Felisa Tunac v. United States
897 F.3d 1197
9th Cir.2018Background
- Randy Tunac, a veteran treated at the Carl T. Hayden VA Medical Center, deteriorated in late 2009 (diagnosed with end-stage kidney disease) and died on December 27, 2009 after delays in obtaining dialysis and follow-up care.
- Felisa Tunac filed an administrative FTCA claim with the VA on April 17, 2015; the VA denied it October 8, 2015, and she then sued in district court for wrongful death and medical negligence.
- The VA moved to dismiss, arguing the Veterans’ Judicial Review Act (VJRA)/38 U.S.C. § 511 precluded district-court jurisdiction over claims relating to benefits decisions, and alternatively that the FTCA two-year filing limit barred the claims.
- The district court held it had jurisdiction over some claims but dismissed the action as time-barred under the FTCA. Tunac appealed.
- The Ninth Circuit held district courts have FTCA jurisdiction over negligence claims against VA health-care employees as defined in 38 U.S.C. § 7316(a)(2), but claims about administrative scheduling/benefits decisions are barred by § 511 and must proceed through the VJRA/Federal Circuit. The court further held Tunac’s FTCA claims were time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 511/VJRA precludes district-court jurisdiction over claims that VA caused death by delaying treatment | Tunac argued FTCA covers medical negligence and district court can hear claims | VA argued § 511 precludes district courts from reviewing benefits-related decisions including delays in care | Court: FTCA jurisdiction exists for negligence by VA health-care employees; § 511 bars review of administrative scheduling/benefits decisions (those must go through the VJRA/Federal Circuit) |
| Scope of FTCA coverage re: VA personnel (who may be sued under FTCA) | Tunac: claims alleging negligent care by VA staff are cognizable under FTCA | VA: broad § 511 would sweep most VA conduct into VJRA pathway | Court: FTCA applies to malpractice/negligence by "health care employees" listed in 38 U.S.C. § 7316(a)(2) (medical professionals and directly supporting personnel) |
| Accrual and timeliness under FTCA (28 U.S.C. § 2401(b)) | Tunac: claim did not accrue until 2014 when she learned of systemic VA delays | Government: claim accrued at death/earlier when cause was or should have been known; FTCA 2-year bar applies | Court: claim accrued by Jan 2010 (or at latest by receipt of VA letter); Tunac’s 2015 administrative claim was untimely and barred |
| Equitable tolling/concealment | Tunac: VA concealed systemic delays, warranting tolling | Government: no concealment of operative facts occurred | Court: equitable tolling not available—no concealment of operative facts that delayed Tunac’s awareness of injury and its cause |
Key Cases Cited
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (court may address threshold grounds but must resolve jurisdiction before merits)
- Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (statute-of-limitations dismissal is a merits judgment)
- Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (§ 511 precludes district-court review of benefits-related VA decisions, including delays in provision of care)
- Littlejohn v. United States, 321 F.3d 915 (9th Cir. 2003) (FTCA jurisdiction appropriate for certain VA medical-negligence claims)
- Kubrick v. United States, 444 U.S. 111 (accrual: plaintiff’s knowledge of injury and cause, not legal fault, triggers FTCA limitations)
- Winter v. United States, 244 F.3d 1088 (9th Cir. 2001) (FTCA accrual in medical-malpractice context; reliance on medical assurances may delay accrual)
- Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005) (distinguishing VA benefits decisions from garden-variety malpractice; FTCA suits possible where claim does not require review of benefits decision)
- Anestis v. United States, 749 F.3d 520 (6th Cir. 2014) (FTCA malpractice claim against VA intake staff who performed triage/evaluative functions could proceed)
- CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277 (2011) (ejusdem generis canon used to interpret catchall in statutory list)