FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 30, 2017
Elisabeth A. Shumaker
Clerk of Court
VINCENT GABRIEL,
Plaintiff - Appellant,
v. No. 16-1381
(D.C. No. 1:14-CV-03022-KMT)
UNITED STATES OF AMERICA, (D. Colorado)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
This appeal involves the exhaustion requirement for a claim under
the Federal Tort Claims Act. The claim involves negligence at a federal
health-care facility. The district court concluded that the claim was
unexhausted, granting summary judgment to the government and
dismissing the action with prejudice.
*
The parties do not request oral argument, and we do not believe that
oral argument would be helpful. As a result, we are deciding the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
We “concur in the outcome, but not with the means.” Cizek v. United
States, 953 F.2d 1232, 1233 (10th Cir. 1992). Because Mr. Gabriel failed
to present an administrative claim before filing suit, we agree with the
district court that the claim was unexhausted. But because the exhaustion
requirement is jurisdictional, the government acknowledges that the
dismissal should have been without prejudice. We agree.
1. Standard of Review
We construe the district court’s disposition as a dismissal for lack of
subject-matter jurisdiction. A determination of subject-matter jurisdiction
involves a question of law, which we review de novo. Walden v. Bartlett,
840 F.2d 771, 772-73 (10th Cir. 1988).
2. Jurisdiction
Under the Federal Tort Claims Act, a tort 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 and
his claim shall have been finally denied by the agency in writing . . . .” 28
U.S.C. § 2675(a). A claim is “deemed to have been presented when a
Federal agency receives from a claimant . . . an executed Standard Form 95
or other written notification of an incident, accompanied by a claim for
money damages in a sum certain . . . .” 28 C.F.R. § 14.2(a).
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The action was filed on July 14, 2014. As of that date, the plaintiff
had not presented an administrative claim. Thus, the district court lacked
subject-matter jurisdiction.
Mr. Gabriel argues that he exhausted administrative remedies after
filing suit. The government does not dispute that Mr. Gabriel filed an
administrative claim on April 6, 2015, which was after the suit had been
filed.
When a claim is unexhausted prior to suit under the Federal Tort
Claims Act, the claimant cannot “cure the jurisdictional defect” while the
suit is pending. Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999).
Thus, the filing on April 6, 2015 does not trigger jurisdiction over the
earlier suit.
3. Effect of United States v. Wong
The plaintiff argues that in light of United States v. Wong, 135 S. Ct.
1625 (2015), the district court should have stayed the proceedings to allow
exhaustion. We disagree, for Wong did not address the exhaustion
requirement.
The issue in Wong was “whether courts may equitably toll” the time
limits in the Federal Tort Claims Act. 135 S. Ct. at 1630. The Supreme
Court answered yes, holding that “the [Federal Tort Claims Act’s] time
bars are nonjurisdictional and subject to equitable tolling.” Id. at 1638. But
the Court did not address the statute’s exhaustion requirement. See id.
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In our view, Wong does not affect our precedents addressing the
jurisdictional nature of the statutory exhaustion requirement. Because Mr.
Gabriel failed to exhaust administrative remedies before filing suit, the
district court lacked jurisdiction.
4. The Plaintiff’s Argument on Definitions
Mr. Gabriel briefly addresses 42 U.S.C. § 201, quoting this provision
as saying that “employees are liable to lawsuits when HHS does not
provide remedy.” Appellant’s Opening Br. at 17. This statute does not
contain the quoted language, and Mr. Gabriel’s argument is invalid.
A remedy exists under the Federal Tort Claims Act; Mr. Gabriel
simply failed to satisfy the exhaustion requirement before going to court.
We do not see anything in 42 U.S.C. § 201 that would support liability
here.
5. Proper Disposition of the Case
The district court initially disposed of the action by granting the
government’s motion to dismiss for lack of subject-matter jurisdiction. But
the court ultimately treated the motion as one for summary judgment.
Based on this treatment, the court awarded summary judgment to the
government and dismissed the action with prejudice.
This disposition “was ambiguous because dismissal and summary
judgment are two different dispositions.” Self v. I Have A Dream Found.‒
Colo., 552 Fed. App’x 782, 783 (10th Cir. 2013) (unpublished) (citing
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Bradley Scott Shannon, A Summary Judgment Is Not A Dismissal!, 56
Drake L. Rev. 1 (2007)). An important “distinction between these
procedures is that summary judgments always relate to the merits of the
action, whereas dismissals generally do not.” Bradley Scott Shannon, A
Summary Judgment Is Not a Dismissal!, 56 Drake L. Rev. 1, 3-4 (2007).
Therefore, we must determine whether the proper disposition was
“dismissal or summary judgment because it could not be both.” Self, 552
Fed. App’x at 783.
Attacks on jurisdiction take two forms: facial and factual. Holt v.
United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In a factual attack,
the movant goes “beyond allegations contained in the complaint [to]
challenge the facts upon which subject-matter jurisdiction depends.” Id. at
1003. Here, the attack was factual: The government alleged a failure to
exhaust administrative remedies, a fact which would have precluded
jurisdiction and required dismissal.
When addressing a factual attack on jurisdiction, “a court’s reference
to evidence outside the pleadings does not convert the motion to a Rule 56
motion” for summary judgment. Id. (citing Wheeler v. Hurdman, 825 F.2d
257, 259 n.5 (10th Cir. 1987)). Conversion is appropriate only when “the
jurisdictional question is intertwined with the merits of the case.” Id. This
occurs when “subject-matter jurisdiction is dependent upon the same
statute which provides the substantive claim in the case.” Id. The
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underlying concern, however, is “not merely . . . whether the merits and
the jurisdictional issue arise under the same statute,” but instead “whether
resolution of the jurisdictional question requires resolution of an aspect of
the substantive claim.” Pringle v. United States, 208 F.3d 1220, 1223 (10th
Cir. 2000) (citing Wheeler, 825 F.2d at 259).
Here, the jurisdictional question and the merits were not intertwined,
for the exhaustion issue did not require the district court to decide
substantive aspects of the tort claims. Accordingly, the district court
should not have converted the motion into one for summary judgment. The
proper disposition was dismissal for lack of jurisdiction, which should
have been without prejudice. See Brereton v. Bountiful City Corp., 434
F.3d 1213, 1218 (10th Cir. 2006) (noting that “dismissals for lack of
jurisdiction should be without prejudice because [a court that lacks
jurisdiction is not capable] of reaching a disposition on the merits of the
underlying claims”). The dismissal with prejudice was therefore incorrect.
6. Conclusion
Section 2675(a) requires claimants to exhaust their administrative
remedies before initiating a suit under the Federal Tort Claims Act.
Because this claim was unexhausted, the district court lacked jurisdiction.
The Supreme Court’s opinion in Wong does not require a different
outcome. Wong addressed equitable tolling of the Federal Tort Claims
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Act’s time bars. The district court had no occasion to consider timeliness
here because the claim was unexhausted.
Based on these conclusions, we remand and instruct the district court
to vacate the order granting summary judgment for the government and
dismissing the action with prejudice. The district court should instead enter
an order of dismissal without prejudice for lack of jurisdiction.
Judge Holmes joins in full and Judge Hartz concurs in the result and joins
all except Section 5.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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