George Bello v. United States

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10367
Non-Argument Calendar
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D.C. Docket No. 8:17-cv-02237-JSM-AAS
GEORGE BELLO,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 6, 2018)
Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
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George Bello appeals the district court’s order dismissing as time-barred his
medical malpractice claim against the United States, filed pursuant to the Federal
Tort Claims Act, 28 U.S.C. § 1671–80. After careful review and consideration of
the record and parties’ briefs, we affirm.
I
In August of 2014, Mr. Bello was diagnosed with squamous cell cancer of
his left eye at the James A. Haley Veterans Hospital (“Haley”) in Tampa, Florida.
In November of 2014, Haley physicians commenced a course of chemotherapy eye
drops and, approximately seven months later, informed Mr. Bello that his eye was
free of cancer. Upon completion of the chemotherapy treatment, however, Mr.
Bello complained to his caregivers that his left upper eyelid was drooping, a
condition termed ptosis. At the time, Haley caregivers did not investigate or
diagnose a cause for this ailment, which persisted for several months.
Unfortunately, in December of 2015, Mr. Bello’s physicians determined that
his cancer had progressed to a degree that it was necessary to remove his left eye
and the surrounding structures. In March of 2016, Mr. Bello underwent surgery
for enucleation and/or exteneration—complete removal—of his left eye, eyelid,
and orbit. During a May 12, 2016 meeting with Mr. Bello, Haley physicians
confirmed that he would have most likely kept his eye had the cancer been
detected sooner.
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On or around August 26, 2016, Mr. Bello mailed to the Department of
Veterans Affairs (“VA”) Veterans Health Administration at Haley Medical Center
an undated Standard Form 95—an administrative claim for damage, injury, or
death under the Federal Tort Claims Act (“FTCA”)—along with the progress notes
prepared by Haley physicians from their May 12 meeting with Mr. Bello. On
March 16, 2017, after settlement discussions failed, the VA Office of Chief
Counsel in Saint Petersburg, Florida, sent a letter denying Mr. Bello’s
administrative claim.
The March 16 denial letter included detailed instructions for seeking
administrative reconsideration of his denied claim. It explained that, to be timely
filed, such requests must be received by the VA General Counsel in Washington,
D.C., within six months of the denial letter date and may be submitted by mail, fax,
or email. It further explained that seeking reconsideration was not necessary, and
that Mr. Bello could instead elect to file his lawsuit in an appropriate district court,
subject to the six-month limitations period commencing on the date of the denial
letter.
Mr. Bello did not seek administrative reconsideration of his claim from the
VA. Instead, he hired an attorney who retained a private ophthalmological expert,
Tamara R. Fountain, M.D., to evaluate Mr. Bello’s medical records. On June 2,
2017, Mr. Bello mailed a presuit notice of intent to file a lawsuit, pursuant to
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Florida Statute § 766.010, to the VA Office of General Counsel in Saint
Petersburg. As required by Florida law governing medical malpractice lawsuits,
the notice included an affidavit from Dr. Fountain expressing her opinion that
Haley physicians were negligent in the care and treatment of Mr. Bello’s eye by
failing to diagnose and treat his left eye ptosis following chemotherapy.
On September 27, 2017, Mr. Bello filed his FTCA lawsuit in the Middle
District of Florida. Mr. Bello’s complaint alleged that, had Haley physicians
properly diagnosed, monitored, and treated the ptosis of his left eye, they would
have discovered the return of his cancer earlier and likely avoided the need for
surgery. Along with the financial and physical challenges attendant to losing one
of his eyes, Mr. Bello claims to have endured significant mental and emotional
distress, trauma, and lost enjoyment of his life.
The United States filed a motion to dismiss for failure to state a claim—
specifically, that Mr. Bello did not file his complaint within the six-month
limitations period following the VA’s denial of his administrative claim on March
16, 2017. The district court granted the United States’ motion to dismiss. In his
appeal, Mr. Bello argues—as he did in the district court—that the complaint was
timely filed because the presuit notice of intent to sue was functionally equivalent
to a request for reconsideration, and, alternatively, that he is entitled to equitable
tolling of the statute of limitations.
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II
We review a district court’s dismissal for failure to state a claim under Rule
12(b)(6) de novo, “accepting the complaint’s allegations as true and construing
them in the light most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1335 (11th Cir. 2012). We review the district court’s factual findings
for clear error. Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008). Whether
equitable tolling applies is a legal question also subject to de novo review.
