Motta v. United States

• Decision Date: 24 May 2013
• Docket Number: No. 12–14338,Non–Argument Calendar.,12–14338,n–Argument Calendar.
• Citation: 717 F.3d 840
• Parties: Niny J. MOTTA, on behalf of and as mother and natural guardian of A.M., a minor, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

717 F.3d 840

Niny J. MOTTA, on behalf of and as mother and natural guardian of A.M., a minor, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–14338

Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 24, 2013.

Terrence Edward Kehoe, Law Offices of Terrence E. Kehoe, Eric Harold Faddis, Tiffany M. Faddis, Faddis & Faddis, PA, Orlando, FL, Scot Daniel Warner, Warner and Warner, PL, Casselberry, FL, for Plaintiff–Appellant.

Todd B. Grandy, Robert E. O'Neill, U.S. Attys., Tampa, FL, Edward Himmelfarb, U.S. Atty., Washington, DC, Ralph E. Hopkins, U.S. Atty., Orlando, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and TJOFLAT and MARTIN, Circuit Judges.

DUBINA, Chief Judge:

This case presents a question under the Federal Tort Claims Act (“FTCA”). Appellant, Niny J. Motta (“Motta”), failed to present a medical malpractice claim on behalf of her son, A.M., to the Department of Health and Human Services (“DHHS”) until after the FTCA's two-year statute of limitations expired. The district court dismissed the case for lack of subject matter jurisdiction. For the reasons that follow, we affirm the district court's judgment.

I. FACTS

On March 3, 2008, Motta took A.M. to be examined by Dr. Rosario Martinez–Angel (“Dr. Martinez”) at the Central Florida Family Health Center (“CFFHC”) because A.M.'s testicle appeared abnormal. Dr. Martinez incorrectly diagnosed him with an inguinal hernia. On March 4, 2008, after A.M.'s condition continued to deteriorate, Motta took A.M. to the emergency room at Florida Hospital–East, where he was diagnosed with testicular torsion, and his left testicle was removed. Motta alleges that if Dr. Martinez had diagnosed A.M. correctly, A.M. would not have lost the testicle.

In June 2008, Motta hired counsel to pursue a medical malpractice claim. Counsel performed a corporate search of CFFHC, and learned it was a non-profit entity. He made numerous requests under Florida state law for insurance records from Dr. Martinez and CFFHC in 2008 and 2009, but each request went unanswered. Counsel eventually sent a notice of intent to sue to CFFHC and Dr. Martinez, which they received January 26, 2010. The notice did not include a Standard Form 95 (“SF–95”) or sum certain. CFFHC forwarded the notice of intent to DHHS, which it received sometime before February 25, 2010.

On February 5, 2010, counsel learned for the first time that CFFHC was federally funded and therefore subject to FTCA because he received a letter from the Facilities Coordinator at CFFHC acknowledging she had received Motta's notice of intent to sue and stating “that [CFFHC is] a federally funded health center, covered under the Federal Tort Claims Act.” [R. 25–1 ¶¶ 22–24.] The letter also advised that the notice of intent to sue would be forwarded to “the Office of General Counsel in Washington, D.C.” and that CFFHC would be “requesting a 45 day extension.” [ Id. ¶ 25.] The letter did not disclose that DHHS was the appropriate agency to receive Motta's SF–95.

Counsel prepared to send the SF–95, along with other documentation, to the “United States Office of General Counsel” because he mistakenly believed there was only one Office of General Counsel, and therefore, that it was the appropriate “agency” to receive Motta's SF–95. Counsel's paralegal conducted an internet search for an address for “United States Office of General Counsel.” Evidently, the address used was for the Department of Commerce Office of General Counsel. The SF–95 was mailed there via certified mail on February 23, 2010. Counsel also mailed a copy of the SF–95 and other documentation to the Facilities Coordinator at CFFHC the same day.

On March 1, 2010, Timothy Conner (“Conner”), Senior Litigation Counsel with the Office of General Counsel of the Department

of Commerce, received Motta's SF–95. The next day, Conner faxed a letter to counsel explaining that he received Motta's SF–95 and inquiring as to why counsel had filed an FTCA claim with the Department of Commerce because the agency appeared to have no connection to her medical malpractice claim.

On March 4, 2010, counsel contacted the Facilities Coordinator at CFFHC to attempt to identify the appropriate agency to receive the SF–95, but he was unable to reach her. On March 9, 2010, counsel's paralegal spoke with Conner about forwarding Motta's SF–95 to the correct federal agency. Conner told counsel's paralegal that he could not forward the materials without more information. The same day, counsel's paralegal faxed a letter to the Facilities Coordinator asking for the contact information for the federal agency that governed CFFHC.

