Anna Chronis v. United States , 932 F.3d 544 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3093
ANNA CHRONIS,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17‐cv‐05838 — Amy J. St. Eve, Judge.
____________________
ARGUED MAY 29, 2019 — DECIDED JULY 29, 2019
____________________
Before RIPPLE, ROVNER, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Before bringing a tort claim against
the United States, a plaintiff must first exhaust her adminis‐
trative remedies by presenting her claim to the appropriate
federal agency. This means, among other things, that the
plaintiff must demand a sum certain from the agency. Anna
Chronis did not make such a demand before she sued, so the
district court properly dismissed her complaint.
2 No. 17‐3093
I.
In June 2015, Anna Chronis visited the University of Illi‐
nois Mile Square Health Center for her annual physical exam‐
ination. The examination included a pap smear—a procedure
used to detect cervical cancer—that Chronis alleges caused
her pain and bruising. She claims that she tried to follow up
on the examination with the physician, Dr. Tamika Alexan‐
der, but was unable to get in touch with her. She also says that
the Health Center did not return her calls or allow her to make
a follow‐up appointment. Chronis filed a written complaint
with the Health Center’s grievance committee, requesting
$332 for the expenses that she incurred because of the injury.
But after reviewing her complaint, the Health Center rejected
her request.
After her request was denied, Chronis sent a letter to the
Centers for Medicare and Medicaid Services (CMS), an
agency within the U.S. Department of Health and Human Ser‐
vices. In her letter, she requested “assistance in resolving a
frustrating process of delay, unfulfilled promises, and docu‐
mented willful ignorance of policy and procedures.” Though
her letter mentioned the injuries that she allegedly sustained
during her examination, it devoted most of its attention to the
Health Center’s lack of responsiveness to her complaints. It
also included a general statement that she wanted assistance
in “receiving the restitution.” The conclusion of her letter
summarized what she was asking for: “I have enclosed all rel‐
evant, previous correspondence between UIC Health, and
myself, and look forward to your guidance on how to pro‐
ceed.” Chronis also attached roughly sixty pages of docu‐
ments relating primarily to the correspondence between
Chronis and the Health Center. One of the pages included the
No. 17‐3093 3
fact that Chronis had previously sought $332 from the Health
Center.
Believing that Chronis was seeking advice about how to
make an administrative complaint against the doctor and
Health Center, CMS replied by directing her to contact the Il‐
linois Department of Financial and Professional Regulation so
that she could file a formal complaint. CMS also invited Chro‐
nis to follow up if she needed any additional assistance.
More than six months later, Chronis filed a pro se com‐
plaint in state court, alleging malpractice against Alexander
and the Health Center. Because the Health Center receives
federal funds from the Public Health Service and Alexander
is a Health Center employee, the United States substituted it‐
self as the sole defendant and removed the case to federal
court to proceed under the Federal Tort Claims Act. See 42
U.S.C. § 233; 28 U.S.C. § 1346.1 The government then moved
1 The Federally Supported Health Centers Assistance Act permits the
Secretary of Health and Human Services to deem certain federally funded
community health centers, along with certain individuals affiliated with
them, to be employees of the federal Public Health Service for purposes of
the Federal Tort Claims Act. See 42 U.S.C. §§ 254b & 233(g); see also 42
C.F.R. § 6.3–6.6. This designation enables centers caring for underserved
populations to spend their money on patient care rather than malpractice
premiums. See Dedrick v. Youngblood, 200 F.3d 744, 745 (11th Cir. 2000)
(“The Act essentially makes the U.S. government the medical malpractice
insurer for qualifying [] health centers, their officers, employees, and con‐
tractors, allowing these ‘deemed’ health centers to forgo obtaining private
malpractice insurance.”). Within 15 days of receiving notice that a covered
entity or individual has been sued, the Attorney General “shall make an
appearance … and advise the court” whether the defendant “is deemed to
be an employee of the Public Health Service for purposes of this section
with respect to the actions or omissions that are the subject of such civil
4 No. 17‐3093
to dismiss, arguing that Chronis had not exhausted her ad‐
ministrative remedies because she had failed to first present
her claim to the appropriate federal agency. It argued that her
letter to CMS did not meet this requirement.
The district court granted the government’s motion and
dismissed the complaint. It explained that Chronis’s letter to
CMS notified the agency only that she was pursuing “profes‐
sional regulation allegations,” as opposed to making an ad‐
ministrative demand—and thus failed to present a claim.
Chronis timely appealed pro se, and we appointed amicus
curiae to assist in her appeal.2 Amicus argues that Chronis ex‐
hausted her administrative remedies when she sent the letter
to CMS. We disagree.
II.
