Redlin v. United States, No. 17-16963 (9th Cir. 2019)
Annotate this CaseThe Ninth Circuit affirmed the district court's dismissal of a negligence action brought by plaintiff under the Federal Tort Claims Act (FTCA), alleging that he received improper treatment at a VA facility. In this case, after plaintiff presented a claim to the VA, the VA issued a final denial. The panel held that plaintiff's appeal was time-barred, because he failed to file the action within six months after the VA mailed a notice of final denial of plaintiff's initial claim, and the statute of limitations did not restart when the VA declined to consider plaintiff's second attempt to file the same claim.
Court Description: Federal Tort Claims Act / Timeliness. The panel affirmed the district court’s dismissal, as untimely, of a negligence action brought under the Federal Tort Claims Act. Plaintiff alleged that he received improper treatment at a Veteran Affairs (“VA”) facility on September 25, 2014. Plaintiff presented a claim to the VA, and the VA issued a final denial of the claim in a letter dated July 14, 2015. Plaintiff did not file an action in federal court until August 10, 2016, which was past the six-month deadline for filing such claims under 28 U.S.C. § 2401(b). The panel rejected plaintiff’s arguments challenging the district court’s dismissal of his lawsuit as untimely. First, plaintiff argued that a second claim he filed with the VA on January 22, 2016 should be deemed a timely amendment of his first claim, or a timely request for reconsideration. The panel held that if the second claim is deemed to be an amendment, it is not timely because the second claim was received by the VA after it mailed its final denial – i.e., after final agency action. 28 C.F.R. § 14.2(c). The panel further held that if the second claim was deemed a request for reconsideration, it was not timely because it was received by the VA more than six months after the VA mailed its notice of final denial of his claim, and the second REDLIN V. UNITED STATES 3 claim, therefore, did not toll the six-month time frame for filing a lawsuit. Second, plaintiff alleged that the district court erred in applying 28 C.F.R. § 14.2(c) to hold that the second claim was not a timely amendment. The panel held that 28 U.S.C. § 2401(b) provides that an action must be brought within six months “after the date of mailing” of notice of final denial of the claim; and 28 C.F.R. § 14.2(c), which requires that any amendment to a claim against the United States must be made before the agency’s final denial, is a permissible reading of the statute. Plaintiff’s pursuit of further review through submission of an untimely amendment did not erase the initial final denial by the agency. Finally, the panel held that plaintiff was not entitled to equitable tolling of the limitations period in 28 U.S.C. § 2401(b), where plaintiff alleged no extraordinary circumstances excusing his failure to file a motion for reconsideration or a lawsuit within six months of the VA’s denial letter.
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