John Raplee, Jr. v. United States

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1217
JOHN DAVID RAPLEE, JR.,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
------------------------------------
MARYLAND ASSOCIATION FOR JUSTICE,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-
cv-01318-PWG)
Argued: October 25, 2016 Decided: November 22, 2016
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer and Senior Judge Davis joined.
ARGUED: L. Palmer Foret, ASHCRAFT & GEREL, LLP, Rockville,
Maryland, for Appellant. Neil R. White, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Wayne Mansulla, Peter T. Anderson, ASHCRAFT & GEREL, LLP,
Rockville, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. Michael J. Winkelman,
MCCARTHY & WINKELMAN LLP, Lanham, Maryland, for Amicus Curiae.
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DIANA GRIBBON MOTZ, Circuit Judge:
John Raplee challenges the dismissal of his Federal Tort
Claims Act (“FTCA”) complaint as untimely. In compliance with
state law, Raplee initially filed a medical malpractice claim
with Maryland’s alternative dispute resolution agency. Although
he filed with the state agency within the FTCA’s limitations
period, he did not file a complaint in federal court until well
after that period had passed. Raplee contends that by filing a
required state administrative claim, an “action is begun” for
the purposes of the FTCA’s limitations period. 28 U.S.C.
§ 2401(b) (2012). Alternatively, he asserts that equitable
tolling principles excuse his failure to comply with the
limitations period. Because an “action is begun” under the FTCA
only by filing a civil action in federal district court,
Raplee’s claim was untimely. Further, he has not demonstrated
any extraordinary circumstances warranting equitable tolling.
Accordingly, we affirm the judgment of the district court.
I.
In September 2006, Raplee underwent surgery at the National
Institutes of Health, an operating division of the United States
Department of Health and Human Services (“HHS”). Raplee alleges
that the surgeons “negligently position[ed]” him while he was
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under anesthesia, resulting in permanent damage to the muscles
and nerves in his left foot.
The FTCA renders the United States liable for the torts of
its employees, including the surgeons in this case, “in the same
manner and to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674. The FTCA requires a
plaintiff pursuing a tort claim to follow a multi-step process.
First, a plaintiff must file his claim with the appropriate
federal agency, which then has the power to settle or deny it.
28 U.S.C. §§ 2401(b), 2675(a). The plaintiff may file a civil
action against the United States only if the agency has denied
the claim. 28 U.S.C. § 2675(a).
In November 2006, Raplee retained the law firm Ashcraft &
Gerel, LLP to represent him in his medical malpractice claim
against the United States. On September 16, 2008, Ashcraft &
Gerel, through Martin Trpis, filed Raplee’s claim with HHS.
Trpis had left Ashcraft & Gerel by May 2010 while Raplee’s
claim was still under administrative review at HHS. Although
lawyers from the firm continued to represent Raplee, no one
notified HHS of Trpis’s departure, and no other attorney from
Ashcraft & Gerel filed an appearance with HHS.
On June 19, 2012, HHS mailed its notice of final denial by
certified letter to Trpis at Ashcraft & Gerel. Section 2401(b)
of the FTCA bars any tort claim against the United States unless
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the “action is begun within six months” after the federal agency
mails notice of its denial of the claim. 28 U.S.C. § 2401(b).
Therefore, Raplee had until December 19, 2012 to begin an action
pursuant to the FTCA.
The letter HHS sent to Trpis at Ashcraft & Gerel was
returned to HHS as undeliverable. The envelope containing the
letter was stamped “Returned to Sender” with a handwritten note
explaining that Trpis was “no longer at this company.” HHS
confirmed that it had sent the letter to the correct address,
but it made no further attempt to send notice of its denial.
The record contains no evidence that Raplee, Trpis, or anyone
else inquired as to the status of Raplee’s claim.
Because the FTCA merely waives sovereign immunity to make
the United States amenable to a state tort suit, the substantive
law of the state where the tort occurred determines the
liability of the United States. 28 U.S.C. § 1346(b)(1); see,
e.g., Levin v. United States, 133 S. Ct. 1224, 1228 (2013).
Accordingly, as the parties agree, Maryland plaintiffs wishing
to bring medical malpractice claims against the United States
under the FTCA must comply with Maryland’s pre-filing
requirements.
On November 8, 2012, Raplee, represented by an Ashcraft &
Gerel lawyer (but not Trpis), filed a claim with Maryland’s
Health Care Alternative Dispute Resolution Office. Under
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Maryland law, a plaintiff must submit a medical malpractice
claim to this state agency before filing the claim in court.
Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a), -04(a)(1)(i)
(West 2016). A plaintiff must then submit an expert report
certifying that the claim is meritorious within ninety days.
Id. § 3-2A-04(b)(1)(i)(1). Once a claimant has submitted an
expert report, he may waive arbitration and proceed to court.
Id. § 3-2A-06B(a).
Although Raplee filed his initial claim with the Maryland
agency in November 2012 -- approximately one month before the
FTCA filing deadline in December 2012 -- he did not file his
expert report until February 2013. And he did not waive
arbitration until March 2013. Raplee finally filed a complaint
with the federal district court on May 3, 2013 -- nearly five
months after expiration of his time to begin an action under
§ 2401(b).
The United States moved to dismiss Raplee’s claim for lack
of subject matter jurisdiction. The district court granted the
motion because, at the time, we considered the FTCA’s
limitations period to be jurisdictional. See, e.g., Gould v.
U.S. Dep’t. of Health & Human Servs., 905 F.2d 738, 741–42 (4th
Cir. 1990) (en banc). On appeal, we held the case in abeyance
while the Supreme Court resolved that very issue. In United
States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015), the Court
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held that the FTCA’s limitations period is not a jurisdictional
rule but a claims-processing rule that allows for equitable
tolling. In light of this decision, we remanded Raplee’s case
so that the district court could decide whether Raplee was
entitled to equitable tolling. The district court concluded
that he was not, reasoning that Raplee failed to show that
extraordinary circumstances had prevented him from filing in a
timely manner.
On appeal, Raplee contends that his claim was timely
because, by filing his claim with the state agency, an “action
[was] begun” under § 2401(b) of the FTCA. He also contends
that, even if his claim was untimely, he is entitled to
equitable tolling. We consider these arguments in turn.
II.
In order to determine whether Raplee’s claim was timely, we
must decide when an “action is begun” under § 2401(b). We
review questions of statutory interpretation de novo. Stone v.
Instrumentation Lab. Co., 591 F.3d 239, 242–43 (4th Cir. 2009).
When construing a statute, we start with its text. Lamie
v. U.S. Tr., 540 U.S. 526, 534 (2004). If the meaning of the
text is plain -- in other words, if it bears only one reasonable
interpretation –- that meaning controls. Id. “The plainness or
ambiguity of statutory language is determined by reference to
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the language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.”
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
The word “action” in § 2401(b) has only one reasonable
meaning: it refers to a federal civil action. The language of
the statute and the context in which it occurs confirm this.
“Action” has a settled technical meaning in the law:
“action” means a lawsuit. See Black’s Law Dictionary 49 (4th
ed. 1951) (“The legal and formal demand of one’s right . . . in
a court of justice.”). This meaning of “action” has an ancient
lineage. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 112-13
(1866) (“In any legal sense, action, suit, and cause, are
convertible terms” and “[i]n law language a suit is the
prosecution of some demand in a court of justice.” (quoting
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 407 (1821))).
Moreover, the Supreme Court settled any question about the
term’s current meaning when the Court promulgated the Federal
Rules of Civil Procedure in 1938. The Federal Rules famously
abolished distinctions between various types of judicial
proceedings -- like the distinction between “actions at law” and
“suits in equity” -- by announcing that “[t]here shall be one
form of action to be known as ‘civil action.’” Fed. R. Civ. P.
2 (1938). The Advisory Committee made clear that this
innovation in terminology sought to bring uniformity both to
8
federal civil procedure and the United States Code. Id.
advisory committee’s note to 1937 adoption (“Reference to
actions at law or suits in equity in all statutes should now be
treated as referring to the civil action prescribed in these
rules.”).
Congress adopted the language of § 2401(b) against this
backdrop, and the statutory context supports the conclusion that
all references to “action” in the FTCA refer to a judicial civil
lawsuit. For example, § 2401(a) -- the text immediately
preceding § 2401(b) -- provides that “every civil action
commenced against the United States shall be barred unless the
complaint is filed within six years.” 28 U.S.C. § 2401(a)
(emphases added). The next sentence provides an exception:
“The action of any person under legal disability or beyond the
seas at the time the claim accrues may be commenced within three
years after the disability ceases.” Id. (emphasis added). As
another example, § 2402 provides that “any action against the
United States under section 1346 shall be tried by the court
without a jury.” Id. § 2402 (emphases added).
Thus, both the text and statutory context indicate that the
word “action” in § 2401(b) refers only to a civil action filed
in court. Common sense recommends this understanding all the
more strongly when considering a statute of limitations, the
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very purpose of which is to identify the deadline for filing a
lawsuit in court.