Under the Federal Tort Claims Act, a plaintiff may bring a
medical malpractice claim against the United States only after
exhausting administrative remedies. 28 U.S.C. §§ 2401(b),
2675. To exhaust administrative remedies, the plaintiff must
“have first presented the claim to the appropriate Federal
agency,” id. § 2675, so that the agency has an opportunity to
meaningfully consider and address the claim prior to suit, see
Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997); Mader
action or proceeding.” 42 U.S.C. § 233(l)(1). If the Attorney General certi‐
fies the defendant as a Public Health Service employee, the Attorney Gen‐
eral must remove the proceeding to federal district court. Id. § 233(c). In
this suit, the Attorney General’s designee made this certification for both
the University of Illinois Mile Square Health Center and Alexander.
2 The court expresses its thanks to Travis S. Andrews for accepting the
appointment of amicus curiae and submitting an excellent brief and argu‐
ment.
No. 17‐3093 5
v. United States, 654 F.3d 794, 801 (8th Cir. 2011) (en banc) (ex‐
plaining that the agency must have “a fair opportunity to
meaningfully consider, ascertain, adjust, determine, compro‐
mise, deny, or settle FTCA claims prior to suit”). A claim has
been presented to a federal agency once the plaintiff submits
“an executed Standard Form 95 or other written notification
of an incident, accompanied by a claim for money damages in
a sum certain.” 28 C.F.R. § 14.2(a); see also Kanar, 118 F.3d at
528. We have held that this presentment requirement has four
elements: (1) notification of the incident; (2) demand for a sum
certain; (3) title or capacity of the person signing; and (4) evi‐
dence of the person’s authority to represent the claimant.
Kanar, 118 F.3d at 528. Chronis’s letter fails to satisfy the sec‐
ond element of the presentment requirement.
Even liberally construed and read through the eyes of a
“legally sophisticated reader,” Chronis’s letter does not con‐
tain a demand for money damages in a sum certain. See
Buechel v. United States, 746 F.3d 753, 760 (7th Cir. 2014). The
closest that the letter comes to requesting any money at all is
a vague request for help in “receiving restitution.” Perhaps
recognizing that this vague reference falls short of the mark,
amicus argues that Chronis implicitly demanded a sum cer‐
tain because one of the letter’s many attachments revealed
that she once sought $332 from the Health Center. But she
simply attached this, along with what amicus acknowledged
were as many as sixty pages of attachments, as background
information. And in any event, although the dissent makes
much of these attachments, we have said before that we will
not force agencies to search for claims buried within pages
and pages of attachments. See Deloria v. Veterans Admin., 927
F.2d 1009, 1012 (7th Cir. 1991) (explaining that claims that
6 No. 17‐3093
“may be gleaned” from a sixty‐three‐page appendix to an ad‐
ministrative filing have not been asserted for purposes of ex‐
haustion).3
To be sure, failing to put a number on the amount de‐
manded is not necessarily fatal. See Smoke Shop, L.L.C. v.
United States, 761 F.3d 779, 787 (7th Cir. 2014). It is “only fatal
if it can be said to have ‘hindered’ or ‘thwarted’ the settlement
process ‘that Congress created as a prelude to litigation.’” Id.
(quoting Kanar, 118 F.3d at 531); see also Khan v. United States,
808 F.3d 1169, 1172 (7th Cir. 2015) (explaining that a precise
sum of money is not always required because it’s absence typ‐
ically won’t “derail the settlement process”). But a claimant
who neither makes it clear that she is demanding money from
the agency nor says how much she is demanding thwarts the
settlement process envisioned by the FTCA. See Smoke Shop,
761 F.3d at 788 (asserting that “without being presented with
an actual claim for money damages, the [government is] ill‐
3 The dissent argues that we are wrong to rely on Deloria rather than
Palay v. United States, 349 F.3d 418, 426 (7th Cir. 2003). But Palay addresses
a different issue than Deloria. Neither Palay nor the case that it relies on,
Murrey v. United States, 73 F.3d 1448, 1452 (7th Cir. 1996), consider whether
the claim itself can be buried in the attachments. In those cases, there was
no question that the plaintiffs had filed claims; on the contrary, both had
submitted a Form 95. The only question was whether the plaintiffs had
included sufficient factual detail to support their respective claims. See Pa‐
lay, 349 F.3d at 425–26; Murrey, 73 F.3d at 1452–53; see also id. at 1452 (not‐
ing that Form 95 requires “a detailed statement of facts” and is “in this
respect more demanding, more ‘formal’ if you will, than the civil rules—
a throwback, perhaps, to the era of ‘fact pleading’ that preceded the adop‐
tion of those rules.”). Deloria, however, dealt with whether a claim itself
could be asserted if it was buried in the attachments, not whether support‐
ing facts had been alleged. 927 F.2d at 1012. Deloria’s issue is the one that
we face here.
