Nelda Kellom, Individually and as Personal Representative of the Estate of Terrance Kellom, Deceased, et al. v. United States

Given the judicial unwillingness in other circuits to permit the United States to stand on technicalities and this Court’s guidance in Arbaugh v Y&H Corp, 546 US 500, 511; 126 S Ct 1235, 1242–43; 163 L Ed 2d 1097 (2006), should Petitioners’ FTCA claim for the fatal shooting of Terrance Kellom, brought by amendment after administrative exhaustion, have been allowed to proceed against the United States, in light of the plethora of caselaw which suggests the claim should have been allowed to proceed?

As the administrative exhaustion defense successfully used by Respondent to defeat Petitioners FTCA claim for a fatal shooting is subject to waiver as a non-jurisdictional claims processing rule [Copen v. United States, 3 F.4th 875 (6th Cir. 2021)], how long and to what extent can the government delay raising the exhaustion defense in earnest before the trial court, and participate in litigation of the FTCA claims, before they are considered to have waived the administrative exhaustion defense?

Is an improper circuit split begun by the lower courts’ rulings that 28 USC § 2675 barred Petitioners’ from initiating a claim against the United States by amending their complaint to add one where none had existed before, in disagreement with the Ninth Circuit (ValadezLopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011),