Lawrence v. Florida, 412 F.3d 1221, 1224 (11th Cir. 2005).
A tort claim under the FTCA is “forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim
accrues.” 28 U.S.C. § 2401(b). A tort claim under the FTCA accrues “when the
plaintiff knows of both the injury and its cause.” United States v. Kubrick, 444
U.S. 111 (1979). A claim is deemed presented when the appropriate agency
receives from the claimant a Standard Form 95 or other written notification of the
alleged tortious incident. See 28 C.F.R. § 14.2(a). See also Burchfield v. United
States, 168 F.3d 1252, 1254–55 (11th Cir. 1999).
Upon an agency’s denial of a claim, the claimant has six months to request
reconsideration. See 28 U.S.C. § 2401(b); 28 C.F.R. § 14.9(b). Upon receiving a
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request for reconsideration, the agency has six months to make a final disposition
of the claim. A plaintiff then has another six months from the date of final
disposition to file a complaint in the appropriate district court. See 28 C.F.R. §
14.9(b). Alternatively, a claimant may forgo a request for reconsideration and file
a complaint in district court, subject to the six-month limitations period, which
commences on the date of the initial agency denial.
There is no dispute that Mr. Bello timely presented his claim to the VA
within the two-year limitations period from the time his medical malpractice claim
accrued. And both parties generally agree that Mr. Bello was bound by the six-
month limitations period following the VA’s denial of his claim on March 16,
2017, and that his complaint was due on or before September 16, 2017. Mr. Bello
argues, however, that the presuit notice of intent to file a lawsuit that he mailed to
the VA Office of General Counsel in Saint Petersburg—received June 5, 2017—
was tantamount to a request for reconsideration, thus initiating a six-month time
frame for the VA to issue a final disposition of the claim. From the end of that
limitations period, or from the date of the VA’s final disposition of the request for
reconsideration, whichever occurred first, Mr. Bello would have then had another
six months to file his complaint.
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Mr. Bello’s contention that we must interpret the presuit notice of intent to
sue pursuant to Florida Statute § 766.010 1 as a request for reconsideration pursuant
to the FTCA finds no support in the law—indeed, Mr. Bello points to none. Courts
presented with similar questions have generally refused to recast post-denial
correspondence to or from an agency as requests for, or indications of, the
reconsideration of administrative claims. See, e.g., Claremont Aircraft, Inc. v.
United States, 420 F.2d 896, 898 (9th Cir. 1969) (“[T]he courtesy of the Air Force
in supplying subsequent oral and written explanation should not be held to erase,
or vitiate, its previous ‘final denial.’”); Solomon v. United States, 566 F. Supp.
1033, 1035 (E.D.N.Y. 1982) (declining to construe letters sent to U.S. Postal
Service seeking explanation of final denial as requests for reconsideration).
Moreover, the undisputed facts, as presented by Mr. Bello, belie his claim
that the presuit notice was “tantamount to a request for reconsideration.” First, the
March 16 denial letter from the VA contained express instructions for requesting
reconsideration, which required mailing, faxing, or emailing the request to the VA
1
The parties disagree as to whether Florida’s medical malpractice presuit procedural
requirements apply to medical malpractice claims under the FTCA. Eleventh Circuit law is not
settled on this issue. See, e.g., Lewis v. Womack Army Med. Ctr., 886 F. Supp. 2d 1304, 1306–07
(N.D. Fla. 2012) (discussing the split of authority and dismissing an FTCA claim for failure to
comply with North Carolina’s medical malpractice presuit procedural requirements). Mr. Bello
contends that the VA “must similarly comply with the substantive laws of the State of Florida
and comply with the presuit process,” but offers no explanation of what that compliance would
entail or how it should influence our analysis in this case. Because Mr. Bello did not present a
complete argument or discussion on this issue, and because it is not necessary to resolve this
dispute, we do not address whether a medical malpractice claim under the FTCA is subject to
Florida’s medical malpractice presuit procedural requirements.
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General Counsel in Washington, D.C. Yet Mr. Bello’s presuit notice was mailed
to the VA Office of Chief Counsel in Saint Petersburg, Florida. Second, Mr.
Bello’s presuit notice contained no language to suggest that it was meant to serve
as a request for reconsideration—it does not reference Mr. Bello’s administrative
FTCA claim or the March 16 letter from the VA denying that claim. Third, Mr.
