United States Court of Appeals
For the First Circuit
No. 09-2311
FRANCISCA ROMÁN-CANCEL ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Selya and Lipez, Circuit Judges.
Nicolás Nogueras Cartagena, Julio C. Alejandro Serrano, and
Office of Nicolás Nogueras Cartagena on brief for appellants.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Appellate Chief, and Luke Cass, Assistant United States
Attorney, on brief for appellee.
July 22, 2010
SELYA, Circuit Judge. This appeal follows on the heels
of the dismissal of a Federal Tort Claims Act (FTCA) suit as time-
barred. We reach the same conclusion as the district court,
although we premise our decision on alternative holdings (one of
which extends beyond the lower court’s rationale).
The facts are straightforward. Upon returning from
military service in Vietnam, plaintiff-appellant Nelson Cortés-
Castillo1 experienced delusions and depression. This
symptomatology led to a diagnosis of schizophrenia. In August of
1970, the Department of Veterans Affairs (VA) assigned Cortés-
Castillo a 100% disability rating. This rating dictated the amount
of disability benefits due to him. See 38 C.F.R. § 3.321(a).
On July 16, 1975, the VA's regional office, responding to
a psychiatric reevaluation, lowered the plaintiff's disability
rating to 70%. The lowered rating resulted in a corresponding
decrease in disability benefits.
The VA notified the plaintiff of the reduction on July
24, 1975, effective October 1, 1975. The plaintiff sought
administrative review before the Board of Veterans Affairs (the
Board). In a decision dated November 2, 1976, the Board upheld the
1
There are actually three plaintiffs: Cortés-Castillo; his
wife, Francisca Román-Cancel; and their conjugal partnership. For
ease in exposition, we refer to Cortés-Castillo as if he were the
sole plaintiff. Because the other plaintiffs' claims are
derivative, the resolution of Cortés-Castillo's claim is
determinative of all the issues on appeal.
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lowered disability rating (and, thus, cemented in place the
corresponding decrease in benefits).
The plaintiff subsequently sought to restore his 100%
disability rating. On November 21, 1985, the Board denied his
petition. On April 30, 1986, the plaintiff served a notice of
disagreement in which he alleged that the VA had committed a clear
and unmistakable error in reducing his disability rating.
For all practical purposes, the matter lay fallow until
May of 2001, when the plaintiff again charged, in a renewed filing
with the Board, that the lowered disability rating was the product
of clear and unmistakable error. This time, the Board upheld the
plaintiff’s claim; on October 14, 2004, it returned his disability
rating to 100%. It also awarded him retroactive benefits totaling
$33,905.11, dating back to 1975. The plaintiff received this award
in a lump sum, paid on March 4, 2005.
This victory did not placate the plaintiff. Invoking the
FTCA, he filed an administrative claim with the VA on August 16,
2005, alleging negligent reduction of his disability benefits. By
law, the VA had six months within which to respond. 28 U.S.C.
§ 2675(a). On December 22, 2005, the VA denied the claim.2 It
2
On October 7, 2005, the plaintiff filed a premature civil
action in the district court. The court dismissed this action
without prejudice for failure to exhaust administrative remedies.
Neither the commencement nor the termination of this action is
material to the issues on appeal.
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explained that the plaintiff's exclusive remedy was the award of
retroactive benefits (already received).
The VA's response laid out the plaintiff's options for
further review. It informed him that he could either file for
administrative reconsideration or sue under the FTCA. The letter
spelled out the temporal limitations that applied to each of these
options. The plaintiff did nothing within the time allotted (six
months).
On August 8, 2006, the plaintiff filed a second
administrative claim with the VA, once again alleging negligent
reduction of his benefits. This second claim went unanswered.
