UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEBORAH WHEATLEY, as
Administrator of the Estate of Fiona
Wright, deceased,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,                                             No. 98-2658
Defendant-Appellee,

and

FAIRFAX COUNTY FIRE & RESCUE
DEPARTMENT; GODWIN CORPORATION,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-98-580-A)

Argued: September 24, 1999

Decided: November 30, 1999

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge King wrote an
opinion dissenting in part.

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COUNSEL

ARGUED: Kenneth Warren Smith, MILLER & ASSOCIATES,
Alexandria, Virginia, for Appellant. Jeri Kaylene Somers, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Michael J. Miller, MILLER & ASSOCIATES, Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Deborah Wheatley appeals from the district court's order
dismissing her negligent treatment claims against military guards in
Virginia and a military hospital in Georgia arising out of treatment
administered to her now-deceased daughter in 1997 and 1994, respec-
tively. For the reasons that follow, we affirm.

I.

Fiona Wright, decedent, was treated for asthma at Winn Army
Hospital at Fort Stewart, Georgia, in September of 1994 and again in
March of 1996.

On April 3, 1997, Wright awoke at home having difficulty breath-
ing, and Wheatley, Wright's mother and now the administrator of
Wright's estate, drove Wright to the Pence Gate at Fort Belvoir, Vir-
ginia, on her way to the DeWitt Army Hospital on the base. Wheatley
drove while holding Wright (who had fainted) with one hand and
working the stick shift with the other.

The guards at Pence Gate stopped Wright, as is the routine, were
told by Wheatley that her daughter was not breathing, and saw that
Wright was leaning over the console of the car. The guards removed

                    2
Wright from the car, called their supervisor (who contacted emer-
gency services), and performed rescue breathing on Wright until
emergency personnel arrived to transport her to the hospital, where
she died later that morning.

On August 13, 1997, Wheatley submitted Standard Form 95 for
damages under the Federal Tort Claims Act (FTCA), and included a
notice of claim, which identified the location of the injuries as DeWitt
Army Medical Center and the Winn Army Hospital, and the time
frame as "the calendar year 1996 [continuing] into 1997 until April
3, 1997." J.A. 98.

The Department of the Army denied the claim on April 1, 1998.
Following the filing of suit in federal district court, the court granted
the government's motion to dismiss Wheatley's case on the grounds
that the guards were protected by Virginia's Good Samaritan law and
that any claims Wheatley made as to Wright's treatment at Winn
Army Hospital in 1994 were barred for failure to exhaust administra-
tive remedies. This appeal followed.

II.

Appellant first claims that the district court erred in concluding that
Virginia's Good Samaritan statute, Va. Code § 8.01-225(A)(1), pro-
tected the guards at Pence Gate from suit. In this regard, Wheatley
contends that the guards created, rather than responded to, an emer-
gency by refusing to wave her through the gate in the first instance.

Because the FTCA makes the United States liable for injury "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.§ 1346(b) (emphasis added),
Virginia law applies to Wheatley's claim that the guards acted negli-
gently at the gate. Virginia's Good Samaritan statute reads:

          Any person who, in good faith, renders emergency care or
          assistance, without compensation, to any ill or injured per-
          son at the scene of an accident, fire, or any life-threatening
          emergency, or en route therefrom to any hospital, medical

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          clinic or doctor's office, shall not be liable for any civil
          damages for acts or omissions resulting from the rendering
          of such care or assistance.

Va. Code § 8.01-225(A)(1) (emphasis added).

There is no question that the guards rendered emergency care assis-
tance, as described in the Virginia statute, when they performed res-
cue breathing on Wright after removing her from the car. The only
question is whether the guards were protected by the statute when
they did not immediately wave Wheatley's car through the gate.
Because the life-threatening emergency -- Wright's inability to
breathe -- began before she arrived at the gate, and was apparent to
the guards at the gate, the acts of the guards to provide emergency
assistance, including the act of maintaining the car at the gate for that
purpose, are clearly covered by the statute.

Wheatley argues that the guards' acts of stopping and holding the
car at the gate were not in the course of the guards' administration of
emergency care assistance because, she maintains, these acts created
the emergency, and were therefore not a response to an emergency.
See Appellant's Br. at 8. The record, however, clearly shows that the
emergency had begun long before Wheatley reached the gate:
Wright's asthma attack began at home, J.A. 9. In obvious recognition
of the emergency, Wheatley had driven through at least one red light
in route to the hospital, J.A. 33, operating the stick shift with one
hand while supporting her daughter's body with the other hand, J.A.
111-12. In fact, at the gate, Wheatley herself informed the guards that
her daughter was not breathing, J.A. 42. Finally, Wheatley even
described the incident in her administrative complaint as "an arriving
emergency." J.A. 90. Therefore, at the time the guards made the deci-
sion not to wave Wheatley through, they were already presented with
a life-threatening emergency as encompassed by the statute. Their
administration of emergency assistance began when they chose to
hold the car and to perform rescue breathing while other professional
emergency care assistance was on the way.

