Mader v. United States

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 . . .
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 Mader1 first sought an administrative remedy, filing a complaint with
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

1
This opinion will alternatively refer to Nancy Mader as simply “Mader.” All
references to Robert Mader will include his full name.
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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

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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

2
The dissent would conclude that compliance with the regulatory requirements
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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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.3 When this court has confronted
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)

3
The dissent would interpret Lunsford to “define[] what constitutes sufficient
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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(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

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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

4
See generally Teresa D. Caskey Locke, Note, Oh, What a Difference a Day
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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 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 494.5 We therefore conclude that Mader’s claim was timely filed.

5
The dissent’s interpretation of the statute would also lead to potentially absurd
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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 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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 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

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

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

6
Mader's Standard Form 95, Claim for Damage, Injury, or Death similarly
asserts that Mr. Mader committed suicide on August 3, 2004.
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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.7 If the calendar-year method
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 calendar-
year 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 anniversary method 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

7
The calendar-year method counts the accrual date as the first day of
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).
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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).8 Notably, there is "some difference of opinion as to
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

8
Random House Webster's Unabridged Dictionary (2d ed. 1997), provides the
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.
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2, 2006. Given that Mader presented her claim on August 3, 2006, her claim is time-
barred.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

9
In the majority's footnote 5, it incorporates a hypothetical one-day FTCA
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.
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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

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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, as it 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.

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 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 reading10 of these cases reveals no
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

10
Given that on its face Farmers twice approvingly cites Lunsford, see Farmers,
866 F.2d at 277, the court's conclusion that it is "logically impossible" to reconcile
these cases immediately raises red flags.
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§ 2675(a) satisfied in Farmers where the claimant, asserting a claim on 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

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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

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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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