Francis G. Watson v. RYAN P. MOLCHAN, Doctor;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCIS G. WATSON,
Plaintiff-Appellant,
v.
RYAN P. MOLCHAN, Doctor; et al.,
Defendants-Appellees.
No. 17-16114
D.C. No.
2:16-cv-00608-RFB-CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted January 18, 2019**
San Francisco, California
Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.
Francis Watson appeals from the district court’s dismissal for lack of
jurisdiction of his Federal Tort Claims Act action against the United States. We
have jurisdiction under 28 U.S.C. § 1291, and we conclude that the district court
did not lack jurisdiction. We therefore reverse and remand the case to the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court.
Watson brought a medical malpractice suit in Nevada state court on April
30, 2015, alleging the professional negligence of Dr. Ryan Molchan. Molchan
worked at Nellis Air Force Base, so Watson also presented an administrative claim
to the federal government. The claim was eventually received by the Air Force,
and thus properly “presented” for administrative review, on May 18, 2015. See 28
C.F.R. § 14.2(b)(1) (“A claim shall be presented as required by 28 U.S.C. §
2401(b) as of the date it is received by the appropriate agency”). At the latest, this
claim was deemed “finally denied” six months later, when the Air Force had not
yet acted. See 28 U.S.C. § 2675(a) (“The failure of an agency to make final
disposition of a claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for purposes of
this section”).
On February 19, 2016, the Attorney General certified that Molchan was
acting within the scope of his employment for the United States. The case was
removed to Nevada District Court on March 18, 2016 and the United States was
substituted as a defendant for Molchan. See 28 U.S.C. § 2679(d)(1). The district
court dismissed the case for lack of jurisdiction because Watson had filed his
complaint in state court before his claim was finally denied by the Air Force. See
28 U.S.C. § 2675(a).

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The district court did not lack jurisdiction. “[J]urisdiction under section
2675(a) is determined as of the date that the Attorney General removes the suit to
federal court, rather than the date the plaintiff files the action against the
[individual defendant] in state court.” Staple v. United States, 740 F.2d 766, 768
(9th Cir. 1984). Here, the Attorney General removed the action on March 18, 2016,
four months after Watson exhausted his administrative remedies with the Air
Force. The claim was therefore exhausted. The United States’ attempts to
distinguish this clear precedent are unpersuasive.
REVERSED and REMANDED.

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