Chronis v. United States

• Decision Date: 29 July 2019
• Docket Number: No. 17-3093,17-3093
• Citation: 932 F.3d 544
• Parties: Anna CHRONIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

932 F.3d 544

Anna CHRONIS, Plaintiff-Appellant,

v.UNITED STATES of America, Defendant-Appellee.

No. 17-3093

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2019

Decided July 29, 2019

Anna Chronis, Chicago, IL, pro se.

Scott D. Heffron, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Defendant-Appellee.

Travis S. Andrews, Amir C. Tayrani, Attorneys, GIBSON, DUNN & CRUTCHER LLP, Washington, DC, for Amicus Curiae TRAVIS S. ANDREWS.

Before Ripple, Rovner, and Barrett, Circuit Judges.

Barrett, Circuit Judge.

Before bringing a tort claim against the United States, a plaintiff must first exhaust her administrative remedies by presenting her claim to the appropriate federal agency. This means, among other things, that the plaintiff must demand a sum certain from the agency. Anna Chronis did not make such a demand before she sued, so the district court properly dismissed her complaint.

I.

In June 2015, Anna Chronis visited the University of Illinois Mile Square Health Center for her annual physical examination. The examination included a pap smear—a procedure used to detect cervical cancer—that Chronis alleges caused her pain and bruising. She claims that she tried to follow up on the examination with the physician, Dr. Tamika Alexander, but was unable to get in touch with her. She also says that the Health Center did not return her calls or allow her to make a follow-up appointment. Chronis filed a written complaint with the Health Center’s grievance committee, requesting $332 for the expenses that she incurred because of the injury. But after reviewing her complaint, the Health Center rejected her request.

After her request was denied, Chronis sent a letter to the Centers for Medicare and Medicaid Services (CMS), an agency within the U.S. Department of Health and Human Services. In her letter, she requested "assistance in resolving a frustrating process of delay, unfulfilled promises, and documented willful ignorance of policy and procedures." Though her letter mentioned the injuries that she allegedly sustained during her examination, it devoted most of its attention to the Health Center’s lack of responsiveness to her complaints. It also included a general statement that she wanted assistance in "receiving the restitution." The conclusion of her letter summarized what she was asking for: "I have enclosed all relevant, previous correspondence between UIC Health, and myself, and look forward to your guidance on how to proceed." Chronis also attached roughly sixty pages of documents relating primarily to the correspondence between Chronis and the Health Center. One of the pages included the fact that Chronis had previously sought $332 from the Health Center.

Believing that Chronis was seeking advice about how to make an administrative complaint against the doctor and Health Center, CMS replied by directing her to contact the Illinois Department of Financial and Professional Regulation so that she could file a formal complaint. CMS also invited Chronis to follow up if she needed any additional assistance.

More than six months later, Chronis filed a pro se complaint in state court, alleging malpractice against Alexander and the Health Center. Because the Health Center receives federal funds from the Public Health Service and Alexander is a Health Center employee, the United States substituted itself as the sole defendant and removed the case to federal court to proceed under the Federal Tort Claims Act. See 42 U.S.C. § 233 ; 28 U.S.C. § 1346.¹ The government then moved to dismiss, arguing that Chronis had not exhausted her administrative remedies because she had failed to first present her claim to the appropriate federal agency. It argued that her letter to CMS did not meet this requirement.

The district court granted the government’s motion and dismissed the complaint. It explained that Chronis’s letter to CMS notified the agency only that she was pursuing "professional regulation allegations," as opposed to making an administrative demand—and thus failed to present a claim.

Chronis timely appealed pro se, and we appointed amicus curiae to assist in her appeal.² Amicus argues that Chronis exhausted her administrative remedies when she sent the letter to CMS. We disagree.

II.

