Mader v. U.S.

BYE, Circuit Judge, dissenting, with whom MURPHY, MELLOY, SMITH and SHEPHERD, Circuit Judges, join.

When a statute contains elements A and B and mentions no other elements, and a regulation arguably promulgated under the same statute expressly insists on element C, the natural inference is that it is the regulation, not the statute, that is a source for requiring C. Through the reasoning which impermissibly blurs the lines between claim presentment and claim settlement, the majority manages to read element C into the statute itself. The significance of this reading is to deprive the plaintiff in this and many future cases of the remedy under the Federal Tort Claims Act (FTCA). Another net effect of this interpretation is to contract the scope of this court's jurisdiction, something a court is not allowed to do. Kanar v. United States, 118 F.3d 527, 530 (7th Cir. 1997). Because I disagree with the majority's assumptions used to elevate the evidence-of-authority requirement to a jurisdictional precondition to filing a suit, I respectfully dissent.

My colleagues in the majority started off on the wrong foot by concluding the burden of furnishing evidence of one's representative authority comes directly from the FTCA. I see the genesis of this requirement in the Department of Justice's (DOJ) regulation outlining requirements of presentment for the purposes of exhausting executive remedies under section 2675 of the Act. That regulation, entitled "Administrative claim; when presented," expressly calls for "evidence of [the signator's] 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). It is unsurprising, given the clarity of this language, that other courts which have considered the pedigree of the evidence-of-authority requirement have traced it to the DOJ regulation. Kanar, 118 F.3d at 531; Ahmed v. United States, 30 F.3d 514, 517 (4th Cir. 1994); Knapp v. United States, 844 F.2d 376, 379-80 (6th Cir. 1988); Warren v. U.S. Dep't of Interior Bureau of Land Mgmt, 724 F.2d 776, 778 (9th Cir. 1984); cf. Avila v. INS, 731 F.2d 616, 619 (9th Cir. 1984) (tracing the evidence-of-authority requirement to 28 C.F.R. § 14.3(e), which contained the evidence-of-authority language prior to 1987); Transco Leasing Corp. v. United States, 896 F.2d 1435, 1444 (5th Cir. 1990) (same).

The precision of that regulation stands in stark contrast with the generic language in sections 2675, 2672, or 1346 of the FTCA, which make no mention of the evidence of authority. Section 1346, used by the majority to establish the jurisdictional nature of claim presentation under the FTCA, simply confers upon federal courts exclusive jurisdiction over claims under the FTCA, "[s]jubject to the provisions of chapter 171 of this title." 28 U.S.C. § 1346(b)(1). Section 2675, comprised within chapter 171, establishes the general requirement of presenting a claim "to the appropriate Federal agency" and suspends the claimant's right to file a complaint in court until either the claim is "denied by the agency in writing and sent by certified or registered mail" or the agency fails to make a "final disposition of a claim within six months after it is filed." 28 U.S.C. § 2675. The text of section 2672, likewise a part of chapter 171, is similarly unilluminating. It merely empowers federal agencies to settle the FTCA claims "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." 28 U.S.C. § 2672. Even with the most charitable reading of these sections, I cannot discern in them any basis for requiring "evidence of a personal representative's authority to act on behalf of a claim's beneficiaries." On a textual level, the majority's suggestion that 28 C.F.R. § 14.2(a) simply parrots what is already "inherent" in section 2675 strikes me as disingenuous.

