Rupa Vickers Russe, as Executor of the Estate of Katherine Monica Vickers v. United States

Katherine M. Vickers, a 100% service-connected disabled veteran, died in 2018 after a large, inoperable brain tumor went undiagnosed for more than 10 years while she received her care at the Charles George VA Medical Center in Asheville, North Carolina, where her two requests for neurology consults were denied. The district court held that the Estate's FTCA suit was untimely but, aware that related litigation was pending in another court, wrote "the Court will nonetheless proceed to address the merits of the Plaintiffs' claims in the interest of assisting those who may hereafter need to review this record." The court of appeals held that her non-guardian agent's statement could be attributed to her for purposes of accrual under Kubrick. It also assumed without deciding the claims were timely under the continuous care doctrine, and proceeded to review the district court's non-decisional observations for clear error and affirmed them as cognizable merits findings. The questions presented are:

1. Whether, under United States v. Kubrick, 444 U.S. 111 (1979), the FTCA claim of a claimant — whose physician determined she lacked mental capacity after the injury was discovered, and who had never been adjudicated incompetent — accrues upon a statement of her agent, who was not a court-appointed guardian and bore no legal duty under state law to act on the claim.

2. Whether, under Anderson v. City of Bessemer City, 470 U.S. 564 (1985), clear-error deference extends to a district court's factual observations that were not offered as grounds for the judgment.