Felisa Tunac v. United States , 897 F.3d 1197 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELISA TUNAC, on behalf of herself No. 17-15021
and as the Personal Representative
of the Estate of Randy Tunac D.C. No.
(Veteran), Deceased, 2:16-cv-00982-
Plaintiff-Appellant, ROS
v.
OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted March 16, 2018
San Francisco, California
Filed July 30, 2018
Before: Richard A. Paez and Sandra S. Ikuta, Circuit
Judges, and Lynn S. Adelman,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.
2 TUNAC V. UNITED STATES
SUMMARY**
Federal Tort Claims Act
The panel affirmed the district court’s dismissal of a
surviving spouse’s suit against the United States under the
Federal Tort Claims Act (“FTCA”) for wrongful death and
negligent malpractice.
The complaint alleged that a medical center operated by
the Department of Veterans Affairs (VA) caused Randy
Tunac’s death by delaying urgently needed medical
treatment.
The panel held that it had jurisdiction to the extent that
the complaint alleged negligence by VA healthcare workers
(defined as medical professionals and related support staff
listed in 38 U.S.C. § 7316(a)(2)). The panel further held that
the claims regarding negligence in VA operations must
proceed under the congressionally-mandated pathway set
forth in the Veterans’ Judicial Review Act, and any appeal
could only be heard by the U.S. Court of Appeals for the
Federal Circuit.
The panel held that to the extent there was jurisdiction,
those claims were barred by the FTCA’s statute of
limitations. The panel concluded that the two-year statute of
limitations had long run when plaintiff filed her
administrative claim, and her claims were barred by
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TUNAC V. UNITED STATES 3
28 U.S.C. § 2401(b). The panel further held that plaintiff’s
claim could not be equitably tolled.
COUNSEL
Veronica L. Manolio (argued), Manolio & Firestone PLC,
Scottsdale, Arizona, for Plaintiff-Appellant.
Adam R. Smart (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Defendant-Appellee.
OPINION
IKUTA, Circuit Judge:
This appeal raises the question whether we have
jurisdiction over a claim alleging that a medical center
operated by the Department of Veterans Affairs (VA) caused
Randy Tunac’s death by delaying urgently needed medical
treatment. We conclude that to the extent the complaint
alleges negligence by VA healthcare employees (defined as
medical professionals and related support staff listed in
38 U.S.C. § 7316(a)(2)), we have jurisdiction under the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. The
complaint’s claims regarding negligence in VA operations,
however, must proceed under the congressionally-mandated
pathway set forth in the Veterans’ Judicial Review Act
(VJRA), Pub. L. No. 100-687, 102 Stat. 4105 (1988), and any
appeal can be heard only by the United States Court of
Appeals for the Federal Circuit, see 38 U.S.C. § 7292. To the
4 TUNAC V. UNITED STATES
extent we do have jurisdiction, the claims are barred by the
FTCA’s statute of limitations.
I
Felisa Tunac, the surviving spouse of Randy Tunac,
brought suit against the United States pursuant to the FTCA,
for wrongful death and negligent malpractice. According to
the complaint, Randy Tunac began a six-month deployment
with the U.S. Navy in 1995. Before completing his
deployment, he was diagnosed with lupus nephritis, otherwise
known as kidney inflammation, and was medically retired
from the military. After retirement, Randy Tunac continued
to receive treatment for lupus at the Carl T. Hayden VA
Medical Center in Phoenix, Arizona, but saw a private
physician for separate cardiological issues. In 2009, Randy
Tunac’s private physician ordered him to make an
appointment immediately at the VA medical center after his
blood test showed signs of kidney failure. Randy Tunac
promptly contacted the VA medical center, but was told that
it could not schedule him for an appointment until October or
November 2009.
Randy Tunac was finally seen at the medical center on
December 2, 2009. A biopsy of his kidney confirmed that he
had reached end-stage kidney disease, necessitating dialysis.
However, the VA could not schedule dialysis immediately,
and set his next appointment for December 30, 2009. Seven
days before his appointment, Randy Tunac collapsed at work
and was rushed to St. Joseph’s Hospital, where he was
pronounced brain-dead on arrival. Randy Tunac passed away
on December 27, 2009 from respiratory failure stemming
from renal failure. On January 14, 2010, the VA medical
center sent a letter addressed to Randy Tunac notifying him
TUNAC V. UNITED STATES 5
that his active lupus nephritis required immediate treatment
or would result in “end stage kidney disease and even death.”