The majority's reading of section 2675 also breaks a new path in law and puts this court at odds with other circuits. To my knowledge, no other court has read section 2675 to require a proof of one's authority to represent the claimant. Rather, the judicial consensus is that section 2675 mandates only "minimal notice" consisting of "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim." GAF Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1987); see also Ahmed, 30 F.3d at 516-17; Santiago-Ramirez v. Sec. of the Dep't of Defense, 984 F.2d 16, 19 (1st Cir. 1993); Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991); Tidd v. United States, 786 F.2d 1565, 1567-68 (11th Cir. 1986); Johnson ex rel. Johnson v. United States, 788 F.2d 845, 848-49 (2d Cir. 1986), overruled on other grounds by Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); Warren, 724 F.2d at 780; Douglas v. United States, 658 F.2d 445, 447 (6th Cir. 1981); Adams v. United States, 615 F.2d 284, 289-90 (5th Cir. 1980). The requirement of the written statement describing the injury is self-explanatory: it comes from the language of section 2675(a) requiring that the claimant not institute an action in court "unless [he] 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) (emphasis added); see also 28 U.S.C. § 2401(b) (establishing a statute of limitations for actions under the FTCA, pursuant to which such actions are barred "unless it is presented in writing to the appropriate Federal agency within two years"). The sum-certain requirement also comes from the language of section 2675, which prohibits claimants from bringing an action "for any sum in excess of the amount of the claim presented to the federal agency." 28 U.S.C. § 2675(b); see White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457-58 (3d Cir. 2010) (characterizing the sum-certain requirement as jurisdictional because it is mentioned in section 2675(b), which is, in turn, incorporated into a jurisdiction grant for the FTCA claims contained in section 1346); Blair v. IRS, 304 F.3d 861, 865 (9th Cir. 2002) (same). Not so with the evidence of authority, which is not mentioned anywhere in the statute. Even the one circuit traditionally cited for rejecting the minimal notice approach to exhaustion embraced by the majority of the courts — the Seventh Circuit — did not treat section 2675 as requiring the evidence of authority. Kanar, 118 F.3d at 530; see also Charlton v. United States, 743 F.2d 557, 559-60 (7th Cir. 1984). Instead, it acknowledged the requirement came directly from the DOJ regulation. Kanar, 118 F.3d at 529.

To compensate for the absence of textual support in the statute, the majority stresses the close relationship between the concepts of presentment and settlement to engraft section 2672 standards onto section 2675. The two sections were added to the FTCA in 1966 "as part of a package of amendments designed to facilitate out-of-court settlement of claims" and, true enough, the "presentment requirement of [s]ection 2675(a) was a key element in the new procedure for claims resolution." GAF Corp., 818 F.2d at 905. But while sections 2675 and 2672 should be considered in tandem, they are not perfectly coextensive, for they serve different goals.

Section 2675 requires an FTCA claimant to give the agency ah opportunity to consider a claim before the claimant takes it to court, McNeil v. United States, 508 U.S. 106, 111 n. 7, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (describing the intent of the 1966 amendments as merely to "make it possible for the claim first to be considered by the agency"); section 2672 merely authorizes the government to enter into a settlement if the claimant is willing to accept it.

"Although many claimants will rationally elect to settle their claims, Congress clearly did not deem settlement mandatory." Adams, 615 F.2d at 291. Section 2675 allows the claimant to file a complaint in federal court at the expiration of six months even in the absence of the agency response. See S.Rep. No. 89-1327, 89th Cong., 2d Sess. 2, reprinted in 1966 U.S.C.C.A.N. 2515, 2518-19 (1966) (explaining that, "even though th[e] 6-month period may prove insufficient in some instances [to enter into the ultimate settlement], the committee does not believe that this period ought to be enlarged to attempt to insure time for final decision on all claims"). Nothing in sections 2675 or 2672 affects the truism that agencies will not settle the bulk of the claims before them, particularly where such claims involve complex issues of liability and damages. Id. at 2520 (acknowledging many cases alleging medical malpractice, drug and products liability, or arising out of aviation accidents are not amenable to settlement and will continue to be litigated). And nothing in those sections compels the claimant to accept the agency's settlement, no matter how generous. Adams, 615 F.2d at 290 (rejecting "the erroneous conclusion that claimants must settle with the relevant federal agency, if the agency so desires, and must provide that agency with any and all information requested in order to preserve their right to sue"). In the end, the settlement-oriented framework of the FTCA was only meant to "encourage claimants and their attorneys to make use of this new administrative procedure," S.Rep. No. 89-1327, at 2524 (speaking about the provision raising allowable attorney's fees), and "[e]ncouragement would hardly have been thought necessary if the administrative procedures under section 2672 were mandatory or were, through section 2675, a jurisdictional prerequisite to suit." Adams, 615 F.2d at 290 n. 11.

