ROBERT WAYNE DOTSON, FRANCINE MARIA DIGIORGIO, OLENA DOTSON v. UNITED STATES OF AMERICA, U.S. Pоstal Service
No. 21-10401
United States Court of Appeals For the Eleventh Circuit
April 12, 2022
D.C. Docket No. 8:19-cv-02179-CEH-JSS
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
LAGOA, Circuit Judge:
Plaintiffs Robert Dotson, Olena Dotson, and Francine Digiorgio appeal the district court‘s order granting summary judgment for the United States on their negligence claims. Below, the district court determined that, pursuant to
This appeal requires us to determine whether the USPS‘s final denial letter sent to Plaintiffs’ counsel of record in the administrative proceeding complied with the plain language of
I. RELEVANT BACKGROUND
On April 30, 2016, Plaintiffs were involved in a motor vehicle accident involving a vehicle operated by Sandra Delgado, a USPS employee, in Hillsborough County, Florida. On February 16, 2017, Plaintiffs each submitted a USPS Standard Form 95 “claim for damage, injury, or death” suffered in that accident. On that date, Plaintiffs were represented by the law firm of Rywant, Alvarez, Jones, Russo & Guyton, P.A. (the “Rywant firm“), which submitted the executed claim forms on behalf of Plaintiffs. On March 16, 2018, the USPS received notice from the Pawlowski Mastrilli Law Group (the “Pawlowski firm“) indicating that it was now representing Plaintiffs, not the Rywant firm.
On September 27, 2018, Plaintiffs filed a Federal Tort Claims Act action against the government and Delgado in the Middle District of Florida, in case number 8:18-cv-2388-T-23TGW (the “first FTCA action“). On October 16, 2018, a copy of the complaint and
On October 22, 2018, the USPS mailed a certified letter denying Plaintiffs’ administrative claims to the Pawlowski firm, which received the letter three days later. The denial letter explained that under
At some point before the USPS mailed the denial letter, the Pawlowski firm stopped representing the Plaintiff in the administrative proceedings. Unlike the earlier change in counsel involving the Rywant firm, however, neither the Pawlowski firm nor Youngblood had provided the USPS of notice of any change in rеpresentation in relation to Plaintiffs’ administrative claims.
On March 14, 2019, the first FTCA action was dismissed without prejudice under a Middle District of Florida local rule because Plaintiffs failed to move for a clerk‘s default within sixty days
The next day, Youngblood spoke with David Sullivan, an Assistant U.S. Attorney who was counsel for the government. According to Youngblood, Sullivan advised him that if he “were to forward reasonablе updated demands to him that all three Plaintiffs’ claims could possibly be settled.” Youngblood proceeded to update all of Plaintiffs’ medical records and bills to submit to Sullivan, but he faced delays in obtaining updated records and bills from hospitals. Youngblood finally sent written demand letters with updated records and bills on behalf of Plaintiffs to Sullivan on August 7, 2019. Shortly after, Sullivan advised Youngblood that Plaintiffs needed to file suit before the government could engage in any negotiations on their claims.
On August 30, 2019, Plaintiffs filed their second FTCA complaint, in which each Plaintiff asserted a negligence claim based on Delgado‘s operation of the vehicle that rear-ended their vehicle. On January 13, 2020, following a meeting between Youngblood and Sullivan to prepare the case management report, Sullivan emailed the denial letter to Youngblood. This was the first time Youngblood ever saw the denial letter.
On March 4, 2020, the government moved for summary judgment, arguing that Plaintiffs’ claims were time barred under
Plaintiffs opposed the government‘s summary judgment motion, contending that the USPS violated
In support of their opposition to summary judgment, Plaintiffs provided an affidavit from Youngblood. Youngblood attested that there was “no written referral, or other, agreement” between him and the Pawlowski firm by which the Pawlowski firm “would remain on as counsel for Plaintiffs” and that he “assumed complete and sole responsibility for all aspects of representation of the Plaintiffs” beginning in May 2018 after the Pawlowski firm referred the case to him. Youngblood also attested that the Pawlowski firm never brought the existence of the denial letter to his attention and that he was aware of the legal implications of such a letter. But there is no record evidence that Youngblood informed Sullivan
On November 4, 2020, the district court held a hearing on the government‘s summary judgment motiоn. During the hearing, Plaintiffs argued that they were entitled to equitable tolling, and the district court ordered supplemental briefing on the matter. On December 18, 2020, the district court granted the government‘s summary judgment motion, finding that the action was untimely and that Plaintiffs were not entitled to equitable tolling. This appeal ensued.
