Catherine Low v. Patrick Donahoe , 692 F. App'x 373 ( 2017 )

FILED
NOT FOR PUBLICATION
JUN 01 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE LOW, a single woman, No. 15-35334
Plaintiff-Appellant, D.C. No. 2:14-cv-00226-TOR
v.
MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General of the United States,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Submitted May 8, 2017**
Seattle, Washington
Before: BEA and N.R. SMITH, Circuit Judges, and HAYES,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
Catherine Low appeals from the district court order granting summary
judgment in favor of Patrick R. Donahoe, Postmaster General of the United States
(the “Postal Service”). After slipping on ice outside a post office location, Low
notified the Postal Service of her alleged injuries but failed to present a valid claim
to the Postal Service until well beyond the two-year limitations period provided in
the Federal Tort Claims Act. 28 U.S.C. § 2401(b). Low asserted that a letter from
the Postal Service informing her that her submitted claim was invalid provided
grounds for equitable adjustment of the statute of limitations. The letter included
the statement, “If your client is still treating for injury please wait until treatment
has concluded to file this claim.” On appeal, Low contends that the district court
erred in determining that she was not entitled to equitable tolling or equitable
estoppel. Low further contends that summary judgment was improper because a
factual issue may exist as to the Postal Service’s intent to induce Low to miss the
statute of limitations.
We have jurisdiction under 28 U.S.C. § 1291 and review an order granting
summary judgment de novo. Hoefler v. Babbitt, 139 F.3d 726, 727 (9th Cir. 1998).
Because the facts are undisputed, we review the district court’s decision regarding
equitable tolling de novo. See Hensley v. United States, 531 F.3d 1052, 1056 (9th
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Cir. 2008). We review the district court’s decision regarding equitable estoppel for
an abuse of discretion. Hoefler, 139 F.3d at 727.
Low failed to establish “‘(1) that [she] has been pursuing [her] rights
diligently, and (2) that some extraordinary circumstances stood in [her] way.’”
Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (en banc) (quoting
Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)) aff’d and
remanded sub nom. United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). The
Postal Service repeatedly notified Low of the statute of limitations and did not give
any “affirmatively misleading . . . advice about the statute of limitations.” Lehman
v. United States, 154 F.3d 1010, 1016 (9th Cir. 1998). The district court properly
concluded that Low was not entitled to equitable tolling of the limitations period.
“[A] party asserting equitable estoppel against the government must . . .
establish that (1) the government engaged in affirmative misconduct going beyond
mere negligence; (2) the government’s wrongful acts will cause a serious injustice;
and (3) the public’s interest will not suffer undue damage by imposition of
estoppel.” Baccei v. United States, 632 F.3d 1140, 1147 (9th Cir. 2011) (citing
Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)). The district court properly
determined that the Postal Service’s conduct did not constitute affirmative
misconduct going beyond mere negligence and did not cause a serious injustice.
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Even if Low were misled by the letter to wait until her treatment was completed
before filing a claim, she had an angioplasty operation in October 2012. The
record reflects that this was her last major treatment. She had nearly three months
after that surgery to file her claim, so any misleading statement by the Postal
Service was not material.
Low concedes that she did not raise a disputed issue of fact regarding any
intent to deceive by the Postal Service before the district court. The record reflects
that Low was afforded a reasonable opportunity to raise any disputed issues of fact.
Low “cannot raise new issues on appeal to secure a reversal of the lower court’s
summary judgment determination.” BankAmerica Pension Plan v. McMath, 206
F.3d 821, 825 (9th Cir. 2000).
AFFIRMED.
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