In May 2014, Randy Tunac’s widow, Felisa Tunac, saw
media reports that gross mismanagement and unacceptable
wait times at the Hayden VA Medical Center were
contributing to otherwise preventable veteran deaths. After
further investigation, she learned that an internal audit of the
VA’s operations confirmed the VA’s negligence in follow-up,
care coordination, quality, and continuity of care for its
veteran patients.
Felisa Tunac filed an administrative claim with the VA on
April 17, 2015. After the VA denied her claim on October 8,
2015, she brought this action in district court. Her complaint
includes two counts: wrongful death and negligence/medical
malpractice. For the first count, the complaint alleges that the
VA and its employees caused Randy Tunac’s death by failing
to provide him with “adequate follow-up care and treatment
to monitor Randy’s condition and identify any potential
relapses or adverse changes to his health”; “[f]ailing to
schedule Randy for immediate (or even timely) treatment
after the deterioration of his condition, as evidenced by his
blood work in 2009”; and “[f]ailing to schedule Randy for
immediate dialysis after the results of his kidney biopsy in
December 2009.” The complaint alleges that the United
States and the VA are liable for the acts and omissions of the
employees pursuant to the FTCA.
For the second count, the complaint alleges that the
employees and the VA breached their duty to Randy Tunac
“to provide him with timely, quality healthcare.” Again, the
complaint alleges that the United States and the VA are liable
6 TUNAC V. UNITED STATES
for the acts and omissions of the employees pursuant to the
FTCA.
The VA filed a motion to dismiss the complaint, arguing
that the VJRA deprived the district court of jurisdiction over
Felisa Tunac’s claims, because they related to benefits
decisions. The VJRA bars a district court from hearing
claims relating to the provision of benefits to veterans.
Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1025
(9th Cir. 2012) (en banc) (VCS). The VA also argued that her
claims were untimely under the FTCA, which bars tort claims
against the United States unless an administrative claim is
brought within two years after the claim accrues. 28 U.S.C.
§ 2401(b)
The district court noted the difficulty in determining
whether it had jurisdiction over Tunac’s claims, because the
FTCA confers jurisdiction on district courts to hear claims
alleging negligence against VA doctors, VCS, 678 F.3d at
1023 n.13, but the VJRA bars a district court from hearing
claims relating to benefits decisions, see id. at 1025,
which—read broadly—could include decisions causing
delays in treatment. Nonetheless, after reviewing Ninth
Circuit and out-of-circuit precedent, the district court
concluded that it had jurisdiction to hear certain aspects of
Felisa Tunac’s claims. The district court then dismissed
Tunac’s claims as untimely because she filed her
administrative claim nearly five years after the claims
accrued. Tunac timely appealed.
II
“[A] federal court generally may not rule on the merits of
a case without first determining that it has jurisdiction.”
TUNAC V. UNITED STATES 7
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 430–31 (2007). Although we may “choose among
threshold grounds for denying audience to a case on the
merits,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585
(1999), the Supreme Court has concluded that a judgment
based on the statute of limitations is a judgment on the merits,
see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995).
Accordingly, we must determine whether we have
jurisdiction over this complaint before we can reach the
government’s argument that Tunac’s complaint is barred by
the statute of limitations. In order to determine our
jurisdiction, we must address the relationship between the
VJRA and the FTCA.
A
VCS explains both the history of judicial review of VA
decisionmaking and the VJRA’s effect on the scope of that
review. See 678 F.3d at 1020–23. In brief, within a few
years after Congress established the VA in 1930, it enacted
legislation precluding judicial review of the VA’s benefits
decisions. Id. at 1020. After the Supreme Court interpreted
the applicable preclusion provision as permitting courts to
review a range of constitutional and legal challenges to
veterans’ claims against the VA, Congress enacted the VJRA
(codified at various sections of Title 38 of the U.S. Code) to
establish procedures for reviewing VA decisions and to
expand the scope of the provision precluding judicial review.
See id. at 1020–23.
