Wake Forest Law Review
1Dec

Fourth Circuit Affirms Dismissal of FTCA Claim For Untimely Filing

Categories: 4th Cir. Blog Civil Cases
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By Sophia Blair

On November 22, 2016, the Fourth Circuit published Raplee v. United States of America, a civil case. John Raplee (“Raplee”) challenged the dismissal of his Federal Tort Claims Act (“FTCA”) complaint for being untimely. On appeal Raplee contended that by filing a timely state administrative claim, the action began pursuant to the FTCA’s limitation period under 28 U.S.C. § 2401(b) (2012). In the alternative, Raplee argued that equitable tolling excused his failure to file within the limitations period. The Fourth Circuit rejected both arguments because an action is begun under the FTCA only by filing in federal court, and Raplee failed to demonstrate any extraordinary circumstances that warranted equitable tolling.

Facts and Procedural History

Pursuant to 28 U.S.C. § 2674, the FTCA exposes the United States to liability for the torts of its employees. In this case Raplee argued that his surgeon, an employee of the United States, negligently positioned him while he was under anesthesia, leading to permanent damage to his muscles and nerves. The FTCA requires a two-step process that requires that the plaintiff must first file his claim with the appropriate federal agency. If the agency denies the claim, the plaintiff may file an action against the United States. A complaint must be filed within six months of the agency mailing notice of its denial.

On September 16, 2008 Raplee filed a claim with Health & Human Services (“HHS”) through Martin Trpis (“Trpis”), an attorney at Ashcroft and Gerel (“Ashcroft”). Trpis left Ashcroft in 2010, after which other attorneys from the firm represented Raplee. On June 19, 2012, HHS mailed notice of its denial to Trpis at Ashcroft. Ashcroft returned the notice to HHS with a note saying the Trpis no longer worked there. Because of the six-month requirement, Raplee had until December 19, 2012 to begin an action. However, he did not file a claim in federal district court until May 3, 2013.

The action did not begin by filing a state administrative claim

Raplee’s first argument on appeal was that he began the action pursuant to the FTCA by filing with the state agency. The Fourth Circuit analyzed whether an action began pursuant to § 2401(b) by determining the plain meaning of the statute. If a word, in this case “action,” bears only one reasonable interpretation, the meaning is plain and controls. “Action” refers to a federal civil action. The Supreme Court settled the meaning of “action” in its promulgation of the Federal Rules of Civil Procedure in 1938. Fed. R. Civ. P. 2 (1938) states that “[there shall be one form of action to be known as ‘civil action.’” § 2401(b) contemplates specifically a federal civil action. Therefore, the FTCA requires a plaintiff to bring a federal civil action within six months of a federal agency’s notice of denial of the claim.

There were no extraordinary circumstances to warrant equitable tolling

Raplee’s second argument on appeal was that he was entitled to equitable tolling even if his claim was untimely. Plaintiffs are entitled to equitable tolling only if they demonstrate that “they have pursued their rights diligently and extraordinary circumstances prevented them from filing on time.” Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is reserved for circumstances external to the party’s conduct and where it would be “unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).

Raplee argued that there are two reasons why the district court erred by asserting that he had failed to demonstrate extraordinary circumstances. First, Raplee argues that HHS wrongfully deprived him of notice of his claim by failing to send him a second notice when the first letter was returned. Second, Raplee argued that Trpis abandoned him and that constituted extraordinary circumstances pursuant to Maples v. Thomas, 132 S. Ct. 912 (2012). The Fourth Circuit rejected both arguments.

With respect to HHS’ conduct, the Fourth Circuit established that HHS did everything they were supposed to do to provide notice. HHS sent the letter to the correct address, and even took the extra step of confirming the address once the letter was returned. The FTCA does not require more of agencies, and Raplee did not argue that it does. Furthermore, Raplee’s failure to receive notice was largely the fault of the Ashcroft attorneys, not an external party. While unfortunate, it does not qualify as an extraordinary circumstance.

Responding to Raplee’s abandonment argument, the Fourth Circuit distinguished Maples from the present case. In Maples, a death row prisoner defaulted on his habeas corpus claim for procedural reasons because his attorney had left his firm and no one took over. These facts are distinguishable because this is a civil suit for damages, not a habeas claim. Whereas there is no redemption for habeas petitioners, a plaintiff in a civil case may recover those damages from his attorney. Additionally, Trpis’ abandonment did not cause Raplee to miss the filing deadline. The other Ashcroft attorneys took over the case two years before the deadline passed. Therefore, there were no extraordinary circumstances to warrant equitable tolling.

