Norman, John D. v. United States , 467 F.3d 773 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2006 Decided October 31, 2006
No. 05-5304
JOHN D. NORMAN,
APPELLANT
v.
UNITED STATES OF AMERICA AND
ERIE INSURANCE GROUP,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01208)
John S. Kearns argued the cause and filed the brief for
appellant.
Beverly M. Russell, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Kenneth
L. Wainstein, U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S.
Attorney, entered an appearance.
Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: After appellant filed suit in the
Superior Court of the District of Columbia seeking damages
for injuries suffered in a car accident, the United States, acting
pursuant to the Federal Tort Claims Act, removed the case to
federal court because the car’s driver was a federal employee
acting within the scope of his employment at the time of the
accident. By the time the case was removed, however, the
FTCA’s two-year statute of limitations had expired.
Accordingly, the district court, declining to equitably toll the
statute of limitations because appellant had failed to make
reasonably diligent efforts to discover the driver’s employer,
dismissed the complaint. We affirm.
I.
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-2680, requires individuals with certain types of tort
claims against the United States to present those claims to the
appropriate agency and then to file suit within two years of
the events giving rise to the claims. 28 U.S.C. §§ 2401(b),
2675(a). Pursuant to a 1988 amendment to the FTCA, known
as the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563(codified as amended at 28 U.S.C. §§ 2671, 2674, 2679), tort
claims filed in state courts against federal employees acting in
the scope of their employment “shall be removed . . . by the
Attorney General to the district court of the United States
[where the action is pending] . . . . and the United States shall
be substituted as the party defendant.” 28 U.S.C. §
2679(d)(2). A plaintiff whose state suit is removed after the
FTCA’s two-year statute of limitations has expired may still
maintain the claim if “(A) the claim would have been timely
had it been filed on the date the underlying civil action was
commenced, and (B) the claim is presented to the appropriate
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Federal agency within 60 days after dismissal of the civil
action.” Id. at § 2679(d)(5). Put differently, removed claims
are barred when the plaintiff fails to file suit in state court
within the FTCA’s two-year statute of limitations, although
some courts—and this is the issue we face here—have
allowed such claims to proceed by equitably tolling the statute
of limitations. See, e.g., Glarner v. U.S. Dep’t of Veterans
Admin., 30 F.3d 697, 700-02 (6th Cir. 1994).
On January 4, 2001, while crossing a street in the
District of Columbia, Appellant John Norman was struck and
seriously injured by a rental car driven by Earnest Howe.
Shortly thereafter, acting through his attorney, Norman filed a
worker’s compensation claim and wrote Howe’s insurance
provider, USAA Insurance Company (“USAA”), declaring his
intent to pursue a tort claim. In response, USAA sent claim
forms to Norman’s attorney, instructing him to send all
correspondence, medical bills, and records directly to it.
After submitting the claim forms, Norman received $2,500
from USAA—the company’s maximum coverage for lost
wages. At the same time, Norman’s attorney received a letter
reiterating USAA’s earlier requests and asking him to update
the company about Norman’s health status and to send it any
additional information about the injury claim.
Almost two and a half years later, on December 8,
2003, well after the two-year FTCA statute of limitations had
expired, USAA sent another letter to Norman’s attorney
informing him that at the time of the accident Howe worked
for the Environmental Protection Agency and was acting
within the scope of his employment. The letter recommended
that Norman file a claim with EPA. Attached was an earlier
letter from USAA to EPA dated November 21, also sent after
the statute of limitations had expired, informing the agency
that it was “previously advised of a possible exposure in this
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matter.” Appellant’s Opp’n to Mot. for Summ. Affirmance,
Ex. 4.
