Michael Redlin v. United States , 921 F.3d 1133 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL H. REDLIN, No. 17-16963
Plaintiff-Appellant,
D.C. No.
v. 4:16-cv-00531-RCC
UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted March 5, 2019
Phoenix, Arizona
Filed April 23, 2019
Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit
Judges, and Frederic Block,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
2 REDLIN V. UNITED STATES
SUMMARY**
Federal Tort Claims Act / Timeliness
The panel affirmed the district court’s dismissal, as
untimely, of a negligence action brought under the Federal
Tort Claims Act.
Plaintiff alleged that he received improper treatment at a
Veteran Affairs (“VA”) facility on September 25, 2014.
Plaintiff presented a claim to the VA, and the VA issued a
final denial of the claim in a letter dated July 14, 2015.
Plaintiff did not file an action in federal court until
August 10, 2016, which was past the six-month deadline for
filing such claims under 28 U.S.C. § 2401(b).
The panel rejected plaintiff’s arguments challenging the
district court’s dismissal of his lawsuit as untimely.
First, plaintiff argued that a second claim he filed with the
VA on January 22, 2016 should be deemed a timely
amendment of his first claim, or a timely request for
reconsideration. The panel held that if the second claim is
deemed to be an amendment, it is not timely because the
second claim was received by the VA after it mailed its final
denial – i.e., after final agency action. 28 C.F.R. § 14.2(c).
The panel further held that if the second claim was deemed a
request for reconsideration, it was not timely because it was
received by the VA more than six months after the VA
mailed its notice of final denial of his claim, and the second
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REDLIN V. UNITED STATES 3
claim, therefore, did not toll the six-month time frame for
filing a lawsuit.
Second, plaintiff alleged that the district court erred in
applying 28 C.F.R. § 14.2(c) to hold that the second claim
was not a timely amendment. The panel held that 28 U.S.C.
§ 2401(b) provides that an action must be brought within six
months “after the date of mailing” of notice of final denial of
the claim; and 28 C.F.R. § 14.2(c), which requires that any
amendment to a claim against the United States must be made
before the agency’s final denial, is a permissible reading of
the statute. Plaintiff’s pursuit of further review through
submission of an untimely amendment did not erase the
initial final denial by the agency.
Finally, the panel held that plaintiff was not entitled to
equitable tolling of the limitations period in 28 U.S.C.
§ 2401(b), where plaintiff alleged no extraordinary
circumstances excusing his failure to file a motion for
reconsideration or a lawsuit within six months of the VA’s
denial letter.
COUNSEL
John P. Leader (argued), Leader Law Firm, Tucson, Arizona,
for Plaintiff-Appellant.
Melissa Marcus Kroeger (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Defendant-Appellee.
4 REDLIN V. UNITED STATES
OPINION
IKUTA, Circuit Judge:
Michael Redlin appeals the district court’s order
dismissing as untimely his negligence action brought under
the Federal Tort Claims Act (FTCA). Because Redlin failed
to file the action within six months after the Department of
Veteran Affairs (VA) mailed a notice of final denial of
Redlin’s initial claim, and the statute of limitations did not
restart when the VA declined to consider Redlin’s second
attempt to file the same claim, we affirm. See 28 U.S.C.
§ 2401(b).
I
We begin with an overview of the legal framework
governing FTCA claims. A tort action cannot be brought
against the United States “unless the claimant shall have first
presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing
and sent by certified or registered mail.” 28 U.S.C.
§ 2675(a). Congress established a deadline for bringing such
actions:
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 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.
REDLIN V. UNITED STATES 5
Id. § 2401(b). Section 2401(b) has been interpreted as
including two separate timeliness requirements. A claim is
timely only if it has been: (1) submitted to the appropriate
federal agency within two years of accrual and (2) filed in
federal court within six months of the agency’s final denial.
See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629
(2015).
Under regulations promulgated by the Department of
Justice, a claim is “presented” to the agency for purposes of
§ 2401(b) when the agency receives the claim. See 28 C.F.R.
§ 14.2(a).1 A claimant can file an amendment to the claim at
any time before the agency has taken final action on the
claim. See id. § 14.2(c).2 An agency’s final denial of a claim
1
Section 14.2(a) states in full:
For purposes of the provisions of 28 U.S.C. 2401(b),
2672, and 2675, a claim shall be deemed to have been
presented when a Federal agency receives from a
claimant, his duly authorized agent or legal
representative, an executed Standard Form 95 or other
written notification of an incident, accompanied by a
claim for money damages in a sum certain for injury to
or loss of property, personal injury, or death alleged to
have occurred by reason of the incident; and the title or
legal capacity of the person signing, and is
accompanied by evidence of his authority to present a
claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative.