In establishing new procedures, Congress “placed
responsibility for reviewing decisions made by VA Regional
Offices and the Board of Veterans’ Appeals in a new Article
I court, the United States Court of Appeals for Veterans
8 TUNAC V. UNITED STATES
Claims [(the Veterans Court)],” id. at 1021 (citing 38 U.S.C.
§§ 7251, 7261), which has “exclusive jurisdiction to review
decisions of the Board of Veterans’ Appeals,” 38 U.S.C.
§ 7252(a). The Veterans Court may “decide all relevant
questions of law, interpret constitutional, statutory, and
regulatory provisions, and determine the meaning or
applicability of the terms of an action of the Secretary.” Id.
§ 7261(a)(1). Decisions by the Veterans Court are “reviewed
exclusively” by the United States Court of Appeals for the
Federal Circuit, which “shall decide all relevant questions of
law, including interpreting constitutional and statutory
provisions.” VCS, 678 F.3d at 1022 (quoting and citing
38 U.S.C. § 7292(a), (c), (d)(1)).
In addition to establishing this exclusive pathway for
judicial review of benefits decisions, Congress enacted a new
provision, eventually codified at 38 U.S.C. § 511, to “broaden
the scope” of the prior preclusion provision and “limit outside
‘court intervention’ in the VA decisionmaking process.” Id.
at 1022 (quoting H.R. Rep. No. 100-963, at 27 (1988)).
Under § 511, the Secretary of Veterans Affairs “shall decide
all questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of benefits by
the Secretary to veterans or the dependents or survivors of
veterans.” 38 U.S.C. § 511(a). Subject to enumerated
exceptions, “the decision of the Secretary as to any such
question shall be final and conclusive and may not be
reviewed by any other official or by any court, whether by an
action in the nature of mandamus or otherwise.” Id.
In VCS, we addressed the scope of the jurisdictional
limitation imposed by § 511. See 678 F.3d at 1022. After
reviewing our precedents and out-of-circuit cases, we
concluded “that § 511 precludes jurisdiction over a claim if
TUNAC V. UNITED STATES 9
it requires the district court to review VA decisions that relate
to benefits decisions, including any decision made by the
Secretary in the course of making benefits determinations.”
Id. at 1025 (internal quotation marks and citations omitted).
Said otherwise, the preclusion “extends not only to cases
where adjudicating veterans’ claims requires the district court
to determine whether the VA acted properly in handling a
veteran’s request for benefits, but also to those decisions that
may affect such cases.” Id.
VCS applied this test in considering claims by two non-
profit veterans organizations challenging, among other
practices, both the adjudication of claims for benefits by the
Veterans Benefits Administration (VBA) and the provision of
medical treatment by the Veterans Health Administration
(VHA). Id. at 1017.1 As relevant here, the veterans
organizations challenged “delays in the VHA’s provision of
mental health care,” id. at 1026, including delays in the
provision of medical treatment to veterans who were already
“eligible for or receiving medical services,” id. at 1017. We
first held that mental health care was clearly a benefit under
§ 511(a), because the VA’s regulations define “benefit”
broadly as “any payment, service, . . . or status, entitlement to
which is determined under laws administered by the
Department of Veterans Affairs pertaining to veterans and
their dependents and survivors.” Id. at 1026 (alteration in
original) (quoting 38 C.F.R. § 20.3(e)). Accordingly, we
concluded that § 511 “undoubtedly would deprive us of
jurisdiction to consider an individual veteran’s claim that the
VA unreasonably delayed his mental health care.” Id.
Because “there is no way for the district court to resolve
1
As we explained in VCS, the VA is comprised of the VBA, VHA,
and the National Cemetery Administration. 678 F.3d at 1017 n.4.
10 TUNAC V. UNITED STATES
whether the VA acted in a timely and effective manner in
regard to the provision of mental health care without
evaluating the circumstances of individual veterans and their
requests for treatment, and determining whether the VA
handled those requests properly,” VCS concluded that we
lacked jurisdiction “to consider [the organizations’] various
claims for relief related to the VA’s provision of mental
health care.” Id. at 1028. VCS thus makes clear that we lack
jurisdiction to review whether the VA unreasonably delayed
medical care for an individual veteran as a scheduling matter,
because such a claim requires review of a benefits decision.
