Dom Wadhwa, M.d.; Sharon A. Finzie, R.n. v. R. JAMES NICHOLSON, Secretary or Current VA Secretary Department of Veterans Affairs…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3555
___________
DOM WADHWA, M.D.;
SHARON A. FINZIE, R.N.,
Appellants
v.
R. JAMES NICHOLSON,
Secretary or Current VA Secretary
Department of Veterans Affairs
____________________________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 09-cv-02602)
District Judge: Honorable Mary A. McLaughlin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 1, 2010
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges.
(Filed:February 16, 2010)
_________
OPINION OF THE COURT
_________
PER CURIAM
Appellants Dom Wadhwa and Sharon Finzie appeal from an August 5, 2009, order
of the United States District Court for the Eastern District of Pennsylvania dismissing

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Appellants filed four District Court actions against Nicholson and other VA officials;1
those actions were consolidated in October 2007. See Wadhwa v. Nicholson, Civ. Action
No. 07-3301 (E.D. Pa.). In April 2009, Nicholson was dismissed as a defendant in the
consolidated action. Accordingly, Appellants “filed a new complaint alleging liability on
the part of Nicholson under the FTCA arising out of the conduct complained of in action
number 07-3301.” See District Court Order, August 5, 2009, at 1 (Docket No. 7).
Throughout their submissions in this appeal, Appellants have provided detailed
arguments relevant only to the consolidated action. Claims of error in the consolidated
action are not properly before us and we therefore will not consider them.
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their complaint without prejudice. For the following reasons, we will affirm the District
Court’s order.
I. Background
Because we write solely for the benefit of the parties, we will set forth only those
facts necessary for our analysis. Appellants are employed by the Philadelphia Veterans
Affairs Medical Center (“PVAMC”). They claim that, on June 26, 2007, certain officials
in the Department of Veterans Affairs (“VA”) falsely alleged that Appellants stole
PVAMC property and wrongfully ordered Appellants’ arrest. On July 1, 2009,
Appellants filed a complaint pursuant to the Federal Tort Claims Act (“FTCA”) against
Appellee R. James Nicholson, the Secretary of the VA, claiming that Nicholson is
vicariously liable for their wrongful arrest. They seek damages and other forms of relief.1
Nicholson moved to dismiss the complaint, arguing that Appellants failed to
exhaust their administrative remedies. On August 5, 2009, the District Court granted
Nicholson’s motion and dismissed the complaint without prejudice. On August 21, 2009,
Appellants filed a motion seeking to hold the proceedings in abeyance pending receipt of

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Under the FTCA, the only party potentially answerable for any alleged injury is the2
United States. See 28 U.S.C. § 2679(b)(1); CNA v. United States, 535 F.3d 132, 138 n.2
(3d Cir. 2008).
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a final agency decision in the administrative proceedings. The District Court denied the
motion.
Proceeding pro se, Appellants timely filed a notice of appeal.
II. Analysis
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See also Erie
County Retirees Ass’n v. County of Erie, Pa., 220 F.3d 193, 202 (3d Cir. 2002) (a
dismissal without prejudice is final and appealable where the order effectively ends the
suit). We exercise plenary review over the District Court’s decision to dismiss the
complaint. See AT&T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006).
A.
The FTCA waives the sovereign immunity of the United States for certain torts
suffered by federal employees acting within the scope of their 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.” 28 U.S.C.2
§ 1346(b)(1). Under the FTCA, an individual must file his or her tort claim with the
appropriate federal agency. See 28 U.S.C. § 2675(a); Santos ex rel. Beato v. United
States, 559 F.3d 189, 193 (3d Cir. 2009). If the agency denies the claim or fails to resolve