On April 2 or 3, 2007 — the record is tenebrous, but the
exact date makes no difference — the plaintiff sued the government
in the United States District Court for the District of Puerto
Rico. See 28 U.S.C. § 1346. The plaintiff's complaint sounded the
same theme adumbrated in the two administrative claims, premising
the government’s liability on an allegedly negligent reduction of
benefits. The government moved to dismiss, arguing that the court
lacked subject matter jurisdiction because the suit had not been
filed within two years next following the accrual of the cause of
action. See id. § 2401(b); Skwira v. United States, 344 F.3d 64,
71 (1st Cir. 2003). The plaintiff opposed the motion.
The district court concluded that the plaintiff's cause
of action had accrued in November of 1985 (when the Board denied
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the petition to restore the higher disability rating). Román-
Cancel v. United States, No. 07-1275, slip op. at 10 (D.P.R. July
31, 2009) (unpublished). This timely appeal followed.
We review the granting of a motion to dismiss for lack of
subject matter jurisdiction de novo. See Fothergill v. United
States, 566 F.3d 248, 251 (1st Cir. 2009); González v. United
States, 284 F.3d 281, 287 (1st Cir. 2002). We are not wedded to
the lower court's rationale, but may affirm the order of dismissal
on any ground made manifest by the record. InterGen, N.V. v.
Grina, 344 F.3d 134, 141 (1st Cir. 2003).
Generally speaking, the United States enjoys immunity
from suit. See McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.
2006); see also Cohens v. Virginia, 19 U.S. 264, 413 (1821). In
the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, Congress waived the
government's sovereign immunity with respect to private tort
actions. That waiver, however, is hedged by a number of
restrictions and conditions. See, e.g., 28 U.S.C. § 2680(a)-(n);
see also Fothergill, 566 F.3d at 252. Congress further limited the
waiver by incorporating into the FTCA a series of fixed time
limits. See Rakes v. United States, 442 F.3d 7, 18 (1st Cir.
2006). The limitations period prescribed in the FTCA constitutes
a condition of the immunity waiver, and its expiration extinguishes
any potential governmental liability. United States v. Kubrick,
444 U.S. 111, 117-18 (1979).
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The time limits for FTCA actions have more than one
dimension. A tort claim against the United States "shall be
forever barred unless it is presented in writing to the appropriate
federal agency within two years after such claim accrues or unless
action is begun within six months after the date of mailing . . .
of notice of final denial of the claim by the agency to which it
was presented." 28 U.S.C. § 2401(b). These temporal parameters
are strictly construed in favor of the sovereign. Patterson v.
United States, 451 F.3d 268, 270 (1st Cir. 2006).
The case at hand deals with both of the FTCA's temporal
limitations. We begin with the six-month filing deadline following
the denial of an administrative claim. The district court based
its analysis on the two-year claim-filing deadline following the
accrual of the claim. It did not discuss the six-month filing
deadline, assuming that the second administrative claim, filed on
August 8, 2006, was the operative filing. The court's analysis
therefore proceeded on the assumption that the six-month window for
the commencement of suit opened on February 8, 2007 (the effective
denial date of the second administrative claim). See 28 U.S.C.
§ 2675(a) (stating that the "failure of an agency to make final
disposition of a claim within six months after it is filed shall
. . . be deemed a final denial of the claim"). Therefore, the
district court regarded the suit initiated in early April of 2007
as timely filed.
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On appeal, the government argues that the plaintiff's
first administrative claim was the operative filing for the purpose
of measuring the six-month window. Since the VA denied that claim
on December 22, 2005, the government posits, the window closed on
June 22, 2006. Thus, the plaintiff's suit, commenced in early April
of 2007, overshot the deadline.
The plaintiff's riposte is twofold. First, he says that
this argument is waived because the government did not advance it
below. Second, he maintains that the later administrative claim
comprises the correct point of reference.
The waiver argument is easily dismissed. Compliance with
the FTCA's temporal deadlines is both mandatory and jurisdictional.
