T.L. ex rel. Ingram v. U.S.

• Decision Date: 06 April 2006
• Docket Number: No. 04-4155.,04-4155.
• Parties: T.L., By and Through Her Mother and Next Friend, Katherine Ingram, Plaintiff/Appellant, v. UNITED STATES of America, Defendant/Appellee, Oliver; Ward, Dr.; Tenet Healthsystem DI, Inc., Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.3d 956

T.L., By and Through Her Mother and Next Friend, Katherine Ingram, Plaintiff/Appellant, v. UNITED STATES of America, Defendant/Appellee, Oliver; Ward, Dr.; Tenet Healthsystem DI, Inc., Defendants.

No. 04-4155.

United States Court of Appeals, Eighth Circuit.

Submitted: October 12, 2005.

Filed: April 6, 2006.

COPYRIGHT MATERIAL OMITTED

Randall L. Rhodes, argued, Kansas City, MO (Evan A. Douthit, Kansas City, on the brief), for appellant.

Nicholas P. Llewellyn, argued, Asst. U.S. Attorney, St. Louis, MO, for appellee.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Katherine Ingram, on behalf of her minor daughter, T.L., appeals the district court's¹ grant of summary judgment dismissing her medical malpractice action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"). We affirm.

I.

On December 17, 1997, Katherine Ingram gave birth to a daughter, T.L., who suffered a hypoxic brain injury during delivery, and was later diagnosed with cerebral palsy. Ingram, who was 15 years old at the time, began her pre-natal care at St. Louis Comprehensive Health Center, Inc., a federally-funded medical facility. She was told by her doctor at the health center that when she went into labor, she should go to Deaconess Hospital, a private facility not funded by the federal government. Ingram was admitted to Deaconess on December 16, and Dr. Tony Lam, who was employed by People's Health Centers, Inc., a federally-funded clinic, delivered T.L. the following evening. After the delivery, T.L. was transferred to Cardinal Glennon Children's Hospital for specialized care and treatment.

Shortly after T.L.'s birth, an attorney was retained on Ingram's behalf, and the attorney hired a professional photographer to take pictures of T.L. at the hospital six days after T.L.'s birth. On March 2, 1998, Ingram's counsel requested medical records from Deaconess regarding T.L.'s delivery. T.L. has since been diagnosed with cerebral palsy, which Ingram alleges was caused by Lam's negligence during the delivery.

Ingram initially filed suit in the Circuit Court of the City of St. Louis on May 15, 2000, against Lam and another treating doctor, Aaron Pile. The government certified, pursuant to 42 U.S.C. § 233(c), that the doctors were employed at federally supported health centers, id. § 233(g), and were working within the scope of their employment at the time of T.L.'s birth. On that basis, the defendants removed the action to the federal district court on September 12, 2000. The government was granted leave to substitute the United States for the doctors, and the parties stipulated to a dismissal of the action without prejudice. Ingram filed an administrative claim with the Department of Health and Human Services on November 22, 2000. The agency failed to make a final disposition of the claim within six months, and Ingram filed suit under the FTCA, 28 U.S.C. § 2675(a), in the district court on December 19, 2001. Ingram later moved to dismiss her allegations against Pile, and the court granted the motion.

The government then moved to dismiss or, in the alternative, for summary judgment, on the remaining claim, arguing that the complaint was barred by the statute of limitations. The court granted the motion, holding that Ingram's cause of action accrued when T.L. was transferred to Cardinal Glennon Hospital on December 18, 1997, because Ingram was informed that T.L. had "brain damage." At that point, the district court concluded, Ingram had a duty to exercise reasonable diligence in determining the cause of the known injury, and because she failed to file an administrative claim under the FTCA within two years after the claim accrued, her action was barred by the statute of limitations.

II.

As a threshold matter, we find it important to consider whether compliance with the FTCA's statute of limitation is a jurisdictional prerequisite to bringing a suit or an affirmative defense to the action. The district court, noting confusion in our court's decisions on the issue, assumed the view most favorable to the plaintiff. The court thus characterized the statute of limitations as an affirmative defense, and considered the government's motion as one for summary judgment. See Motley v. United States, 295 F.3d 820, 822 (8th Cir. 2002). Under that approach, the district court was required to consider all disputed facts in the light most favorable to the non-movant, and Ingram's appeal is based in part on her contention that the district court improperly weighed conflicting evidence in dismissing her claim.