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“The failure of an agency to make final disposition of a claim within six months after3
it is filed shall . . . be deemed a final denial of the claim. . . .” 28 U.S.C. § 2675(a).
In their reply brief, Appellants argue that “the United States simply has not rendered4
itself liable under § 1346(b) for constitutional tort claims such as ours . . . Thus, because
our constitutional tort claim is not cognizable under § 1346(b), the FTCA does not
constitute our ‘exclusive’ remedy.” Appellants’ Reply Brief at 10. It is unclear from this
argument whether Appellants are attempting to present a new theory of liability distinct
from their claim under the FTCA. If so, we will not consider such a new claim because
Appellants failed to first present it to the District Court. See Gleason v. Norwest
Mortgage, Inc., 243 F.3d 130, 142 (3d Cir. 2001).
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it within six months, the claimant may proceed by filing a civil action in District Court.3
Id.
An agency’s final denial of the tort claim is a jurisdictional requirement that cannot
be waived. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009). Here,
Appellants acknowledge that they initiated an administrative action raising their tort claim
against Nicholson by filing the “Standard Form 95” with the VA on June 8, 2009. See
App’x at 29-33. Appellants also concede that they filed their FTCA complaint in District
Court before receiving a final denial of their claim from the VA and before six months
had elapsed. See Appellants’ Reply Brief at 5. Thus, there is no dispute that Appellants
had not received the necessary final denial of their administrative claim at the time they
filed their complaint. See Lightfoot, 564 F.3d at 627.
Because they lacked a final agency denial, Appellants failed to satisfy a
jurisdictional prerequisite to initiating a civil action under the FTCA. Id. The District
Court therefore properly dismissed Appellants’ complaint. See McNeil v. United States,4

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Appellants contend that other Courts have permitted prematurely-filed FTCA5
complaints to survive dismissal so long as no substantial progress has taken place before
the flaw is “cured” by issuance of a final agency decision. However, the United States
Supreme Court rejected this approach in McNeil, 508 U.S. at 112 (“Congress intended to
require complete exhaustion of Executive remedies before invocation of the judicial
process.”). McNeil clarified that administrative exhaustion must be complete before
instituting suit, and that this procedural rule is a requirement to which all litigants must
adhere. Id. at 113.
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508 U.S. 106, 113 (1993).
B.
Appellants contend they prematurely filed this civil action due to a concern that, if
they were to await the VA’s decision on their claim against Nicholson, their federal suit
could potentially be barred by “the two-year statute of limitations.” See Appellants’
Reply Brief at 1-2. Thus, they argue, the District Court should not have dismissed their
complaint, but instead should have held the proceedings in abeyance pending Appellants’
receipt of a final agency decision.
We disagree. The Supreme Court has expressly instructed that “[t]he FTCA bars
claimants from bringing suit in federal court until they have exhausted their
administrative remedies.” McNeil, 508 U.S. at 113. Appellants violated the strict5
requirement that administrative exhaustion must be complete before a party may institute
a civil action in District Court under the FTCA. Id. at 112-13.
In any event, the Appellants’ concern over the statute of limitations is misplaced.
The two-year limitations period to which Appellants refer is set forth in 28 U.S.C.

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The issue of whether Appellants timely filed their administrative claim with the VA6
under 28 U.S.C. § 2401(b) is not before us and we will not address it.
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§ 2401(b), which provides that an FTCA claim is “forever barred” unless it is “presented
in writing to the appropriate Federal agency within two years after such claim accrues. . .
.” Id.; see also Santos, 559 F.3d at 193.
Thus, the two-year limitations period does not pertain to the time for Appellants to
file their complaint in District Court. Rather, the relevant period for filing a complaint in6
District Court is set forth in the latter portion of 28 U.S.C. § 2401(b), which provides that
administrative exhaustion is necessary to trigger the limitations period. Specifically, a
civil action under the FTCA is barred unless it is “begun within six months after the date
of mailing . . . of notice of final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b); see also 28 U.S.C. § 2675(a).
As we have already discussed, when Appellants filed the FTCA complaint in the
District Court, there had not yet been a final agency denial of their claim against
Nicholson. Accordingly, the six-month limitations period had not yet begun to run at the
time. See 28 U.S.C. § 2401(b). When the District Court dismissed Appellants’
complaint, it did so without prejudice and with the express recognition that Appellants
“may re-file their complaint after the claims contained therein have been properly
exhausted.” We agree with the District Court’s disposition. The District Court did not
abuse its discretion by denying Appellants’ motion to hold the proceedings in abeyance.

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C.
Finally, Appellants claim the District Court erred by failing to order oral argument
prior to dismissing the complaint. Under the Federal Rules of Civil Procedure, “[b]y rule
or order, the court may provide for submitting and determining motions on briefs, without
oral hearings.” Fed. R. Civ. P. 78(b). The United States District Court for the Eastern
District of Pennsylvania has adopted such a rule. Pursuant to Local Rule 7.1(f), “[t]he
court may dispose of a motion without oral argument.”
The issues before the District Court on the motion to dismiss were straightforward
and clearly presented in the parties’ written submissions. Appellants have failed to cite
any authority demonstrating that oral argument was necessary. Under the applicable
rules, the District Court acted well within its discretion by declining to hear oral argument
in this case.
III. Conclusion
For the foregoing reasons, we will affirm the order of the District Court.

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