Whether Petitioners' FTCA claim should have been allowed to proceed against the United States

QUESTIONS PRESENTED 1. 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? 2. 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? 3. 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), ili and, in fact, Sixth Circuit precedent. (Copen v. United States, 3 F.4th 875 (6th Cir. 2021))? 4. Did the District Court err in its ruling that the Sixth Circuit’s remand of the FTCA excessive force claim did not necessarily remand the issue of excessive force? 5. Did the lower courts err requiring review in ruling that Petitioners’ claims were time-barred by interpreting the language of 28 USC § 2679(d)(5) in a manner that differed from its plain, unambiguous, meaning, which allows’ the initiation of a new “proceeding” by amendment of a complaint? LIST OF PROCEEDINGS IN FEDERAL TRIAL AND APPELLATE COURTS This petition arises out of two United States District Court for the Eastern District of Michigan cases: 17-cv-11084 (Kellom v. Quinn, et al) and 19-cv11622 (Kellom v. United States). Both cases were appealed to the Sixth Circuit (20-1003 (Kellom v. Quinn) and 20-1222 (Kellom v. US)) and jointly decided in an opinion remanding to the district court. After decision on remand, both were appealed again to the Sixth Circuit (22-1591 (Kellom v. Quinn) and 22-1592 (Kellom v. US)), which were jointly decided by the Sixth Circuit. Those two final appeals are the subject of this petition.