No. 17‐3093 7
equipped to make a fully informed assessment” concerning a
plaintiff’s claim). How can an agency assess whether to make
a settlement offer if it isn’t aware that a demand is being
made, let alone how much is at stake?
Take the facts here: believing that Chronis’s letter was
simply requesting advice about how to file an administrative
complaint against the Health Center, the agency responded
by providing information about how to file a formal com‐
plaint with the Illinois Department of Financial and Profes‐
sional Regulation. The agency didn’t have a chance to begin
the settlement process because nothing in the letter put it on
notice that Chronis was asserting a claim against it. Chronis’s
failure to make a clear demand of CMS “frustrate[d] the pro‐
cess of conciliation and settlement that the administrative de‐
mand is supposed to initiate.” See Kanar, 118 F.3d at 531.
Indeed, the letter shows that Chronis wanted something
other than money from CMS. The conclusion of her letter said
it best: she wanted “guidance on how to proceed.” Requesting
guidance is different than requesting money. And we have
emphasized that a letter requesting “something other than
money” fails to constitute an administrative demand for
money. See Khan, 808 F.3d at 1173 (concluding that the claim‐
ant failed to make a demand because he “was seeking some‐
thing other than money—such as an apology for the miscon‐
duct of the arresting marshals, or punishment of them, or bet‐
ter training of marshals”); Smoke Shop, 761 F.3d at 787 (“Un‐
fortunately for Smoke Shop, we have never held that a request
for the return of property—unaccompanied by a statement
8 No. 17‐3093
that the claimant would seek money damages if the property
was not returned—satisfies the [money‐damages element].”).
In a final effort to show that Chronis actually made a de‐
mand for monetary damages, amicus points to a single phrase
in her letter stating that she had to “pay out of pocket for fol‐
low up that resulted from [Dr. Alexander’s] malpractice and
gross negligence.” But this wasn’t a demand. It was just back‐
ground information, explaining Chronis’s frustration with
her care. Especially in light of the rest of the letter, which
made clear that Chronis was seeking advice, this alone could
not have put the agency on notice that Chronis intended to
file an administrative demand. See Palay v. United States, 349
F.3d 418, 426 (7th Cir. 2003) (explaining that a claimant must
provide “sufficient notice to enable the agency to investigate
the claim” (citation omitted)).
We stress that our precedent does not make it difficult for
pro se plaintiffs to sue the federal government. In almost any
other circuit, Chronis’s claim would have failed for not in‐
cluding a sum certain. See, e.g., White‐Square v. U.S. Postal
Serv., 592 F.3d 453, 457 (3d. Cir. 2010) (“Providing a sum cer‐
tain claim for damages is central to [the] policy of requiring
presentment of claims to the appropriate federal agency be‐
cause it enables the agency head to determine whether the
claim can legally be settled by the agency and, if so, from
where the payment should come … [and] it goes without say‐
ing that an agency cannot consider settling a claim if it cannot
ascertain the claimʹs value.”); Kokotis v. U.S. Postal Serv., 223
F.3d 275, 278 (4th Cir. 2000) (holding that a district court lacks
jurisdiction over an FTCA suit if the “administrative claim
[did] not indicate a specific amount of money.”). And as we
noted earlier, we insist that pro se administrative complaints
No. 17‐3093 9
receive a liberal construction. See Buechel, 746 F.3d at 760. But
there is a difference between generously construing a pro se
complaint and effectively excusing a pro se plaintiff from the
statutorily mandated exhaustion requirement.4 Characteriz‐
ing Chronis’s request for guidance as a demand for money
would pull us into the latter territory.
In short, Chronis “simply did not tell the government that
[she] intended to bring a tort suit against it.” See Smoke Shop,
761 F.3d at 788. She did not have to use lawyerly language to
communicate that message. But she had to make it “clear to a
legally sophisticated reader” that she was demanding pay‐
ment from CMS. See Delgado v. Merit Sys. Prot. Bd., 880 F.3d
913, 925 (7th Cir. 2018) (emphasis added). Her failure to make
a clear demand meant that CMS lacked “a fair opportunity to
meaningfully consider, ascertain, adjust, determine, compro‐
mise, deny, or settle FTCA claims prior to suit.” Mader, 654
F.3d at 801; see also Palay, 349 F.3d at 426.
We conclude with a final observation. This case has been
litigated as if it is about Chronis’s frustrated effort to put the
Department of Health and Human Services (through its sub‐
agency, CMS) on notice that she was demanding money from
it. The real problem, however, is that Chronis had no idea that
the Department might owe her money. It is unsurprising that
Chronis, a pro se plaintiff, didn’t know that the Health Center
4 There are tools available to help a pro se plaintiff meet the exhaus‐
tion requirement. For example, she can fill out Form 95, which spells out
the required information and is easily accessible on the Department of Jus‐
tice website. See, e.g., Buechel v. United States, 746 F.3d 753, 758–59 (7th Cir.
