Robert Wayne Dotson v. United States ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10401
____________________
ROBERT WAYNE DOTSON,
FRANCINE MARIA DIGIORGIO,
OLENA DOTSON,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
U.S. Postal Service,
Defendant-Appellee.
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2 Opinion of the Court 21-10401
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02179-CEH-JSS
____________________
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
LAGOA, Circuit Judge:
Plaintiffs Robert Dotson, Olena Dotson, and Francine
Digiorgio appeal the district court’s order granting summary judg-
ment for the United States on their negligence claims. Below, the
district court determined that, pursuant to 28 U.S.C. § 2401(b),
Plaintiffs’ action was untimely because more than six months had
passed between the United States Postal Service sending a certified
letter denying their administrative claims and the filing of their
complaint in this case. The district court further found that Plain-
tiffs had failed to show entitlement to equitable tolling of the limi-
tations period.
This appeal requires us to determine whether the USPS’s fi-
nal denial letter sent to Plaintiffs’ counsel of record in the adminis-
trative proceeding complied with the plain language of 39 C.F.R.
§ 912.9(a) after suit had been filed by a different counsel in federal
district court. Plaintiffs assert that the regulation instead required
the USPS to send the final denial letter to their counsel in this
case—even though Plaintiffs had not notified the USPS of any
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21-10401 Opinion of the Court 3
change in counsel in the administrative proceedings. Plaintiffs also
contend that they demonstrated entitlement to equitable tolling.
For the reasons discussed below, and with the benefit of oral argu-
ment, we hold that the USPS complied with the plain language of
§ 912.9(a) by sending the denial letter to the legal representative
most recently identified to the USPS as representing Plaintiffs for
purposes of their administrative claims. We therefore affirm the
district court’s grant of summary judgment as Plaintiffs’ FTCA
claims are untimely under § 2401(b) because they were filed more
than six months after the mailing of the denial letter.
I. RELEVANT BACKGROUND
On April 30, 2016, Plaintiffs were involved in a motor vehi-
cle accident involving a vehicle operated by Sandra Delgado, a
USPS employee, in Hillsborough County, Florida. On February
16, 2017, Plaintiffs each submitted a USPS Standard Form 95 “claim
for damage, injury, or death” suffered in that accident. On that
date, Plaintiffs were represented by the law firm of Rywant, Alva-
rez, Jones, Russo & Guyton, P.A. (the “Rywant firm”), which sub-
mitted the executed claim forms on behalf of Plaintiffs. On March
16, 2018, the USPS received notice from the Pawlowski Mastrilli
Law Group (the “Pawlowski firm”) indicating that it was now rep-
resenting Plaintiffs, not the Rywant firm.
On September 27, 2018, Plaintiffs filed a Federal Tort Claims
Act action against the government and Delgado in the Middle Dis-
trict of Florida, in case number 8:18-cv-2388-T-23TGW (the “first
FTCA action”). On October 16, 2018, a copy of the complaint and
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4 Opinion of the Court 21-10401
summons in the first FTCA action was delivered to the govern-
ment at the United States Attorney’s Office in Tampa, Florida. T.
Patton Youngblood, Jr., and the Youngblood Law Firm (collec-
tively, “Youngblood”) filed the first FTCA action complaint on be-
half of Plaintiffs, and Youngblood was the only attorney represent-
ing Plaintiffs in that action. Youngblood, however, never repre-
sented Plaintiffs in relation to the filing of their administrative
claims.
On October 22, 2018, the USPS mailed a certified letter
denying Plaintiffs’ administrative claims to the Pawlowski firm,
which received the letter three days later. The denial letter ex-
plained that under 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a), “if
dissatisfied with [USPS’s] final denial of [the] administration
claim[s], . . . any suit filed in regards to this denial must be filed no
later than six (6) months from the date of the mailing of this letter.”
Plaintiffs therefore had until April 22, 2019, to file their suit against
the government.
At some point before the USPS mailed the denial letter, the
Pawlowski firm stopped representing the Plaintiff in the adminis-
trative proceedings. Unlike the earlier change in counsel involving
the Rywant firm, however, neither the Pawlowski firm nor
Youngblood had provided the USPS of notice of any change in rep-
resentation in relation to Plaintiffs’ administrative claims.