B
Notwithstanding the expansive scope of § 511’s
preclusion of judicial review, VCS acknowledged that we
continue to have jurisdiction to hear some claims brought by
individual veterans under the FTCA. See id. at 1023 & n.13.
The FTCA gives district courts “exclusive jurisdiction of civil
actions on claims 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.” 28 U.S.C. § 1346(b)(1).
We noted in VCS that we had previously considered a
veteran’s FTCA claim and held that jurisdiction was
appropriate because his claim that he did not receive a timely
and correct diagnosis “would not ‘possibly have any effect on
the benefits [the veteran] has already been awarded.’” Id. at
1023 (quoting and citing Littlejohn v. United States, 321 F.3d
915, 921 (9th Cir. 2003)). VCS therefore recognized that the
FTCA “specifically confers jurisdiction on federal district
courts to hear” claims involving medical negligence. Id. at
1023 n.13.
TUNAC V. UNITED STATES 11
Our sister circuits have reached similar conclusions. In
Thomas v. Principi, for instance, the D.C. Circuit held that it
had jurisdiction under the FTCA over the veteran’s claims
that the VA negligently failed to inform the veteran about his
diagnosis. See 394 F.3d 970, 973–75 (D.C. Cir. 2005).
While acknowledging the broad definition of “benefit” in
§ 511, the D.C. Circuit rejected “any implication that all
action or inaction by the VA represents a type of ‘service,’
and therefore automatically constitutes a ‘benefit.’” Id. at
975. For instance, “if a VA doctor left a sponge inside a
patient during surgery, section 511 would permit an FTCA
malpractice suit in district court.” Id. By contrast, claims
that the VA “failed to render the appropriate medical
services” because it denied the veteran’s request for benefits
“would require the district court ‘to determine first whether
the VA acted properly’ in providing [the veteran] benefits.”
Id. (quoting Price v. United States, 228 F.3d 420, 422 (D.C.
Cir. 2000)). The D.C. Circuit ultimately concluded that the
veteran’s negligence and malpractice claims did not raise any
“questions of law [or] fact necessary to a decision by the
Secretary under a law that affects the provision of benefits”
for purposes of § 511, and that the claims could therefore
proceed under the FTCA. Id. at 974–75 (alteration in
original) (quoting 38 U.S.C. § 511); see also Anestis v. United
States, 749 F.3d 520, 524, 528 (6th Cir. 2014) (holding that
a veteran could bring an FTCA claim for medical malpractice
against a VA intake clerk because she was authorized to
perform “evaluations of a veteran’s mental and emotional
state”).
C
While acknowledging that we retained jurisdiction under
the FTCA over certain negligence and medical malpractice
12 TUNAC V. UNITED STATES
claims brought by veterans against the VA, VCS admitted that
we had not yet been able to “articulate a clear standard for
evaluating our jurisdiction” in this context. 678 F.3d at 1023.
We now articulate such a standard, at least for discerning
whether a claim is one for medical negligence under the
FTCA, instead of a claim that the VA acted improperly in
handling a veteran’s request for benefits, thus relating to a
benefits decision. As we have previously indicated, Congress
has given us guidance on this issue by enacting separate
procedures for dealing with medical negligence claims. See
Littlejohn, 321 F.3d at 921 n.5 (noting “the separate
administrative procedures set up by the VA to deal with
FTCA claims”); see also VCS, 678 F.3d at 1023 n.13 (noting
the VA’s “separate procedures for dealing with FTCA
claims”). We now consider this guidance.
Just three years after enacting the VJRA, Congress
enacted the Department of Veterans Affairs Health-Care
Personnel Act of 1991, Pub. L. No. 102-40, 105 Stat. 187 (the
HCPA), which provided for increased pay of VA healthcare
professionals, codified collective bargaining rights for such
professionals, and made substantial revisions to the
organization and administration of the VHA. Like the VJRA,
the HCPA was codified in various sections of Title 38. See
id. In connection with the HCPA’s amendments to the
organization and functions of the VHA, Congress added a
provision, 38 U.S.C. § 7316, to cover how the federal
government will respond to medical malpractice and
negligence suits against VA employees. This provision
established that the FTCA would provide the remedy for
“damages for personal injury, including death, allegedly
arising from malpractice or negligence of a health care
employee of the [VA] in furnishing health care or treatment,”
but that this remedy would be “exclusive of any other civil
TUNAC V. UNITED STATES 13
action or proceeding by reason of the same subject matter
against the health care employee (or employee’s estate)
whose act or omission gave rise to such claim.” Id.