On December 22, thirteen days before the expiration
of the District of Columbia’s three-year statute of limitations
for personal injury actions, D.C. Code § 12-301(3), Norman
sued Howe in D.C. Superior Court. Acting pursuant to the
Westfall Act, the United States removed the case to the
United States District Court for the District of Columbia and
substituted itself as defendant. The government then moved
to dismiss the case as time barred because Norman had failed
to file his superior court lawsuit within the FTCA’s two-year
statute of limitations. After Norman filed his opposition and
the government its reply, the district court directed Norman to
file a sur-reply by January 28, 2005, and scheduled a status
hearing for several days later. After Norman’s counsel
neither filed the sur-reply nor appeared at the status hearing,
the district court dismissed the case “without prejudice to a
motion for reconsideration” filed by February 14. Norman,
No. 04-cv-01208, Minute Order (D.D.C. Jan. 31, 2005)
(capitalization omitted). Norman’s attorney missed that
deadline as well.
A month later, claiming that his failure to abide by the
court’s deadlines was attributable to his unfamiliarity with
electronic case filing, Norman’s lawyer filed a “Motion to
Reconsider and to Reinstate Complaint,” under Federal Rule
of Civil Procedure 60(b)(1). Rule 60(b)(1) allows a court to
grant relief from an adverse judgment if there was “mistake,
inadvertence, surprise, or excusable neglect.” To obtain Rule
60(b) relief, movant must give the district court “reason to
believe that vacating the judgment will not be an empty
exercise or a futile gesture.” Murray v. District of Columbia,
52 F.3d 353, 355 (D.C. Cir. 1995). In opposition to Norman’s
Rule 60(b)(1) motion, the government argued that Norman’s
5
failure to exhaust administrative remedies with the EPA or to
file his lawsuit within the FTCA’s statute of limitations made
his claim futile.
On July 11, the district court denied Norman’s Rule
60(b)(1) motion and dismissed the case with prejudice.
Norman v. United States, 377 F. Supp. 2d 96, 101 (D.D.C.
2005). Although the court ruled that counsel’s failure to file a
sur-reply, to attend the status hearing, and to file his motion
for reconsideration on time constituted “excusable neglect”
within the meaning of Rule 60(b)(1), it nonetheless denied the
motion because Norman failed to make a case for equitably
tolling the statute of limitations, leaving him with no
“underlying meritorious claim.” Id. at 99-101 (citing
Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d 1310, 1314
(D.C. Cir. 1986)). In reaching this conclusion, the court relied
on a decision from the Northern District of Mississippi,
Bryant v. United States, 96 F. Supp. 2d 552 (N.D. Miss.
2000), in which the district court declined to toll the statute of
limitations because the plaintiff, injured in a car accident,
failed to investigate the defendant’s employment status during
the two years following the accident. Id. at 555. Bryant’s
reasoning, the district court here held, “applies with even
greater force in this case” because “[w]hile federal employees
may not be especially plentiful in Indianola, Mississippi, they
certainly are in Washington, D.C. and its metropolitan area.”
Norman, 377 F. Supp. 2d at 101. Given that Norman failed
“to act with reasonable diligence to determine, within the
limitations period, the circumstances surrounding his case that
may limit the causes of action available to him,” the district
court declined to equitably toll the statute of limitations. Id.Absent tolling, Norman’s failure to exhaust his administrative
remedies deprived the district court of jurisdiction, making
him ineligible for Rule 60(b)(1) relief.
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II.
In Irwin v. Department of Veterans Affairs, 498 U.S.
89, 93-96 (1990), the Supreme Court held that federal statutes
of limitations are not jurisdictional. The Court also held that,
“the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also
apply to suits against the United States.” Id. at 95-96. See
also Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 276-77
(D.C. Cir. 2003). Acknowledging that equitable tolling
principles are far from clear, the Supreme Court observed that
courts have extended this relief “only sparingly” and have
generally denied it where a plaintiff “failed to exercise due
diligence in preserving his legal rights” or showed only “a
garden variety claim of excusable neglect.” Irwin, 498 U.S. at
96. Courts have more willingly granted equitable tolling
“where the claimant has actively pursued his judicial remedies
by filing a defective pleading during the statutory period, or
where the complainant has been induced or tricked by his
adversary’s misconduct into allowing the filing deadline to
pass.” Id. (footnote omitted). We too have allowed equitable
tolling, but “only in extraordinary and carefully circumscribed
circumstances,” Smith-Haynie v. District of Columbia, 155
F.3d 575, 580 (D.C. Cir. 1998) (quoting Mondy v. Sec’y of the
Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)), such as where
“despite all due diligence [a plaintiff] is unable to obtain vital
information bearing on the existence of her claim.” Id. at 579.