Because the guards' decision to hold Wright at the gate was made
in the course of administering emergency care assistance during a
life-threatening emergency, the district court did not err in holding

                     4
that Virginia's Good Samaritan statute protected the guards from suit
for their actions.

III.

Appellant also argues that the district court erred in concluding that
her claim of negligence at Winn Army Hospital in 1994 was barred
because she had failed to exhaust her administrative remedies.

The FTCA requires a person suing the federal government to "have
first presented the claim to the appropriate Federal agency." 28 U.S.C.
§ 2675(a). This requirement is jurisdictional and cannot be waived.
See Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994). As this
court explained in Ahmed,

          Section 2675(a) . . . and 28 C.F.R. § 14.2(a) require two ele-
          ments for sufficient presentment of a claim to an agency: (1)
          written notice sufficient to cause the agency to investigate,
          and (2) a sum-certain value on the claim.

Id. at 517 (emphasis added).

In her administrative claim, Wheatley identified the time period for
the injuries as "the calendar year 1996 . . . until April 3, 1997." J.A.
98. In denying the claim, the Department of the Army found no negli-
gence "during the period January 1996 through April 3, 1997." J.A.
15. Because there was a visit to Winn Army Hospital in 1996, during
the time period referenced by Wheatley, there was nothing in the
administrative claim "to cause the agency to investigate" events in
1994 at the same hospital. Therefore, the district court did not err in
concluding that Wheatley could not bring her 1994 claim before the
court because she had not exhausted her administrative remedies on
that claim.

Accordingly, for the reasons stated herein, the judgment of the dis-
trict court is affirmed.

AFFIRMED

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KING, Circuit Judge, dissenting in part:

Because I believe the majority has overbroadly applied the "Good
Samaritan" defense to the claims arising from the events at Pence
Gate, I respectfully dissent.1 Put simply, Ms. Wheatley asserts that the
guards were negligent in refusing to allow her to pass promptly
through Pence Gate and deliver her ailing fourteen-year-old daughter,
Fiona Wright (the dependent child of an American soldier), to the
nearby DeWitt Army Community Hospital on Fort Belvoir. On its
face, this allegation states a claim not barred by the Good Samaritan
defense, and it should not have been dismissed under Rule 12(b)(6).2

I.

In this appeal, we must determine whether Virginia's Good Samar-
itan statute immunizes, as a matter of law, each allegedly negligent
act of the guards at Pence Gate on that fateful night in April 1997.
While I have no quarrel with this statute, the immunity it provides is
in derogation of common law liability and must be strictly construed.
See Barnette v. Dickens, 135 S.E.2d 109, 112 (Va. 1964) ("Generally
the test for negligence is whether the act or omission was done in the
exercise of reasonable care"); Creasy v. United States, 645 F. Supp.
853, 856 (W.D. Va. 1986) ("volunteers are normally liable for negli-
gence in Virginia"); Gilpin v. Joyce, 515 S.E.2d 124, 126 (Va. 1999)
("Under familiar principles, because this statute is in derogation of the
common law, we will strictly construe it.").
_________________________________________________________________
1 I agree that Ms. Wheatley failed to exhaust her administrative reme-
dies in connection with her claim of negligence at Winn Army Hospital
in 1994, and I therefore concur in the balance of the majority opinion.
2 We review a Rule 12(b)(6) dismissal de novo. Estate Constr. Co. v.
Miller & Smith Holding Co., Inc., 14 F.3d 213, 217 (4th Cir. 1994). In
the course of that review, we construe each factual allegation -- and the
inferences therefrom -- in the nonmoving party's favor, treating them as
true. Id. at 217-18. Thus, "[t]he purpose of a Rule 12(b)(6) motion is to
test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion
does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d
231, 243-44 (4th Cir. 1999) (quotation omitted).

