufficient information to investigate the claim when a third party presents a claim on

the claimant's behalf. In that context, there is insufficient information to investigate

a claim where a third party fails "to demonstrate the existence of the necessary agency

relationship" between herself and the claimant. Lunsford, 570 F.2d at 226. Notably,

the Lunsford claimants, like Mader, argued that "technical noncompliance with the

administrative regulations should not preclude recovery when the claim was sufficient

to give the government notice of the claim." Id. While the Lunsford court

acknowledged that other circuits applied this "minimal notice" rule, it pointed out that

in each of those cases "an identifiable claimant had filed a claim for a sum certain

thus giving the government the opportunity to evaluate and settle the claim later sued

upon." Id. at 227 (emphasis added). It is not surprising then that the court found
-23-

§ 2675(a) satisfied in Farmers where the claimant, asserting a claimon its own behalf,

was (1) identifiable, and (2) stated a sum certain. Thus, contrary to the majority's

view, Farmers and Lunsford are in harmony.

Finally, even assuming that (1) Farmers is somehow binding on the precise

issue presented in this case, and (2) there is a genuine conflict between Lunsford and

Farmers on this issue, the court's holding does not reflect the "better rule." As

discussed above, the major purpose of § 2675(a) is to facilitate settlement of cases.

The circumstances surrounding this case demonstrate precisely why today's holding

impedes the expeditious and fair settlement of FTCA claims.

Under 28 C.F.R. § 14.3(c), an FTCA "claim based on death may be presented

by the executor or administrator of the decedent's estate, or by any other person

legally entitled to assert such a claim in accordance with applicable State law."

Under Nebraska law, wrongful death actions may only "be brought by and in the

name of the . . . personal representative." Neb. Rev. Stat. § 30-810; see Spradlin v.

Dairyland Ins. Co., 641 N.W.2d 634, 637 (Neb. 2002) ("The plain language of [§ 30-

810] allows only the personal representative to bring [a wrongful death] action . . . .").

When Mader attempted to present the wrongful death claim, she asserted the legal

title of "Personal Representative of the Estate of Robert L. Mader." Despite the VA's

repeated requests, Mader did not provide the VA with evidence that she was in fact

the personal representative of Mr. Mader's estate. It was not until the panel requested

such evidence at oral argument that Mader's attorney finally submitted to this court

a document entitled "Letters of Personal Representative." See Docket Entry on

11/04/2009. This document, originally filed in the County Court of Hall County,

Nebraska, reports that on August 12, 2004, Mader was appointed as personal

representative of Mr. Mader's estate. Id.

However, Mader still did not provide evidence that she was the personal

representative on the date she attempted to present the claim to the VA. In fact, on
-24-

July 8, 2005, Mader filed a "Verified Statement" in the Hall County court informally

closing Mr. Mader's estate. See Docket Entry on 11/18/2009. The Verified

Statement provides:

[T]he undersigned believes the affairs of this estate are completed and

is closing the estate by the filing of this Verified Statement. If no

proceedings involving the Personal Representative are pending in this

Court one year after the filing of this Verified Statement, the

appointment of the Personal Representative shall thereupon terminate.

Id. (emphasis added); see Neb. Rev. Stat. §§ 30-24,117(b), 30-2453(a). There is no

evidence that "proceedings involving the Personal Representative" were pending in

the Hall County court one year after Mader filed this statement. Assuming no such

proceedings were pending, Mader's appointment as personal representative

terminated in July 2006, see Neb. Rev. Stat. § 30-24,117(b), well before she

attempted to present the wrongful death claim on August 3, 2006. Importantly, under

Nebraska law, termination of appointment "terminates [the personal representative's]

authority to represent the estate in any pending or future proceeding." Neb. Rev.

Stat. § 30-2451 (emphasis added).

Thus, on August 3, 2006, Mader had no authority to present or settle the claim

she submitted to the VA. While the rule articulated in Lunsford helps weed out such

defective claims, the court sidesteps Lunsford and holds that Mader's mere assertion

of personal representative status satisfies § 2675(a)'s administrative exhaustion

requirement. Allowing third parties to present FTCA claims without legal authority

to do so not only ignores the letter of the law but also most definitely impedes the

settlement of claims, and therefore cannot be the better approach. In light of §

2675(a)'s underlying purpose, it is only reasonable for a federal agency to demand

and receive evidence of one's legal authority to present and settle a claim before it

diverts valuable time and resources to investigate the claim. Mader's refusal to
-25-

respond to the VA's numerous and varied requests for this necessary information,

requires dismissal of this FTCA claim.

III.

For the foregoing reasons, I dissent.

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