2014) (pro se claim filed using Form 95); see also https://www.jus‐
tice.gov/civil/documents‐and‐forms‐0.
10 No. 17‐3093
and Alexander would be treated as Public Health Service em‐
ployees covered by the Federal Tort Claims Act. That is a mis‐
take that even an experienced medical malpractice lawyer can
make. See, e.g., Phillips v. Generations Family Health Ctr., 723
F.3d 144, 148 (2d Cir. 2013) (plaintiff’s lawyer failed to satisfy
the exhaustion requirement because he failed to discover that
the defendant clinic was a “deemed federal employee”). But
the way to fix it is not for the court to read the presentment
requirement out of the Federal Tort Claims Act. It is for the
plaintiff to exhaust her administrative remedy once the error
is discovered. If a plaintiff is within the statute of limitations,
she can do that easily by asserting an administrative claim
and returning to federal court if the claim does not settle. See,
e.g., Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 892
(7th Cir. 2007).5 If the statute of limitations has expired, it is
still possible, though it is more difficult, to remedy the mis‐
take: the plaintiff can assert an administrative claim, and if the
agency denies it, she can sue again and ask the court to equi‐
tably toll the statutory clock. See United States v. Kwai Fun
5 A plaintiff’s ability to pursue this course is enhanced by the Westfall
Act, which stops the clock when a plaintiff’s suit is dismissed for violating
the Federal Tort Claims Act’s exhaustion requirement. See Dupree v. United
States, 495 F. App’x 422, 424 (5th Cir. 2012) (“If a claim is removed from
state court and then dismissed for failure to exhaust administrative reme‐
dies, the claim is deemed to be timely presented and the plaintiff may re‐
commence her suit if she presents the claim to the appropriate federal
agency within 60 days of dismissal, and if ‘the claim would have been
timely had it been filed on the date the underlying civil action was com‐
menced.’” (quoting 28 U.S.C. § 2679(d)(5)). At oral argument, the govern‐
ment stated that Chronis filed an administrative claim against the Depart‐
ment of Health and Human Services around the time that the district court
dismissed the suit. It might be, then, that she can still file a timely suit
under the Federal Tort Claims Act if the agency denies her claim.
No. 17‐3093 11
Wong, 135 S. Ct. 1625, 1633 (2015) (holding that a court can
equitably toll the the Federal Tort Claims Act’s statute of lim‐
itations); Arteaga v. United States, 711 F.3d 828, 833–35 (7th Cir.
2013) (considering whether to equitably toll the statute of lim‐
itations when the plaintiff’s lawyer failed to discover that the
defendant health center was “deemed federal”); Phillips v.
Generations Family Health Ctr., 657 Fed. App’x 56 (2d Cir. 2016)
(same). No one has discussed the statute of limitations in this
case, so it is unclear which situation Chronis is in. We raise
the issue simply to note that this problem can be fixed, but not
in the way that Chronis is seeking to do it.
Because the district court correctly held that Chronis failed
to satisfy the exhaustion requirement, its judgment is
AFFIRMED.
12 No. 17‐3093
ROVNER, Circuit Judge, dissenting. Our circuit applies a
flexible standard to the exhaustion requirements for plaintiffs
making claims under the Federal Tort Claims Act, excusing
technical deficiencies so as not to preclude all but the savviest
of plaintiffs from receiving a hearing on the merits. See Del‐
gado v. Merit Sys. Prot. Bd., 880 F.3d 913, 924 (7th Cir. 2018), as
amended on denial of rehʹg and rehʹg en banc (June 19, 2018). The
majority’s decision demands far more of Chronis than our
precedent requires.
Chronis, a pro se plaintiff, knew little about the compli‐
cated legal world of suing the federal government. She was
simply looking for a solution to her problem. She alleged that
she had been harmed during a medical appointment at a
health center that receives federal funds. She looked for a so‐
lution by repeatedly telephoning the doctor whom she al‐
leged harmed her, but that doctor did not help, and indeed
did not return any of her numerous calls. (R. 10 at 24, 45, 57).
She made calls to employees at the health center that em‐
ployed the doctor, but they would not help. Id. She made sev‐
eral written complaints to the health center’s grievance com‐
mittee, but it would not help. (R. 10 at 22, 45‐47, 53‐55, 56‐59).