Disposition

The Fourth Circuit affirmed the dismissal of Raplee’s FTCA claim because he did not file a claim in federal district court in a timely manner, and the facts did not warrant equitable tolling.

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2Nov

Dismissal Below Alone Does Not Render Moot An Appeal of a Denial of a Motion to Intervene

Categories: 4th Cir. Blog
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By Taylor Ey

On July 9, 2015, the Fourth Circuit issued its published opinion in the civil case of CVLR Performance Horses, Inc. v. Wynne.  This case was on appeal from the District Court for the Western District of Virginia, where Vicky Marsh and Karen Foster sought to intervene as plaintiffs in an action under 18 U.S.C. §§ 1961-68 (Racketeer Influenced and Corrupt Organizations Act or “RICO”), an action which was originally filed by CVLR Performance Horses, Inc. (“CVLR”) against John Wynne and his businesses.  The district court denied the motions to intervene filed by Marsh and Foster, and the Fourth Circuit affirmed.

Procedural History

On September 8, 2011, CVLR filed suit against Wynne alleging violations against RICO and Virginia state law.  CVLR claimed that Wynne and his businesses had a scheme to defraud CVLR when Wynne’s business, Rivermont Consultants, made loans to CVLR and held itself out as a bank.  Wynne filed a motion to dismiss for failure to state a claim, the district court granted the motion, and on appeal the Fourth Circuit remanded to the district court, stating that CVLR had stated a claim upon which relief can be granted.  In November 2013 Marsh and Foster sought to intervene as plaintiffs.  Marsh and Foster were mentioned in CVLR’s amended complaint as victims of Wynne’s RICO scheme.  They adopted the allegations in the amended complaint, and added individual RICO claims.

The district court denied their motions to intervene, explaining that their claims were barred by the four-year statute of limitations on private RICO claims.  The district court further stated that equitable tolling was not appropriate in this case because Marsh and Foster had failed to diligently pursue their claims and had not demonstrated extraordinary circumstances to warrant equitable relief.

Marsh and Foster timely appealed.  Shortly thereafter, CVLR and Wynne reached a settlement agreement, where both parties agreed to dismiss the action.

This case presented two issues before the Fourth Circuit.

Issue One: Whether the Settlement Agreement and Dismissal Renders This Appeal Moot

Wynne argued that because the underlying case was settled and dismissed, there is no remaining case or controversy, and therefore this appeal is moot.  Prior to this case, the Fourth Circuit had not decided whether the dismissal of an underlying case would render moot an appeal from the district court’s denial of a motion to intervene.  In making its determination, the Fourth Circuit looked to its sister circuits, the Third and Eleventh Circuits, that had decided the issue.   The Third and Eleventh Circuits, and Ninth and D.C. Circuits, have held that the dismissal of a case does not automatically render moot the appeal from a district court’s denial of a motion to intervene.

The Fourth Circuit adopted this position, reasoning that the resolution of an action between the original parties is not determinative of the defendant’s liability with respect to potential plaintiffs.  So long as the motion to intervene was made while the controversy is live and the disposition of the case does not provide the relief sought, then the court will have jurisdiction.

Issue Two: Whether the District Court Committed Reversible Error in Declining to Apply Equitable Tolling

The Court reviewed this question under an abuse of discretion standard.  The four year statute of limitations for private RICO claims begins on the date the plaintiff “discovered, or should have discovered, the injury.” Even though the record did not provide a specific date for when Marsh or Foster may have discovered, or should have discovered their injuries, the latest accrual date alleged was September 2008.  Thus, by the time Marsh and Foster filed their motions to intervene in November 2013, over five years had passed, and their claim would be barred by the statute of limitations.  Furthermore, they filed their motions over fourteen months after the statute of limitations had expired.

Marsh and Foster argued that the delay in filing did not bar relief under the doctrine of equitable tolling.  Under the doctrine of equitable tolling, Marsh and Foster had to demonstrate two things: (1) they had diligently pursued their rights, but (2) an extraordinary circumstance prevented them from timely filing.  The Fourth Circuit mentioned that it has long considered this equitable remedy an extraordinary one, and thus place a high burden on litigants seeking to benefit from its application.

