Eleventh Circuit Reaffirms: Unbriefed Sovereign-Immunity Ground Requires Affirmance and FTCA Malpractice Claims Demand Timely Presentment and Proper Defendant Framing

I. Introduction

In Glenn Cohen v. Department of Veteran Affairs (11th Cir. June 8, 2026) (unpublished, per curiam), a pro se veteran sued the Department of Veteran Affairs under the Federal Tort Claims Act (FTCA) alleging medical malpractice arising from VA treatment of his left leg. Cohen’s factual theory evolved from post-surgical complications and later symptoms (ganglion cyst recurrence, varicose vein, ankle swelling, and venous eczema rash) to an asserted missed diagnosis of venous insufficiency.

The appeal presented two practical appellate/civil-procedure issues: (1) what happens when an appellant fails to challenge one of several independent grounds supporting dismissal; and (2) whether the district court should have allowed yet another amendment after dismissing the amended complaint.

II. Summary of the Opinion

The Eleventh Circuit affirmed the dismissal for two core reasons:

  • Appellate abandonment: Cohen did not challenge on appeal one of the district court’s alternative, independent grounds for dismissal— that sovereign immunity barred the claim because it was framed against the agency rather than a proper FTCA defendant theory. Under circuit waiver rules, that omission required affirmance.
  • No abuse of discretion in denying further amendment: The district court had already provided one opportunity to amend, and further amendment would have been futile, including because the FTCA limitations period in 28 U.S.C. § 2401(b) rendered the administrative claim untimely based on the court’s accrual analysis.

Because the court affirmed based on the unchallenged sovereign-immunity ground, it expressly did not reach the merits of Cohen’s other arguments against dismissal.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Liberal construction at the pleading and motion-to-dismiss stages

  • Sconiers v. Lockhart — Cited for the principle that pro se pleadings are liberally construed. This framed the panel’s approach to describing Cohen’s allegations, but it did not relax jurisdictional requirements or appellate waiver rules.
  • Vargas v. Lincare, Inc. — Cited for the standard that well-pleaded allegations are accepted as true at the motion-to-dismiss stage, with reasonable inferences drawn for the plaintiff. This reinforced that dismissal was not based on disbelieving Cohen’s account, but on legal insufficiency and jurisdictional defects.

2. Appellate abandonment/waiver: failure to challenge an independent ground

  • Sapuppo v. Allstate Floridian Ins. Co. — The controlling rule the panel applied: when a district court’s judgment rests on multiple independent grounds, failure to challenge one ground on appeal results in abandonment of that ground and requires affirmance.
  • Timson v. Sampson — Confirmed that the abandonment rule applies to pro se litigants as well: issues not briefed are deemed abandoned.
  • Miccosukee Tribe of Indians of Fla. v. Cypress — Reinforced that the Eleventh Circuit applies waiver rules strictly, and will not create exceptions merely because a district court stated an alternative rationale “in summary fashion.”

3. Sovereign immunity and the FTCA’s limited waiver

  • Smith v. United States — Cited for the proposition that the plaintiff bears the burden to establish jurisdiction and demonstrate that the FTCA’s limited waiver of sovereign immunity applies. The panel used this to support affirmance once Cohen failed to challenge the sovereign-immunity rationale adopted below.

4. Jurisdiction first: if no jurisdiction, no merits

  • Goodman ex rel. Goodman v. Sipos — Cited for the fundamental principle that courts must dismiss without reaching the merits if they lack jurisdiction. This underpinned the panel’s choice not to address Cohen’s other appellate arguments once affirmance was warranted.

5. Leave to amend; pro se opportunity; futility

  • Horton v. Gilchrist — Established the abuse-of-discretion standard for reviewing denial of leave to amend.
  • L.S. ex rel. Hernandez v. Peterson — Provided the “futility” standard: leave may be denied when the amended complaint would still fail at the motion-to-dismiss stage.
  • Woldeab v. Dekalb Cnty. Bd. of Educ. — Supported the idea that pro se litigants should generally receive at least one chance to amend if a more carefully drafted complaint might state a claim; the district court satisfied this by allowing one amendment.

6. FTCA and state-law elements (Florida malpractice), and limitations accrual

  • Ochran v. United States — Used for the linkage between FTCA viability and Florida liability: if alleged facts do not support liability under Florida law, the FTCA claim fails for lack of subject-matter jurisdiction (as stated in the opinion).
  • Saunders v. Dickens — Provided Florida malpractice elements the panel referenced: duty, breach, and causation.
  • Price v. United States — Central to the accrual analysis: an FTCA medical malpractice claim accrues when the plaintiff is, or should be, aware of both the injury and its cause.
  • United States v. Kubrick — Clarified that accrual does not wait until the plaintiff knows the injury was negligently inflicted; the limitations period exists to allow investigation, consultation, and decision-making—not indefinite delay.
  • McCullough v. United States — Emphasized that plaintiffs cannot “bury [their] head in the sand” once on notice that the government may have caused the injury; the opinion analogized Cohen’s circumstances to “physical and temporal proximity” notice principles.
  • Dalrymple v. United States — Reinforced that timely administrative presentment within two years of accrual is a jurisdictional prerequisite (as characterized in the opinion).