Usurping the duties reserved to Congress, the majority concludes that the proof-of-authority requirement "naturally follows" from section 2672's settlement authorization and is "totally essential to meaningful agency consideration." See ante at 801. Absent the evidence of one's authority to represent the claimant, the majority maintains, "agencies simply cannot meaningfully consider the FTCA claims with an eye towards settlement." See ante at 803. But what is "totally essential" to settlement consideration varies in the proverbial eye of the beholder, and the majority's standard in this regard turns out to be more demanding than that of virtually any other circuit.

I have a different view of what is essential to the agency's realistic assessment of settlement possibilities. Like the vast majority of the courts, I would subscribe to "an eminently pragmatic" test of presentment focusing on whether the agency received "notice that the agency should investigate the possibility of particular (potentially tortious) conduct and includes a specification of damages sought." Ramirez-Carlo v. United States, 496 F.3d 41, 46-47 (1st Cir. 2007). Such notice is sufficient to "activate the [settlement] machinery," and the statute requires no more. See Kanar, 118 F.3d at 531 (analogizing claim presentment under the FTCA to the formalities prescribed for tax refund claims where, once a taxpayer "activate[s] the refund machinery," he is "not defeated by foibles in the refund application") (citing United States v. Kales, 314 U.S. 186, 194, 62 S.Ct. 214, 86 L.Ed. 132 (1941), and United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 53 S.Ct. 278, 77 L.Ed. 619 (1933)). Section 2675 does not "allow an agency to insist on proof of a claim to its satisfaction before the claimant becomes entitled to a day in court." Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982). Nor should section 2675 require a claimant to reveal potential defenses to a prospective defendant. Even before the 1966 amendments, agencies were expected to conduct their own independent investigations of presented claims, and the agencies' investigative duties did not change with the adoption of sections 2675 and 2672. GAF Corp., 818 F.2d at 919 n. 105.

Eventually, when and if the parties take a real interest in the settlement, but before making a full-fledged commitment, the agency will be well advised to obtain the evidence of the claimant's authority to present a claim, among many other evidentiary items. The agency has authority to request these items by virtue of the DOJ's regulations in 28 C.F.R. § 14.1-14.11. The government concedes it takes advantage of this authority frequently, for it is a rare claim that the agency can settle on the basis of Standard Form 95 alone. It also concedes it cannot insist on production of evidentiary materials listed in section 14.4 as a prerequisite to filing a suit. It argues, however, that the evidence of authority is categorically different from the "substantiation" evidence listed in section 14.4.

I fail to see the suggested distinction. Supplying the evidence of authority is as much a part of "establishing a claim] by proof or competent evidence" — a dictionary definition of substantiation, see Random House Webster's College Dictionary (2d ed. 1999) — as bills and physicians' reports verifying the extent of the claimant's asserted injuries, full names of decedent's survivors entitled to recovery (particularly relevant here), proof of ownership of the property, or other quintessential substantiation items listed in 28 C.F.R. § 14.4. The obligation to produce any of these items should not spring into action until the parties are serious about settling the claim, particularly where one's failure to produce them could prejudice the claimant's ability to bring an action in court. Santiago-Ramirez, 984 F.2d at 19 ("Only after the process of settlement has been initiated does the additional information required by the regulations become relevant.").

The majority's overzealous adherence to the FTCA's legislative preference toward the settlement of tort claims against the United States sacrifices another stated goal of the Act: "to provide `fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government.'" Id. at 18 (quoting S.Rep. No. 89-1327, at 2516). As the First Circuit has observed, "Congress manifested no interest whatsoever in restricting claimants' rights under the Federal Tort Claims Act or in restricting their access to the courts. To the contrary, Congress identified private litigants as the primary beneficiaries of the amendments." GAF Corp., 818 F.2d at 917; see also Exec. Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6th Cir. 1974) ("The purpose of the amendment was not to make recovery from the Government technically more difficult."). The legislative history also reveals congressional intent to model the exhaustion mechanism under the FTCA after state statutes permitting suits against municipalities, which Congress understood to require only minimum notice. Avery, 680 F.2d at 610-11 (citing S. Rep. No. 89-1327, at 2517). Just as these statutes permit exhaustion only to the extent necessary for a municipality to investigate the claim, this court should interpret section 2675 of the FTCA to require the minimum notice to enable the agency's own investigation. See Warren, 724 F.2d at 779 (relying on congressional intent to mirror statutes governing tort claims against municipalities in interpreting section 2675 of the FTCA).