She filed an appeal with the Illinois Department of Healthcare
and Family Services, but it did not help. (R. 10 at 27‐28). She
mailed a submission to the Centers for Medicare and Medi‐
caid Services (CMS), a federal administrator of the Medicaid
Program, but it simply referred her to the Illinois Department
of Financial and Professional Regulation. (R. 10 at 6). She filed
a professional regulation complaint with the Illinois Depart‐
ment of Financial and Professional Regulation, but there is no
record of any response. (R. 10 at 26). She filed a malpractice
claim in state court, but the United States told her that was the
wrong place too, and removed the case to federal court. And
No. 17‐3093 13
then, finally, the federal court told Chronis that, after all those
calls, steps, letters, claims, and complaints, she had not given
the government notice in the proper manner and it too would
not help.
Chronis’ odyssey is reminiscent of the famous children’s
book by P.D. Eastman. In that book, a baby bird, having fallen
out of the nest, is looking for a solution to its problem. Having
just hatched, the baby bird knows little about the world, and
thus asks for help in all the wrong places—asking a kitten, a
hen, a dog, a cow, a boat, and an airplane, “Are you my
mother?” Each answers indignantly that the baby bird has
come to the wrong place for a solution. The last place the baby
bird looks for a solution is with the powerful steam shovel.
The steam shovel, knowing the rules and how to get things
done, gently places the baby bird back into the nest. Unfortu‐
nately for Chronis, the steam shovel in her case just kept roll‐
ing along.
The Federal Tort Claims Act requires a plaintiff to exhaust
her administrative remedies and give notice to the govern‐
ment of her claim so that the agency can have a chance to set‐
tle “meritorious claims more quickly and without litigation.”
Warrum v. United States, 427 F.3d 1048, 1050 (7th Cir. 2005); 28
U.S.C. § 2675(a). But we have long applied a flexible standard
and have made clear that technical deficiencies in an admin‐
istrative claim are not fatal, provided the “proper agency had
the opportunity to settle the claim for money damages before
the point of suit.” Smoke Shop, LLC v. United States, 761 F.3d
779, 787 (7th Cir. 2014). Our flexible standard means that
courts must construe pro se administrative complaints gener‐
ously and deem exhausted any claim fairly implicit in the
14 No. 17‐3093
facts that would be clear to a legally sophisticated reader. Del‐
gado, 880 F.3d at 925. Accordingly, a plaintiff may “litigate un‐
der the FTCA following an administrative demand” even if
that initial administrative demand “does not comply with
every jot and tittle of the rules defining a ‘claim.’” Kanar v.
United States, 118 F.3d 527, 530 (7th Cir. 1997). “Why,” we
asked, “should courts stand on punctilious adherence to un‐
important elements of the regulatory definition of a ‘claim’
under the FTCA?” Id. at 531. Instead, we look to see whether
the noncompliance has “hinder[ed] the settlement process
that a claim is supposed to initiate;” if it has not, then there is
no reason to foreclose litigation. Id.
And yet the majority appears to be requiring the “punctil‐
ious adherence” that our precedent rejects. Our cases make
clear that a potential plaintiff’s claim needs to meet two re‐
quirements: she must specify the facts behind the claim, and
make a demand for money. That is it. Khan v. United States,
808 F.3d 1169, 1172–73 (7th Cir. 2015).1 The administrative
regulation states that the claim must be one for “money dam‐
ages in a sum certain.” 28 C.F.R. § 14.2(a). But our court has
held that the “sum certain” requirement is more bark than
1 We have also noted that a potential plaintiff must include a title or ca‐
pacity of the person signing and evidence of the person’s authority to rep‐
resent the claimant (Kanar, 118 F.3d at 528), but these more administrative
elements are not at issue in this case.
No. 17‐3093 15
bite. We have declared unquestionably that “[f]ailure to spec‐
ify a ‘sum certain’ is not fatal.” Id. at 1172.2,3 In other words,
the target is large and if the federal agency (which we pre‐
sume to be legally sophisticated), sees the dart land anywhere
on it, it has the chance to engage in the settlement process, and
it has received a claim.
No one disputes that Chronis notified the agency of the
incident, and with good reason. In her November 7, 2015 sub‐
mission to CMS, she described her “horrible” visit to the gy‐
necologist, Dr. Alexander, that resulted in an alleged injury
“that resulted from [Dr. Alexander’s] malpractice and gross
negligence.” R. 10 at 41. She also enclosed her correspondence
with the health center in which she detailed her injuries and
her intent to pursue a claim.4
2 As we have noted, our cases law requires that we construe pro se admin‐
istrative complaints generously and deem exhausted any claim fairly im‐
plicit in the facts that would be clear to a legally sophisticated reader. Del‐
gado, 880 F.3d at 925. At least five other circuits are more generous than
this circuit in how they interpret the minimal notice requirements for a
claim. See Kanar, 118 F.3d at 529 (citing cases). We have also noted that
requiring a “sum certain” is an oddity of this administrative scheme as “it
is not part of a claim for relief in judicial practice.” Id. (citing Fed. R. Civ.