B. Legal Reasoning

1. The dispositive appellate rule: unchallenged alternative ground = automatic affirmance

The district court dismissed on multiple grounds, including a sovereign-immunity rationale tied to how Cohen framed the defendant and claim. On appeal, Cohen challenged only three of the four grounds. Applying Sapuppo v. Allstate Floridian Ins. Co., the panel treated the unbriefed sovereign-immunity ground as abandoned and affirmed without needing to resolve the other issues. The opinion underscored that this rule is applied strictly—even to pro se litigants (Timson v. Sampson)—and even where the district court adopts arguments “in summary fashion” (Miccosukee Tribe of Indians of Fla. v. Cypress).

2. Denial of further amendment: one chance given; further amendment futile

Even assuming Cohen could overcome pleading defects, the panel held the district court did not abuse its discretion in effectively denying another amendment. Rule 15’s liberal amendment policy (Fed. R. Civ. P. 15(a)(2)) yields to futility (L.S. ex rel. Hernandez v. Peterson), and Cohen had already received the pro se safeguard of one amendment opportunity contemplated by Woldeab v. Dekalb Cnty. Bd. of Educ..

The panel then explained why futility existed: Cohen’s administrative claim under 28 U.S.C. § 2401(b) was untimely because, by his own SF-95, he was aware “by the end of 2019” that symptoms had returned and that he had a painful varicose vein—facts sufficient to alert a reasonably diligent person to a possible connection to VA care. Under Price v. United States and United States v. Kubrick, accrual does not wait for confirmation of negligence; and under McCullough v. United States, seeking outside care and symptom timing can demonstrate notice of a possible causal link. Thus, filing the SF-95 in August 2022 fell outside the two-year window, making further amendment futile.

C. Impact

  • Appellate practice (especially for pro se litigants): The decision is a caution that failure to brief every independent basis for dismissal can be outcome-determinative. Even potentially strong arguments on other grounds will not be reached if one independent ground is abandoned.
  • FTCA pleading strategy: Although the opinion affirms on abandonment, it highlights a recurring FTCA trap: plaintiffs must fit their claims within the FTCA’s waiver and cannot rely on broad “institutional negligence” theories against an agency if the waiver does not extend that far (as the district court reasoned and the panel left undisturbed due to abandonment).
  • Limitations and accrual in medical-malpractice contexts: The court’s accrual discussion reinforces that suspicion/notice of injury and possible causation starts the clock—even before a definitive diagnosis or proof of negligence—encouraging earlier administrative presentment.
  • Precedential weight: As “NOT FOR PUBLICATION,” the opinion is not binding precedent, but it is informative of how the Eleventh Circuit applies waiver, futility, and FTCA accrual principles in routine, non-argument-calendar dispositions.

IV. Complex Concepts Simplified

  • Sovereign immunity (FTCA context): The United States and its agencies cannot be sued unless Congress clearly allows it. The FTCA is a limited permission slip; if a claim does not fit its terms (including who can be sued and for what conduct), the court lacks jurisdiction.
  • Subject-matter jurisdiction: The court’s power to hear a case. If jurisdiction is missing (for example, because sovereign immunity is not waived or administrative prerequisites are unmet), the case must be dismissed without reaching the merits.
  • Administrative presentment (SF-95): Before suing under the FTCA, a claimant must present a written claim to the correct federal agency, typically using Standard Form 95, within the statutory deadline.
  • Accrual (when the clock starts): Under the FTCA in medical-malpractice cases, the limitations period generally starts when the plaintiff knows (or should know) they were injured and that a particular treatment/provider may have caused it—not when the plaintiff proves negligence or gets a final diagnosis.
  • Abandonment/waiver on appeal: If the trial court gives multiple independent reasons to dismiss and the appellant does not challenge all of them, the appellate court will affirm based on the unchallenged reason.
  • Futility of amendment: Courts need not allow repeated amendments if the defect cannot be fixed—such as when a claim is time-barred.

V. Conclusion

Glenn Cohen v. Department of Veteran Affairs underscores two decisive litigation lessons in FTCA cases: (1) on appeal, failing to challenge an independent dismissal ground—here, the sovereign-immunity rationale—ends the case under the Eleventh Circuit’s strict waiver doctrine; and (2) district courts do not abuse discretion in denying further amendments where the plaintiff has already been given one chance and the claim is independently futile, including because the FTCA’s two-year presentment deadline has expired under accrual principles drawn from Price v. United States and United States v. Kubrick.