González, 284 F.3d at 288; González-Bernal v. United States, 907
F.2d 246, 248 (1st Cir. 1990). It is a familiar rule that
challenges to a federal court's subject matter jurisdiction can be
raised at any stage of the litigation. See, e.g., ConnectU LLC v.
Zuckerberg, 522 F.3d 82, 86 n.2 (1st Cir. 2008); Am. Fiber &
Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138-39
(1st Cir. 2004). That rule controls here: this particular
jurisdictional question, although raised by the government for the
first time on appeal, is properly before us.
The dilemma created by the duplicative administrative
claims is more apparent than real. The papers in the case describe
only a single injury: the (allegedly negligent) reduction of the
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plaintiff's disability benefits. Even without the claim forms
(which are not part of the record on appeal),3 the only inference
that can be drawn is that both claims relate to that injury. See
32 C.F.R. § 750.26(c) ("A claim is a notice . . . of an incident
giving rise to Government liability . . . ."). From a legal
standpoint, then, the second claim is the functional equivalent of
the first.
Where, as here, a party has filed duplicative
administrative claims, an inquiring court can regard the second
claim in one of two ways: as either an attempt to re-file the
original claim or an attempt to have the agency reconsider its
disposition of the original claim. Either way, the second claim in
this case is a nullity. We explain briefly.
If we view the second claim as an attempt to re-file, it
would not reconfigure the FTCA time line. Nothing to change the
substance of the claims occurred in the interval between the first
and second filings. Under these circumstances, the second
administrative claim served no legitimate purpose.
That conclusion divests the second claim of any legal
effect. After all, it would be pointless for a court to allow a
claimant an opportunity to reopen the FTCA's limitations window by
3
The plaintiff, as the party prosecuting the appeal, has the
responsibility to ensure that the record on appeal is complete.
See Fed. R. App. P. 11(a); Real v. Hogan, 828 F.2d 58, 60 (1st Cir.
1987).
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the simple expedient of re-filing a claim to supplant an earlier,
functionally equivalent claim on which the window had shut. In the
bargain, honoring a re-filed claim would frustrate the goal of the
FTCA's filing deadlines. See Steven W. Feldman, Federal
Administrative Practice § 445, at 167 (4th ed. 2002) (explaining
that decisions of the Board "are final").
The point is obvious, so the case law is sparse.
Nevertheless, what few cases there are plausibly suggest that such
repetitive filings should not be given effect. See, e.g., Matos v.
Sec'y of HEW, 581 F.2d 282, 286 (1st Cir. 1978) (holding denial of
administrative claim res judicata as to subsequent claim for the
same benefits on the same grounds). That makes perfect sense: one
bite at the apple is all that the FTCA's claim-filing scheme
allows.4 Cf. Dynamic Image Techs., Inc. v. United States, 221 F.3d
34, 39 (1st Cir. 2000) (reinforcing strict construction of FTCA
requirements).
Of course, there is another way in which one might view
the second administrative claim: as a request to reconsider the
denial of the original claim. But even if assayed in that manner,
the second claim here would nonetheless be impuissant.
The FTCA sets out a six-month period following the denial
of an administrative claim in which an FTCA action premised on that
4
This holding applies to claims that are essentially
duplicative of one another. We take no view of the propriety of a
successive claim that is, in some meaningful sense, new.
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claim may be brought. 28 U.S.C. § 2401(b). Prior to the expiration
of that period, a claimant, as an alternative, also has six months
to file a request with the agency for reconsideration of the
previously denied claim. 28 C.F.R. § 14.9(b). A timely request for
reconsideration will toll the six-month period for filing suit for
an additional six months (or such shorter period in which the agency
actually responds to the request). See Berti v. VA Hosp., 860 F.2d
338, 340 (9th Cir. 1988).
The time parameters for such requests for reconsideration
are strictly enforced. See id. This means that an untimely request
does not reopen an expired six-month window for the filing of suit.
Id.