P. 8).
3 The government asserts that our case law concluding that the lack of a
sum certain is not fatal to a claim is incorrect. That is a matter it may take
up with the Supreme Court. For now, our case law, with which the major‐
ity agrees, stands.
4 This is a good place to stop and address the elephant in the room. Chro‐
nis’ allegations might, at times, appear unreasonable to judges who are
used to the more staid, logic‐driven arguments of lawyers, as opposed to
the emotional and personal claims of pro se plaintiffs. Just as in summary
16 No. 17‐3093
The majority’s decision hangs on its conclusion that Chro‐
nis did not make a proper claim for money damages to CMS.
Chronis’ letter to CMS, however, on the very first page asks
for four things in a numbered list set out in its own paragraph,
one of which (number 3) is “receiving restitution.” R. 10 at 41.
The word “restitution” is common parlance for recompense
for injury or loss. The OED defines it as “making reparation
to a person for loss or injury previously inflicted.”5 Chronis’
request for restitution was coupled with other money‐de‐
manding language. She stated that she was injured and had
to “pay out of pocket” due to the doctor’s “malpractice and
gross negligence”—legal terms one uses when a person be‐
lieves she has a claim against a tortfeasor. Id. The letter is
speckled with all manner of references to money damages:
The malpractice “is costing me money,” she wrote to CMS. Id.
She later wrote of Dr. Alexander’s liability for malpractice. Id.
at 43. To state that a request for restitution along with talk of
out‐of‐pocket loss, malpractice, and liability is not a money
demand defies credulity, and resembles the “punctilious ad‐
herence” that this court has rejected. See Kanar, 118 F.3d at
530–31.
judgment, however, we are at a threshold moment where the only ques‐
tion is whether Chronis may proceed with her claim. Cf. Payne v. Pauley,
337 F.3d 767, 770 (7th Cir. 2003) (a court’s job is to suspend credibility de‐
terminations when looking at threshold matters). Whether her claim leads
to a ruling in her favor is for another day. Id. Instead, we must suspend
judgment of the veracity of the claims and decide only whether Chronis
gave the government the minimal notice required by the Federal Tort
Claims Act.
5 OEDOnline, Oxford University Press, June 2019,
www.oed.com/view/Entry/163966. Accessed 2 July 2019.
No. 17‐3093 17
It is true that what Chronis stated in her letter to CMS was
“I request your assistance in … receiving restitution,” rather
than stating “I want restitution from you, CMS.” See R. 10 at
41. The latter would have been more clear, for certain, but
there is no legally relevant difference, particularly in a legal
posture in which we are required to “deem exhausted any
claim fairly implicit in the facts that would be clear to a legally
sophisticated reader.” Delgado, 880 F.3d at 925. Chronis
wanted restitution. She wanted CMS to help her get it. As far
as she was concerned, CMS could do so either by pulling it
out of its own pockets, if it was the responsible party, or help‐
ing her find the proper pocket, if it was not. The fact that
Chronis was having trouble figuring out who the correct re‐
sponsible party was, is not surprising. As the majority points
out, “even an experienced medical malpractice lawyer” might
not always be aware that a particular health center and its
doctors “would be treated as Public Health Service employees
covered by the Federal Tort Claims Act.” Majority Op. at 9‐
10. CMS, however, is the legally sophisticated, powerful
steam shovel in this scenario. It knows that the federal gov‐
ernment is the party responsible when someone files a mal‐
practice claim against a federally funded community health
center. In fact, based on this knowledge, after Chronis sued
the health center in state court, the United States came for‐
ward and identified itself as the responsible party, substituted
itself as the sole defendant, and removed the case to federal
court. Chronis, on the other hand, is unfamiliar with the
world of federal tort litigation. She had no way of knowing
from where exactly the restitution should come, but she knew
that she wanted the responsible party to provide it. This is
why our case law is so solicitous of pro se plaintiffs facing so‐
phisticated federal agencies. All that is required is enough to
18 No. 17‐3093
clue in the agency that the claimant has been injured and
wants recompense. See Palay v. United States, 349 F.3d 418, 426
(7th Cir. 2003) (“All that is required is sufficient notice to en‐
able the agency to investigate the claim.”); see also Buechel v.
United States, 746 F.3d 753, 760 (7th Cir. 2014) (elucidating the
liberal standard for claims under the Federal Tort Claims
Act). We expect federal agencies to be legally sophisticated
and take the minimal information provided to them and in‐
vestigate. Palay, 349 F.3d at 426.