On March 14, 2019, the first FTCA action was dismissed
without prejudice under a Middle District of Florida local rule be-
cause Plaintiffs failed to move for a clerk’s default within sixty days
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after serving the government and Delgado. This dismissal thus oc-
curred more than a month before the expiration of the six-month
limitation period referenced in the denial letter.
The next day, Youngblood spoke with David Sullivan, an
Assistant U.S. Attorney who was counsel for the government. Ac-
cording to Youngblood, Sullivan advised him that if he “were to
forward reasonable updated demands to him that all three Plain-
tiffs’ claims could possibly be settled.” Youngblood proceeded to
update all of Plaintiffs’ medical records and bills to submit to Sulli-
van, but he faced delays in obtaining updated records and bills from
hospitals. Youngblood finally sent written demand letters with up-
dated records and bills on behalf of Plaintiffs to Sullivan on August
7, 2019. Shortly after, Sullivan advised Youngblood that Plaintiffs
needed to file suit before the government could engage in any ne-
gotiations on their claims.
On August 30, 2019, Plaintiffs filed their second FTCA com-
plaint, in which each Plaintiff asserted a negligence claim based on
Delgado’s operation of the vehicle that rear-ended their vehicle.
On January 13, 2020, following a meeting between Youngblood
and Sullivan to prepare the case management report, Sullivan
emailed the denial letter to Youngblood. This was the first time
Youngblood ever saw the denial letter.
On March 4, 2020, the government moved for summary
judgment, arguing that Plaintiffs’ claims were time barred under
§ 2401(b) because the USPS mailed the denial letter on October 22,
2018, and Plaintiffs did not file their complaint until more than six
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months after the mailing of the letter. The government further
argued that Plaintiffs’ first FTCA action, which was filed within the
statute of limitations, did not cure their current complaint’s un-
timeliness, as the first FTC action was dismissed without prejudice.
Plaintiffs opposed the government’s summary judgment
motion, contending that the USPS violated § 2401(b) and the regu-
lations interpreting that statute by not sending the denial letter to
Youngblood. Plaintiffs claimed that the government was on notice
that Youngblood was the only attorney representing them at the
time of the denial letter because Youngblood was the only attorney
of record listed on the first FTCA action. Plaintiffs also argued that,
because the denial letter was sent after the first FTCA action was
filed, its directive was a “moot issue,” and the dismissal of the first
FTCA action required the government to send another denial let-
ter to Youngblood.
In support of their opposition to summary judgment, Plain-
tiffs provided an affidavit from Youngblood. Youngblood attested
that there was “no written referral, or other, agreement” between
him and the Pawlowski firm by which the Pawlowski firm “would
remain on as counsel for Plaintiffs” and that he “assumed complete
and sole responsibility for all aspects of representation of the Plain-
tiffs” beginning in May 2018 after the Pawlowski firm referred the
case to him. Youngblood also attested that the Pawlowski firm
never brought the existence of the denial letter to his attention and
that he was aware of the legal implications of such a letter. But
there is no record evidence that Youngblood informed Sullivan
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that he had taken over Plaintiffs’ representation in the administra-
tive proceedings at any time prior to receiving a copy of the denial
letter from Sullivan.
On November 4, 2020, the district court held a hearing on
the government’s summary judgment motion. During the hear-
ing, Plaintiffs argued that they were entitled to equitable tolling,
and the district court ordered supplemental briefing on the matter.
On December 18, 2020, the district court granted the government’s
summary judgment motion, finding that the action was untimely
and that Plaintiffs were not entitled to equitable tolling. This ap-
peal ensued.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo, “viewing all evidence and any reasonable inferences that
might be drawn therefrom in the light most favorable to the non-
moving party.” McCullough v. United States, 607 F.3d 1355, 1358
(11th Cir. 2010) (quoting Rine v. Imagitas, Inc., 590 F.3d 1215, 1222
(11th Cir. 2009)). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
Questions of statutory and regulatory interpretation are le-
gal issues we review de novo. Freixa v. Prestige Cruise Servs., LLC,
853 F.3d 1344, 1346 (11th Cir. 2017). And the district court’s
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8 Opinion of the Court 21-10401
interpretation and application of the statute of limitations is a legal
issue that we review de novo. McCullough, 607 F.3d at 1358.
III. ANALYSIS
On appeal, Plaintiffs contend that the government failed to
comply with the plain language of 39 C.F.R. § 912.9(a) when the
USPS sent the denial letter to the Pawlowski firm, their former
counsel, instead of Youngblood, their current counsel. They also
contend that the district court erred in finding they were not enti-
tled to equitable tolling of § 2401(b)’s six-month limitations pe-
riod. 1 We address these arguments in turn.
