Sanchez v. United States

• Decision Date: 14 January 2014
• Docket Number: No. 13–1333.,13–1333.
• Citation: 740 F.3d 47
• Parties: Angel SANCHEZ, Individually and as Administrator of the Estate of Rafaela Sanchez, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

740 F.3d 47

Angel SANCHEZ, Individually and as Administrator of the Estate of Rafaela Sanchez, Plaintiff, Appellant,

v.UNITED STATES of America, Defendant, Appellee.

No. 13–1333.

United States Court of Appeals,First Circuit.

Jan. 14, 2014.

Paul F. Kenney, with whom Kristen A. Barnes and Kenney & Conley, P.C. were on brief, for appellant.

George B. Henderson, II, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Timothy C. Kelleher III, Cooley Manion Jones LLP, Thomas R. Murphy, Law Offices of Thomas R. Murphy, LLC, Thomas M. Bond, The Kaplan/Bond Group, Sara J. Trezise and Trezise Law Group on brief for Massachusetts Academy of Trial Lawyers, amicus curiae.

Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

Plaintiff Angel Sanchez, a widower and the executor of his wife's estate, sued his wife's doctors for medical malpractice. As it turned out, those doctors were federal employees, against whom claims are forever barred unless brought within the two-year limitations period Congress allowed under the Federal Tort Claims Act (“FTCA”), as opposed to the three-year period allowed by Massachusetts law for medical malpractice claims. As it also turned out, those doctors' status as federal employees was not readily apparent to one who undertook no investigation. Mr. Sanchez's lawyers both made no such investigation and waited more than two years before presenting his claim. Based on our prior, controlling holding in a closer case, Gonzalez v. United States, 284 F.3d 281 (1st Cir.2002), we affirm the district court's decision that it had no choice but to dismiss this lawsuit.

I. Background

The accuracy of the allegation that the doctors were negligent is not yet at issue in this stage of this lawsuit. Otherwise, the material facts of this case, especially those relating to the procedural history and posture of the suit, are undisputed. Cf. Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.2010).

Dr. Rafaela Sanchez ¹ died on April 24, 2009, two days after she delivered her third child, by caesarean section, at North Shore Medical Center–Salem Hospital (“NSMC”).² The doctors who treated her at NSMC, Drs. Kristin Cotter and Kalinda Dennis, worked for Lynn Community Health Center (“LCHC”), where Dr. Sanchez had received prenatal care. Angel Sanchez contends that the treating doctors knew or should have known that his wife had at least one of two potentially dangerous conditions, placenta previa³ and placenta accreta,⁴ and so required special care in the removal of her placenta, and probably a hysterectomy, to minimize the risk of hemorrhage. Plaintiff claims that Dr. Cotter left the hospital after the delivery, leaving Dr. Sanchez in the care of Dr. Dennis,⁵ and that neither doctor performed a hysterectomy until after hemorrhaging began. When the bleeding persisted (or resumed), Dr. Sanchez died.

Mr. Sanchez retained legal counsel at some point prior to February 2010. Counsel waited until April 11, 2012—35 1/2 months after Dr. Sanchez's death—to file suit on Mr. Sanchez's behalf against Dr. Cotter in Massachusetts state court. Nine days later, they filed an amended complaint, adding Dr. Dennis as a defendant. Unbeknownst to Mr. Sanchez and his counsel, as employees of LCHC both doctors were deemed to be federal employees under the Federally Supported Health Centers Assistance Act of 1992, Pub.L. 102–501, 42 U.S.C. § 233. As we have explained before, see Gonzalez v. United States, 284 F.3d 281, 286, 288, 291 (1st Cir.2002), and explain again below, tort claims against such doctors for malpractice within the scope of their employment are claims against the United States, barred if not properly pursued within two years of their accrual (as opposed to three years under Massachusetts law, seeMass. Gen. Laws ch. 260, § 2A).

The United States removed the case to federal court, and substituted itself as the defendant. See28 U.S.C. § 2679(d). The district court dismissed the suit for lack of subject matter jurisdiction after finding it time-barred. Mr. Sanchez appeals.