The request for money damages should have been clear
from the language of the letter itself—the request for restitu‐
tion coupled with claims of malpractice and notice about out‐
of‐pocket expenses. But that is not all Chronis did. She also
notified CMS that she had “enclosed all relevant, previous
correspondence between UIC Health, and myself.” R. 10 at 43.
Attachments to her Federal Tort Claims Act claim become
part of that claim. See, e.g., Palay, 349 F.3d at 426 (noting that
the plaintiff “attached to his Form 95 the letter from his attor‐
ney, and in so doing made that letter a part of his Form.”) The
correspondence Chronis attached included her August 25
complaint to the health center’s grievance committee in which
she requested reimbursement of $332 for out‐of‐pocket costs,
and referenced her right to “retain an attorney.” R. 10 at 57,
59. In the letter she spoke of being out of pocket for medical
fees, gas money, parking fees, and records fees “which I
would like reimbursed.” Id. at 57. She also made requests for
money damages in other attachments. For example, in an‐
other letter attached to the submission to CMS—this one to
the health center dated November 2, 2015—she stated that be‐
cause she “paid out of pocket [] for physical damage and med‐
ical care caused by your malpracticing physician, you owe me
[] the reimbursement, as the doctor has already been paid.” R.
No. 17‐3093 19
10 at 45. She also stated, “your doctor’s willful negligent [sic]
and malpractice … makes you liable for reimbursement to
me, personally for the out of pocket costs that I have incurred
from your employee’s actions.” Id. at 46. Even if the letter to
CMS itself did not make a complete money demand (and I
believe it did), the letter put CMS on notice that Chronis was
seeking money and explicitly pointed to the attached docu‐
ments for the details, including the sum certain.
The majority asserts that we must not force agencies to
search for claims buried within lengthy attachments. For this
proposition, it cites Deloria v. Veterans Admin., 927 F.2d 1009,
1012 (7th Cir. 1991). We must reconcile this precedent, how‐
ever, with a more recent one in which we explicitly stated that
attachments to a Federal Tort Claims Act claim become part
of that claim. Palay, 349 F.3d at 426 (citing Murrey v. United
States, 73 F.3d 1448, 1452‐53 (1996)). The facts in Deloria, how‐
ever, are so far removed from the present case to make that
precedent of no use here. In Deloria, the plaintiff’s claim form
asserted that Veterans Administration employees conspired
to alter his medical records to deny him benefits, but later he
filed suit in district court alleging malpractice and negligence
by VA doctors. We rejected the malpractice and negligence
claims as not properly presented to the agency. Deloria
claimed that the sixty‐three page attachment to his adminis‐
trative claim for conspiracy to deprive him of benefits, if read
closely, “foreshadowed” his current malpractice and negli‐
gence allegations. Id. at 1012. We decided, however, that any
“faint intimations of Deloria’s additional claims” that might
be gleaned from his sixty‐three page appendix did not consti‐
tute “the type of fair notice that Congress envisioned when it
fashioned the presentment requirement.” Id. Deloria’s claims,
if they were made at all (and the court thought they were only
20 No. 17‐3093
barely hinted at in the attachments), were buried deep within
his attachments and not made at all on the face of his claim.
Chronis, in contrast, is not asking the court to tease out a bur‐
ied glint of a foreshadowed claim from her attachments; far
from that. She squarely asserted a claim for “restitution” on
the face of the claim itself, and pointed to the attachments
only to reveal an actual dollar amount of damages—the ab‐
sence of which, we have held, would not have been fatal to
her claim in any event. This makes her case more similar to
Palay’s who asserted a claim on the face of the submitted doc‐
uments and pointed to the attachments for details.
The majority concedes that Chronis made a demand for a
sum certain to the health center, but denies that she made
such a demand to CMS. But of course the federal agency knew
that any claim made against a federally supported health cen‐
ter is a claim against the federal government. See Majority Op.
at 3, n.1. That is why the federal government moved to sub‐
stitute itself in the litigation against the health center and re‐
move the matter to federal court. The fact that the federal gov‐
ernment was on the hook for malpractice claims alleged
against the health center was information that was in the
hands of the agency—an agency that had a duty to investigate
Chronis’ claim. “After the claimant provides enough infor‐
mation to put a legally sophisticated reader on notice, it is up
to the agency ‘to fill in the gaps, to the extent possible.’” Del‐
gado, 880 F.3d at 925 (citing Buechel, 746 F.3d at 761.)
The majority states that “Chronis wanted something other
than money from CMS … she wanted ‘guidance on how to
proceed.’” Majority Op. at 7. It would be more accurate to say
that she wanted something more than just money from CMS.
We do not disagree that she wanted guidance, but she wanted
No. 17‐3093 21
guidance about how to proceed in order to receive the resti‐
tution that was listed as one of four enumerated solutions she
requested on the front page of her letter. See R. 10 at 41. Guid‐
ance alone would not make her whole or pay the medical bills.
