Norman v. U.S.

• Citation: 467 F.3d 773
• Decision Date: 31 October 2006
• Docket Number: No. 05-5304.,05-5304.
• Parties: John D. NORMAN, Appellant v. UNITED STATES of America and Erie Insurance Group, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

467 F.3d 773

John D. NORMAN, Appellant v. UNITED STATES of America and Erie Insurance Group, Appellees.

No. 05-5304.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 2006.

Decided October 31, 2006.

John S. Kearns argued the cause and filed the brief for appellant.

Beverly M. Russell, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: RANDOLPH and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

After appellant filed suit in the Superior Court of the District of Columbia seeking damages for injuries suffered in a car accident, the United States, acting pursuant to the Federal Tort Claims Act, removed the case to federal court because the car's driver was a federal employee acting within the scope of his employment at the time of the accident. By the time the case was removed, however, the FTCA's two-year statute of limitations had expired. Accordingly, the district court, declining to equitably toll the statute of limitations because appellant had failed to make reasonably diligent efforts to discover the driver's employer, dismissed the complaint. We affirm.

I.

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, requires individuals with certain types of tort claims against the United States to present those claims to the appropriate agency and then to file suit within two years of the events giving rise to the claims. 28 U.S.C. §§ 2401(b), 2675(a). Pursuant to a 1988 amendment to the FTCA, known as the Westfall Act, Pub.L. No. 100-694, 102 Stat. 4563 (codified as amended at 28 U.S.C. §§ 2671, 2674, 2679), tort claims filed in state courts against federal employees acting in the scope of their employment "shall be removed ... by the Attorney General to the district court of the United States [where the action is pending] .... and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2). A plaintiff whose state suit is removed after the FTCA's two-year statute of limitations has expired may still maintain the claim if "(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action." Id. at § 2679(d)(5). Put differently, removed claims are barred when the plaintiff fails to file suit in state court within the FTCA's two-year statute of limitations, although some courts—and this is the issue we face here—have allowed such claims to proceed by equitably tolling the statute of limitations. See, e.g., Glarner v. U.S. Dep't of Veterans Admin., 30 F.3d 697, 700-02 (6th Cir.1994).

On January 4, 2001, while crossing a street in the District of Columbia, Appellant John Norman was struck and seriously injured by a rental car driven by Earnest Howe. Shortly thereafter, acting through his attorney, Norman filed a worker's compensation claim and wrote Howe's insurance provider, USAA Insurance Company ("USAA"), declaring his intent to pursue a tort claim. In response, USAA sent claim forms to Norman's attorney, instructing him to send all correspondence, medical bills, and records directly to it. After submitting the claim forms, Norman received $2,500 from USAA—the company's maximum coverage for lost wages. At the same time, Norman's attorney received a letter reiterating USAA's earlier requests and asking him to update the company about Norman's health status and to send it any additional information about the injury claim.

Almost two and a half years later, on December 8, 2003, well after the two-year FTCA statute of limitations had expired, USAA sent another letter to Norman's attorney informing him that at the time of the accident Howe worked for the Environmental Protection Agency and was acting within the scope of his employment. The letter recommended that Norman file a claim with EPA. Attached was an earlier letter from USAA to EPA dated November 21, also sent after the statute of limitations had expired, informing the agency that it was "previously advised of a possible exposure in this matter." Appellant's Opp'n to Mot. for Summ. Affirmance, Ex. 4.

On December 22, thirteen days before the expiration of the District of Columbia's three-year statute of limitations for personal injury actions, D.C.Code § 12-301(3), Norman sued Howe in D.C. Superior Court. Acting pursuant to the Westfall Act, the United States removed the case to the United States District Court for the District of Columbia and substituted itself as defendant. The government then moved to dismiss the case as time barred because Norman had failed to file his superior court lawsuit within the FTCA's two-year statute of limitations. After Norman filed his opposition and the government its reply, the district court directed Norman to file a sur-reply by January 28, 2005, and scheduled a status hearing for several days later. After Norman's counsel neither filed the sur-reply nor appeared at the status hearing, the district court dismissed the case "without prejudice to a motion for reconsideration" filed by February 14. Norman, No. 04-cv-01208, Minute Order (D.D.C. Jan. 31, 2005) (capitalization omitted). Norman's attorney missed that deadline as well.