II. STANDARD OF REVIEW
We review the district court‘s grant of summary judgment de novo, “viewing all evidence and any reasonable inferences that might be drawn therefrom in the light most favorable to the nonmoving party.” McCullough v. United States, 607 F.3d 1355, 1358 (11th Cir. 2010) (quoting Rine v. Imagitas, Inc., 590 F.3d 1215, 1222 (11th Cir. 2009)). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitlеd to judgment as a matter of law.”
Questions of statutory and regulatory interpretation are legal issues we review de novo. Freixa v. Prestige Cruise Servs., LLC, 853 F.3d 1344, 1346 (11th Cir. 2017). And the district court‘s
III. ANALYSIS
On appeal, Plaintiffs contend that the government failed to comply with the plain language of
A. Whether the government‘s mailing of the deniаl letter complied with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a)
“It is well settled that sovereign immunity bars suit against the United States except to the extent that it consents to be sued” and that “statutory waivers of sovereign immunity are to be construed strictly in favor of the sovereign.” Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999) (quoting McMahon v. United States, 342 U.S. 25, 27 (1951)). “‘The FTCA is a specific, congressional exception’ to the United States’ sovereign immunity for tort claims, under which the government may be sued by certain parties under certain circumstances for particular tortious acts
The statutes and regulation at issue here provide in relevant part:
Disposition by federal agency as prerequisite
(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his сlaim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
Time for commencing action against United States
Id.
Final denial of claim
(a) Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial . . . shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notation.
Plaintiffs contend that the government failed to strictly comply with
When considering issues of statutory and regulatory interpretation, we begin “‘where all such inquiries must begin: with the language of the statute itself,’ giving ‘effect to the plain terms of the statute.‘” United States v. Henco Holding Corp., 985 F.3d 1290, 1297 (11th Cir. 2021) (quoting In re Valone, 784 F.3d 1398, 1402 (11th Cir. 2015)); accord Landau v. RoundPoint Mortg. Servicing Corp., 925 F.3d 1365, 1369 (11th Cir. 2019) (“When we construe regulations, we begin with the language of the regulation, just as we do for statutes“). In doing so, “[w]e evaluate whether the plain language of the regulation unambiguously answers the question at issue when we consider the regulatory language itself, the particular context in which that language appears, and the broader context and purpose of the regulatory scheme as a whole.” Landau, 925 F.3d at 1369; accord Paresky v. United States, 995 F.3d 1281, 1285 (11th Cir. 2021) (“‘[T]o determine “the plain meaning of the statute,” we consider the “particular statutory language at issue” as well as “the language and design of the statute as a whole.“’
The FTCA has both an administrative exhaustion requirement, see
Section
Government agencies, including the USPS, have adopted regulations that apply to FTCA administrative claims. See
Evaluating
Here, the Rywant firm presented Plaintiffs’ administrative claims to the USPS on February 16, 2017. Later, the Pawlowski firm took over representation of Plaintiffs in those claims and the USPS was notified of this change in counsel. As the record shows, however, Plaintiffs did not notify the USPS that Youngblood had taken over their representation in the administrative proceedings. And while Youngblood, and not the Pawlowski firm, filed the first FTCA action against the government on behalf of Plaintiffs, that fact alone did not inform the government that Youngblood had been substituted as Plaintiffs’ counsel for purposes of their administrative claims. Nor does the record contain any evidence that Youngblood gave any indication to the government during either the pendency of the first FTCA action or the post-dismissal settlement conversations with Sullivan that he had taken over the Plaintiffs’ representation in the administrative proceedings from the Pawlowski firm. Simply put, the USPS mailed the denial letter to
Plaintiffs contend that this interpretation creates “separate classes” of counsel and that they did not have to inform USPS of their change of counsel for their administrative claims. We find these arguments without merit. The Sixth Circuit‘s decision in Zappone v. United States, 870 F.3d 551 (6th Cir. 2017), is instructive. In Zappone, the plaintiffs failed to file their FTCA claims within
Although the Zappone plaintiffs did not make the particular interpretation argument that Plaintiffs raise here—instead arguing for equitable tolling of the limitations period—they did argue that the IRS “knew of their change in counsel” based on their attorneys moving to withdraw their reprеsentation in a civil-forfeiture proceeding. See id. at 557. The Sixth Circuit rejected this argument,
We thus hold that the USPS complied with the plain language of
B. Whether Plaintiffs are entitled to equitable tolling
Plaintiffs also argue the district court erred in finding they were not entitled to equitable tolling of the
As the Supreme Court has explained, the time limits in the FTCA are not jurisdictional, and a court therefore can toll them on equitable grounds. United States v. Wong, 575 U.S. 402, 412 (2015). “The doctrine of equitable tolling allows a court to toll the statute of limitations until such a time that the court determines
Plaintiffs contend that the district court‘s determination as to equitable tolling was in error for several reasons. They assert that they are entitled to equitable tolling because thе government failed to follow its FTCA regulations by sending the denial letter to the Pawlowski firm instead of Youngblood—and that Plaintiffs should not be held to a stricter standard than the government in following the FTCA and its regulations. Plaintiffs also contend that the government‘s actions, which they describe as “gotcha” tactics, entitle them to equitable tolling. Plaintiffs point to Youngblood‘s affidavit, in which he attested that he spoke with Assistant U.S. Attorney Sullivan about settling their claims before Youngblood refiled their suit. Plaintiffs argue that Youngblood proceeded to gather the relevant records and bills to prepare the demands requested by the government and that, after doing so, “the government refused to negotiate knowing something Youngblood did not—it had sent [Plaintiffs‘] prior counsel a denial letter.” Plaintiffs further argue that, but for the government‘s request, they would have promptly refiled after the dismissal of the first FTCA action.
