Tunac v. United States, No. 17-15021 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit affirmed the dismissal of an action under the Federal Tort Claims Act brought by a surviving spouse, alleging wrongful death and malpractice when a medical center operated by the VA caused Randy Tunac's death. The panel held that, to the extent the complaint alleged negligence by VA healthcare employees, it had jurisdiction under the FTCA. However, the negligence claims regarding VA operations must proceed under the congressionally-mandated pathway set forth in the Veterans' Judicial Review Act (VJRA), and any appeal can be heard only by the United States Court of Appeals for the Federal Circuit. The panel held that, to the extent the court had jurisdiction, the claims were barred by the FTCA's statute of limitations and those claims were not equitably tolled. In this case, the two year statute of limitations had long run when plaintiff filed her administrative claim and any alleged concealment by the VA of a widespread problem regarding delayed treatment did not result in concealment of the operative facts that would merit equitable tolling.
Court Description: Federal Tort Claims Act. The panel affirmed the district court’s dismissal of a surviving spouse’s suit against the United States under the Federal Tort Claims Act (“FTCA”) for wrongful death and negligent malpractice. The complaint alleged that a medical center operated by the Department of Veterans Affairs (VA) caused Randy Tunac’s death by delaying urgently needed medical treatment. The panel held that it had jurisdiction to the extent that the complaint alleged negligence by VA healthcare workers (defined as medical professionals and related support staff listed in 38 U.S.C. § 7316(a)(2)). The panel further held that the claims regarding negligence in VA operations must proceed under the congressionally-mandated pathway set forth in the Veterans’ Judicial Review Act, and any appeal could only be heard by the U.S. Court of Appeals for the Federal Circuit. The panel held that to the extent there was jurisdiction, those claims were barred by the FTCA’s statute of limitations. The panel concluded that the two-year statute of limitations had long run when plaintiff filed her administrative claim, and her claims were barred by TUNAC V. UNITED STATES 3 28 U.S.C. § 2401(b). The panel further held that plaintiff’s claim could not be equitably tolled.
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