Our earliest cases arising under the FTCA treated the statute of limitations as jurisdictional. The federal courts have jurisdiction over claims under the FTCA only to the extent that the United States has waived its sovereign immunity. When the United States consents to be sued, "[t]he terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The statute of limitations is a condition of the waiver of sovereign immunity under the FTCA, see Wollman v. Gross, 637 F.2d 544, 547 (8th Cir. 1980), and we thus reasoned that "[c]ompliance with the statute of limitations of 28 U.S.C. § 2401(b) is a jurisdictional prerequisite to suit." Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990); see also Radman v. United States, 752 F.2d 343, 344 (8th Cir.1985).

In 1991, however, we reversed course in light of the Supreme Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and held that compliance with the statute of limitations was not a jurisdictional prerequisite to suing the government under the FTCA. Schmidt v. United States, 933 F.2d 639 (8th Cir.1991). In Irwin, the Supreme Court held that 42 U.S.C. § 2000e-16(c), which requires a plaintiff to file a Title VII employment discrimination claim against the government within 30 days of final agency action could be equitably tolled. The Court concluded that once Congress has made a waiver of sovereign immunity, the application of the rule of equitable tolling to suits against the government "amounts to little, if any, broadening of the congressional waiver," and "is likely to be a realistic assessment of legislative intent." Id. at 95, 111 S.Ct. 453.

We reasoned in Schmidt that a necessary corollary to the express holding of Irwin was "an implied holding" that compliance with the statute of limitations was not a jurisdictional prerequisite to an action against the government, because "[i]f the statute of limitations were jurisdictional, the court would have no power to consider tolling it." Schmidt, 933 F.2d at 640. Schmidt thus considered the failure to comply with the statute of limitations in the FTCA as an affirmative defense which the government has the burden of establishing. Id.

Since Schmidt, some panels of this court have treated the statute of limitations as an affirmative defense, Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir.1994) (per curiam); Slaaten v. United States, 990 F.2d 1038, 1043 n. 5 (8th Cir.1993); Arigo v. United States, 980 F.2d 1159, 1161 (8th Cir.1992), while others returned to the view that compliance with the statute of limitations is a jurisdictional prerequisite. McCoy v. United States, 264 F.3d 792, 794 (8th Cir.2001) (citing Walker v. United States, 176 F.3d 437, 438 (8th Cir.1999) (per curiam)). We noted in Motley the conflicting precedent, but found it unnecessary to pursue the matter. 295 F.3d at 822.

We think it is important in this case to resolve whether the statute of limitations is a jurisdictional prerequisite or an affirmative defense. Ingram argues with some force that the district court resolved disputed factual issues in granting the motion for summary judgment, and if the statute of limitations is an affirmative defense, then the resolution of factual disputes would be improper. But if the statute of limitations is jurisdictional, then the district court not only may, but must, resolve factual disputes as necessary to determine its jurisdiction. Osborn, 918 F.2d at 729-30.

When we are confronted with conflicting circuit precedent, the better practice normally is to follow the earliest opinion, as it should have controlled the subsequent panels that created the conflict. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir. 1995); McMellon v. United States, 387 F.3d 329, 333 (4th Cir.2004) (en banc); cf. Graham v. Contract Transp., Inc., 220 F.3d 910, 914 (8th Cir.2000). In this instance, however, it is not clear which opinion should be considered the "earliest" for that purpose. Our decisions in Radman and Osborn first held that the statute of limitations is jurisdictional. Schmidt then deviated from our prior panel decisions, but it did so based on an interpretation of the Supreme Court's decision in Irwin, and it is well settled that a panel may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent. Young v. Hayes, 218 F.3d 850, 853 (8th Cir.2000). Our panel decision in McCoy then departed from the decision in Schmidt without mentioning Schmidt, although the intervening Supreme Court decision in United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), arguably justified the departure. Cf. Perez v. United States, 167 F.3d 913, 916 (5th Cir.1999) (suggesting the decision in Brockamp may lead the Eighth Circuit to reconsider Schmidt). Brockamp made clear that the availability of equitable tolling depends on congressional intent, and held that tolling was not available in connection with tax refund claims. 519 U.S. at 353-54, 117 S.Ct. 849.

Having now surveyed the entire landscape, we believe that to the extent the Supreme Court's decision in Irwin justified a departure from...