Tuesday, May 26, 2026
Page 3
Ninth Circuit:
State Law Governs Preclusion Under Federal Tort Claims Act
Opinion Rejects View That 2001 Supreme Court Decision Establishing That U.S. Law Controls Issue in Diversity Actions Guts Precedential Effect of Earlier Cases Dealing With Suits Against Government
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday that a judge wrongly granted summary judgment to the defense in an earlier-filed case after ruling that a second matter involving the same dispute was time-barred, saying that state law applies to the question of claim preclusion in tort cases brought against the U.S. and California cases look to fairness principles to determine whether resolution of an issue in one action will control in another.
Friday’s decision, written by Circuit Judge Mark J. Bennett, reaffirms that state law governs in cases brought against the U.S. under the Federal Tort Claims Act (“FTCA”) and rejects the view that earlier Ninth Circuit jurisprudence has been called into question by the 2001 U.S. Supreme Court decision in Semtek International Inc. v. Lockheed Martin Corp., which held that federal law governs claim preclusion in diversity actions.
Acknowledging a circuit split on the issue, Bennett wrote:
“The fate of [the plaintiff’s] first suit turns largely on whether the FTCA’s directive to apply state law includes state claim preclusion law. We have answered that question before, in the affirmative. In [the 1959 decision in] Filice v. United States, we applied the law of the State where the act or omission occurred in determining the claim preclusive effect of a prior FTCA judgment….We have found no intervening higher authority ‘clearly irreconcilable’ with this circuit precedent, so we as a three-judge panel remain bound by Filice.”
Saying that California law applies because the alleged tortious conduct occurred at a Solano County medical center operated by the U.S. Department of Veterans Affairs (“VA”), he opined:
“Applying California law, we determine that the…judgment [in the second case] did not have claim preclusive effect. And even if it did, we alternatively conclude that California’s public policy exception to claim preclusion would apply.”
Assault Alleged
The question arose after Orlonzo Hedrington filed an administrative claim with the VA in August 2017, alleging that he was sexually assaulted while unconscious following a cardiac surgery performed at a medical center located on the Travis Air Force Base in January 2016. The claim was denied the following February.
In August 2018, he filed suit against the U.S. for negligence under the FTCA, which allows plaintiffs to seek damages from the government for certain torts committed by federal employees. After the U.S. pointed out that he had represented to a bankruptcy court in April 2017 that he had no potential lawsuits or claims, he agreed to substitute the estate’s trustee, Peter Fear, as plaintiff in the case (referred to in the opinion as “Hedrington I”).
He then filed a second complaint in state court on Jan. 13, 2020 (“Hedrington II”), making factual allegations similar to those raised in the federal action but naming new defendants, including the medical center and certain staff.
That case was removed and assigned to the same judge overseeing the earlier-filed federal action. The government moved for summary judgment in Hedrington II, arguing that any claims against the medical center defendants were blocked by sovereign immunity and those asserted against the U.S. were time-barred because the complaint had not been filed within six months of the denial of his administrative claim.
In 2021, Chief District Court Judge Kimberly J. Mueller of the Eastern District of California granted the request, and judgment was entered for the U.S. while all claims against the medical-center defendants were dismissed without prejudice for lack of jurisdiction.
The U.S. then moved for summary judgment in Hedrington I, asserting claim preclusion and insufficient evidence. Mueller granted the request on both grounds in January 2023.
After Fear abandoned the case, Hedrington timely appealed. Friday’s decision, joined in by Circuit Judges Michelle T. Friedland and Gabriel P. Sanchez, reverses the judgment.
State Law
Noting that 28 U.S.C. §1346 provides that federal district courts have “exclusive jurisdiction” over actions brought under the FTCA and directs the U.S. courts to apply the “law of the place where the act or omission occurred,” Bennett said:
“[W]e face a threshold question: Which body of law—state or federal—governs the judgment’s claim preclusive effect? The United States argues that the district court correctly applied federal law, under which a dismissal for untimeliness carries claim preclusive effect. Hedrington disagrees….”
Saying that, “[a]s a three-judge panel, we remain bound by Filice” unless intervening U.S. Supreme Court jurisprudence undercuts the theory or reasoning supporting the prior circuit precedent. Addressing the impact of the Semtek decision, Bennett opined:
“Semtek did not undercut Filice. If anything, Semtek supports Filice because the Court suggested there that a ‘federal textual provision’ could prescribe the preclusive effect of federal court judgments….And as discussed, the FTCA’s command to apply ‘the whole law of the State where the act or omission occurred,’…can be understood as including a directive to apply that State’s claim preclusion law. Filice, in turn, can be understood as having followed that congressional directive.”
He continued:
“The United States argues that we should nonetheless apply federal claim preclusion law because, ‘[i]n an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action….’ This argument builds on the correct observation that, when presented with a valid federal judgment, California courts generally apply ‘federal claim preclusion law…without reference to California law.’ ”
Precedent Governs
However, he remarked:
“But in this Circuit, the claim preclusive effect of a FTCA judgment is determined by Filice—under which federal law incorporates the claim preclusion rule of the State where the act or omission occurred.”
In a footnote, he added that the reasoning behind Semtek “cannot have been that the claim preclusive effect of federal judgments is determined by federal common law to the exclusion of federal statutory law,” as such a theory would undermine other U.S. Supreme Court cases.
Applying California law, he declared:
“[A] prior judgment of dismissal based on the statute of limitations lacks claim preclusive effect….Because Hedrington II was dismissed as time-barred, the district court erred by giving claim preclusive effect to a judgment that, under the applicable law, did not have such effect.”
Asserting that Hedrington has not had the opportunity to litigate the merits of his case, Bennett said that a California public policy exception also applies to block claim preclusion. In an accompanying memorandum decision, the panel opined:
“At summary judgment, Hedrington testified…that during inpatient recovery from heart surgery, while unconscious, he suffered an injury to his rectal area….[T]he alleged injury is ‘of a kind which ordinarily does not occur in the absence of someone’s negligence,’….Thus, res ipsa loquitur’s ‘presumption of negligence’ applies here….Under that presumption, Hedrington’s evidence raises a triable issue of material fact that precludes summary judgment on the negligence claim. We reverse the order granting summary judgment and remand for further proceedings….”
The case is Hedrington v. U.S., 23-15191.
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