Redlin v. U.S.

• Decision Date: 23 April 2019
• Docket Number: No. 17-16963,17-16963
• Citation: 921 F.3d 1133
• Parties: Michael H. REDLIN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

921 F.3d 1133

Michael H. REDLIN, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 17-16963

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2019 Phoenix, Arizona
Filed April 23, 2019

921 F.3d 1135

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.

Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit Judges, and Frederic Block,^* District Judge.

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

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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.

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 , ––– U.S. ––––, 135 S.Ct. 1625, 1629, 191 L.Ed.2d 533 (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 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

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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 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, 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 "must initiate suit within

921 F.3d 1138

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 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

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