The guidance was needed in order to recover for her loss. And
when a person wants payment for medical malpractice from
a designated federally‐funded health center, the legally so‐
phisticated reader (which we assume the agency to be) knows
that payment must come from the federal government’s cof‐
fers.
There is a reason we construe legal pleadings by pro se
plaintiffs liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). Our court has long been “cognizant of the unique chal‐
lenges facing pro se litigants.” Anderson v. Hardman, 241 F.3d
544, 545 (7th Cir. 2001). Chronis claimed damages of $332. The
fact that she needed reimbursement for the $332 medical and
miscellaneous fees suggests that she could not afford to hire a
lawyer to recover the sum. Clearly the $332 was a significant
sum to Chronis, but few, if any lawyers would take a civil ac‐
tion to recover $332. Chronis had no choice but to seek a rem‐
edy on her own. And she is not alone. Few people can afford
to pay an attorney for the amount of time it would take to re‐
cover such a small sum of money. And, as this case demon‐
strates all too well, modern litigation contains so many traps
and barriers that it is near to impossible for non‐lawyers to
successfully navigate it. Despite Chronis’ valiant and persis‐
tent efforts, the majority finds that she failed to say the magic
words in the correct format and in the correct place, and there‐
fore the sophisticated steam shovel rolled right over her, as it
will other injured pro se plaintiffs who cannot afford to hire
lawyers to recover small sums.
22 No. 17‐3093
The majority says that all is not lost for Chronis, as there
remains some possibility that she could squeeze her claim
down another path—re‐asserting her claim and relying on the
Westfall Act to save any statute of limitations problems or by
hoping for equitable tolling. Majority Op. at 10. The Westfall
Act tolling provision applies only in very narrow conditions:
it applies only if “the claim would have been timely had it
been filed on the date the underlying civil action was com‐
menced, and [] the claim is presented to the appropriate Fed‐
eral agency within 60 days after dismissal of the civil action.”
28 U.S.C.A. § 2679. And, of course, equitable tolling is re‐
served only for the rarest of instances in which a plaintiff can
demonstrate some “extraordinary circumstances” beyond her
control. Blanche v. United States, 811 F.3d 953, 962 (7th Cir.
2016).
We must remind ourselves that a key point of this case is
that Chronis is a pro se plaintiff. Therefore the ordinary leni‐
ence we give Federal Tort Claim Act claims is magnified all
the more. Chronis was unrepresented throughout the admin‐
istrative process, through removal from state to federal dis‐
trict court, and in this court as well. (We requested and re‐
ceived the capable and helpful assistance of amicus curiae,
Travis S. Andrews, for which we are extremely grateful. Chro‐
nis, however, still does not have retained counsel and is un‐
likely to find it for her $332 claim). Chronis struggled to file a
simple valid Federal Tort Claims Act claim. The odds of her
successfully navigating these more complex alternative path‐
ways that the majority suggests are slim, at best.
Chronis wrote, called, filled out complaint forms, and
wrote again. She attached exhibits, correspondence, forms,
No. 17‐3093 23
and e‐mail. According to the government, and now the ma‐
jority opinion, however, this was not enough: Chronis did not
ask in the proper way.6 She did not state that she sought
“money damages” in a sum certain. Instead, she said “I re‐
quest your assistance … in receiving the restitution.” And the
amount of that restitution that she sought was not in the letter
itself, but in an attachment to the letter. The majority is requir‐
ing stricter adherence to the requirements than our law re‐
quires and we must be careful not to block access to relief for
pro se plaintiffs. See Kanar, 118 F.3d at 530–31. But if Chronis
cannot jump through the proper hoops with her multi‐page,
well‐documented, persistent, and multiple requests to myriad
agencies, what pro se plaintiff would ever succeed? See, e.g.,
Delgado, 880 F.3d at 924 (stringent application of a statute’s
“exhaustion requirement can effectively prevent all but the
savviest [plaintiffs] from receiving a hearing on the merits.”).
The majority’s decision has altered the requirements for
plaintiffs making a claim pursuant to the Federal Tort Claims
Act. No longer will we apply a flexible standard and overlook
technical deficiencies; no longer will we construe pro se ad‐
ministrative complaints generously and “deem exhausted
any claim fairly implicit in the facts that would be clear to a
legally sophisticated reader.” Delgado, 880 F.3d at 925. We
now require “punctilious adherence” to every “jot and tittle”
of the rules defining a claim. I respectfully dissent.
6 According to the majority it was both too little and too much, as the claim
was “buried within, as many as sixty pages of attachments.” Majority Op.
at 5. In other words, Chronis failed to make a claim because she provided
too much information to CMS.