§ 7316(a)(1).2 The term “health care employee of the [VA]”
is defined to mean “a physician, dentist, podiatrist,
chiropractor, optometrist, nurse, physician assistant,
expanded-function dental auxiliary, pharmacist, or
paramedical (such as medical and dental technicians, nursing
assistants, and therapists), or other supporting personnel.” Id.
§ 7316(a)(2). In light of the specific list of healthcare
professionals, we read the catchall phrase “other supporting
personnel” to mean support staff directly engaged in patient
2
In full, 38 U.S.C. § 7316(a)(1) provides:
The remedy–
(A) against the United States provided by sections
1346(b) and 2672 of title 28, or
(B) through proceedings for compensation or other
benefits from the United States as provided by any
other law, where the availability of such benefits
precludes a remedy under section 1346(b) or 2672 of
title 28,
for damages for personal injury, including death,
allegedly arising from malpractice or negligence of a
health care employee of the Administration in
furnishing health care or treatment while in the exercise
of that employee's duties in or for the Administration
shall be exclusive of any other civil action or
proceeding by reason of the same subject matter against
the health care employee (or employee’s estate) whose
act or omission gave rise to such claim.
14 TUNAC V. UNITED STATES
care like the listed professionals.3 See CSX Transp., Inc. v.
Ala. Dep’t of Revenue, 562 U.S. 277, 295 (2011) (noting the
use of ejusdem generis “to ensure that a general word will not
render specific words meaningless”).
Accordingly, § 7316 makes clear that, at a minimum, a
plaintiff may bring medical malpractice and negligence
claims against a “health care employee” of the VA under the
FTCA. Said otherwise, when a plaintiff brings an action
against a VA health care employee (meaning the
professionals and related support staff listed in 38 U.S.C.
§ 7316(a)(2)) alleging injury from a negligent medical
decision, the action may proceed under the FTCA and is not
barred by the VJRA. Given that the FTCA provides the
exclusive means for resolving such claims, we conclude that
we have jurisdiction to hear them.
D
We now apply these principles to Felisa Tunac’s
complaint, and conclude that we have jurisdiction over
certain claims that give rise to a “reasonable inference” that
VA medical professionals breached their duty of care. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For instance, the
complaint alleges that “[t]he VA failed to properly order tests
and/or evaluate Randy’s recurring lupus condition.”
3
The Sixth Circuit has determined this includes employees who do
not possess the requisite training or skills to make medical determinations
or assessments but are nonetheless authorized by the VA to do so. See
Anestis, 749 F.3d at 524, 528 (rejecting the government’s argument that
the veteran did not bring a medical malpractice claim, because although
the intake clerk “was not authorized to make clinical decisions, she did
have the duty under VA internal policies, to determine whether [the
patient] presented himself in a state of emergency”).
TUNAC V. UNITED STATES 15
Although these statements do not expressly claim that a
medical professional should have ordered the proper tests and
performed proper evaluations, we may infer as much, given
that generally only medical professionals order medical tests
and evaluate medical conditions. Further, the complaint
alleges that the VA and its employees “caused Randy’s death
through their wrongful acts and neglect,” specifically by
“[f]ailing to provide Randy with adequate follow-up care and
treatment to monitor Randy’s condition and identify any
potential relapses or adverse changes to his health.” Again,
it is reasonable to read this allegation as referring to
negligence by medical professionals, as generally they are
responsible for monitoring a patient’s condition and
providing follow-up care and treatment. To the extent these
allegations relate to claims of medical negligence on the part
of medical professionals, they do not relate to benefits
decisions, see VCS, 678 F.3d at 1025, and are cognizable
under the FTCA. Accordingly, the district court did not err
in concluding that it had jurisdiction over some of Tunac’s
claims.
