Norman, John D. v. United StatesNorman, John D. v. United States
After appellant filed suit in the Superior Court of the District of Columbia seeking damages for injuries suffered in a car accident, thе United States, acting pursuant to the Federal Tort Claims Act, removed the case to federal court because the car‘s driver was a federal employee acting within the scope of his employment at the time of the accident. By the time the case was removed, however, the FTCA‘s two-year statute of limitations had expired. Accordingly, the district court, declining to equitably toll the statute of limitations because appellant had failed to make reasonably diligent efforts to discover the driver‘s employer, dismissed the complaint. We affirm.
I.
The Federal Tort Claims Act,
On January 4, 2001, while crossing a street in the District of Columbia, Appellant John Norman was struck and seriously injured by a rental car driven by Earnest Howe. Shortly thereafter, acting through his attorney, Norman filed a worker‘s compensation claim and wrote Howe‘s insurance provider, USAA Insurance Company (“USAA“), declaring his intent to pursue a tort claim. In response, USAA sent claim forms to Norman‘s attorney, instructing him to send all correspondencе, medical bills, and records directly to it. After submitting the claim forms, Norman received $2,500 from USAA—the company‘s maximum coverage for lost wages. At the same time, Norman‘s attorney received a letter reiterating USAA‘s earlier requests and asking him to update the company about Norman‘s health status and to send it any additional information about the injury claim.
Almost two and a half years later, on December 8, 2003, well after the two-year FTCA statute of limitations had expired, USAA sent another letter to Norman‘s attorney informing him that at the time of the accident Howe worked for the Environmental Protection Agency and was acting within the scope of his employment. The letter recommended that Norman file a claim with EPA. Attached was an earlier letter from USAA to EPA dated November 21, also sent after the statute of limitations had expired, informing the agency that it was “previously advised of a possible exposure in this matter.” Appеllant‘s Opp‘n to Mot. for Summ. Affirmance, Ex. 4.
On December 22, thirteen days before the expiration of the District of Columbia‘s three-year statute of limitations for personal injury actions,
A month later, claiming that his failure to abide by the court‘s deadlines was attributable to his unfamiliarity with electronic case filing, Norman‘s lawyer filed a “Motion to Reconsider and to Reinstate Complaint,” under Federal Rule of Civil Procedure 60(b)(1).
On July 11, the district court denied Norman‘s
II.
In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that federal statutes of limitations are not jurisdictional. The Court also held that, “the same rebuttable presumption of equitable tolling applicable tо suits against private defendants should also apply to suits against the United States.” Id. at 95-96, 111 S.Ct. 453. See also Chung v. U.S. Dep‘t of Justice, 333 F.3d 273, 276-77 (D.C.Cir.2003). Acknowledging that equitable tolling principles are far from clear, the Supreme Court observed that courts have extended this relief “only sparingly” and have generally denied it where a plaintiff “failed to exercise due diligence in preserving his legal rights” or showed only “a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96, 111 S.Ct. 453. Courts have more willingly granted equitable tolling “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary‘s misconduct into allowing the filing deadline to pass.” Id. (footnote omitted). We too have allowed equitable tolling, but “only in extraordinary and carefully circumscribed circumstances,” Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C.Cir.1998) (quoting Mondy v. Sec‘y of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)), such as where “despite all due diligence [a plaintiff] is unable to obtain vital information bearing on the existence of her claim.” Id. at 579. We have never squarely addressed whether equitable tolling applies to the FTCA‘s statute of limitations, and we need not do so here, for Norman has failed to meet the due diligence requirement for equitable tolling. Cf. Thomas v. U.S. Parole Comm‘n, No. 03-5289, 2004 WL 758966 (D.C.Cir. April 7, 2004) (assuming without deciding that equitable tolling applies to FTCA).
In support of his argument that he exercised due diligence, Norman emphasizes that he filed suit within the District of Columbia‘s three-year statute of limitations. If that were enough for equitable tolling, however, the FTCA‘s statute of limitations would have no bite. Plaintiffs injured in the District of Columbia or in any other jurisdiction where the statute of limitations is longer thаn two years could evade the FTCA statute by filing within the period prescribed by the state statute. Congress expressly rejected this proposition in the Westfall Act, which allows timely filed state-court tort claims removed to federal court to proceed only if the state-court action was filed within the FTCA‘s two-yеar statute of limitations.