The references to § 1346 in the FTCA confirm that the only
type of civil action contemplated by § 2401(b) is a federal
civil action. See 28 U.S.C. § 1346(b)(1). There can be no
doubt that a plaintiff begins an action under the FTCA by
bringing “[a] tort claim against the United States.” 28 U.S.C.
§ 2401(b). But the federal district courts have exclusive
jurisdiction over these claims. 28 U.S.C. § 1346(b)(1). Thus,
a plaintiff cannot satisfy the FTCA’s limitations period by
filing an action with a state agency that lacks jurisdiction
over such an action.
Raplee seeks to ignore all of this statutory language. He
proposes that an “action is begun” under the FTCA as soon as a
plaintiff takes some required step toward pursuing a tort claim
against the United States. But that would mean Congress enacted
a statute of limitations that says nothing specific about what a
plaintiff must do to satisfy the limitations period and nothing
at all about when a plaintiff’s time to file a complaint in
federal court elapses. This would make no sense.
In sum, § 2401(b) requires a plaintiff to bring a federal
civil action within six months after a federal agency mails its
notice of final denial of his claim. Of course, the only way to
begin a federal civil action is by filing a complaint with a
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federal district court. Fed. R. Civ. P. 3. Raplee did not file
his complaint with the district court within the six-month
limitations period, and therefore his complaint was untimely.
III.
Even so, Raplee contends that the district court erred in
refusing to consider his case by tolling the limitations period.
In a non-habeas context like this, we generally review denials
of equitable tolling for abuse of discretion. Rouse v. Lee, 339
F.3d 238, 247 n.6 (4th Cir. 2003) (en banc). But see Cruz v.
Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (noting that in some
circumstances review is de novo).
Plaintiffs are entitled to equitable tolling only if they
show that they have pursued their rights diligently and
extraordinary circumstances prevented them from filing on time.
See Holland v. Florida, 560 U.S. 631, 649 (2010). We have
explained that equitable tolling is reserved for “those rare
instances where -- due to circumstances external to the party’s
own conduct -- it would be unconscionable to enforce the
limitation period against the party and gross injustice would
result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000). The district court concluded that Raplee failed to
demonstrate that extraordinary circumstances prevented him from
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filing on time. Raplee asserts that the court erred for two
reasons.
A.
First, Raplee maintains that HHS wrongfully deprived him of
notice that his claim had been denied by failing to send him a
second notice. This, he argues, constitutes an extraordinary
circumstance.
Wrongful conduct by an opposing party can trigger equitable
tolling. Id. However, HHS did nothing wrong in this case. It
mailed notice to Raplee’s counsel of record at the address
counsel had provided -- the offices of Ashcraft & Gerel. When
the notice was returned undelivered, HHS took the extra step of
confirming that it had been sent to the correct address, a step
the statute does not require. Raplee does not dispute that HHS
sent the notice to the correct address, and the unrebutted
record evidence shows that it arrived there. We know of no
statute or regulation that requires anything more of HHS, and
Raplee has pointed to none.
Furthermore, the failure to receive the notice is largely
attributable to action or inaction by past and present lawyers
at Ashcraft & Gerel. Those lawyers took no steps to ensure that
Raplee’s case would be handled seamlessly after Trpis left the
firm. They never notified HHS about the departure of one lawyer
or the substitution of another. When the certified letter from
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HHS arrived at Ashcraft & Gerel’s office, the letter was simply
rejected without being opened.
Nothing extraordinary occurred here. This is just the type
of thing that can happen when busy lawyers inadvertently fail to
handle personnel changes and office mail carefully. Such
conduct is unfortunately understandable; it hardly qualifies as
an extraordinary circumstance. Cf. Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990) (holding that equitable tolling
did not apply to an untimely action under the Civil Rights Act
where the attorney was out of the country when notice arrived at
his office); Rouse, 339 F.3d at 251, 253 (holding that equitable
tolling did not apply to a death-row inmate’s habeas petition
where inmate’s attorney filed one day late); Harris, 209 F.3d at
331 (holding that an attorney’s misinterpretation of AEDPA’s
limitations period did not warrant tolling).
B.
Raplee also contends that Trpis, his original Ashcraft &
Gerel attorney, abandoned him and that this constitutes an
extraordinary circumstance under the Supreme Court’s decision in
Maples v. Thomas, 132 S. Ct. 912 (2012). This argument also
fails.
In Maples, a state prisoner on death row procedurally
defaulted on his habeas claim because, unbeknownst to him, his
attorneys left the firm handling the case and no other attorneys
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took over for them. The Supreme Court held that the prisoner
had demonstrated cause that excused his procedural default
because his “attorney abandon[ed] his client without notice, and
thereby occasion[ed] the default.” Id. at 922.