A. Whether the government’s mailing of the denial letter com-
plied with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a)
“It is well settled that sovereign immunity bars suit against
the United States except to the extent that it consents to be sued”
and that “statutory waivers of sovereign immunity ‘are to be con-
strued strictly in favor of the sovereign.’” Means v. United States,
176 F.3d 1376, 1378 (11th Cir. 1999) (quoting McMahon v. United
States, 342 U.S. 25, 27 (1951)). “‘The FTCA is a specific, congres-
sional exception’ to the United States’ sovereign immunity for tort
claims, under which the government may ‘be sued by certain par-
ties under certain circumstances for particular tortious acts
1Plaintiffs do not make the argument they made below that the government
was required to mail a new denial letter following the dismissal of their first
FTCA action and, as such, have abandoned this argument on appeal. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
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21-10401 Opinion of the Court 9
committed by employees of the government.’” Turner ex rel.
Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008) (quot-
ing Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994)).
The FTCA’s waiver “must be scrupulously observed, and not ex-
panded, by the courts.” Id. (quoting Suarez, 22 F.3d at 1065); ac-
cord Phillips v. United States, 260 F.3d 1316, 1318 (11th Cir. 2001)
(“[T]he FTCA is a specific waiver of the sovereign immunity of the
United States and must be strictly construed.”).
The statutes and regulation at issue here provide in relevant
part:
Disposition by federal agency as prerequisite
(a) An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of prop-
erty or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Govern-
ment while acting within the scope of his office or employ-
ment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have
been finally denied by the agency in writing and sent by cer-
tified or registered mail. The failure of an agency to make
final disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this sec-
tion.
28 U.S.C. § 2675(a).
Time for commencing action against United States
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(b) A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless the action is begun within six months after the date
of mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented.
Id. § 2401(b).
Final denial of claim
(a) Final denial of an administrative claim shall be in writing
and sent to the claimant, his attorney, or legal representative
by certified or registered mail. The notification of final de-
nial . . . shall include a statement that, if the claimant is dis-
satisfied with the agency action, he may file suit in an appro-
priate U.S. District Court not later than 6 months after the
date of mailing of the notation.
39 C.F.R. § 912.9(a).
Plaintiffs contend that the government failed to strictly com-
ply with 39 C.F.R. § 912.9(a)’s plain language because the USPS
mailed the denial letter to the Pawlowski firm, which was no
longer their “attorney, or legal representative,” instead of
Youngblood, who was their attorney at the time. Plaintiffs contend
that the regulation describes the attorney who is “presently assist-
ing the claimant with his or her claim” and “cannot be plausibly
read to include an attorney that assisted the claimant in the past.”
Plaintiffs also assert that the district court added terms to the regu-
lation and “created a new class of attorney—‘administrative claim
counsel’—to conclude that there were two sets of lawyers in [their]
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case.” Plaintiffs contend that they were under no obligation to in-
form the USPS that the Pawlowski firm had withdrawn from its
representation of Plaintiffs in the administrative proceedings. They
also argue that the government knew Youngblood was their new
counsel and should have known that the Pawlowski firm was no
longer representing them in those proceedings, based on the gov-
ernment’s receipt of the complaint in the first FTCA action in
which Youngblood was the only attorney of record.
When considering issues of statutory and regulatory inter-
pretation, we begin “‘where all such inquiries must begin: with the
language of the statute itself,’ giving ‘effect to the plain terms of the
statute.’” United States v. Henco Holding Corp., 985 F.3d 1290,
1297 (11th Cir. 2021) (quoting In re Valone, 784 F.3d 1398, 1402
(11th Cir. 2015)); accord Landau v. RoundPoint Mortg. Servicing
Corp., 925 F.3d 1365, 1369 (11th Cir. 2019) (“When we construe
regulations, we begin with the language of the regulation, just as
we do for statutes”). In doing so, “[w]e evaluate whether the plain
language of the regulation unambiguously answers the question at
issue when we consider the regulatory language itself, the particu-
lar context in which that language appears, and the broader context
and purpose of the regulatory scheme as a whole.” Landau, 925
F.3d at 1369; accord Paresky v. United States, 995 F.3d 1281, 1285
(11th Cir. 2021) (“‘[T]o determine “the plain meaning of the stat-
ute,”’ we consider ‘the “particular statutory language at issue”’ as
well as ‘the language and design of the statute as a whole.’”