A month later, claiming that his failure to abide by the court's deadlines was attributable to his unfamiliarity with electronic case filing, Norman's lawyer filed a "Motion to Reconsider and to Reinstate Complaint," under Federal Rule of Civil Procedure 60(b)(1). Rule 60(b)(1) allows a court to grant relief from an adverse judgment if there was "mistake, inadvertence, surprise, or excusable neglect." To obtain Rule 60(b) relief, the movant must give the district court "reason to believe that vacating the judgment will not be an empty exercise or a futile gesture." Murray v. District of Columbia, 52 F.3d 353, 355 (D.C.Cir.1995). In opposition to Norman's Rule 60(b)(1) motion, the government argued that Norman's failure to exhaust administrative remedies with the EPA or to file his lawsuit within the FTCA's statute of limitations made his claim futile.

On July 11, the district court denied Norman's Rule 60(b)(1) motion and dismissed the case with prejudice. Norman v. United States, 377 F.Supp.2d 96, 101 (D.D.C.2005). Although the court ruled that counsel's failure to file a sur-reply, to attend the status hearing, and to file his motion for reconsideration on time constituted "excusable neglect" within the meaning of Rule 60(b)(1), it nonetheless denied the motion because Norman failed to make a case for equitably tolling the statute of limitations, leaving him with no "underlying meritorious claim." Id. at 99-101 (citing Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310, 1314 (D.C.Cir.1986)). In reaching this conclusion, the court relied on a decision from the Northern District of Mississippi, Bryant v. United States, 96 F.Supp.2d 552 (N.D.Miss.2000), in which the district court declined to toll the statute of limitations because the plaintiff, injured in a car accident, failed to investigate the defendant's employment status during the two years following the accident. Id. at 555. Bryant's reasoning, the district court here held, "applies with even greater force in this case" because "[w]hile federal employees may not be especially plentiful in Indianola, Mississippi, they certainly are in Washington, D.C. and its metropolitan area." Norman, 377 F.Supp.2d at 101. Given that Norman failed "to act with reasonable diligence to determine, within the limitations period, the circumstances surrounding his case that may limit the causes of action available to him," the district court declined to equitably toll the statute of limitations. Id. Absent tolling, Norman's failure to exhaust his administrative remedies deprived the district court of jurisdiction, making him ineligible for Rule 60(b)(1) relief.

II.

In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that federal statutes of limitations are not jurisdictional. The Court also held that, "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id. at 95-96, 111 S.Ct. 453. See also Chung v. U.S. Dep't of Justice, 333 F.3d 273, 276-77 (D.C.Cir.2003). Acknowledging that equitable tolling principles are far from clear, the Supreme Court observed that courts have extended this relief "only sparingly" and have generally denied it where a plaintiff "failed to exercise due diligence in preserving his legal rights" or showed only "a garden variety claim of excusable neglect." Irwin, 498 U.S. at 96, 111 S.Ct 453. Courts have more willingly granted equitable tolling "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Id. (footnote omitted). We too have allowed equitable tolling, but "only in extraordinary and carefully circumscribed circumstances," Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C.Cir. 1998) (quoting Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)), such as where "despite all due diligence [a plaintiff] is unable to obtain vital information bearing on the existence of her claim." Id. at 579. We have never squarely addressed whether equitable tolling applies to the FTCA's statute of limitations, and we need not do so here, for Norman has failed to meet the due diligence requirement for equitable tolling. Cf. Thomas v. U.S. Parole Comm'n, ...