Marc Grover v. VA General Counsel
20-3377
| 3rd Cir. | Sep 23, 2021Background
- In 2001 Grover received blood transfusions at a VA Medical Center and later was diagnosed with Hepatitis C, which he attributes to those transfusions.
- Grover filed a VA disability claim in 2002; he did not present an administrative FTCA (tort) claim to the VA until 2019, which the VA denied as untimely.
- Grover sued the United States under the Federal Tort Claims Act in 2020; the Government moved to dismiss or, alternatively, for summary judgment based on failure to exhaust administrative remedies/timeliness.
- The District Court treated the motion as one for summary judgment and found no genuine dispute that Grover’s FTCA claim accrued well before 2017 and that he did not present a timely administrative claim; it granted summary judgment for the Government.
- Evidence in the record showed Grover knew of his diagnosis and suspected the transfusion as the cause by at least 2012 (testimony before the Board of Veterans’ Appeals); Grover’s later assertions of a 2002 tort filing or Government concealment were unsupported in the record.
- The court rejected equitable tolling and declined to consider unsworn and unrecorded factual allegations raised for the first time on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of administrative FTCA claim | Grover says he filed (or was led to believe he filed) a tort claim around 2002 | No tort claim was presented until 2019; accrual occurred when Grover knew of injury and likely cause (by 2012) | Claim untimely; summary judgment for Government |
| Equitable tolling of limitations | VA concealed records and misled Grover, preventing timely filing | No evidence VA actively misled or prevented filing; plaintiff lacked due diligence | Equitable tolling denied |
| Consideration of new factual allegations on appeal | Grover raises new unsworn facts (2003 conversation, FOIA details) | Facts not in district-court record cannot be considered on appeal | Appellate court refused to consider new allegations |
| Effect of lacking precise infection date | Grover contends he lacked exact date until 2018, which impeded filing earlier | Knowledge of exact date not required; accrual depends on knowing existence and cause of injury | Lack of precise date did not excuse untimely presentation |
Key Cases Cited
- Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136 (3d Cir. 2017) (standard of review for summary judgment in this Circuit)
- Razak v. Uber Techs., Inc., 951 F.3d 137 (3d Cir. 2020) (nonmoving party cannot rely on speculation; courts view facts favorably to nonmovant)
- Miller v. Phila. Geriatric Ctr., 463 F.3d 266 (3d Cir. 2006) (FTCA medical-malpractice claim accrues when plaintiff knows both existence and cause of injury)
- D.J.S.-W. ex rel. Stewart v. United States, 962 F.3d 745 (3d Cir. 2020) (standards for equitable tolling of FTCA claims)
- Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994) (equitable tolling doctrines and exceptions)
- In re Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89 (3d Cir. 1990) (appellate courts cannot consider material outside the district-court record)