Through its expansive reading of section 2675 and its treatment of the section as jurisdictional, my colleagues are adding one more item to the "checklist which, when not fully observed, permits the termination of claims regardless of their merits." Erxleben v. United States, 668 F.2d 268, 273 (7th Cir. 1981) (quoting Koziol v. United States, 507 F.Supp. 87, 91 (N.D.I11. 1981)). By so redefining section 2675, the majority runs afoul of two established principles of statutory construction. First, it neglects the interpretive maxim that jurisdictional statutes are to be construed "with precision and with fidelity to the terms by which Congress has expressed its wishes." Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). Second, it undermines the principle that "when the federal government waives its immunity, the scope of the waiver is construed to achieve its remedial purpose." Blair, 304 F.3d at 867-68. The net effect is that the majority's interpretation runs counter to the overarching purpose of the FTCA, which is to provide compensation to those injured by the government's torts. Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).

The underlying facts demonstrate why the skeletal notice comports with the statutory scheme Congress put in place through the 1966 amendments. The Department of Veterans Affairs received Standard Form 95 filled out by Nancy Mader's counsel on behalf of Nancy Mader, who claimed to be a "Personal Representative of the Estate of Robert L. Mader, Deceased." In the form, the decedent's widow informed the agency of the events giving rise to her claim and estimated the value of her claim at $750,000. As is typical for cases alleging medical negligence in the context of a wrongful death action, Mader's case presented complex issues on nearly every element of the claim. Congress predicted that, "unlike routine cases, medical malpractice cases `involve difficult legal and damage questions,' . . . that are not always amenable to settlement." Adams, 615 F.2d at 290-91 (citing S. Rep. No. 89-1327, at 2518, 2520). Mader's claim was no exception, and the agency proceeded to deny it on the merits.

Although the agency requested verification for Mader's assertion she is a personal representative of her husband's estate, the absence of such verification did not hinder the agency's ability to evaluate the merits of the claim and rule out the settlement route. In this respect, Mader's case is typical, since the claimant's failure to produce the evidence of authority hardly prevents the agency from investigating the claim and attempting a compromise. Executive Jet Aviation, Inc., 507 F.2d at 515 (expressing skepticism about the likelihood of settling a complex claim, but noting the agency is in no way "prevented from attempting a compromise simply because the insurers did not join in [the insureds'] administrative claim"). "No harm, no foul' is a maxim of the law of torts [which] is equally apt in administering the apparatus for seeking compensation after a tort." Kanar, 118 F.3d at 531. "By denying [her] claims on the merits, the [Department] demonstrated that they had sufficient notice to initiate investigation." Warren, 724 F.2d at 779.

To be sure, Mader's case is somewhat peculiar because it was filed on the last day before the expiration of the statute of limitations. By operation of a Nebraska statute, Mader's authority to act as a personal representative of her husband's estate lapsed on July 8, 2006, less than a month before she filed her claim with the Department of Veterans Affairs. See Neb. Rev. Stat. § 30-24,117(b). Under another Nebraska statute, see Neb. Stat. Ann. § 30-24,122, Mader could have applied for reappointment as a personal representative in time for commencement of proceedings in federal court, but she did not. And by the time she filed her lawsuit on the last day of the statute of limitations period, she ran out of time to correct the deficiency.