The VA denied the first administrative claim by letter
dated December 22, 2005. The letter informed the appellant of his
option to file a request for reconsideration within six months of
that date and provided helpful information for doing so. The letter
also made it clear that "[t]o be timely filed, this request [for
reconsideration] must be received by VA prior to the expiration of
6 months from the date of the mailing of this final denial."
The plaintiff's second administrative claim was not filed
until August 8, 2006 — beyond the six-month period allotted for
reconsideration requests. That was too late. See Davis v. United
States, 589 F.3d 861, 865 (6th Cir. 2009) (finding administrative
claim exhausted if there is no timely request for reconsideration).
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The short of it is that, no matter how the second
administrative claim is characterized, it had no practical effect.
Consequently, the first administrative claim is the relevant claim
for the purpose of determining the timeliness of the instant action.
There is no need to tarry. The first administrative
claim was denied on December 22, 2005. The plaintiff had six months
from that date within which to sue.5 See 28 U.S.C. § 2401(b). The
plaintiff commenced his suit on April 2 or 3, 2007. This was one
year, three months, and ten or eleven days after the denial of the
relevant administrative claim. Accordingly, this suit is untimely.
See Vélez-Díaz v. United States, 507 F.3d 717, 720 (1st Cir. 2007).
The plaintiff's suit is untimely on a second ground as
well. As the district court recognized, the plaintiff did not file
either administrative claim with the VA within two years after his
cause of action accrued. This is a fatal flaw. See 28 U.S.C.
§ 2401(b).
For FTCA purposes, a claim accrues upon the occurrence of
the underlying injury. Callahan v. United States, 426 F.3d 444,
450-51 (1st Cir. 2005). This moment is pinpointed at the time the
injured party knows of the existence and the cause of his injury.
Id. at 451. Something less than full knowledge suffices to start
the running of the FTCA limitations period. Skwira, 344 F.3d at 78.
5
The plaintiff does not argue that this six-month period was
somehow tolled. Any such argument is, therefore, waived. See
United States v. Zannino, 895 F.2d 1, 9 n.7 (1st Cir. 1990).
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Accrual is triggered by the discovery of sufficient facts about the
injury and its cause to prompt a reasonable person to seek advice
to decide if there is a basis for filing a claim. Callahan, 426
F.3d at 451; Skwira, 344 F.3d at 78.
The plaintiff contends that he had no knowledge of the
existence or cause of his injury until October of 2004, when the
Board agreed that the reduction of his disability rating was the
result of clear and unmistakable error. Like the district court,
we find this argument unconvincing. At bottom, it is an effort to
redefine what constitutes accrual. See, e.g., Callahan, 426 F.3d
at 450-51.
The plaintiff knew all the pertinent facts about his
injury when he was first notified of the impending decrease in his
disability rating on July 24, 1975. His repeated efforts to have
his rating increased highlight this knowledge. He also knew
definitively of the causal connection between the VA's action and
his injury by November 21, 1985. It was on that date that the Board
denied his petition to restore his disability rating. Thus, the
plaintiff's claim, for FTCA purposes, accrued by November of 1985.
He had two years from that time in which to initiate the FTCA claim-
filing process. He missed this deadline.
In his reply brief, the plaintiff makes a related
assertion that it was the VA's acknowledgment of error and inept
handling over time, rather than the original incorrect decision to
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reduce his disability rating, that triggered the running of the
two-year limitations period. Whether or not that would be a viable
claim had the plaintiff made it — a matter on which we take no view
— his complaint belies that depiction of the claim. It alleges at
the outset that the harm was the erroneous reduction of his
disability rating, simpliciter. It is too late in the day for the
plaintiff to switch his theory of the case. See B&T Masonry
Constr. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 39-40 (1st
Cir. 2004); see also Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86
(1st Cir.1990).
We need go no further. For the reasons elucidated
above, we affirm the order of dismissal.
Affirmed.
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