Bello concedes that he understood the limitations period to close on September 16,
2017, six months after the March 16 letter, and prepared the complaint to be filed
on September 12. But if Mr. Bello considered his presuit notice (received by the
VA on June 5, 2017) a request for reconsideration, he would have also believed
that it triggered a new six-month limitations period ending December 2, 2017. Mr.
Bello does not explain his decision to file the complaint almost two months before
that purported limitations period closed, having received no final disposition from
the VA. Drawing all inferences in Mr. Bello’s favor, these facts do not support a
finding that he intended his presuit notice to function as a request for
reconsideration, or that the VA had any reason to construe it as one.
On this record, we decline to reframe Mr. Bello’s presuit notice of intent to
file a lawsuit as a request for the VA to reconsider the denial of his administrative
claim. Thus, the applicable limitations period under 28 U.S.C. § 2401(b) and 28
C.F.R. § 14.9(b) concluded six months after the VA’s March 16, 2017 denial of
Mr. Bello’s administrative claim. That limitations period ended on September 16,
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2017, and Mr. Bello’s complaint was not filed until September 27. The claim is
therefore time-barred.
III
We next consider whether Mr. Bello is entitled to equitable tolling. Mr.
Bello argues that extraordinary circumstances—specifically, Hurricane Irma and
the illness and death of the mother of his attorney’s legal assistant—prevented
timely filing of the complaint. We conclude that these events, while unfortunate
and ill-timed, do not warrant the application of equitable tolling.
Time limitations under the FTCA are non-jurisdictional and thus subject to
equitable tolling. See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1633
(2015). Equitable tolling, however, is an “extraordinary remedy which should be
extended only sparingly.” Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)
(citations removed). It is proper only where a plaintiff can show that he untimely
filed because of “extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.” Motta ex rel. A.M. v. United States, 717 F.3d
840, 846 (11th Cir. 2013). Standing alone, attorney negligence—even egregious
negligence—is not an extraordinary circumstance that justifies equitable tolling.
See Lawrence v. Florida, 549 U.S. 327, 337 (2007). Attorney professional
misconduct so severe that a client is “essentially abandoned,” however, may
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constitute extraordinary circumstances warranting equitable tolling. See Holland v.
Florida, 560 U.S. 631, 653 (2010); Maples v. Thomas, 565 U.S. 266, 281–83
(2012).
Mr. Bello argues that two separate events prevented him from timely filing
his complaint. We address each one separately.
Mr. Bello first suggests that he was impeded by the arrival of Hurricane
Irma to the Tampa area, which caused court closures and electrical outages from
September 8 to September 11, 2017. But Mr. Bello does not explain how this
interfered with his ability to file the complaint over the next several days, when the
courts were open and electricity was (presumably) restored. Nor does Mr. Bello
square this with his assertion that the complaint was completed and delivered to his
attorney’s legal assistant on September 12 to be filed before September 16. By Mr.
Bello’s own admission, the hurricane did not cause his inability to timely file and
cannot justify equitable tolling in this case. See Motta, 717 F.3d at 846–47.
Mr. Bello also raises the illness, hospitalization, and September 17 death of
the mother of his attorney’s legal assistant. Though unfortunate, we do not find
that this was an extraordinary circumstance beyond Mr. Bello’s control and
unavoidable with diligence. In her affidavit, the legal assistant explains that her
mother was first hospitalized on August 27, 2017, and later transferred to a
rehabilitation facility. She also confirms that she received the complaint from Mr.
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Bello’s attorney via email on September 12 with instructions to file it, which she
did not do. When Mr. Bello’s counsel learned ten days after the limitations period
ended that the complaint had not been filed, he immediately arranged for another
legal assistant to hand deliver it to the clerk’s office on September 27.
Given the long duration of the legal assistant’s mother’s hospitalization, the
fact that the complaint was ready to be filed four days before the limitations period
closed, and the ability of Mr. Bello’s counsel to quickly coordinate coverage in the
legal assistant’s absence, there appears to have been some negligence on the
attorney’s part in failing to account for these circumstances in order to meet the
filing deadline. Such “garden variety” negligence does not, however, rise to a
level warranting equitable tolling. Holland, 560 U.S. at 652; Motta, 717 F.3d at
846–47. We also agree with the district court that the failure to ascertain whether
the complaint was timely filed before the limitations period expired—and for
several days thereafter—does not indicate a diligent pursuit of rights necessary for
a court to apply equitable tolling.
IV
We affirm the district court’s order granting the United States’ motion to
dismiss Mr. Bello’s complaint as time-barred.
AFFIRMED.
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