PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1011

ESTATE OF ELEUSIPA VAN EMBURGH, by and through its Administrator James Michael Van Emburgh; JAMES MICHAEL VAN EMBURGH, Individually; JAMES ALAN VAN EMBURGH, Individually; IMELDA CROVETTO, Individually; AMY RIVERA, Individually; ALEXIS NAVARRO, Individually; RAFAEL NAVARRO, Individually,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:21−cv−00603−RAJ−LRL)

Argued: December 7, 2023 Decided: March 12, 2024

Before GREGORY, WYNN, and RUSHING, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Gregory joined. Judge Rushing wrote a dissenting opinion.

ARGUED: Benjamin Aaron Beliles, BELILES & ASSOCIATES, PLLC, Richmond, Virginia, for Appellants. Daniel Patrick Shean, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Anna M. McKenzie, Assistant United States USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 2 of 28

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

2 USCA4 Appeal: 23-1011 Doc: 31 Filed: 03/12/2024 Pg: 3 of 28

WYNN, Circuit Judge:

Plaintiffs brought this action against the United States pursuant to the Federal Tort

Claims Act (“FTCA”), asserting negligence, wrongful death, and survival claims arising

from Eleusipa Van Emburgh’s death after she was treated at a Navy medical center. The

district court dismissed their claims for lack of subject matter jurisdiction, and this appeal

followed. Because we hold that regulations enacted pursuant to 28 U.S.C. § 2672 do not

impose distinct jurisdictional requirements in addition to those contained in 28 U.S.C

§ 2675, we reverse as to six of the plaintiffs and remand for further proceedings. But

because one plaintiff, Imelda Crovetto, failed to satisfy one of the jurisdictional

requirements listed in § 2675, we affirm as to her claims.

I.

A.

On October 2, 2019, Van Emburgh underwent an operation at a Navy medical center

in Virginia. During the operation, she suffered a surgical perforation that Van Emburgh’s

estate (“the Estate”), her spouse, and her five children (collectively, “Plaintiffs”) allege

resulted from and was worsened by negligent care. Van Emburgh was eventually

transferred to a hospital that was not affiliated with the Navy or Department of Defense.

After several weeks at the second hospital, she was discharged to her home. On November

9, 2019, three days after returning home, she died from complications related to the surgical

perforation.

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B.

On April 27, 2020, each of the seven Plaintiffs submitted an administrative claim to

the Navy for damages, alleging that Van Emburgh’s medical complications and death were

the result of substandard care she received at the Navy medical cente

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