Norman next argues that he exercised due diligence because immediately following the accident he filed a worker‘s compensation claim with his employer and a liability claim with USAA. But Norman failed to present the worker‘s compensation claim and the relevant USAA lettеrs to the district court. See Goland v. CIA, 607 F.2d 339, 371 (D.C.Cir.1978) (noting that an appellate court cannot consider new evidence that parties failed to introduce in the district court). Moreover, nothing in either the claim or the letters demonstrates the due diligence necessary for equitable tolling. At a minimum, due diligence requires reasonable efforts to learn the employment status of the defendant. See, e.g., T.L. ex rel. Ingram v. United States, 443 F.3d 956, 964 (8th Cir.2006) (no due diligence where plaintiff failed to inquire into employment status of her doctor, who made no attempt to conceal his federal employee status); Gonzalez v. United States, 284 F.3d 281, 291-92 (1st Cir.2002) (same); Gould v. U.S. Dep‘t of Health & Human Servs., 905 F.2d 738, 744 (4th Cir.1990) (“[P]laintiffs have an affirmative duty to inquire as to the legal identity of the defеndant.“). Neither the worker‘s compensation claim nor the liability claim indicates Norman or his attorney made any efforts prior to the expiration of the FTCA‘s two-year statute of limitations—much less reasonably diligent efforts—to discover Howe‘s employer. The liability claim could have provided evidence of due diligence had Norman not waited until the last minute to file his lawsuit and, notwithstanding reasonable discovery, failed to learn that Howe worked for EPA.
Next, Norman argues the district court should have equitably tolled the statute of limitations because his failure to file suit within the limitations period was the insurance сompany‘s fault. “[T]he insurance carrier,” he argues, “... failed to timely notify [Norman] that Mr. Howe was work
Norman argues that in order to obtain equitable tolling, “Claimants ... should only be required to prove that the information [about federal emplоyee status] was not provided timely and that the Claimant was prejudiced as a result.” Appellant‘s Br. 7. Neither USAA nor the federal government, however, had any obligation to inform Norman of Howe‘s employment status. See Gould, 905 F.2d at 745. Moreover, if prejudice were enough, then equitable tolling would no longer be restricted to “еxtraordinary and carefully circumscribed circumstances,” Smith-Haynie, 155 F.3d at 580, because missing a statute of limitations, by definition, always causes prejudice.
Finally, Norman relies on three decisions from other circuits. But two of the cases—Hammer v. Cardio Medical Products, Inc., 131 Fed.Appx. 829, No. 02-2723, 2005 WL 1163431 (3d Cir. May 18, 2005) and Soofi v. KFC National Management Co., No. 94-6268, 1996 WL 28962 (6th Cir. Jan. 24, 1996)—are improperly cited unpublished opinions. Under this court‘s rulеs, parties may cite unpublished opinions of other courts of appeal only in accordance with the rules of those courts. D.C.Cir. R. 28(c)(2). In violation of Third Circuit Rule 28.3(a), Norman failed to include Hammer‘s docket number and date, and in violation of Sixth Circuit Rule 28(g), he failed to attach a copy of Soofi to his brief.
In any event, neither Hammer nor Soofi nor the Sixth Circuit decision in Glarner v. U.S. Department of Veterans Administration provides Norman with any help. In Glarner and Hammer, the courts indicated that equitable tolling was or might be available because defendants misled pro se plaintiffs. Specifically, in Glarner the court tolled the statute of limitations because the Department of Veterans Administration, in violation of its own regulations, gave the pro se plaintiff the incorrect form on which to filе a medical malpractice complaint. 30 F.3d at 701-02. And in Hammer the court remanded to the district court to consider equitable tolling because the employer failed to post statutorily required notices, leaving the plaintiff unaware of her rights. 131 Fed.Appx. at 831-832, 2005 WL 1163431 at *2-*3. By contrast, Norman was represented by counsel from the
For all of these reasons, we agree with the district court that Norman has failed to demonstrate due diligence—although not because the accident occurred in Washington, D.C. instead of in Mississippi. We think it entirely unworkable to calibrate the required level of due diligence to the number of federal employees living in the region where the accident occurs. Suppose, for examрle, an accident occurs in Chicago, a federal regional center having far more federal employees than Mississippi but far fewer than Washington, D.C. Would the standard for due diligence in Chicago fall somewhere between the Mississippi and Washington standards? The question answers itself: due diligence must havе the same meaning everywhere. Norman‘s claim for equitable tolling fails because at no time during the FTCA‘s two-year statute of limitations did he make any effort—diligent or otherwise—to identify Howe‘s employer.
III.
Because Norman failed to exercise due diligence he was not entitled to equitable tolling, and without equitable tolling, reinstating his case would be “an empty exercise or a futile gesture,” Murray, 52 F.3d at 355. We affirm.
So ordered.