                    6
Ms. Wheatley plainly alleges that the guards were negligent in "re-
fusing to allow the plaintiff to pass through the gate and take the
decedent directly to the emergency room." Because the guards con-
trolled outside access to DeWitt Hospital, Ms. Wheatley contends
they had a duty to permit certain persons (including, for example,
patients in distress) to proceed promptly through Pence Gate.3 This is
a duty separate and distinct from any arising from the provision of
emergency care. Ms. Wheatley thus states a claim under Virginia law:
if she should have been permitted to promptly pass through Pence
Gate, and the guards negligently impeded her from so doing, Ms.
Wheatley may well be entitled to tort relief for her daughter's tragic
death.

Whatever we say or believe about Ms. Wheatley's likelihood of
success on this claim, one thing is clear; the Good Samaritan statutory
defense under Virginia law did not and could not insulate the guards'
initial acts at Pence Gate. In fact, by the time the guards began render-
ing emergency care, the negligent act -- preventing Ms. Wheatley
from delivering Fiona directly to the emergency room-- was com-
plete. Given that the plain language of the statute immunizes the
guards only "for acts and omissions resulting from the rendering of
such [emergency] care or assistance," Va. Code § 8.01-225(A)(1), the
Good Samaritan defense is simply inapplicable to this part of Ms.
Wheatley's claim.4
_________________________________________________________________
3 Ms. Wheatley's counsel represented at oral argument that Fort
Belvoir was an open post and that Ms. Wheatley had a sticker on her car
authorizing her presence there, implying that the guards should not have
stopped her in the first place. The Government contravened these asser-
tions at oral argument. In so doing, the Government demonstrated that
there is a material factual dispute -- fatal to a Rule 12(b)(6) dismissal.
4 Under similar circumstances, a Connecticut Superior Court held that
the Good Samaritan defense did not insulate ambulance personnel from
liability. See Shomsky v. City of Shelton Police Dep't, 1997 WL 746380
(Ct. Super. Ct. 1997) (unpublished disposition). In Shomsky, the plaintiff
claimed that ambulance personnel were negligent not in the actual ren-
dering of medical care and treatment, but in their delayed response to the
emergency call. Id. at *1. Under an analogous Good Samaritan statute
that covered ambulance personnel, the Connecticut court held that Shom-
sky's claim did "not come within the ambit of the`rendering emergency
first aid' [statutory language] which pertains to the actual hands-on treat-
ment at the scene." Id. (quotation omitted).

                    7
The majority sidesteps this aspect of Ms. Wheatley's claim by
making findings unsupported by the complaint. For example, to jus-
tify the initial stop, the majority finds that "[t]he guards at Pence Gate
stopped Wright, as is the routine . . . ." Ante at 2 (emphasis added).5
Additionally, the majority makes other findings to justify the guards'
decision to prevent Ms. Wheatley from driving to DeWitt Hospital.6
We are, however, reviewing a Rule 12(b)(6) dismissal, and nothing
in Ms. Wheatley's complaint supports these crucial factual determina-
tions. Moreover, these determinations -- justifying the initial stop and
the decision to prevent Ms. Wheatley from proceeding to DeWitt
Hospital -- are entirely irrelevant to the issue here. The majority's
reliance on these facts is therefore misplaced.

II.

My conclusion is easily stated: the majority's application of the
Good Samaritan defense is overbroad. This defense does not apply,
as a matter of law, to the claim that Ms. Wheatley was negligently
prevented from passing through Pence Gate and that her daughter's
death proximately resulted therefrom. If Ms. Wheatley's claim is sus-
tained by the evidence, her daughter Fiona died because she was neg-
ligently denied access to emergency care at DeWitt Hospital located
_________________________________________________________________
5 The sole asserted basis for this finding is Ms. Wheatley's deposition
statement that "[t]here were two M.P.'s, and one stepped out, and, you
know, did a motion for me to stop at the gate, you know, which you do
anyway." J.A. 112 (emphasis added). We should not consider this depo-
sition evidence in reviewing a Rule 12(b)(6) dismissal. Were we to con-
sider any evidence, however, it must be construed in the light most
favorable to Ms. Wheatley. Reviewed accordingly, Ms. Wheatley's state-
ment supports the proposition that she usually stops at Pence Gate, not
that the guards usually stop her.
6 These findings include, inter alia, the following: (1) the guards "saw
that Wright was leaning over the console of the car"; (2) "Wheatley
drove while holding Wright . . . with one hand and working the stick
shift with the other"; and (3) "In obvious recognition of the emergency,
Wheatley had driven through at least one red light in route to the hospi-
tal." Ante at 2, 4. The fact that it engages in appellate fact-finding to jus-
tify its decision reinforces my conclusion that the majority view is in
error.

                     8
less than a mile from Pence Gate. It was -- tragically -- "A Hospital
Too Far."

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