Strict Enforcement of FTCA Presentment and Westfall Act Certification: Beary v. Harris County

Introduction

Beary v. Harris County (5th Cir. June 4, 2025) presents a federal appeals court’s guidance on two interrelated procedural mechanisms in civil rights and tort litigation against government actors: the presentment requirement of the Federal Tort Claims Act (FTCA) and the scope-of-employment certification under the Westfall Act. Wilhemena Beary, personal representative of Joshua Johnson’s estate, sued Harris County and two HCSO deputies under 42 U.S.C. § 1983 and related state‐law claims after Deputy Tu Tran, a member of a federal task force, fatally shot Johnson. Following the U.S. Attorney General’s certification that the deputies were acting within the scope of their federal employment, the district court substituted the United States under the Westfall Act and dismissed all FTCA claims for failure to exhaust administrative remedies. It also dismissed remaining claims against the deputies and Harris County. Beary appealed, challenging the FTCA dismissal, the sufficiency of the scope-of-employment certification, and the timeliness of Harris County’s dispositive motion.

Summary of the Judgment

The Fifth Circuit affirmed. Key holdings:

FTCA presentment is a jurisdictional prerequisite; failure to exhaust administrative remedies before filing cannot be cured by equitable tolling or later events once suit is pending.
By failing to oppose the Government’s Westfall Act substitution motion, the plaintiff forfeited any challenge to the certification that the deputies acted within the scope of their federal employment.
The district court did not abuse its discretion in entertaining Harris County’s Rule 12(b)(6)/12(c) motion filed after substitution, since substitution created new grounds for dismissal and no prejudice resulted.

Analysis

1. Precedents Cited

McNeil v. United States, 508 U.S. 106 (1993): Held that FTCA exhaustion is a jurisdictional requirement that cannot be waived by the courts.
Gregory v. Mitchell, 634 F.2d 199 (5th Cir. 1981): Confirmed that jurisdiction must exist at the time of filing; subsequent exhaustion does not retroactively cure a defect.
Osborn v. Haley, 549 U.S. 225 (2007): Authorized judicial review of the Westfall Act certification and placed the burden on plaintiffs to dispute it with specific facts.
Bolton v. United States, 946 F.3d 256 (5th Cir. 2019): Clarified that absent a timely challenge, courts need not afford even limited discovery on the scope-of-employment issue.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971): Established the constitutional tort remedy (not extended to federal task-force excessive-force claims in this case).

2. Legal Reasoning

• FTCA Jurisdictional Presentment: The court emphasized that section 2675(a) of the FTCA requires plaintiffs to present their claims to the appropriate federal agency before suit. This requirement is non-waivable and jurisdictional. Even assuming equitable tolling norms, a lack of presentment at filing time strips the district court of subject-matter jurisdiction. Once dismissed for lack of jurisdiction, the case cannot proceed in that forum, though the plaintiff may timely present her claim administratively and refile.

• Westfall Act Certification & Forfeiture: Under 28 U.S.C. § 2679(d)(1), the Attorney General’s certification that an employee acted within the scope of federal employment triggers automatic substitution of the United States. Plaintiffs may contest that certification, but they must do so by opposing the Government’s motion and, if necessary, seeking discovery. Beary’s silence in district court constituted forfeiture. As a result, the United States replaced the deputies as defendants.

• Timeliness of Rule 12(c) Motion: The court recognized that substitution can give rise to new grounds for dismissal, and district courts have discretion to permit briefing after a rule-imposed deadline if no party is prejudiced. Harris County’s delayed motion was therefore timely when viewed against substitution.

3. Impact on Future Cases

Rigid FTCA Presentment: Plaintiffs must ensure administrative claims are filed before or contemporaneously with suit; relying on equitable tolling to cure a presentment failure post‐filing is foreclosed.
Vigilance on Westfall Act Motions: Defendants’ scope-of-employment certifications will be upheld absent a timely and fact‐focused challenge; strategic inaction equates to forfeiture.
Dispositive Motion Practice: Courts will accommodate post-deadline dispositive motions when substitution or other intervening events create new grounds and no prejudice ensues.

Complex Concepts Simplified

FTCA Presentment Requirement: Before suing the United States for a tort (like wrongful death), you must file an administrative claim with the relevant agency. If you skip that step and file immediately in court, the judge lacks the power to hear your case.
Equitable Tolling: Sometimes courts pause (“toll”) a deadline if a party couldn’t meet it for an extraordinary reason. But here, tolling cannot fix a jurisdictional misstep that existed when the lawsuit was first filed.
Westfall Act: A federal law letting government employees be replaced by the United States as defendants if they were doing their job when the incident happened. If you want to argue they were off-duty or acting on their own, you must speak up promptly.

Conclusion

Beary v. Harris County underscores the uncompromising nature of FTCA’s administrative exhaustion requirement and the necessity of active litigation strategy when the Westfall Act is invoked. Plaintiffs must present FTCA claims to the agency before suing in federal court, or face dismissal for lack of jurisdiction. Defendants, having secured a scope-of-employment certification, benefit from automatic substitution of the United States unless plaintiffs timely and specifically dispute the facts. Ultimately, the Fifth Circuit’s decision reinforces procedural discipline in federal-employee and government-actor litigation, establishing clear guardrails for both plaintiffs and defendants moving forward.