UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

STEVE N. BURTON, 

 Plaintiff - Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Defendant - Appellee. 

 ---------------------------------------------- 

CHARLES SCHOEPHOERSTER, P.A.; 

KEITH BAKER, M.D.; CALVIN 

POLLAND, D.O., 

 Defendants. 

No. 13-1373 

(D.C. No. 1:12-CV-02002-WJM-CBS) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge. 

 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 27, 2014

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 13-1373 Document: 01019254882 Date Filed: 05/27/2014 Page: 1 
- 2 - 

 Plaintiff Steve N. Burton appeals from the district court’s order dismissing his 

complaint without prejudice under Fed. R. Civ. P. 12(b)(1) for lack of subject matter 

jurisdiction.1

 We affirm. 

I. Background 

 Mr. Burton sued the United States for wrongful death under the Federal Tort 

Claims Act (FTCA), alleging that his wife died from untreated influenza due to the 

negligence of health care providers at Peterson Air Force Base. See 28 U.S.C. 

§§ 1346(b), 2671-80.2

 The FTCA allows claims against the government for 

“personal injury or death . . . under circumstances where the United States, if a 

private person, would be liable to the claimant in accordance with the law of the 

place where the act or omission occurred.” Id. § 1346(b)(1). Because the FTCA 

provides a limited waiver of the government’s sovereign immunity, however, “the 

notice requirements established by the FTCA must be strictly construed.” Bradley v. 

United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). To 

provide adequate notice, the plaintiff’s administrative claim must “specify[] a ‘sum 

 

1 See Fed. R. Civ. P. 41(b) (“Unless the dismissal order states otherwise, a 

dismissal under this subdivision (b) and any dismissal not under this rule–except one 

for lack of jurisdiction, improper venue, or failure to join a party under Rule 19–

operates as an adjudication on the merits.”). 

2

 Mr. Burton also named three federal employees as defendants, but they were 

dismissed with prejudice in the district court by stipulation of the parties. “The 

United States is the only proper defendant in an FTCA action.” Oxendine v. Kaplan, 

241 F.3d 1272, 1275 n.4 (10th Cir. 2001). 

Appellate Case: 13-1373 Document: 01019254882 Date Filed: 05/27/2014 Page: 2 
- 3 - 

certain’ amount of recovery sought.” Id. at 270 n.2 (citing 28 U.S.C. §§ 2401(b), 

2675; 28 C.F.R. § 14.2). 

 Mr. Burton, through his counsel, had filed his administrative claim on a 

standard form. Where the form asked for the amount of the wrongful death claim, 

“In Excess of $1.5 Million” was written in by hand, and where the form asked for the 

total amount of the claim, “0.00” was typed. Aplt. App. at 36. The government 

moved to dismiss the complaint under Rule 12(b)(1), arguing that Mr. Burton’s 

failure to specify “a sum certain amount of money damages” in his administrative 

claim, Aplt. App. at 25, deprived the district court of jurisdiction under 28 U.S.C. 

§ 2675(a) and (b) and 28 C.F.R. § 14.2(a), Aplt. App. at 30-31. The district court 

granted the government’s motion, citing Tenth Circuit decisions holding that amounts 

expressed in the terms “in excess of” do not state a sum certain, as required for an 

FTCA administrative claim. Id. at 61-63 (citing Bradley, 951 F.2d at 271, and 

Gladden v. United States Dep’t of Justice, 18 F. App’x 756, 758 (10th Cir. 2001)). 

Mr. Burton appeals. 

II. Discussion 

 “We review de novo a dismissal for lack of subject matter jurisdiction 

pursuant to Rule 12(b)(1) and review findings of jurisdictional facts for clear error.” 

Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). However, “[b]ecause 

the jurisdiction of federal courts is limited, there is a presumption against our 

Appellate Case: 13-1373 Document: 01019254882 Date Filed: 05/27/2014 Page: 3 
- 4 - 

jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” 

Id. (internal quotation marks omitted). 

