Torjagbo v. United States, No. 07-13728 (11th Cir. 7/15/2008)
| Decision Date | 15 July 2008 |
| Docket Number | No. 07-13728.,07-13728. |
| Parties | CARL DELANO TORJAGBO, Plaintiff-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Florida; D. C. Docket No. 05-00419-CV-ORL-28KRS.
Before BLACK and MARCUS, Circuit Judges, and EVANS,* District Judge.
Pro se Appellant Carl Torjagbo is a licensed pilot who once served as a flight instructor for the Patrick Air Force Base Aero Club, an organization that provides recreational flying opportunities to members of the military. While flying with a student on February 1, 2002, Torjagbo's engine lost power and he was forced to make an emergency landing. During the course of the landing, Torjagbo broke his wrist and jaw.
After filing an unsuccessful administrative grievance, Torjagbo filed suit in the United States District Court for the Middle District of Florida under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging the Government should be held liable for his injuries because his crash was caused by (1) the Government's negligent maintenance and repair of the aircraft he was flying and (2) military air traffic control's negligence in handling his call for help. The district court dismissed Torjagbo's negligent air traffic control claim under Fed. R. Civ. P. 12(b)(1) because Torjagbo failed to exhaust his administrative remedies as required by 28 U.S.C. § 2675(a). The court entered summary judgment in the Government's favor on the negligent maintenance claim, finding a validly-executed and legally-enforceable covenant not to sue barred Torjagbo from bringing suit. Torjagbo appeals; we affirm.
Before bringing an action in district court under the FTCA, a claimant must first exhaust his administrative remedies by filing an administrative grievance with the appropriate federal agency within two years of the date the claim accrues. 28 U.S.C. §§ 2675(a), 2401(b). Failure to timely exhaust is a jurisdictional bar to litigation in federal court, and a claim that is not filed properly with the appropriate agency within two years of accrual is subject to dismissal in district court for lack of subject matter jurisdiction. See Dalrymple v. United States, 460 F.3d 1318, 1326 (11th Cir. 2006) (); see also T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961 (8th Cir. 2006) (). When a claim is timely filed under 28 U.S.C. § 2401(b), a claimant is free to amend his agency complaint any time during the administrative grievance process; however, he may not do so once the agency has taken final action. See 28 C.F.R. § 14.2(c).
Torjagbo's claim that air traffic control personnel at Patrick Air Force Base were negligent in their handling of his plane malfunction accrued on February 1, 2002, the date the accident occurred. Therefore, Torjagbo had two years (or until February 1, 2004) in which to file his administrative grievance. On May 13, 2003, Torjagbo filed a grievance in which he alleged the Government had been negligent in the maintenance and repair of his plane; however, he did not attempt to raise his negligent air traffic control claim until April 15, 2005—more than one year after the statute of limitations expired under § 2401(b) and three days after the agency issued its final action denying his negligent maintenance claim.
Despite the untimeliness of his proposed amendment, Torjagbo argues on appeal that he is entitled to equitable tolling. He alleges the lawyer who represented him at the beginning of his administrative appeal did not have access to a transcript of the exchange between Torjagbo and air traffic control at the time the original claim was filed, and that the lack of a written transcript excuses the untimely filing.
Equitable tolling is a form of extraordinary relief that courts have extended "only sparingly," Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 457 (1990), and only in situations in which a litigant has made an "untimely fil[ing] because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence," Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). Even assuming equitable tolling were available for untimely claims brought under the FTCA (a question this Court has not previously answered and which we do not answer today), there are several obvious problems with Torjagbo's position. First, as a party to the conversation with air traffic control, he did not need access to transcripts in order to bring his claim to the attention of the administrative agency. He knew what he said and what air traffic control had relayed back to him; he needed no additional evidence in order to raise a claim. Second, it is irrelevant that Torjagbo's lawyer was unaware of the conversation at the time he filed Torjagbo's administrative grievance. Not only was it Torjagbo's duty to provide his lawyer with relevant facts, but more importantly, Torjagbo provides no reason why he did not amend the claim at any time during the two years following the accident.
Even if equitable tolling is available under the FTCA, the doctrine would not excuse Torjagbo's failure to timely file his negligent air traffic control claim because he did not act with the required diligence. In the absence of equitable tolling, Torjagbo's negligent air traffic control claim is untimely under 28 U.S.C. § 2401(b). See also 28 C.F.R. § 14.2(c). Consequently, we affirm the district court's dismissal of the claim.
Torjagbo raises two challenges to the district court's entry of summary judgment on his negligent maintenance and repair claim. First, he contends the district court improperly weighed the facts when it found Torjagbo had signed a covenant not to sue—a fact he now vehemently denies. Second, he contends the court erred by finding the terms of the covenant are enforceable.
In connection with its request for summary judgment, the Government produced from Torjagbo's Aero Club file a copy of a document titled "Covenant Not to Sue and Indemnity Agreement." The document is dated May 15, 2001, bears Carl Torjagbo's printed name and apparent signature, and states in relevant part:
I, Carl Torjagbo, am about to voluntarily participate in various activities, including flying activities, of the [left blank in original] Aero Club as a pilot, student pilot[,] copilot, instructor, or passenger. In consideration of the Aero Club permitting me to participate in these activities, I . . . hereby covenant and agree that I will never institute, prosecute, o[r] in any way aid in the institution or prosecution of, any demand, claim, or suit against the US Government for any destruction, loss, damage, or injury (including death) to my person or property which may occur from any cause whatsoever as a result of my participation in the activities of the Aero Club.
. . . .
I know, understand, and agree that I am freely assuming the risk of my personal injury, death, or property damage, loss or destruction that may result while participating in Aero Club activities, including such injuries, death, damage, loss or destruction as may be caused by the negligence of the US Government.
During the administrative grievance process, Torjagbo admitted signing the covenant but argued it was unenforceable. In a letter to agency decisionmakers dated April 15, 2005, Torjagbo asserted:
As for the Covenant not to sue, it is not clear and unequivocal. It is ambiguous[.] And both you and [sic] know it will be thrown out of court because
a. It does not have my full name. The Pilot in command is Carl Delano Torjagbo not Carl Torjagbo
b. It is not a Barr [sic] if it is negligence. There are provision [sic] in public law that Prevents you from using that to shield yourself from torts you commit.
c. It was not filled out properly. It does not say which aero club I was working for. Both you and I know that these agreements are over a period of time. We are required to renew them every year. My understanding when I was Signing that was not to sue on the date stated on the sheet. There is no Law in the history of mankind that allows you to contract your right's [sic] away Forever.
Id. During deposition, however, Torjagbo both denied the signature on the document was his and testified he "did not remember" signing the covenant not to sue. (He did admit, however, that the signature resembled his own.) Torjagbo contends the court erred by resolving a dispute of material fact in the Government's favor on summary judgment.
The standard for summary judgment mirrors the standard for a directed verdict under Fed. R. Civ. P. 50(a): "the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 2511 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (quoting First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592 (1968)). The standard for creating a genuine dispute of material fact requires courts to "make all reasonable inferences in favor of the party opposing summary judgment," Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir....
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