Claire Gilvar and Casey Chamberlain v. United States ( 2012 )

11-2951-cv
Claire Gilvar and Casey Chamberlain v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14th day of March, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11
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13 CLAIRE GILVAR, CASEY CHAMBERLAIN,
14 Plaintiffs-Appellants,
15
16 -v.- 11-2951-cv
17
18 UNITED STATES OF AMERICA,
19 Defendant-Appellee.
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21
22 FOR APPELLANTS: Ira H. Goldfarb (Bart J. Eagle,
23 Law Offices of Bart J. Eagle,
24 PLLC, New York, NY, on the
25 brief), Friedman, Levy, Goldfarb
26 & Green, P.C., New York, NY.
27
1
1 FOR APPELLEE: Joseph A. Pantoja (Sarah S.
2 Normand, on the brief),
3 Assistant United States
4 Attorneys, for Preet Bharara,
5 United States Attorney for the
6 Southern District of New York,
7 New York, NY.
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Swain, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Plaintiffs Claire Gilvar and Casey Chamberlain appeal
17 from a judgment entered by the United States District Court
18 for the Southern District of New York (Swain, J.) dismissing
19 their claims under the Federal Tort Claims Act (“FTCA”) for
20 lack of subject matter jurisdiction. We assume the parties’
21 familiarity with the facts, procedural history, and issues
22 presented on appeal.
23
24 In January 2009, Plaintiffs each filed an
25 administrative claim with the Department of Defense alleging
26 that its negligence had contributed to the injuries they
27 suffered in connection with an anthrax attack in September
28 2001. They ultimately filed this suit, which the district
29 court dismissed after concluding that Plaintiffs’
30 administrative claims had not been filed within two years of
31 accrual--a jurisdictional defect for a suit filed under the
32 FTCA. See Johnson v. The Smithsonian Inst., 189 F.3d 180,
33 189 (2d Cir. 1999); see also 28 U.S.C. § 2401(b) (“A tort
34 claim against the United States shall be forever barred
35 unless it is presented in writing to the appropriate Federal
36 agency within two years after such claim accrues.”).
37
38 We review de novo a district court’s dismissal of a
39 FTCA claim as untimely. See Kronisch v. United States, 150
40 F.3d 112, 120 (2d Cir. 1998). Because the question of
41 timeliness is jurisdictional, the plaintiff bears the burden
42 of pleading and proving timeliness. See In re Agent Orange
43 Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987). We
44 agree with the district court that Plaintiffs have failed to
45 do so. Although the FBI did not publicly disclose until
46 2008 that a government researcher was behind the attacks,
47 the accrual of an FTCA claim does not depend on the progress
2
1 of a criminal investigation. See Skwira v. United States,
2 344 F.3d 64, 84 (1st Cir. 2003) (Boudin, J., concurring).
3 Rather, a claim normally accrues at the time of injury.
4 Kronisch, 150 F.3d at 121. Where either “the government
5 conceals the acts giving rise to plaintiff’s claim” or
6 “where [the] plaintiff would reasonably have had difficulty
7 discerning the fact or cause of injury at the time it was
8 inflicted, the so-called ‘diligence-discovery rule of
9 accrual’ applies.” Id. Moreover, the filing of an
10 administrative claim is not equivalent to the filing of a
11 lawsuit: the administrative claim serves the important
12 statutory goal of putting the federal government on notice
13 so that it can investigate the claim (a condition of the
14 waiver of sovereign immunity) and therefore requires less
15 knowledge on the part of plaintiff than the filing of a
16 lawsuit. See Marley v. United States, 567 F.3d 1030, 1036
17 (9th Cir. 2009) (“The FTCA includes a detailed
18 administrative process for handling tort claims against
19 agencies. The statutory filing deadline is a key part of
20 that process and plainly facilitates the administration of
21 claims.” (internal quotation marks omitted)); Skwira, 344
22 F.3d at 81 (“[T]o file an administrative claim and preserve
23 ones rights under the FTCA, one need only be in possession
24 of sufficient information for the agency to investigate the
25 claims.” (internal quotation marks omitted)).
26
27 As a result, even with the benefit of the diligence-
28 discovery rule, Plaintiffs’ claims accrued well before
29 January 2007 (two years before the administrative claims
30 were filed), when they should have formed a reasonable
31 suspicion that the government was connected to the anthrax
32 attacks. See Kronisch, 150 F.3d at 122; Skwira, 344 F.3d at33 77. It was not necessary to know the identity of the
34 individual perpetrator in order to discern the government’s
35 negligence. The weight of the publicly available
36 information following the attacks indicated that the anthrax
37 originated at a United States government facility. At this
38 point, Plaintiffs, with reasonable diligence, “should have
39 discovered the critical facts of both [their] injury and its
40 cause” sufficient to file an administrative claim.
41 Kronisch, 150 F.3d at 121 (internal quotation marks
42 omitted).
43
44 We need not decide whether FTCA claims are subject to
45 equitable tolling, an open question in this Circuit. See
46 A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144
47 (2d Cir. 2011). “This Court has applied the doctrine as a
3
1 matter of fairness where a plaintiff has been prevented in
2 some extraordinary way from exercising his rights, or has
3 asserted his rights in the wrong forum.” Johnson v. Nyack
4 Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation
5 marks and alterations omitted). Those circumstances are not
6 met in this case, where we have already found that
7 Plaintiffs possessed sufficient information to seek legal
8 advice more than two years before they filed their claims.
9
10 Finding no merit in appellants’ remaining arguments, we
11 hereby AFFIRM the judgment of the district court.
12
13
14 FOR THE COURT:
15 CATHERINE O’HAGAN WOLFE, CLERK
16
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