It is hard to feel badly for this claimant and particularly her counsel, for "attorneys who wait until the last day of a statute-of-limitations period to file a complaint have only themselves to blame when Murphy's Law comes knocking." Kellum v. Comm'r, 295 Fed.Appx. 47, 52 (6th Cir. 2008). But given the outcome the majority reaches today, Murphy's Law will come knocking on the doors of less culpable claimants who have the misfortune of residing in the Eighth Circuit and fail to comply with the evidence-of-authority requirement by reason of not reading the regulations. While passing section 2675, Congress expressly rejected the idea that complying with the requirement of presentment will necessitate assistance of a lawyer. Warren, 724 F.2d at 788 (Sneed, J., dissenting) (quoting Improvement of Procedures in Claims Settlement and Gov't Litig.: Hearings on H.R. 13650, 13651, 13652, and 14182 Before Subcomm. No. 2 of the House Comm. on the Judiciary, 89th Cong., 2d Sess. 13 (1966) (statement by John W. Douglas, Assistant Attorney General)). Considering the "premium placed upon the careful observance of the settlement regulations" by the court's ruling today, however, claimants will be well advised to hire counsel to maximize their chances of preserving their right to sue. Id. at 779 n. 6. Courts will bear their part of the burden too, becoming bogged down in "ancillary matters of fact whenever the agency rejected a claim as incomplete." Avery, 680 F.2d at 611. Whatever efficiencies can be gained by the agencies in obtaining the evidence of authority at the outset will be lost by the inefficiencies in the use of judicial resources and, more important, unfairness of depriving eligible claimants of their right to recovery. See Henderson ex rel. Henderson v. Shinseki ___ U.S. ___, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) (expressing a concern that "[j]urisdictional rules may . . . result in the waste of judicial resources and may unfairly prejudice litigants").

This is not to say the regulation requiring a claimant to produce the evidence as to its authority to pursue the claim, 28 C.F.R. § 14.2(a), is entirely inconsequential. Its effect is determined by whether it is merely mandatory or jurisdictional in nature, to borrow the juxtaposition used recently by the Supreme Court. See Henderson, 131 S.Ct. at 1202-03. If section 14.2(a) falls within the latter category, this court does not have subject-matter jurisdiction to hear Mader's claim, and the district court acted properly in dismissing the action under Federal Rule of Civil Procedure 12(b)(1). See Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237-38 (11th Cir. 2002). If, however, section 14.2(a) is classified as mandatory but not jurisdictional (alternatively labeled as "claim-processing"), the district court had subject-matter jurisdiction over Mader's action, and its dismissal on Rule 12(b)(1) grounds was in error. Henderson, 131 S.Ct. at 1202-03. In that latter scenario, the agency's remedy would be to assert noncompliance with the DOJ's presentment regulation as an affirmative defense under Federal Rule of Civil Procedure 12(b)(6). See Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527, 532-33 (7th Cir. 2006). If the rule is classified as nonjurisdictional, compliance with it can be forfeited if not timely asserted. Eberhart v. United States, 546 U.S. 12, 14, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005).

In deciding whether the presentment regulation in section 14.2(a) is claim-processing or jurisdictional, I am persuaded by the reasoning of other courts to consider the issue. With the arguable exception of this court in Lunsford and the Third Circuit in Pennsylvania v. National Ass'n of Flood Insurers, 520 F.2d 11 (3d Cir. 1975), other circuits have characterized the regulation in section 14.2(a) as non-jurisdictional. See Santiago-Ramirez, 984 F.2d at 19; Kanar, 118 F.3d at 531; GAF Corp., 818 F.2d at 920; Warren, 724 F.2d at 780; Douglas, 658 F.2d at 447-48; Adams, 615 F.2d at 291-92 n. 15. They had good reasons for doing so. First, Congress did not authorize the Attorney General to promulgate any regulations under section 2675 of the FTCA. The DOJ purportedly drew its authority from section 2672 of the Act, which empowers the Attorney General to promulgate settlement-related regulations. But, as noted above, the purposes of section 2672 are distinct from the purposes of section 2675. Authority to define requirements for a final settlement does not necessarily translate into authority to define presentment for jurisdictional purposes in the same way as an offer to settle does not translate into an edict to accept it.