28 C.F.R. § 14.2(a).
2
Section 14.2(c) states in full:
A claim presented in compliance with paragraph (a) of
this section may be amended by the claimant at any
6 REDLIN V. UNITED STATES
must be in writing, and must “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 notification.” Id.§ 14.9(a).3
A claimant has six months after the date the agency mails
the notice of final denial to file a legal action in federal court.
See 28 U.S.C. § 2401(b). The regulations provide another
option: within that same six-month period, a claimant may
file a request for reconsideration with the agency. See
time prior to final agency action or prior to the exercise
of the claimant’s option under 28 U.S.C. 2675(a).
Amendments shall be submitted in writing and signed
by the claimant or his duly authorized agent or legal
representative. Upon the timely filing of an amendment
to a pending claim, the agency shall have six months in
which to make a final disposition of the claim as
amended and the claimant’s option under 28 U.S.C.
2675(a) shall not accrue until six months after the filing
of an amendment.
28 C.F.R. § 14.2(c).
3
Section 14.9(a) states in full:
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 may include a statement of
the reasons for the denial and 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 notification.
28 C.F.R. § 14.9(a).
REDLIN V. UNITED STATES 7
28 C.F.R. § 14.9(b).4 Like the original claim, a request for
reconsideration is deemed filed when it is received by the
agency. See Gervais v. United States, 865 F.2d 196, 197–98
(9th Cir. 1988). A timely request for reconsideration tolls the
six-month statute of limitations for bringing an action in
district court. See id. at 196–97; see also 28 C.F.R. § 14.9(b).
The agency has six months from the date of filing of a request
for reconsideration in which to make a final disposition of the
claim, and the claimant then has six months from the date of
mailing of that final disposition to file a legal action. See
Gervais, 865 F.2d at 196–97; see also 28 C.F.R. § 14.9(b).
II
We now turn to the facts of this case. According to his
complaint, Michael Redlin was treated at a VA facility in
Tucson, Arizona. Beginning on or about September 25, 2014,
4
Section 14.9(b) states in full:
Prior to the commencement of suit and prior to the
expiration of the 6-month period provided in 28 U.S.C.
2401(b), a claimant, his duly authorized agent, or legal
representative, may file a written request with the
agency for reconsideration of a final denial of a claim
under paragraph (a) of this section. Upon the timely
filing of a request for reconsideration the agency shall
have 6 months from the date of filing in which to make
a final disposition of the claim and the claimant’s
option under 28 U.S.C. 2675(a) shall not accrue until
6 months after the filing of a request for
reconsideration. Final agency action on a request for
reconsideration shall be effected in accordance with the
provisions of paragraph (a) of this section.
28 C.F.R. § 14.9(b).
8 REDLIN V. UNITED STATES
the VA “failed to promptly diagnose and discontinue
treatment of a chest tube placed within the plaintiff’s lung
parenchyma [internal lung structures and tissues] which
resulted in permanent damage and loss of pulmonary
function.”
Redlin presented a claim based on this September 25,
2014 incident to the VA on a standard government claim
form.5 The claim, which requested damages of $200,000,
was received by the agency on January 7, 2015. The VA
issued a final denial of Redlin’s claim in a letter dated July
14, 2015, and sent to Redlin by certified mail. The VA’s
denial letter stated that, after conducting an investigation, the
VA had determined that “there was no negligent or wrongful
act on the part of an employee of the [VA] acting within the
scope of employment that caused [Redlin] compensable
harm.”
As required by the regulations, 28 C.F.R. § 14.9(a), the
denial letter set out the steps Redlin could take if he was
“dissatisfied with this decision.” First, Redlin could file a
request for reconsideration with the VA General Counsel.
“To be timely, VA must receive this request within six
months of the mailing of this final denial.” Alternatively,
Redlin “may file suit directly under the FTCA, 28 U.S.C.
§§ 1346(b) and 2671–2680,” and seek judicial relief in a
federal district court. If Redlin took the latter course, he
5
Redlin claims that he provided details of his claim in a letter to the
VA dated November 26, 2014. Because the document was not part of the
record before the district court, and Redlin has made no motion to
supplement the record on appeal, we do not consider it. See Lowry v.
Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003).
REDLIN V. UNITED STATES 9
“must initiate suit within six months of the mailing of this
notice as shown by the date of this denial.”