 Mr. Burton does not dispute that his administrative claim specified damages 

for wrongful death “in excess of” $1.5 million. Rather, he asserts, relying on 

decisions from other circuits, that by requesting damages “in excess of” $1.5 million, 

his claim provided sufficient notice for the government to investigate and evaluate 

his claim for damages for the alleged wrongful death of his wife. He also argues for 

the first time on appeal that our 1991 holding in Bradley should be reevaluated in 

light of our more recent statement that the notice requirements of 28 U.S.C. 

§ 2675(a) should be assessed pragmatically. See Estate of Trentadue ex rel. Aguilar 

v. United States, 397 F.3d 840, 852 (10th Cir. 2005). We ordinarily do not consider 

issues raised for the first time on appeal, although we have discretion to do so. 

Braswell v. Cincinnati Inc., 731 F.3d 1081, 1092-93 (10th Cir. 2013). Even 

considering Mr. Burton’s new argument, however, we disagree that Bradley is not 

controlling precedent as to the sum certain requirement for an FTCA claim. 

 Our rule is that “[a] published decision of one panel of this court constitutes 

binding circuit precedent constraining subsequent panels absent en banc 

reconsideration or a superseding contrary decision by the Supreme Court.” Haynes v. 

Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). In Bradley, we “recognize[d] the 

harsh result” of a strict construction of the FTCA notice requirements, but we 

“decline[d] to hold that [a p]laintiff’s valuation of his claim as ‘in excess of’ 

Appellate Case: 13-1373 Document: 01019254882 Date Filed: 05/27/2014 Page: 4 
- 5 - 

[a specific dollar amount was] sufficient to satisfy the sum certain requirement” 

because the amount had “no ceiling.” 951 F.2d at 271 (emphasis added). 

 In contrast, the notice requirement we discussed in Trentadue was whether the 

plaintiff’s written claim “sufficiently describ[ed] the injury” for which damages were 

sought. 397 F.3d at 852 (internal quotation marks omitted). In this regard, we noted 

the First Circuit’s description of “the test under § 2675(a) as ‘an eminently pragmatic 

one: as long as the language of an administrative claim serves due notice that the 

agency should investigate the possibility of particular (potentially tortious) conduct 

and includes a specification of the damages sought, it fulfills the notice-of-claim 

requirement.’” Id. (quoting Dynamic Image Tech., Inc. v. United States, 221 F.3d 34, 

40 (1st Cir. 2000)). In Trentadue, however, the plaintiff’s administrative claim 

“specified the damages sought.” Id. As a result, we had no occasion to address the 

sum certain requirement in that case, except to note that “a sum certain damages 

claim” was required and had been made. Id. And even if we had addressed the sum 

certain requirement in Trentadue differently than in Bradley, (i.e., pragmatically), our 

rule is that “when faced with an intra-circuit conflict, a panel should follow earlier, 

settled precedent over a subsequent deviation therefrom.” Haynes, 88 F.3d at 900 

n.4. Thus, Bradley would still control the outcome in this case.3

 

 

3

 Because Gladden v. United States Department of Justice, 18 F. App’x 756, 

758 (10th Cir. 2001), is an unpublished panel decision, it does not constitute binding 

precedent. In any event, that decision followed the rule for the “sum certain” 

(continued) 

Appellate Case: 13-1373 Document: 01019254882 Date Filed: 05/27/2014 Page: 5 
- 6 - 

 The district court thoroughly and correctly discussed Mr. Burton’s other 

arguments under the applicable law, and we need not repeat that discussion here. 

Mr. Burton has failed to identify any error. 

 Affirmed. 

 Entered for the Court 

 Wade Brorby 

 Senior Circuit Judge 

 

requirement established in Bradley v. United States ex rel. Veterans Administration, 

951 F.2d 268, 271 (10th Cir. 1991). 

Appellate Case: 13-1373 Document: 01019254882 Date Filed: 05/27/2014 Page: 6