According to the Fourth Circuit, Marsh and Foster made no attempt to file their claims at all between 2008 and 2013.  Further, they made no attempt to explain their delays in a manner that would suggest that they met the standard for diligently pursing their rights.  While the district court’s dismissal of CVLR’s case made it more difficult for Marsh and Foster, the Fourth Circuit was unconvinced that they would have been subject to sanctions under Rule 11 for filing.  Therefore, the Fourth Circuit explained, the district court did not err in its refusal to apply equitable tolling because Marsh and Foster failed to prove they had diligently pursued their rights under RICO and failed to show extraordinary circumstances prevented them from filing.

The Fourth Circuit Affirmed the District Court Decision

Because the Fourth Circuit holds that appeals from denial of motions to intervene are not rendered moot when the underlying case is dismissed, the Fourth Circuit denied Wynne’s motion to dismiss this appeal. However, the Fourth Circuit affirmed the district court’s refusal to apply the doctrine of equitable tolling, and subsequent denial of Marsh and Foster’s motions to intervene.

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20Jan

Fourth Circuit Cannot Expand on a Limited Exception Under Immigration and Nationality Act

Categories: 4th Cir. Blog
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By Taylor Ey

Last Monday, January 12, the Fourth Circuit issued a published opinion in the civil case of Prasad v. Holder.  Appellant Prasad appealed the decision of the Board of Immigration Appeals, rejecting his claim that his status should be changed from one who is unlawfully present in the United States to that of lawful permanent resident.

Does the Deadline in the Immigration and Nationality Act Operate as a Statute of Repose or Is It Subject to Equitable Tolling?

The Immigration and Nationality Act, 8 U.S.C. § 1255(i), provides that if an unlawful citizen is the beneficiary of a labor-certification application filed on or before April 30, 2001, the unlawful citizen may be eligible for adjustment of status.  Appellant filed a labor-certification application; he conceded that his application was filed more than two months after April 30, 2001.  However, Appellant argued that the deadline should be equitably tolled because his attorney failed to file a timely application.  The Board of Immigration Appeals ruled against Appellant, and the Fourth Circuit denied petition for review in part, and dismissed in part.

Appellant’s History of Citizenship Status

Appellant gained entry to the United States on or about May 11, 2000.  At that time, he was unlawfully present.  He sought to change his citizenship status under 8 U.S.C. § 1255(i).  Appellant’s employer retained attorney Earl S. David to file a labor-certification application on Appellant’s behalf.  David filed Appellant’s application on July 13, 2001, even though the due date was clearly April 30, 2001.

Appellant filed for adjustment of status in 2007.  His status application was denied because the labor-certification application was filed after April 30, 2001.

The Board of Immigration Appeals affirmed the decision of the Immigration Judge, denying adjustment of status.

The Date in the Immigration and Nationality Act Operates as a Statute of Repose and Not a Statute of Limitations Subject to Equitable Tolling

The Fourth Circuit looked to the Ninth Circuit, the only other circuit to address the question in this case.  The Ninth Circuit decided that the deadline operates as a status of repose that cannot be equitably tolled.  Additionally, the Fourth Circuit explained that “a statute of repose operates as a substantive bar to liability, reflecting a legislative policy judgment that no legal right should be recognized after a statutorily determined end point.”

Statutes of Repose Have a Fixed End Point, Define Substantive Rights

Because the statute sets out a fixed end point by which the labor-certification applications must be filed, and the statute defines the substantive right, the Fourth Circuit determined that the deadline in the statute met the defining characteristics of a statute of repose.

Additionally, the Fourth Circuit cited the legislative history of the Immigration and Nationality Act, confirming that Congress intended the deadline to operate as a statute of repose.

The Deadline Acts as a Statute of Repose

Because Appellant did not file his labor-certification application before or on the deadline required by the Immigration and Nationality Act, Appellant was not eligible for adjustment of status.  The Fourth Circuit recognized the harshness of the black and white rule, and how in cases such as the instant case, the rule could result in hardship.  However, because the Immigration and Nationality Act only intended a limited exception, the Fourth Circuit was without authority to expand on the exception.

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