John David RAPLEE, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Maryland Association for Justice, Amicus Supporting Appellant.
No. 14-1217
United States Court of Appeals, Fourth Circuit.
November 22, 2016
841 F.3d 328
Argued: October 25, 2016
The record here tells the story. There is no need for elaboration on our part. The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED
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.
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.
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 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.”
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 the “action is begun within six months” after the federal agency mails notice of its denial of the claim.
The letter HHS sent to Trpis at Ashcraft & Gerel was returned to HHS as undeliverable. The envelope containing the
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.
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 Maryland law, a plaintiff must submit a medical malpractice claim to this state agency before filing the claim in court.
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
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, 575 U.S. 402, 135 S.Ct. 1625, 1629, 191 L.Ed.2d 533 (2015), the Court 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
II.
In order to determine whether Raplee‘s claim was timely, we must decide when an “action is begun” under
The word “action” in
“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, 18 L.Ed. 281 (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, 5 L.Ed. 257 (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.‘”
Congress adopted the language of
Thus, both the text and statutory context indicate that the word “action” in
The references to
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,
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, 130 S.Ct. 2549, 177 L.Ed.2d 130 (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 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
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, 111 S.Ct. 453, 112 L.Ed.2d 435 (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, 565 U.S. 266, 132 S.Ct. 912, 181 L.Ed.2d 807 (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 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, 577 U.S. -, 136 S.Ct. 691, 193 L.Ed.2d 521 (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 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
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.
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, 57 S.Ct. 163, 81 L.Ed. 153 (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
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,
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.