Sanchez v. United States

United States Court of Appeals
For the First Circuit

No. 13-1333

ANGEL SANCHEZ, Individually and as
Administrator of the Estate of Rafaela Sanchez,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Howard, and Kayatta,
Circuit Judges.

Paul F. Kenney, with whom Kristen A. Barnes and Kenney &
Conley, P.C. were on brief, for appellant.
George B. Henderson, II, Assistant United States
Attorney, with whom Carmen M. Ortiz, United States Attorney, was on
brief, for appellee.
Timothy C. Kelleher III, Cooley Manion Jones LLP, Thomas
R. Murphy, Law Offices of Thomas R. Murphy, LLC, Thomas M. Bond,
The Kaplan/Bond Group, Sara J. Trezise and Trezise Law Group on
brief for Massachusetts Academy of Trial Lawyers, amicus curiae.

January 14, 2014
 KAYATTA, Circuit Judge. Plaintiff Angel Sanchez, a

widower and the executor of his wife's estate, sued his wife's

doctors for medical malpractice. As it turned out, those doctors

were federal employees, against whom claims are forever barred

unless brought within the two-year limitations period Congress

allowed under the Federal Tort Claims Act ("FTCA"), as opposed to

the three-year period allowed by Massachusetts law for medical

malpractice claims. As it also turned out, those doctors' status

as federal employees was not readily apparent to one who undertook

no investigation. Mr. Sanchez's lawyers both made no such

investigation and waited more than two years before presenting his

claim. Based on our prior, controlling holding in a closer case,

Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002), we affirm

the district court's decision that it had no choice but to dismiss

this lawsuit.

I. Background

The accuracy of the allegation that the doctors were

negligent is not yet at issue in this stage of this lawsuit.

Otherwise, the material facts of this case, especially those

relating to the procedural history and posture of the suit, are

undisputed. Cf. Merlonghi v. United States, 620 F.3d 50, 54 (1st

Cir. 2010).

-2-
 Dr. Rafaela Sanchez1 died on April 24, 2009, two days

after she delivered her third child, by caesarean section, at North

Shore Medical Center-Salem Hospital ("NSMC").2 The doctors who

treated her at NSMC, Drs. Kristin Cotter and Kalinda Dennis, worked

for Lynn Community Health Center ("LCHC"), where Dr. Sanchez had

received prenatal care. Angel Sanchez contends that the treating

doctors knew or should have known that his wife had at least one of

two potentially dangerous conditions, placenta previa3 and placenta

accreta,4 and so required special care in the removal of her

placenta, and probably a hysterectomy, to minimize the risk of

hemorrhage. Plaintiff claims that Dr. Cotter left the hospital

after the delivery, leaving Dr. Sanchez in the care of Dr. Dennis,5

1
Rafaela Sanchez was an anesthesiologist.
2
The allegation in the complaint that Dr. Sanchez was
admitted to the hospital on April 22, 2010, but died April 24,
2009, appears to be a scrivener's error.
3
Placenta previa is "the condition in which the [placenta]
is implanted in the lower segment of the uterus, extending to the
margin of the internal cervical os [(opening)] or partially or
completely obstructing the os." Stedman's Medical Dictionary 1389
(Maureen Barlow Pugh et al. eds., 27th ed. 2000).
4
Placenta accreta is "the abnormal adherence of the
chorionic villi [(tiny vascular projections from the membrane
between fetus and mother)] to the myometrium [(the muscular wall of
the uterus).]" Stedman's Medical Dictionary 1175, 1389, 1962
(Maureen Barlow Pugh et al. eds., 27th ed. 2000). Essentially,
parts of the placenta attach too strongly to the uterine wall. See
Domann v. Vigil, 261 F.3d 980, 982 n.2 (10th Cir. 2001).
5
Plaintiff claims that Dr. Dennis was only a medical
resident; the government disagrees. The point is immaterial to
this appeal.

-3-
and that neither doctor performed a hysterectomy until after

hemorrhaging began. When the bleeding persisted (or resumed), Dr.

Sanchez died.

Mr. Sanchez retained legal counsel at some point prior to

February 2010. Counsel waited until April 11, 2012--35 ½ months

after Dr. Sanchez's death--to file suit on Mr. Sanchez's behalf

against Dr. Cotter in Massachusetts state court. Nine days later,

they filed an amended complaint, adding Dr. Dennis as a defendant.

Unbeknownst to Mr. Sanchez and his counsel, as employees of LCHC

both doctors were deemed to be federal employees under the

Federally Supported Health Centers Assistance Act of 1992, Pub. L.

102-501, 42 U.S.C. § 233. As we have explained before, see

Gonzalez v. United States, 284 F.3d 281, 286, 288, 291 (1st Cir.

2002), and explain again below, tort claims against such doctors

for malpractice within the scope of their employment are claims

against the United States, barred if not properly pursued within

two years of their accrual (as opposed to three years under

Massachusetts law, see Mass. Gen. Laws ch. 260, § 2A).