We have never squarely addressed whether equitable tolling
applies to the FTCA’s statute of limitations, and we need not
do so here, for Norman has failed to meet the due diligence
requirement for equitable tolling. Cf. Thomas v. U.S. Parole
Comm’n, No. 03-5289, 2004 WL 758966 (D.C. Cir. April 7,
2004) (assuming without deciding that equitable tolling
applies to FTCA).
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In support of his argument that he exercised due
diligence, Norman emphasizes that he filed suit within the
District of Columbia’s three-year statute of limitations. If that
were enough for equitable tolling, however, the FTCA’s
statute of limitations would have no bite. Plaintiffs injured in
the District of Columbia or in any other jurisdiction where the
statute of limitations is longer than two years could evade the
FTCA statute by filing within the period prescribed by the
state statute. Congress expressly rejected this proposition in
the Westfall Act, which allows timely filed state-court tort
claims removed to federal court to proceed only if the state-
court action was filed within the FTCA’s two-year statute of
limitations. 28 U.S.C. § 2679(d)(5).
Norman next argues that he exercised due diligence
because immediately following the accident he filed a
worker’s compensation claim with his employer and a
liability claim with USAA. But Norman failed to present the
worker’s compensation claim and the relevant USAA letters
to the district court. See Goland v. CIA, 607 F.2d 339, 371
(D.C. Cir. 1978) (noting that an appellate court cannot
consider new evidence that parties failed to introduce in the
district court). Moreover, nothing in either the claim or the
letters demonstrates the due diligence necessary for equitable
tolling. At a minimum, due diligence requires reasonable
efforts to learn the employment status of the defendant. See,
e.g., T.L. ex rel. Ingram v. United States, 443 F.3d 956, 964
(8th Cir. 2006) (no due diligence where plaintiff failed to
inquire into employment status of her doctor, who made no
attempt to conceal his federal employee status); Gonzalez v.
United States, 284 F.3d 281, 291-92 (1st Cir. 2002) (same);
Gould v. U.S. Dep’t of Health & Human Servs., 905 F.2d 738,
744 (4th Cir. 1990) (“[P]laintiffs have an affirmative duty to
inquire as to the legal identity of the defendant.”). Neither the
worker’s compensation claim nor the liability claim indicates
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Norman or his attorney made any efforts prior to the
expiration of the FTCA’s two-year statute of
limitations—much less reasonably diligent efforts—to
discover Howe’s employer. The liability claim could have
provided evidence of due diligence had Norman not waited
until the last minute to file his lawsuit and, notwithstanding
reasonable discovery, failed to learn that Howe worked for
EPA.
Next, Norman argues the district court should have
equitably tolled the statute of limitations because his failure to
file suit within the limitations period was the insurance
company’s fault. “[T]he insurance carrier,” he argues, “. . .
failed to timely notify [Norman] that Mr. Howe was working
for the EPA at the time of the accident, and that [Norman’s
bodily injury claim] must be filed against the EPA under
FTCA.” Appellant’s Br. 6. According to Norman, USAA
compounded the error “by advising [Norman’s] counsel in
writing that Mr. Howe was a ‘USAA member’ and by paying
first party no fault personal injury protection benefits of
$2,500.00 to [Norman].” Id. But USAA’s payment to
Norman simply fulfilled its obligations under state law; the
company had no obligation either to inform Norman of
Howe’s status or to instruct him about where to file his claim.
It is the plaintiff who must exercise due diligence, not the
defendant or the defendant’s insurance company. Norman
insists he and his lawyer “were induced by [USAA] into
allowing the filing deadline under FTCA to pass,” and USAA
“[c]onveniently” notified Norman of Howe’s employment
status after the expiration of the statute of limitations, too late,
“as USAA knew,” to help Norman. Appellant’s Br. 12-13.
