Karen Hawver v. United States

Dec 17, 2015
14-1501
Versions:808 F.3d 693
2015 U.S. App. LEXIS 21937
2015 WL 9245249

sufficient to defeat this claim, but we also point out that her argument presents a factual challenge over which we have no jurisdiction. When §§ 1252(a)(2)(C) and (D) apply, “objections to the agency‘s weighing of the facts [are] not within our jurisdiction to review.” Ettienne, 659 F.3d at 519; see also Mendoza-Rodriguez v. Holder, 564 Fed. Appx. 222, 224 (6th Cir. 2014) (“We lack jurisdiction to review Mendoza-Rodriguez‘s challenge to the BIA‘s denial of relief under the CAT because his argument that he made the showing necessary to obtain relief does not present a constitutional claim or question of law“).

V.

For the foregoing reasons, we deny the petition for review of Sanchez-Robles‘s application for withholding of removal.

ARGUED: Don Ferris, Ferris & Salter, P.C., Ann Arbor, Michigan, for Appellant. Andrew J. Lievense, United States Attor-ney‘s Office, Detroit, Michigan, for Appellee. ON BRIEF: Don Ferris, Ferris & Salter, P.C., Ann Arbor, Michigan, for Appellant. Andrew J. Lievense, United States Attorney‘s Office, Detroit, Michigan, for Appellee.

Before: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*

OPINION

SUTTON, Circuit Judge.

Karen Hawver claims that the Center for Family Health in Jackson, Michigan, a federally qualified health center, caused her mother‘s death by providing negligent medical care. The Federal Tort Claims Act provides the exclusive remedy for claims against federally qualified health centers such as Family Health. See 42 U.S.C. § 233. By the time Hawver filed this lawsuit, the two-year statute of limitations applicable to claims under the Act had run. See 28 U.S.C. § 2401(b). The district court dismissed her case as a result. Relying on Rogers v. United States, 675 F.2d 123, 124 (6th Cir.1982) (per curiam), the court held that a failure to satisfy the Act‘s statute of limitations requirements doubles as a failure to satisfy the subject matter jurisdiction requirements of the federal courts and thus precludes equitable tolling. Hawver v. United States, No. 13-CV-11068, 2014 WL 1405221, at *6-7 (E.D.Mich. Apr. 25, 2014). Hawver appealed.

After the district court‘s decision, United States v. Kwai Fun Wong held that the Act‘s statute of limitations requirements in § 2401(b) do not implicate the subject matter jurisdiction of the federal courts and that equitable tolling may save a late claim in some circumstances. --- U.S. ---, 135 S.Ct. 1625, 1629, 191 L.Ed.2d 533 (2015); see also Herr v. U.S. Forest Serv., 803 F.3d 809, 814 (6th Cir.2015). The Supreme Court‘s decision in Kwai Fun Wong prompts us to do two things. First, as a matter of compulsion under our hierarchical system of precedent, we must overrule our contrary caselaw, see, e.g., Rogers, 675 F.2d at 124; Singleton v. United States, 277 F.3d 864, 873 (6th Cir.2002). Second, as a matter of discretion, we remand the case to the district court to give it an opportunity to determine whether equitable tolling saves Hawver‘s claim. The district court dismissed Hawver‘s claim at the Civil Rule 12(b)(1) stage of the case, it did not consider her equitable tolling argument, and some discovery may be necessary to determine whether equitable tolling applies. We thus vacate the district court‘s opinion and remand the case so that the district court may decide in the first instance whether equitable tolling applies.

Notes

*
The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio, sitting by designation.