We do not, however, have jurisdiction over the
complaint’s allegations that Randy Tunac’s death was caused
by the VA’s failure “to schedule Randy for immediate (or
even timely) treatment after the deterioration of his
condition” or its failure “to schedule Randy for immediate
dialysis after the results of his kidney biopsy in December
2009,” and similar allegations relating to the negligence in
scheduling appointments and treatment. As currently
drafted,4 these allegations do not give rise to a reasonable
4
The complaint does not allege, for instance, that VA medical
professionals failed to inform the administrative staff in charge of
scheduling appointments that Tunac’s situation was dire and that he
16 TUNAC V. UNITED STATES
inference that VA medical professionals breached their duty
of care, but rather seek relief for the type of administrative
negligence in scheduling appointments that must be
channeled through the VJRA. See id. at 1026–28.5
III
Because we have jurisdiction over Tunac’s claims that
medical professionals at the VA medical center were
negligent, we now turn to the question whether her claims are
timely. “Under the FTCA, a tort claim against the United
States is barred unless it is presented in writing to the
appropriate federal agency ‘within two years after such claim
accrues.’” Winter v. United States, 244 F.3d 1088, 1090 (9th
Cir. 2001) (quoting 28 U.S.C. § 2401(b)).6 Tunac filed her
needed to be scheduled for dialysis immediately. The operative complaint
simply states that the administrative staff delayed Tunac’s appointment,
independent of any decision or guidance by VA medical professionals.
5
We reject Tunac’s argument that VCS limited the VJRA’s preclusion
to those claims addressing entitlement to benefits, rather than the manner
in which those benefits were provided to eligible veterans. As indicated
above, see supra Section II.A., the organizations in VCS challenged delays
in the provision of medical treatment to veterans who were already
“eligible for or receiving medical services.” 678 F.3d at 1017. We held
that such claims involved a request for benefits because they asked this
court to review “whether the VA handled those requests properly.” Id. at
1028. Accordingly, we concluded that we lacked jurisdiction to hear those
claims pursuant to § 511. See id.
6
The full text of 28 U.S.C. § 2401(b) provides:
A tort claim against the United States shall be forever
barred unless it is presented in writing to the
appropriate Federal agency within two years after such
claim accrues or unless action is begun within six
TUNAC V. UNITED STATES 17
administrative claim with the VA on April 17, 2015.
Accordingly, Tunac’s claims are barred by the statute of
limitations if they accrued before April 17, 2013.
“The date on which a claim accrues is determined by
federal law.” Landreth ex rel. Ore v. United States, 850 F.2d
532, 533 (9th Cir. 1988). “In a medical malpractice case
under the FTCA, a claim accrues when the plaintiff discovers,
or in the exercise of reasonable diligence should have
discovered, the injury and its cause.” Id. The plaintiff need
not know who caused the injury, Dyniewicz v. United States,
742 F.2d 484, 486 (9th Cir. 1984), or that the injury was
caused by negligence, Winter, 244 F.3d at 1090, in order for
the claim to accrue.
The injury in this case is Randy Tunac’s death on
December 27, 2009. There is no dispute that Felisa Tunac
knew of the injury on that date. Tunac also knew, or
reasonably should have known, that the cause of the injury
was the failure of the Hayden VA Medical Center to provide
adequate treatment. The complaint alleges that despite
warnings from a private physician that Randy Tunac needed
immediate care, the Hayden VA Medical Center delayed
scheduling her husband for a preliminary kidney biopsy. And
despite the biopsy showing he was in end-stage kidney
disease, the medical center failed to treat Randy Tunac for
nearly a month. Further, the complaint incorporates the
January 2010 letter from the medical center warning that
“[t]he consequence of not treating your lupus kidney disease
includes end stage kidney disease and even death.”
months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by
the agency to which it was presented.
18 TUNAC V. UNITED STATES
Tunac argues, however, that she did not learn of the cause
of the injury until May 2014, when media reports alerted her
to the Hayden VA Medical Center’s systemic negligence in
delaying patient care. But a claim accrues when a plaintiff
“has knowledge of the injury and its cause, and not when the
plaintiff has knowledge of legal fault.” Id. (quoting Rosales
v. United States, 824 F.2d 799, 805 (9th Cir. 1987)). As the
Supreme Court has made clear, accrual does not wait until the
plaintiff has “reason to suspect or was aware of facts that
would have alerted a reasonable person to the possibility that
a legal duty to him had been breached.” United States v.