Second, an administrative agency is not at liberty to contract or expand the scope of the courts' jurisdiction; only Congress can do so. Kontrick v. Ryan, 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ("Only Congress may determine a lower federal court's subject-matter jurisdiction."); cf Harris v. U.S. R.R. Ret Bd, 198 F.3d 139, 142 (4th Cir. 1999) ("This court may not base its jurisdictional predicate on the authority of an administrative agency instead of on the authority of the United States Congress."). "There is no evidence that Congress wished to restrict access to the courts in cases where settlement was not possible by creating jurisdictional obstacles during the settlement process." Warren, 724 F.2d at 779 n. 6. Because the FTCA lacks the congressional blessing to alter the extent of the courts' jurisdiction by way of regulations, the DOJ's actions in extending section 14.2 to section 2675 are a nullity for the purposes of interpreting exhaustion under section 2675.

It is true Congress authorized the Attorney General to establish procedures to be observed in the event of a settlement, and the DOJ did so in 28 C.F.R. § 14.1-14.11. The government does not argue that all of these requirements can be used to divest the court of jurisdiction; it asserts that only section 14.2, entitled "Administrative claim; when presented," is of jurisdictional significance. Yet it struggles to articulate the difference between that section and, for example, section 14.4, entitled, "Administrative claims; evidence and information to be submitted." Both of these regulations are promulgated on the basis of the same congressional grant of authority contained in section 2672. Congress did not endow the Attorney General with any more authority to promulgate section 14.2 than it did to pass section 14.4. It would be thus improper to accord greater significance to requirements in section 14.2 than to requirements in section 14.4.

Third, the regulation at issue looks, smells, and tastes like a classic claim-processing rule. The FTCA itself does not call on the claimant to present particular evidentiary materials in order to discharge his obligations under section 2675, and the evidentiary obligations memorialized in the regulations are not connected to the concept of jurisdiction even by virtue of section 1346. See Kontrick, 540 U.S. at 448, 124 S.Ct. 906 (referencing the absence of any time limits from the statute as a reason for concluding the time requirement established through the court rule was not jurisdictional). There is no sign, much less a "clear indication," as to Congress requiring the rule to be jurisdictional. Henderson, 131 S.Ct. at 1205. The proposed treatment of the rule as affecting the courts' jurisdiction has been repeatedly rejected by the courts. Cf. Bowles v. Russell, 551 U.S. 205, 209-11, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (affirming jurisdictional treatment of the time limitation for filing a notice of appeal contained in 28 U.S.C. § 2107(a) based on a long line of the Supreme Court decisions left undisturbed by Congress). Together, these characteristics lead me to conclude that, like other regulations promulgated under section 2762, section 14.2 establishes a claim-processing rule merely "seek[ing] to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson, 131 S.Ct. at 1203.

Finally, I write to address the last point raised by the majority sua sponte — Mader's lack of standing. After an exhaustive discussion and the determinative ruling on the evidence-of-authority subject, the majority invokes the prudential element of standing to conclude, in the alternative, Mader does not have standing. This invocation is ironic, for the whole purpose of prudential standing, as explained by the Supreme Court, is to absolve courts from having to decide "abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Far from avoiding the issue, the majority devotes ninety-five percent of its discussion to the very subject it deems abstract and unnecessary to address.

Considered on the merits, the standing issue is a red herring. In concluding Mader lacks standing, the majority adopts a myopic view of this complex term. In general, "standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. Ill case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction." Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). The doctrine of prudential standing, upon which the majority relies, comprises "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Although it is not clear which of these three rules the majority invokes, it is safe to say its ruling does not rest on the prohibition against filing generalized grievances.

Out of the two remaining rules within the prudential standing umbrella, the first ensures the plaintiff "assert[s] his own legal rights and interests, and [does not] rest his claim to relief on the legal rights or interests of third parties." Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). As the decedent's widow and thus a direct beneficiary of a wrongful death action under Nebraska law, Mader undoubtedly satisfies this requirement. See Neb. Stat. Ann. § 30-810 ("Every [wrongful death] action . . . shall be brought by and in the name of the person's personal representative for the exclusive benefit of the widow or widower and next of kin."). The Nebraska Supreme Court explained the cause of action in the state's wrongful death statute inures solely to the widow or the next of kin. Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1, 9 (2009); Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19, 22 (1982). Albeit authorized to bring a claim in court, a personal representative who is neither a widow nor the next of kin does not share in the proceeds of recovery at all. Perez v. Stern, 279 Neb. 187, 777 N.W.2d 545, 554 (2010) ("The personal representative's sole task is to distribute any recovery in accordance with the statute, to the discrete and identifiable class of beneficiaries that the Legislature has specifically designated."). Another critical point under the Nebraska wrongful death law is that the statutory beneficiary is reimbursed for his own loss, as opposed to the decedent's damages. Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25, 29 (1989). It is therefore hard to imagine a person with a more direct stake in the recovery than a decedent's widow.