II. The Federal Tort Claims Act

Federal courts lack jurisdiction over claims against the United States unless the government has waived its sovereign immunity. See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Absent waiver, this immunity applies to tort claims against federal employees for conduct within the scope of their employment. Cf.28 U.S.C. §§ 1346(b)(1), 2679; Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.2010). The FTCA is “a limited waiver” of that immunity, Abreu v. United States, 468 F.3d 20, 23 (1st Cir.2006), giving federal courts jurisdiction over civil claims against the government for death or injury “caused by the negligent or wrongful act or omission of any employee of the Government ... under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

The FTCA's limited waiver of immunity comes with an expiration date. Specifically, an FTCA claim is “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 agency denies the claim. Id. § 2401(b).⁶ The FTCA's two-year bar for presenting claims creates a trap for the unwary who fail to recognize its applicability to a specific case and thus fail to act at all within two years of accrual, or who sue in time but fail to first present the claim to the appropriate federal agency. In 1988, Congress provided leeway for individuals in the latter category. See Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), Pub.L. 100–694, 102 Stat. 4563. Under the Westfall Act, if a tort case is filed in federal court or removed from state court and the United States is substituted as the defendant, see28 U.S.C. § 2679(d)(1)-(3), the claim will be deemed timely under section 2401(b) if “(A) the claim would have been timely had it been filed on the date that the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within sixty days after the dismissal of the civil action.” 28 U.S.C. § 2679(d)(5). Congress has not otherwise seen fit to alter the two-year bar (in a way material to this suit) since doubling its length in 1949. See 81 Cong. Ch. 92, § 1, 63 Stat. 62 (1949).

It is undisputed that, in this case, Drs. Cotter and Dennis were federal employees at the time of their alleged malpractice, the FTCA applies to the claims brought against them (now against the United States), and Mr. Sanchez did not present his claim to any federal agency, or file suit, within two years of his wife's death. The district court therefore dismissed this lawsuit, finding that it lacked subject matter jurisdiction to hear a case against the United States not allowed under the FTCA.

III. Analysis

Mr. Sanchez argues that under the “discovery” rule, his claim did not accrue until May 27, 2010, at the earliest. Alternatively, he argues that the running of the two-year period was equitably tolled long enough to salvage this case. Having rejected such arguments in Gonzalez on facts more favorable to a tardy plaintiff, and otherwise finding no basis in the law to reach a contrary result in this case, we must also reject Mr. Sanchez's arguments and affirm the judgment of dismissal.

A. Exhaustion or timeliness?

Questions of exhaustion and timeliness pose similar potential bars to this lawsuit. They may both be seen as jurisdictional bars. See, e.g., Román–Cancel v. United States, 613 F.3d 37, 42 (1st Cir.2010) (timeliness); Barrett ex rel. Estate of Barrett v. U.S., 462 F.3d 28, 37 (1st Cir.2006) (exhaustion); Acosta v. U.S. Marshals Serv., 445 F.3d 509, 513 (1st Cir.2006)(same); Gonzalez v. United States, 284 F.3d 281, 287, 291 n. 11, 293 (1st Cir.2002) (treating timeliness as jurisdictional in affirming dismissal of an unexhausted claim, and concluding that section 2679(d)(5) did not apply). Alternatively, either or both may be seen as nonjurisdictional, but essential, claim-processing rules. See, e.g., Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1039 (9th Cir.2013) (en banc) (concluding that section 2401 constitutes a non-jurisdictional claim-processing rule); Glade ex rel. Lundskow v. United States, 692 F.3d 718, 723 (7th Cir.2012) (exhaustion requirement is not jurisdictional and may be waived). In either event, we certainly have some “leeway to choose among threshold grounds for denying audience to a case.” Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citations and internal quotation marks omitted).

Determining that this lawsuit should have been dismissed without prejudice due to failure to exhaust would be the narrowest approach to disposing of this appeal, because it is undisputed that Mr. Sanchez has never presented his claim to the Department of Health and Human Services. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 84 (2d Cir.2005) (affirming a dismissal where failure to exhaust barred the claim “and would continue to bar it even if any possible unjust effects of disparities between state and federal statutes of limitations were remedied by equitable tolling.”). Mr. Sanchez would then presumably present the claim to the agency within sixty days of final entry of the judgment of dismissal; the agency would deny the claim as untimely, and Mr. Sanchez would file suit anew. At that point, the FTCA's exhaustion requirement arguably would have been satisfied, leaving only the question of timeliness. With the aid of the Westfall Act, Mr. Sanchez would then present exactly the same...