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12 Opinion of the Court 21-10401
(quoting Wachovia Bank, N.A. v. United States, 455 F.3d 1261,
1267–68 (11th Cir. 2006))).
The FTCA has both an administrative exhaustion require-
ment, see 28 U.S.C. § 2675(a), as well as a statute of limitations, see
id. § 2401(b). “Combined, these provisions act as chronological
bookends to an FTCA claim, marking both a date before which a
claim may not be filed and a date after which any filing is un-
timely.” Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir.
2015). Under § 2675(a), an FTCA action shall not be instituted
against the United States “unless the claimant shall have first pre-
sented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by
certified or registered mail.” A claimant need not wait for an ad-
ministrative decision, however, as § 2675(a) also provides that
“[t]he failure of an agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant
any time thereafter, be deemed a final denial of the claim for pur-
poses of this section.” Thus, “to meet the threshold requirement
of administrative exhaustion, plaintiffs must either (1) have their
administrative claims finally denied by the relevant federal agency;
or (2) if the agency fails to act on their administrative claims within
six months of presentment, they may thereafter deem the claims
(constructively) denied.” Barnes, 776 F.3d at 1139.
Section 2401(b), in turn, provides that an FTCA claim shall
be barred unless the claim “is presented in writing to the appropri-
ate Federal agency within two years after such claim accrues or
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unless action is begun within six months after the date of mailing,
by certified or registered mail, of notice of final denial of the claim
by the agency to which it was presented.” In other words, “[f]or
claims brought under the FTCA, Congress has expressly stated the
applicable limitation period” in § 2401(b). Phillips, 260 F.3d at 1318.
And as we have explained, § 2401(b) “is the balance struck by Con-
gress in the context of tort claims against the Government[,] and
we are not free to construe it so as to defeat its obvious purpose,
which is to encourage the prompt presentation of claims.” Id.
(quoting United States v. Kubrick, 444 U.S. 111, 117 (1979)).
“Therefore, in construing the FTCA’s statute of limitations, ‘we
should not take it upon ourselves to extend the waiver beyond that
which Congress intended.’” Id. (quoting Kubrick, 444 U.S. at 117–
18).
Government agencies, including the USPS, have adopted
regulations that apply to FTCA administrative claims. See 28
C.F.R. pt. 14; 39 C.F.R. pt. 329; see also 28 C.F.R. § 14.11 (“Each
agency is authorized to issue regulations and establish procedures
consistent with the regulations in this part.”). Under 39 C.F.R.
§ 912.9(a), the “[f]inal denial of an administrative claim shall be in
writing and sent to the claimant, his attorney, or legal representa-
tive by certified or registered mail.” Accord 28 C.F.R. § 14.9(a)
(same). The denial letter also “shall include a statement that, if the
claimant is dissatisfied with the agency action, he may file suit in an
appropriate U.S. District Court not later than 6 months after the
date of mailing of the notation.” § 912.9(a).
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Applying the regulation’s plain language to this case, the
USPS had to mail the denial letter to either Plaintiffs or their attor-
ney or legal representative. It is undisputed that Youngblood never
filed a notice of appearance or other indication that he was repre-
senting Plaintiffs in their administrative claims. And while
Youngblood alone filed the first FTCA action complaint on Plain-
tiffs’ behalf, neither Plaintiffs, the Pawlowski firm, nor Youngblood
informed the government that the Pawlowski firm was no longer
representing Plaintiffs in the administrative proceedings or that
Youngblood had assumed sole responsibility for the administrative
claims. Thus, the question before us is whether USPS complied
with the regulation by mailing the denial letter to the Pawlowski
firm, which was Plaintiffs’ most recent “attorney, or legal repre-
sentative” of record in the administrative proceedings, even
though Plaintiffs assert that Youngblood was their attorney in
those proceedings and that the government knew this because
Youngblood was the only attorney appearing for them in the first
FTCA case.