Under the Federal Tort Claims Act, a plaintiff may bring a medical malpractice claim against the United States only after exhausting administrative remedies. 28 U.S.C. §§ 2401(b), 2675. To exhaust administrative remedies, the plaintiff must "have first presented the claim to the appropriate Federal agency," id. § 2675, so that the agency has an opportunity to meaningfully consider and address the claim prior to suit, see Kanar v. United States , 118 F.3d 527, 528 (7th Cir. 1997) ; Mader v. United States , 654 F.3d 794, 801 (8th Cir. 2011) (en banc) (explaining that the agency must have "a fair opportunity to meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA claims prior to suit"). A claim has been presented to a federal agency once the plaintiff submits "an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain." 28 C.F.R. § 14.2(a) ; see also Kanar , 118 F.3d at 528. We have held that this presentment requirement has four elements: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing; and (4) evidence of the person’s authority to represent the claimant. Kanar , 118 F.3d at 528. Chronis’s letter fails to satisfy the second element of the presentment requirement.

Even liberally construed and read through the eyes of a "legally sophisticated reader," Chronis’s letter does not contain a demand for money damages in a sum certain. See Buechel v. United States , 746 F.3d 753, 760 (7th Cir. 2014). The closest that the letter comes to requesting any money at all is a vague request for help in "receiving restitution." Perhaps recognizing that this vague reference falls short of the mark, amicus argues that Chronis implicitly demanded a sum certain because one of the letter’s many attachments revealed that she once sought $332 from the Health Center. But she simply attached this, along with what amicus acknowledged were as many as sixty pages of attachments, as background information. And in any event, although the dissent makes much of these attachments, we have said before that we will not force agencies to search for claims buried within pages and pages of attachments. See Deloria v. Veterans Admin. , 927 F.2d 1009, 1012 (7th Cir. 1991) (explaining that claims that "may be gleaned" from a sixty-three-page appendix to an administrative filing have not been asserted for purposes of exhaustion).³

To be sure, failing to put a number on the amount demanded is not necessarily fatal. See Smoke Shop, L.L.C. v. United States , 761 F.3d 779, 787 (7th Cir. 2014). It is "only fatal if it can be said to have ‘hindered’ or ‘thwarted’ the settlement process ‘that Congress created as a prelude to litigation.’ " Id. (quoting Kanar , 118 F.3d at 531 ); see also Khan v. United States , 808 F.3d 1169, 1172 (7th Cir. 2015) (explaining that a precise sum of money is not always required because its absence typically won’t "derail the settlement process"). But a claimant who neither makes it clear that she is demanding money from the agency nor says how much she is demanding thwarts the settlement process envisioned by the FTCA. See Smoke Shop , 761 F.3d at 788 (asserting that "without being presented with an actual claim for money damages, the [government is] ill-equipped to make a fully informed assessment" concerning a plaintiff’s claim). How can an agency assess whether to make a settlement offer if it isn’t aware that a demand is being made, let alone how much is at stake?

Take the facts here: believing that Chronis’s letter was simply requesting advice about how to file an administrative complaint against the Health Center, the agency responded by providing information about how to file a formal complaint with the Illinois Department of Financial and Professional Regulation. The agency didn’t have a chance to begin the settlement process because nothing in the letter put it on notice that Chronis was asserting a claim against it. Chronis’s failure to make a clear demand of CMS "frustrate[d] the process of conciliation and settlement that the administrative demand is supposed to initiate." See Kanar , 118 F.3d at 531.

Indeed, the letter shows that Chronis wanted something other than money from CMS. The conclusion of her letter said it best: she wanted "guidance on how to proceed." Requesting guidance is different than requesting money. And we have emphasized that a letter requesting "something other than money" fails to constitute an administrative demand for money. See Khan , 808 F.3d at 1173 (concluding that the claimant failed to make a demand because he "was seeking something other than money—such as an apology for the misconduct of the arresting marshals, or punishment of them, or better training of marshals"); Smoke Shop , 761 F.3d at 787 ("Unfortunately for Smoke Shop, we have never held that a request for the return of property—unaccompanied by a statement that the claimant would seek money damages if the property was not returned—satisfies the [money-damages element].").

In a final effort to show that Chronis actually made a demand for monetary damages, amicus points to a single phrase in her letter stating that she had to "pay out of pocket for follow up that resulted from [Dr. Alexander’s] malpractice and gross negligence." But this wasn’t a demand. It was just background information, explaining Chronis’s frustration with her care. Especially in light of the rest of the letter, which made clear that Chronis was seeking advice, this alone could not have put the agency on notice that Chronis intended to file an administrative demand. See Palay v. United States , 349...