Kubrick, 444 U.S. 111, 125 (1979). In other words, Tunac’s
claim accrued when she knew that the medical center’s
failure to treat her husband and to provide adequate follow-up
care caused her husband’s death, not when she learned that
the delays were caused by actionable negligence. The
“[a]ccrual of a claim does not ‘await awareness by a plaintiff
that his injury has been negligently inflicted.’” Winter,
244 F.3d at 1090 (quoting Kubrick, 444 U.S. at 123).
Our cases holding that “a cause of action does not accrue
under the FTCA when a plaintiff has relied on statements of
medical professionals with respect to his or her injuries and
their probable causes,” id., are not applicable here. In those
cases, a plaintiff reasonably relied on a doctor’s assurances
that an injury was not caused by medical error, see id. at 1091
(“[Plaintiff] was clearly told that the electrodes were not the
cause of his infection.”), or that there was no injury at all, see
Rosales, 824 F.2d at 804 (“For several months after Victoria
was born, doctors repeatedly assured the Rosaleses that the
child’s lazy lid was temporary and that no injury was
present.”); Raddatz v. United States, 750 F.2d 791, 796 (9th
Cir. 1984) (“[T]he Navy doctor repeatedly assured [plaintiff]
that her condition was a normal consequence of the
TUNAC V. UNITED STATES 19
perforated uterus.”). In contrast, Tunac was aware that her
husband’s prognosis called for prompt intervention, and
therefore knew or should have known that the VA’s failure to
provide timely treatment caused his death. There is no
evidence that Tunac relied on inaccurate statements by a
medical professional regarding the cause of her husband’s
death.
Accordingly, Tunac’s claim accrued, at the latest, when
she received the January 10, 2010 letter from the Hayden VA
Medical Center explaining the consequences of delayed
treatment of Randy Tunac’s condition. Because the two-year
statute of limitations had long run when Tunac filed her
administrative claim in April 2015, Tunac’s claims are barred
by 28 U.S.C. § 2401(b).
Tunac contends that the statute of limitations should be
equitably tolled because the VA concealed its negligent
practices that caused delays in treatment across the Phoenix
VA.7 “To establish that equitable tolling applies,” a plaintiff
must show, among other things, that “fraudulent conduct by
the defendant result[ed] in concealment of the operative
facts.” Fed. Election Comm’n v. Williams, 104 F.3d 237,
240–41 (9th Cir. 1996). As the previous discussion makes
clear, any alleged concealment by the VA of a widespread
7
Tunac did not raise equitable tolling in her response to the motion
to dismiss, and the district court did not address this argument in its order
dismissing the complaint. Although we generally “do not consider an
issue raised for the first time on appeal,” we may “invoke our discretion
to hear previously unconsidered claims,” Cold Mountain v. Garber,
375 F.3d 884, 891 (9th Cir. 2004), where, as here, “the issue presented is
purely one of law and . . . does not depend on the factual record developed
below,” id. (quoting Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.
1985)).
20 TUNAC V. UNITED STATES
problem regarding delayed treatment did not result in
concealment of the operative facts—that the VA delayed
Randy’s treatment, possibly causing his death. Therefore,
Tunac’s claim cannot be equitably tolled. See id.8
AFFIRMED.
8
We DENY the government’s motion to strike portions of the
appellate record. The VA’s audit of internal operations was referenced in
the complaint and in Tunac’s response to the motion to dismiss.
“[D]ocuments whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically attached to
the pleading, may be considered in ruling on a Rule 12(b)(6) motion to
dismiss.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled
on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119
(9th Cir. 2002). Although “mere mention of the existence of a document
is insufficient to incorporate the contents of a document,” the document
is incorporated when its contents are described and the document is
“integral” to the complaint. Coto Settlement v. Eisenberg, 593 F.3d 1031,
1038 (9th Cir. 2010). Both conditions have been satisfied here: first, the
complaint quotes from the internal audit and summarizes the audit’s
conclusion that the VA’s actions were “unacceptable and troubling”; and
second, the internal audit is clearly integral to the complaint.