Evaluating § 912.9(a)’s plain language in “the broader con-
text and purpose of the regulatory scheme as a whole,” Landau,
925 F.3d at 1369, we conclude that the government complied with
the regulation, given the facts of the case. Under 39 C.F.R. § 912.6,
the regulation that identifies who can file an administrative claim
under the FTCA involving the USPS, “[a] claim for personal injury
may be presented by the injured person, his duly authorized agent,
or legal representative.” See also 28 C.F.R. § 14.3(b). And as we
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have already seen, at the end of an unsuccessful administrative
claim, § 912.9(a) requires the USPS to send a final denial to “the
claimant, his attorney, or legal representative.” Reading § 912.9(a)
in context with § 912.6, the most natural reading is that the claim-
ant’s “attorney, or legal representative” who is to be sent the final
denial of the administrative claim is the “attorney, or legal repre-
sentative” currently “present[ing]” the administrative claim itself.
In other words, the attorney or legal representative who the claim-
ant has identified to the USPS as authorized to represent him in his
administrative claim.
Here, the Rywant firm presented Plaintiffs’ administrative
claims to the USPS on February 16, 2017. Later, the Pawlowski
firm took over representation of Plaintiffs in those claims and the
USPS was notified of this change in counsel. As the record shows,
however, Plaintiffs did not notify the USPS that Youngblood had
taken over their representation in the administrative proceedings.
And while Youngblood, and not the Pawlowski firm, filed the first
FTCA action against the government on behalf of Plaintiffs, that
fact alone did not inform the government that Youngblood had
been substituted as Plaintiffs’ counsel for purposes of their admin-
istrative claims. Nor does the record contain any evidence that
Youngblood gave any indication to the government during either
the pendency of the first FTCA action or the post-dismissal settle-
ment conversations with Sullivan that he had taken over the Plain-
tiffs’ representation in the administrative proceedings from the
Pawlowski firm. Simply put, the USPS mailed the denial letter to
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the legal representative who Plaintiffs had most recently identified
as representing them in their administrative claims—the Paw-
lowski firm. In doing so, the USPS complied with the plain lan-
guage of the regulation.
Plaintiffs contend that this interpretation creates “separate
classes” of counsel and that they did not have to inform USPS of
their change of counsel for their administrative claims. We find
these arguments without merit. The Sixth Circuit’s decision in
Zappone v. United States, 870 F.3d 551 (6th Cir. 2017), is instruc-
tive. In Zappone, the plaintiffs failed to file their FTCA claims
within § 2401(b)’s six-month limitations period following the final
denial of their administrative claims. Id. at 555. The plaintiffs in
Zappone had filed their administrative claims with the Internal
Revenue Service under a cover letter that included executed
power-of-attorney forms identifying three different attorneys as
their counsel. Id. at 554. The IRS later mailed its final denial letters
via certified mail to two of those attorneys. Id. “By this time, how-
ever, [the plaintiffs] had switched counsel” but “had not notified
the IRS of [their former attorneys’] withdrawal of representation.”
Id.
Although the Zappone plaintiffs did not make the particular
interpretation argument that Plaintiffs raise here—instead arguing
for equitable tolling of the limitations period—they did argue that
the IRS “knew of their change in counsel” based on their attorneys
moving to withdraw their representation in a civil-forfeiture pro-
ceeding. See id. at 557. The Sixth Circuit rejected this argument,
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explaining that the “withdrawal was limited to the forfeiture case
and therefore did not constitute a withdrawal from their pending
administrative claim for damages,” i.e., the IRS had no reason to
know that the plaintiffs’ counsel had changed. Id. The Sixth Cir-
cuit ultimately found that the plaintiffs’ “failure to learn of the IRS’s
denial notice was a problem of their own making: they never in-
formed the IRS of their change in counsel, their prior attorneys ne-
glected to inform them of the denial, and their new attorney fell
short of retrieving the denial letter in time.” Id. at 558.
We thus hold that the USPS complied with the plain lan-
guage of § 912.9(a) by sending the denial letter to the Pawlowski
firm—the legal representative most recently identified to the USPS
as representing Plaintiffs for purposes of their administrative
claims. Plaintiffs’ FTCA claims are therefore untimely under
§ 2401(b) because they were filed more than six months after the
mailing of the denial letter.
B. Whether Plaintiffs are entitled to equitable tolling
Plaintiffs also argue the district court erred in finding they
were not entitled to equitable tolling of the § 2401(b) limitations
period. We disagree.