Moreover, there is no record evidence that Youngblood had informed Sullivan that he was representing Plaintiffs in the administrative claims. Nor is there record evidence that the government told Plaintiffs not to refile suit while Youngblood prepared updated demands to send to the government. Indeed, as Youngblood attested, Sullivan advised Youngblood that if he “were to forward reasonable updated demands to him that all three Plaintiffs’ claims could possibly be settled.” (emphasis added). The government made nо guarantees to Plaintiffs about settlement of the claims, and the fact that Sullivan raised the possibility of settlement of Plaintiffs’ FTCA claims is not enough to excuse Plaintiffs’ failure to file within the
Plaintiffs also rely on the Fifth Circuit‘s decision in Perez v. United States, 167 F.3d 913 (5th Cir. 1999). In Perez, the claimant sent a demand letter to the Texas National Guard and filed suit in state court. Id. at 914. The Texas National Guard, however, was the wrong governmental entity; the claimant should have sent the demand letter to the United States Army instead. Id. at 915. The state court suit was dismissed, and the claimant filed a claim with the Army, which denied the claim under the FTCA‘s statute of limitations. Id.. The claimant then sued the government in federal court. Id. The district court dismissed the suit, concluding that the claimant failed to diligently investigate her claim. Id. While recognizing that the Texas National Guard violated regulations by failing to provide the claimant a particular form, the court determined that the claimant‘s decision to sue the wrong governmental entity was not the product of the National Guard‘s affirmative misstatements and that the claimant was not entitled to equitable tolling. Id. On appeal, the Fifth Circuit disagreed, concluding that equitable tolling was warranted because the claimant‘s error—“misunderstanding the dual nature of the Texas National Guard“—was not merely a “garden variety claim of excusable neglect,” even though the errоr “would have been uncovered through more careful legal research.” See id. at 918. The Fifth Circuit recognized that the claimant had taken “some step recognized as important by the
We find this case distinguishable from Perez. Unlike Perez, the government did not violate any of its regulations in sending the denial lettеr to the Pawlowski firm instead of Youngblood. In contrast, like the plaintiffs in Zappone, Plaintiffs’ failure to learn of the USPS‘s denial letter “was a problem of their own making: they never informed [USPS] of their change in counsel, their prior attorneys neglected to inform them of the denial, and their new attorney fell short of retrieving the denial letter in time.” See Zappone, 870 F.3d at 558. And while Youngblood, at the summary judgment hearing, asserted that he had “look[ed]” for a denial letter but “didn‘t see one,” there is no indication in the record that Plaintiffs or Youngblood diligently searched for the existence of the denial letter or inquired into the status of the administrative claims, e.g., by contacting the Pawlowski firm, the USPS, or even the government‘s trial counsel about those matters.
In short, the missteps of Plaintiffs’ attorneys amount to a garden variety claim of excusable neglect that does not constitute extraordinary circumstances warranting equitable tolling. Cf. Maples v. Thomas, 565 U.S. 266, 282 (2012) (explaining that “an attorney‘s negligence, for example, miscalculating a filing deadline, does
IV. CONCLUSION
For all these reasons, we affirm the district court‘s order granting summary judgment for the government.
AFFIRMED.