           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           July 16, 2008

                                     No. 07-11035                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DOROTHY JOHNSON, Individually and as representative of the estate of
Edward Lee Johnson

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1418


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       On November 6, 2000, Edward Lee Johnson (the “decedent”) died at the
Veterans Hospital of Dallas after an apparent overdose of morphine sulfate.
Approximately a year and a half later, Dorothy Johnson (“Johnson”), one of the
decedent’s six siblings, filed an administrative tort claim with the Department
of Veterans Affairs (“DVA”) on behalf of the decedent, alleging improper medical



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-11035

care. On the form for the administrative tort claim, Standard Form 95 (“SF-95”),
Johnson identified the claimant as “Dorothy Johnson for Edward Johnson” and
on an addendum stated that she was the “representative of the estate of Edward
L. Johnson.” The DVA notified Johnson that she had to provide the DVA with
evidence that she was either the executrix or administrator of the decedent’s
estate, or that all of the decedent’s siblings (who were his surviving heirs under
Texas law) had agreed for Johnson to act on behalf of the decedent’s estate. On
November 4, 2005, the DVA sent Johnson a letter acknowledging that Johnson
had accepted the DVA’s offer to settle the claim for $50,000, but stating that the
DVA could authorize the settlement “only if it is with an authorized
representative of Edward Johnson’s estate.” The DVA asked Johnson whether
she intended to probate the decedent’s estate and obtain letters testamentary.
The DVA contacted Johnson again on January 24, 2006, stating that if she did
not probate the estate by January 31, 2006, the DVA would deny Johnson’s
claim. Johnson failed to respond to this request. As promised, the DVA denied
Johnson’s claim on February 10, 2006.
      Johnson then brought suit against the United States of America (“United
States”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. The
district court denied Johnson’s motion for summary judgment and granted the
United States’ motion to dismiss, which the court treated as a motion for
summary judgment.       The district court reasoned that Johnson lacked the
capacity, or legal right, to bring a claim on behalf of the decedent. Johnson
appeals.
      Under the FTCA, the United States is liable in damages “in the same
manner and to the same extent as a private individual under like
circumstances . . . .” 28 U.S.C. § 2674. Thus, we use the law of the state where
the incident occurred to analyze Johnson’s claim. See 28 U.S.C. § 1346(b);
Richards v. United States, 369 U.S. 1, 9 (1962). The decedent here died without

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a will and with no living child, spouse, or parent, meaning that Johnson, as one
of the decedent’s surviving siblings, is one of his “heirs.” TEX. PROB. CODE ANN.
§§ 3(o), 37, 38(a)(3). Under Texas law, heirs have the capacity to sue on behalf
of a decedent. TEX. CIV. PRAC. & REM. CODE ANN. § 71.021(b). However, the
Texas Supreme Court has stated that “heirs at law can maintain a survival suit
during the four-year period the law allows for instituting administration
proceedings if they allege and prove that there is no administration pending and
none [is] necessary.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850-51
(Tex. 2005) (quoting Shepard v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998))
(emphasis added). Here, Johnson filed her claim with the DVA approximately
a year and a half after the decedent’s death, which is within the four-year period
under Texas law to institute an administration proceeding. See TEX. PROB. CODE
ANN. § 74. Therefore, Johnson had to allege and prove that there was no
administration pending and that none was necessary to demonstrate that she
had the capacity to sue on behalf of the decedent. There is no evidence in the
record that Johnson provided this information, either before she filed her claim
with the DVA or in response to the DVA’s repeated requests. Simply put,
without evidence that there was no administration pending and none was
necessary, Johnson lacked the capacity to bring a claim on behalf of the
decedent, and the district court properly granted summary judgment in favor of
the United States on this basis.
      AFFIRMED.




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