As the Supreme Court has explained, the time limits in the
FTCA are not jurisdictional, and a court therefore can toll them on
equitable grounds. United States v. Wong, 575 U.S. 402, 412
(2015). “The doctrine of equitable tolling allows a court to toll the
statute of limitations until such a time that the court determines
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18 Opinion of the Court 21-10401
would have been fair for the statute of limitations to begin running
on the plaintiff’s claims.” Arce v. Garcia, 434 F.3d 1254, 1261 (11th
Cir. 2006). “Equitable tolling ‘is an extraordinary remedy which
should be extended only sparingly.’” Bost v. Fed. Express Corp.,
372 F.3d 1233, 1242 (11th Cir. 2004) (quoting Justice v. United
States, 6 F.3d 1474, 1479 (11th Cir. 1993)). Thus, “[e]quitable toll-
ing is appropriate when a movant untimely files because of extraor-
dinary circumstances that are both beyond his control and una-
voidable even with diligence.” Arce, 434 F.3d at 1261 (emphasis in
original) (quoting Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999)); see also Motta ex rel. A.M. v. United States, 717
F.3d 840, 846–47 (11th Cir. 2013) (holding that equitable tolling
“cannot be applied to this FTCA claim because the untimely filing
could have been avoided with due diligence”). The plaintiff has the
burden of proving that such extraordinary circumstances exist.
Arce, 434 F.3d at 1261; accord Bost, 372 F.3d at 1242; see also Diaz
v. Sec’y for Dep’t of Corr., 362 F.3d 698, 701 (11th Cir. 2004) (noting
the “difficult burden” of demonstrating entitlement to equitable
tolling). As to the diligence inquiry, we have stated that “[t]he dil-
igence required for equitable tolling purposes is ‘reasonable dili-
gence,’ not ‘maximum feasible diligence.’” San Martin v. McNeil,
633 F.3d 1257, 1267 (11th Cir. 2011) (quoting Holland v. Florida,
560 U.S. 631, 653 (2010)). “But the principles of equitable tolling
. . . do not extend to . . . a garden variety claim of excusable ne-
glect.” Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990); ac-
cord Motta, 717 F.3d at 846–47; Justice, 6 F.3d at 1480.
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Below, the district court found that Plaintiffs had failed to
demonstrate entitlement to equitable tolling, as they had not
shown an extraordinary circumstance that warranted tolling and
had not indicated “what steps were taken, if any, to protect their
right to timely file th[e] action.” The district court further found
that the fact Plaintiffs “were in good faith attempting to settle the
claims based on [the government’s] request for an updated demand
[fell] far short of what is required to warrant equitable tolling.”
Plaintiffs contend that the district court’s determination as
to equitable tolling was in error for several reasons. They assert
that they are entitled to equitable tolling because the government
failed to follow its FTCA regulations—by sending the denial letter
to the Pawlowski firm instead of Youngblood—and that Plaintiffs
should not be held to a stricter standard than the government in
following the FTCA and its regulations. Plaintiffs also contend that
the government’s actions, which they describe as “gotcha” tactics,
entitle them to equitable tolling. Plaintiffs point to Youngblood’s
affidavit, in which he attested that he spoke with Assistant U.S. At-
torney Sullivan about settling their claims before Youngblood re-
filed their suit. Plaintiffs argue that Youngblood proceeded to
gather the relevant records and bills to prepare the demands re-
quested by the government and that, after doing so, “the govern-
ment refused to negotiate knowing something Youngblood did
not—it had sent [Plaintiffs’] prior counsel a denial letter.” Plaintiffs
further argue that, but for the government’s request, they would
have promptly refiled after the dismissal of the first FTCA action.
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20 Opinion of the Court 21-10401
Reviewing the record, we agree with the district court’s de-
termination that Plaintiffs have not met their burden in showing
entitlement to equitable tolling of the FTCA’s limitations period.
As explained above, Plaintiffs’ argument that the government
failed to comply with the regulation lacks merit because the gov-
ernment complied with the plain language of § 912.9(a) when the
USPS sent the denial letter to the Pawlowski firm.
Moreover, there is no record evidence that Youngblood had
informed Sullivan that he was representing Plaintiffs in the admin-
istrative claims. Nor is there record evidence that the government
told Plaintiffs not to refile suit while Youngblood prepared updated
demands to send to the government. Indeed, as Youngblood at-
tested, Sullivan advised Youngblood that if he “were to forward
reasonable updated demands to him that all three Plaintiffs’ claims
could possibly be settled.” (emphasis added). The government
made no guarantees to Plaintiffs about settlement of the claims,
and the fact that Sullivan raised the possibility of settlement of
Plaintiffs’ FTCA claims is not enough to excuse Plaintiffs’ failure to
file within the § 2401(b) limitations period. Cf. Raziano v. United
States, 999 F.2d 1539, 1541–42 (11th Cir. 1993) (“[T]he government
gave the [plaintiffs] no good reason to think that the pursuit of out-
of-court remedies would toll the limitation on a judicial remedy.