Nothing in the record supports these allegations, however, and
Norman points to no evidence suggesting either that USAA
learned of Howe’s employment status prior to the expiration
of the statute of limitations or that the conversation referenced
9
in the November 21 letter to EPA occurred prior to that time.
Supra pp. 3-4. Even had USAA deliberately withheld
information about Howe’s employment status, that would not
help Norman since he seeks equitable tolling against the
government, not against USAA.
Norman argues that in order to obtain equitable
tolling, “Claimants . . . should only be required to prove that
the information [about federal employee status] was not
provided timely and that the Claimant was prejudiced as a
result.” Appellant’s Br. 7. Neither USAA nor the federal
government, however, had any obligation to inform Norman
of Howe’s employment status. See Gould, 905 F.2d at 745.
Moreover, if prejudice were enough, then equitable tolling
would no longer be restricted to “extraordinary and carefully
circumscribed circumstances,” Smith-Haynie, 155 F.3d at
580, because missing a statute of limitations, by definition,
always causes prejudice.
Finally, Norman relies on three decisions from other
circuits. But two of the cases—Hammer v. Cardio Medical
Products, Inc., No. 02-2723, 2005 WL 1163431 (3d Cir. May
18, 2005) and Soofi v. KFC National Management Co., No.
94-6268, 1996 WL 28962 (6th Cir. Jan. 24, 1996)—are
improperly cited unpublished opinions. Under this court’s
rules, parties may cite unpublished opinions of other courts of
appeal only in accordance with the rules of those courts. D.C.
Cir. R. 28(c)(2). In violation of Third Circuit Rule 28.3(a),
Norman failed to include Hammer’s docket number and date,
and in violation of Sixth Circuit Rule 28(g), he failed to attach
a copy of Soofi to his brief.
In any event, neither Hammer nor Soofi nor the Sixth
Circuit decision in Glarner v. U.S. Department of Veterans
10
Administration provides Norman with any help. In Glarner
and Hammer, the courts indicated that equitable tolling was or
might be available because defendants misled pro se
plaintiffs. Specifically, in Glarner the court tolled the statute
of limitations because the Department of Veterans
Administration, in violation of its own regulations, gave the
pro se plaintiff the incorrect form on which to file a medical
malpractice complaint. 30 F.3d at 701-02. And in Hammer
the court remanded to the district court to consider equitable
tolling because the employer failed to post statutorily required
notices, leaving the plaintiff unaware of her rights. 2005 WL
1163431 at *2-*3. By contrast, Norman was represented by
counsel from the outset and points to no evidence that EPA
misled him about Howe’s employment status, much less that
the agency learned of the accident and Howe’s role in it
during the two-year statutory period. In the third case, Soofi,
the Sixth Circuit suggested that equitable tolling might be
appropriate for a plaintiff who, having timely filed his original
complaint, relied on a court order suggesting that the filing
period would be tolled until his health improved. 1996 WL
28962 at *2-*3. Because Norman waited until after the
expiration of the FTCA’s statute of limitations to file his
superior court action, there was no court that could have
misled him during the limitations period.
For all of these reasons, we agree with the district
court that Norman has failed to demonstrate due
diligence—although not because the accident occurred in
Washington, D.C. instead of in Mississippi. We think it
entirely unworkable to calibrate the required level of due
diligence to the number of federal employees living in the
region where the accident occurs. Suppose, for example, an
accident occurs in Chicago, a federal regional center having
far more federal employees than Mississippi but far fewer
than Washington, D.C. Would the standard for due diligence
11
in Chicago fall somewhere between the Mississippi and
Washington standards? The question answers itself: due
diligence must have the same meaning everywhere.
Norman’s claim for equitable tolling fails because at no time
during the FTCA’s two-year statute of limitations did he make
any effort—diligent or otherwise—to identify Howe’s
employer.
III.
Because Norman failed to exercise due diligence he
was not entitled to equitable tolling, and without equitable
tolling, reinstating his case would be “an empty exercise or a
futile gesture,” Murray, 52 F.3d at 355. We affirm.
So ordered.