Redlin did not file a suit in federal court or a request for
reconsideration with the VA by January 14, 2016, six months
after the VA’s final denial on July 14, 2015. Instead, on
January 13, 2016, Redlin mailed a second claim form to the
VA, referencing the same September 25, 2014 incident, along
with a letter from his counsel. The letter stated that Redlin
had previously submitted a claim that had been denied on
July 14, 2015, and described the new form as a
“Supplemental Administrative Claim” meant “to provide
additional information regarding [Redlin’s] negligence claim,
and to increase the amount he is demanding for damages” to
$2,000,000. The VA received this second claim on January
22, 2016, which was past the six-month statute of limitations
set out in 28 U.S.C. § 2401(b), and past the six-month
deadline to file a request for agency reconsideration set out in
28 C.F.R. § 14.9(b).
In a letter dated February 11, 2016, the VA informed
Redlin’s counsel that its July 14, 2015 denial letter
constituted the agency’s final action on Redlin’s claim.
Because the second claim was not received until January 22,
2016, the VA “could not consider it to be a timely request for
reconsideration” under 28 C.F.R. § 14.9(b). It concluded that
“[s]ince VA has already investigated and denied a claim
regarding Mr. Redlin’s allegations, [it] cannot consider the
supplemental claim.”
Six months after the VA’s letter regarding Redlin’s
second claim, on August 10, 2016, Redlin filed this suit
against the United States based on the September 25, 2014
incident. The United States moved to dismiss the action
10 REDLIN V. UNITED STATES
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
on the ground that it was barred by the applicable statute of
limitations, see 28 U.S.C. § 2401(b).
The district court granted the government’s motion to
dismiss. The court reasoned that because more than six
months had elapsed between the VA’s final denial of Redlin’s
claim on July 14, 2015, and the filing of Redlin’s lawsuit on
August 10, 2016, the suit was time-barred.
Redlin filed a timely notice of appeal. The district court
had jurisdiction over this action under 28 U.S.C.
§ 1346(b)(1). We have jurisdiction to review its final order
of dismissal under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal of a complaint for failure to state a
claim under Rule 12(b)(6). Gant v. County of Los Angeles,
772 F.3d 608, 614 (9th Cir. 2014). We take all allegations of
material fact as true and construe them in the light most
favorable to the nonmoving party. Id.III
There is no dispute that the VA mailed a notice of final
denial on July 14, 2015, and Redlin did not file an action in
federal court until August 10, 2016, over a year later and well
past the six-month deadline for filing such claims under
28 U.S.C. § 2401(b). On appeal, Redlin advances several
arguments as to why the district court nonetheless erred in
dismissing his lawsuit as untimely. We consider each
argument in turn.
REDLIN V. UNITED STATES 11
A
First, Redlin argues that his second claim, which was
received by the VA on January 22, 2016, should be deemed
a timely amendment of his first claim, or a timely request for
reconsideration. We disagree. If his second claim is deemed
to be an amendment, it is not timely. The regulations allow
a claim to be amended “at any time prior to final agency
action” or, where there has been no final agency action within
six months of a claimant’s filing, prior to a claimant’s
exercise of the option to file suit in federal court under
28 U.S.C. § 2675(a). 28 C.F.R. § 14.2(c). Because Redlin’s
second claim was received by the VA after it mailed its final
denial, it was not timely. Similarly, if Redlin’s second claim
is deemed to be a request for reconsideration it is likewise not
timely: it was received by the VA on January 22, 2016, which
was more than six months after the VA mailed its notice of
final denial of his claim on July 14, 2015. See Gervais, 865
F.2d at 196–98; see also 28 C.F.R. § 14.9(b). Therefore, the
second claim did not toll the six-month time frame for filing
a lawsuit. See 28 U.S.C. § 2401(b).6
B
Second, Redlin raises a statutory argument. He argues
that he fully complied with 28 U.S.C. § 2401(b) because he
presented his administrative claim to the agency within two
6
To the extent Redlin argues that the VA’s denial of his claim on
July 14, 2015, should not count as a final denial because Redlin failed to
include key pieces of evidence in his initial claim, we reject that argument.
While Redlin had the option of providing such additional evidence in a
timely amendment or motion to reconsider, a claimant’s failure to include
evidence does not invalidate the agency’s denial.
12 REDLIN V. UNITED STATES
years of the date the claim accrued, and he filed his district
court action within six months of the VA’s denial of his
second claim on February 11, 2016. According to Redlin, the
district court erred in applying 28 C.F.R. § 14.2(c) to hold
that the second claim was not a timely amendment. Redlin
reasons that because the statute permits a claimant to file a
claim with the agency at any time during the two-year period
after the claim accrues, the agency had no authority to
promulgate a regulation that would prevent the claimant from
amending that claim during this period. Such a regulation,
Redlin argues, impermissibly shortens the two-year statute of
limitations, and is thus an unreasonable interpretation of
28 U.S.C. § 2401(b).
Following this reasoning, Redlin asserts that if a claimant
chooses to present an amended claim to the agency after the
agency has mailed a final notice of denial for the initial claim,
but within two years of the claim’s accrual, the agency must
mail a new final denial as to the amended claim. The new
final denial, Redlin argues, would restart the six-month time
frame in which the claimant could file a legal action. In
Redlin’s view, a claimant could continue this process of
presenting amended claims and receiving new final denials
during the entire two-year period after the claim accrued.