The Facilities Coordinator responded on March 10, 2010, and identified DHHS as the appropriate agency.¹ Counsel's paralegal contacted Conner the same day, gave him the appropriate address, and asked him to forward the SF–95 to DHHS, which he did on March 15, 2010. DHHS received the materials on March 19, 2010.

Motta filed this lawsuit on December 16, 2010. On February 10, 2012, the government filed a motion to dismiss for lack of subject matter jurisdiction asserting that Motta had failed to timely file her administrative claim within FTCA's two year statute of limitations. The district court granted the government's motion on June 20, 2012. Motta then timely appealed.

II. STANDARD OF REVIEW

We review de novo a dismissal for lack of subject matter jurisdiction. Broward Gardens Tenants Ass'n v. EPA, 311 F.3d 1066, 1072 (11th Cir.2002).

III. DISCUSSION

“The FTCA provides a limited waiver of the United States' sovereign immunity for tort claims.” Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir.2006). It permits the government to be sued for claims arising from torts committed by federal employees acting within the scope of their employment. 28 U.S.C. §§ 1346(b)(1), 2679(d)(1). However, “[a] federal court may not exercise jurisdiction over a suit under the FTCA unless the claimant first files an administrative claim with the appropriate agency.” Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994) (emphasis added). An appropriate federal agency is the actual federal agency responsible for handling the claim and not the government-funded entity or government employee who committed the alleged tort. See Hejl v. United States, 449 F.2d 124, 125–26 (5th Cir.1971).²

The claimant must also present the claim in writing to the appropriate agency “within two years after such claim accrues.” 28 U.S.C. § 2401(b). ³ A claim is deemed presented when the federal agency receives the claimant's SF–95 “or other written notification of [the] 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.” 28 C.F.R. § 14.2(a). “When the sum certain is omitted, the administrative claim fails to meet the statutory prerequisite to maintaining a suit against the government, and leaves the district court without jurisdiction to hear the case.” Suarez, 22 F.3d at 1065. If the tort claim is not properly presented within the time period, it “shall be forever barred.” 28 U.S.C. § 2401(b).

It is undisputed that the statute of limitations began to run on March 4, 2008, when Motta became aware that Dr. Martinez's misdiagnosis resulted in A.M. losing the testicle. See McCullough v. United States, 607 F.3d 1355, 1359 (11th Cir.2010) (“[A] medical malpractice claim under the FTCA accrues when the plaintiff is, or in the exercise of reasonable diligence should be, aware of both her injury and its connection with some act of the defendant.”) (quoting Price v. United States, 775 F.2d 1491, 1494 (11th Cir.1985)); see also Jones v. United States, 294 Fed.Appx. 476, 480 (11th Cir.2008) (“[T]he rule [is] that ignorance as to the alleged tortfeasor's employer does not toll the statute of limitations.”). Accordingly, the statute of limitations expired March 4, 2010—15 days before DHHS received Motta's SF–95.

Motta has the burden of proving subject matter jurisdiction. See OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir.2002). She argues the court has subject matter jurisdiction over the claim for two reasons. First, she contends her claim should be deemed constructively filed before the March 4, 2010, deadline. Second, she asserts in the alternative that equitable tolling applies.

A. Constructive Filing

Motta first argues her claim was constructively filed on one of various dates before the expiration of the statute of limitations. This circuit has never addressed the question whether the doctrine of constructive filing applies to FTCA claims, but even assuming it does, it does not apply to this case.

Our sister circuits that have recognized the doctrine of constructive filing in the FTCA context have only applied it where the inappropriate federal agency: (1) receives a claim that otherwise fully complies with § 14.2(a)'s presentment requirements with sufficient time before the statute of limitations is set to run, and (2) then violates § 14.2(b)(1)'s requirement to forward the claim to the appropriate agency or return the claim to the claimant. Thus, in Bukala v. United States, 854 F.2d 201, 202 (7th Cir.1988), for example, it was apparent on the face of the erroneously-delivered documentation which agency should have received the claim. And the claim was received by the incorrect agency eight months prior to the expiration of the statute of limitations. Id. at 204 n. 4. The court held the agency's failure to comply with § 14.2(b)(1)'s mandate to transfer erroneously-received claims justified remand to the district court to determine whether constructive filing applied to the claim. Id. at 204.

Similarly, in Greene v. United States, 872 F.2d 236, 236 (8th Cir.1989), the inappropriate federal agency received the claimant's claim two and a...