In a habeas case, like Maples, the injustice of holding a
petitioner responsible for his attorneys’ abandonment is
obvious. There is no redemption for habeas petitioners whose
attorneys abandon them in this way. A malpractice suit cannot
compensate them for the loss of freedom -- or life itself. For
that reason, habeas cases are precisely the type of circumstance
where abandonment calls for a remedy like equitable tolling.
In contrast, in a civil suit for damages, if a plaintiff
misses a deadline because his attorney abandoned him, he can
recover those damages from the attorney. For this reason, the
Maples rule may not apply in civil actions seeking damages. See
Choice Hotels Int’l, Inc. v. Grover, 792 F.3d 753, 755–56 (7th
Cir. 2015), cert. denied, 136 S. Ct. 691 (2015) (suggesting as
much and declining to apply Maples in a breach of contract
case). But see Sneed v. Shinseki, 737 F.3d 719, 728 (Fed. Cir.
2013) (applying Maples, over a dissent, to a veterans’ benefits
case because of “[t]he special treatment Congress reserved for
veterans”).
We need not -- and do not -- here resolve the reach of
Maples because, even if Maples applies in civil cases, like the
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case at hand, it does not help Raplee here. Although the facts
of this case bear some similarity to those in Maples, they
differ in a crucial respect: abandonment by his attorneys did
not cause Raplee to miss the filing deadline. Raplee’s original
Ashcraft & Gerel attorney left the firm in 2010, but the record
offers no evidence that Ashcraft & Gerel lawyers abandoned him.
On the contrary, the record clearly establishes other Ashcraft &
Gerel attorneys took over Raplee’s case almost two years before
the Act’s deadline passed in December 2012. For example, a
lawyer from the firm procured the required expert report as
early as January 2011. A lawyer from the firm continued to
represent Raplee before the state agency and the district court,
and a lawyer from Ashcraft & Gerel continues to represent Raplee
in this appeal. Accordingly, whatever abandonment may have
occurred in this case had nothing to do with the untimely
filing.
IV.
We recognize that, in some cases, state requirements like
Maryland’s may place unusually high burdens on FTCA plaintiffs.
It takes time and effort to develop a case and secure credible
expert testimony. Moreover, there is no guarantee that a state
agency will process claims swiftly enough to allow a plaintiff
to file within the FTCA’s limitations period.
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There are, however, procedural devices available to
mitigate the burdens of state law filing requirements. A
district court has broad power to issue stays to control its
docket, and it can use that power to craft a solution to such
problems. For example, in a recent case where the plaintiff
filed a timely federal FTCA complaint before satisfying
Maryland’s pre-filing requirements, Chief Judge Catherine Blake
stayed the federal proceedings rather than dismiss the case.
Anderson v. United States, Civ. No. CCB–08–3, 2008 WL 3307137,
at *4 (D. Md. Aug. 8, 2008). This gave the plaintiff an
opportunity to satisfy the state requirements without risking an
untimely federal filing. (Of course, that solution was
unavailable here because Raplee filed an untimely federal
complaint.)
We recognize that deciding whether to stay proceedings, as
Judge Blake did, “calls for the exercise of judgment, which must
weigh competing interests and maintain an even balance.” Landis
v. N. Am. Co., 299 U.S. 248, 254–55 (1936). But in a typical
case, allowing plaintiffs to file their federal complaints under
the FTCA before completing state law requirements would seem to
promote both the objectives of § 2401(b) and the FTCA’s overall
purpose of affording private citizens relief for injuries they
suffer as a result of the federal government tortfeasors.
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This is particularly true given that the FTCA’s limitations
period is not a jurisdictional rule but a claims-processing one.
Kwai Fun Wong, 135 S. Ct. at 1638. Like other claims-processing
rules, § 2401(b) “seek[s] to promote the orderly progress of
litigation by requiring that the parties take certain procedural
steps at certain specified times.” Henderson ex rel. Henderson
v. Shinseki, 562 U.S. 428, 435 (2011). Plaintiffs cannot avoid
this rule absent extraordinary circumstances. However, Congress
did not design § 2401(b) as a gauntlet for plaintiffs to run.
The statute does not require a plaintiff to complete all state
law requirements before filing a complaint with the district
court. Rather, a plaintiff fully satisfies the claims-
processing objective by filing a complaint with the federal
district court within the limitations period while
simultaneously working to satisfy state law requirements.
V.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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