The [government] had no duty to remind the [plaintiffs] that the
statute of limitations was running.”); Lehman v. United States, 154
F.3d 1010, 1016 (9th Cir. 1998) (“The mere expression of ‘some con-
fidence’ that the agency ‘would be interested in trying to settle’ the
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21-10401 Opinion of the Court 21
case later is not enough to excuse plaintiffs’ letting the statute of
limitations lapse. In these circumstances, equitable tolling does not
apply.”).
Plaintiffs also rely on the Fifth Circuit’s decision in Perez v.
United States, 167 F.3d 913 (5th Cir. 1999). In Perez, the claimant
sent a demand letter to the Texas National Guard and filed suit in
state court. Id. at 914. The Texas National Guard, however, was
the wrong governmental entity; the claimant should have sent the
demand letter to the United States Army instead. Id. at 915. The
state court suit was dismissed, and the claimant filed a claim with
the Army, which denied the claim under the FTCA’s statute of lim-
itations. Id. The claimant then sued the government in federal
court. Id. The district court dismissed the suit, concluding that the
claimant failed to diligently investigate her claim. Id. While rec-
ognizing that the Texas National Guard violated regulations by fail-
ing to provide the claimant a particular form, the court determined
that the claimant’s decision to sue the wrong governmental entity
was not the product of the National Guard’s affirmative misstate-
ments and that the claimant was not entitled to equitable tolling.
Id. On appeal, the Fifth Circuit disagreed, concluding that equita-
ble tolling was warranted because the claimant’s error—“misun-
derstanding the dual nature of the Texas National Guard”—was
not merely a “garden variety claim of excusable neglect,” even
though the error “would have been uncovered through more care-
ful legal research.” See id. at 918. The Fifth Circuit recognized that
the claimant had taken “some step recognized as important by the
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22 Opinion of the Court 21-10401
statute before the end of the limitations period” by presenting in
writing the claim to the Texas National Guard. See id. The Fifth
Circuit alternatively concluded that the Texas National Guard’s
failure to follow the regulation requiring it to send the relevant
form to the claimant constituted grounds for equitable tolling. See
id. at 918–19.
We find this case distinguishable from Perez. Unlike Perez,
the government did not violate any of its regulations in sending the
denial letter to the Pawlowski firm instead of Youngblood. In con-
trast, like the plaintiffs in Zappone, Plaintiffs’ failure to learn of the
USPS’s denial letter “was a problem of their own making: they
never informed [USPS] of their change in counsel, their prior attor-
neys neglected to inform them of the denial, and their new attor-
ney fell short of retrieving the denial letter in time.” See Zappone,
870 F.3d at 558. And while Youngblood, at the summary judgment
hearing, asserted that he had “look[ed]” for a denial letter but
“didn’t see one,” there is no indication in the record that Plaintiffs
or Youngblood diligently searched for the existence of the denial
letter or inquired into the status of the administrative claims, e.g.,
by contacting the Pawlowski firm, the USPS, or even the govern-
ment’s trial counsel about those matters.
In short, the missteps of Plaintiffs’ attorneys amount to a
garden variety claim of excusable neglect that does not constitute
extraordinary circumstances warranting equitable tolling. Cf. Ma-
ples v. Thomas, 565 U.S. 266, 282 (2012) (explaining that “an attor-
ney’s negligence, for example, miscalculating a filing deadline, does
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21-10401 Opinion of the Court 23
not provide a basis for tolling a statutory time limit”). Plaintiffs
could have informed the USPS of the change in their legal repre-
sentative from the Pawlowski firm to Youngblood—indeed, they
had done so earlier in the administrative proceedings when they
changed counsel from the Rywant firm to the Pawlowski firm—
but they failed to do so. Accordingly, the district court did not err
in determining that Plaintiffs failed to show entitlement to equita-
ble tolling.
IV. CONCLUSION
For all these reasons, we affirm the district court’s order
granting summary judgment for the government.
AFFIRMED.