We disagree. Section 2401(b) provides that an action
must be brought within six months “after the date of mailing”
of notice of final denial of the claim. 28 U.S.C. § 2401(b).
This language makes clear that the limitations period begins
running as soon as the agency mails its initial final notice, see
Parker v. United States, 935 F.2d 176, 177 (9th Cir. 1991);
nothing in the statute indicates that subsequent notices from
the agency could alter or extend the running of the six-month
period on the tort claim at issue. Indeed, if claimants could
REDLIN V. UNITED STATES 13
make successive filings regarding the same claim, and each
filing required the agency to make a successive denial that
restarted the statute of limitations on that claim, the six-
month limitations period would effectively be read out of the
statute. Because we must generally “give effect to every
word of a statute wherever possible,” Leocal v. Ashcroft,
543 U.S. 1, 12 (2004), we reject such a reading. See also
Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984)
(holding that § 2401(b) imposes both a two-year and six-
month limitations requirement, each of which must be
satisfied). We conclude that 28 C.F.R. § 14.2(c), which
requires that any amendment to a claim against the United
States must be made before the agency’s final denial, is a
permissible reading of the statute.7
Indeed, we reached a similar conclusion in Claremont
Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir. 1969).
In that case, a claimant filed a negligence claim against the
Air Force for damage to an airplane. Id. at 897. After an
investigation, the Air Force issued a final denial of the claim.
Id. A United States Senator (at the request of one of the
claimant’s stockholders) triggered a second investigation,
which resulted in a second letter from the agency
disapproving the claim. Id. A third inquiry by the claimant
resulted in a third letter from the agency “reiterating the
position that the Air Force had consistently taken.” Id. The
claimant filed a suit within two years from the date the claim
accrued, but more than six months after the Air Force’s
7
In rejecting Redlin’s argument that his amended claim restarted the
six-month statute of limitations, the district court erred in relying on
28 C.F.R. § 14.2(b)(4), which applies only to successive claims filed with
a different federal agency. Because we reject Redlin’s argument on
different grounds, the error was harmless.
14 REDLIN V. UNITED STATES
original denial. Id. We held that the claimant’s suit was
untimely, because an agency’s final denial cannot be
“erase[d]” or “vitiate[d]” by further correspondence between
claimant and agency on the same claim. Id. at 898. At least
two other circuits have reached the same conclusion. See
Román-Cancel v. United States, 613 F.3d 37, 42 (1st Cir.
2010) (holding that a duplicative claim “serve[s] no
legitimate purpose” and “it would be pointless for a court to
allow a claimant an opportunity to reopen the FTCA’s
limitations window by” simply refiling a claim); Willis v.
United States, 719 F.2d 608, 613 (2d Cir. 1983) (holding that
there is “little force in the contention that plaintiffs could
escape the consequences of their failure to bring suit within
six months of the denial of their claims by filing new claims
within the allowable two year period”). Applying that
reasoning here, Redlin’s pursuit of further review through
submission of an untimely amendment does not erase the
initial final denial by the agency.
C
Finally, we reject Redlin’s argument that he is entitled to
equitable tolling of the limitations periods in 28 U.S.C.
§ 2401(b).8 “Generally, a litigant seeking equitable tolling
bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way.” Credit Suisse
Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)
(emphasis omitted) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)). “The doctrine is not available to avoid the
consequence of one’s own negligence and does not apply
8
The limitations periods in 28 U.S.C. § 2401(b) are subject to the
doctrine of equitable tolling. See Kwai Fun Wong, 135 S. Ct. at 1633.
REDLIN V. UNITED STATES 15
when a late filing is due to claimant’s failure to exercise due
diligence in preserving his legal rights.” Hensley v. United
States, 531 F.3d 1052, 1058 (9th Cir. 2008) (cleaned up).
The VA’s denial letter informed Redlin of his right to file a
motion for reconsideration or a lawsuit within six months,
and Redlin has alleged no extraordinary circumstances
excusing his failure to do either. As such, we affirm the
district court’s denial of equitable tolling in this case.9
AFFIRMED.
9
We also reject Redlin’s argument that his noncompliance with the
statute of limitations should be excused because he was not represented
when he filed his initial claim or when the agency mailed the final denial.
While the precise date that Redlin obtained representation is unclear from
the record, there can be no dispute that Redlin was represented when he
mailed his second claim form—a day before the deadline for filing suit or
requesting reconsideration—because the claim form was accompanied by
a letter from Redlin’s counsel. Therefore, Redlin’s failure to timely file
a suit or a request for reconsideration cannot be excused on the ground
that he acted pro se.