The remaining prudential standing test looks at whether the plaintiffs grievance "arguably falls within the zone of interests protected or regulated by the statutory provision invoked in the suit." Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir. 2002). The application of this test "varies according to the provisions of law at issue." Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The statutory provision invoked in this suit is the FTCA, which allows the plaintiff to recover for

injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.

To the extent state law is incorporated into section 1346 analysis, see Devlin v. United States, 352 F.3d 525, 531-34 (2d Cir. 2003) (debating whether a phrase "injury or loss of property," as used in section 1346 of the FTCA, should be interpreted as a matter of federal common law or state law), the Nebraska wrongful death statute allows Mader to recover for the loss she "sustained after [her husband's] death by reason of being deprived of what [she] would have received from [her husband] from the date of his . . . death, had he . . . lived out a full life expectancy." Corona de Camargo, 776 N.W.2d at 7. Indeed, the interests of the beneficiaries under the Nebraska statute are so direct that even a lawyer hired by a personal representative to pursue a wrongful death action owes an independent duty to these beneficiaries, notwithstanding a lack of privity between the lawyer and the beneficiaries. Perez, 777 N.W.2d at 550-52. Since the wrongful death statute so closely guards the interests of widows and next of kin, Mader's grievance more than "arguably" falls within the zone of interests protected by section 1346. Cf. Van Fossen v. United States, 430 F.Supp. 1017, 1021 (N.D.Cal. 1977) (concluding it would be "specious to argue that persons who are named as statutory beneficiaries with a right to an accounting from their personal representatives are not legally entitled to assert a claim for wrongful death" to exhaust their claims under section 2675); see also Jones v. Prince George's County, Maryland, 348 F.3d 1014, 1017-18 (D.C. Cir. 2003) (allowing intervention of the beneficiary in a wrongful death suit brought by a personal representative of the decedent's estate and rejecting the argument as to state law restricting the right to commence an action to a personal representative deprived the beneficiary-intervenor of standing).

The analytical mistake in the majority's reasoning lies in conflating the standards for evaluating standing with those for measuring sufficiency of the cause of action. The Supreme Court has urged lower courts to keep "standing" and "cause of action" conceptually distinct. Bond v. United States, ___ U.S. ___, 131 S.Ct. 2355, 2362, 180 L.Ed.2d 269 (2011). The former concept goes to justiciability, while the latter affects merits. Id. Whatever this court has held with respect to section 1983 actions, see Erlin v. United States, 364 F.3d 1127, 1132 (9th Cir. 2004) (emphasizing differences between the FTCA and section 1983), the deficiencies in Mader's status as a personal representative of her deceased husband's estate relate to the classic cause-of-action inquiry "whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court." Davis, 442 U.S. at 239 n. 18, 99 S.Ct. 2264. These deficiencies do not undermine Mader's "sufficiently adversary" interest in recovery as the most likely beneficiary under the Nebraska wrongful death statute. Id. Accordingly, any flaws in Mader's appointment as a personal representative must be timely asserted by the government in a motion under Rule 12(b)(6), and not sua sponte by the appellate court at this late juncture in the judicial proceedings. Arbaugh v. Y H Corp., 546 U.S. at 506, 126 S.Ct. 1235; see also Day v. McDonough, 547 U.S. 198, 217, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ("Ordinary civil practice; does not allow a forfeited affirmative defense whose underlying facts were not developed below to be raised for the first time on appeal").

For the foregoing reasons, I respectfully dissent.