The United States removed the case to federal court, and

substituted itself as the defendant. See 28 U.S.C. § 2679(d). The

district court dismissed the suit for lack of subject matter

jurisdiction after finding it time-barred. Mr. Sanchez appeals.

-4-
 II. The Federal Tort Claims Act

Federal courts lack jurisdiction over claims against the

United States unless the government has waived its sovereign

immunity. See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).

Absent waiver, this immunity applies to tort claims against federal

employees for conduct within the scope of their employment. Cf. 28

U.S.C. §§ 1346(b)(1), 2679; Merlonghi v. United States, 620 F.3d

50, 54 (1st Cir. 2010). The FTCA is "a limited waiver" of that

immunity, Abreu v. United States, 468 F.3d 20, 23 (1st Cir. 2006),

giving federal courts jurisdiction over civil claims against the

government for death or injury "caused by the negligent or wrongful

act or omission of any employee of the Government . . . under

circumstances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the place

where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

The FTCA's limited waiver of immunity comes with an

expiration date. Specifically, an FTCA claim is "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 agency denies the claim. Id.

-5-
§ 2401(b).6 The FTCA's two-year bar for presenting claims creates

a trap for the unwary who fail to recognize its applicability to a

specific case and thus fail to act at all within two years of

accrual, or who sue in time but fail to first present the claim to

the appropriate federal agency. In 1988, Congress provided leeway

for individuals in the latter category. See Federal Employees

Liability Reform and Tort Compensation Act of 1988 ("Westfall

Act"), Pub. L. 100-694, 102 Stat. 4563. Under the Westfall Act, if

a tort case is filed in federal court or removed from state court

and the United States is substituted as the defendant, see 28

U.S.C. § 2679(d)(1)-(3), the claim will be deemed timely under

section 2401(b) if "(A) the claim would have been timely had it

been filed on the date that the underlying civil action was

commenced, and (B) the claim is presented to the appropriate

Federal agency within sixty days after the dismissal of the civil

action." 28 U.S.C. § 2679(d)(5). Congress has not otherwise seen

fit to alter the two-year bar (in a way material to this suit)

6
We read this disjunctive language as setting out two
deadlines, both (not just either) of which must be satisfied.
Otherwise, there would effectively be no deadline at all. See
Ellison v. United States, 531 F.3d 359, 361-62 (6th Cir. 2008).
The requirement that an FTCA claim be administratively exhausted
derives independently from 28 U.S.C. § 2675(a), which provides that
an FTCA "action shall not be instituted . . . unless the claimant
shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency
in writing . . . ."

-6-
since doubling its length in 1949. See 81 Cong. Ch. 92, § 1, 63

Stat. 62 (1949).

It is undisputed that, in this case, Drs. Cotter and

Dennis were federal employees at the time of their alleged

malpractice, the FTCA applies to the claims brought against them

(now against the United States), and Mr. Sanchez did not present

his claim to any federal agency, or file suit, within two years of

his wife's death. The district court therefore dismissed this

lawsuit, finding that it lacked subject matter jurisdiction to hear

a case against the United States not allowed under the FTCA.

III. Analysis

Mr. Sanchez argues that under the "discovery" rule, his

claim did not accrue until May 27, 2010, at the earliest.

Alternatively, he argues that the running of the two-year period

was equitably tolled long enough to salvage this case. Having

rejected such arguments in Gonzalez on facts more favorable to a

tardy plaintiff, and otherwise finding no basis in the law to reach

a contrary result in this case, we must also reject Mr. Sanchez's

arguments and affirm the judgment of dismissal.

A. Exhaustion or timeliness?

Questions of exhaustion and timeliness pose similar

potential bars to this lawsuit. They may both be seen as

jurisdictional bars. See, e.g., Román-Cancel v. United States, 613

F.3d 37, 42 (1st Cir. 2010) (timeliness); Barrett ex rel. Estate of

-7-
Barrett, 462 F.3d 28, 37 (1st Cir. 2006) (exhaustion); Acosta v.

U.S. Marshals Serv., 445 F.3d 509, 513 (1st Cir. 2006)(same);

Gonzalez v. United States, 284 F.3d 281, 287, 291 n.11, 293 (1st

Cir. 2002) (treating timeliness as jurisdictional in affirming

dismissal of an unexhausted claim, and concluding that section

2679(d)(5) did not apply). Alternatively, either or both may be

seen as nonjurisdictional, but essential, claim-processing rules.

See, e.g., Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1039 (9th Cir.

2013) (en banc) (concluding that section 2401 constitutes a non-

jurisdictional claim-processing rule); Glade ex rel. Lundskow v.

United States, 692 F.3d 718, 723 (7th Cir. 2012) (exhaustion

requirement is not jurisdictional and may be waived). In either

event, we certainly have some "leeway to choose among threshold

grounds for denying audience to a case." Sinochem Int'l Co. Ltd.

v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)

(citations and internal quotation marks omitted).

Determining that this lawsuit should have been dismissed

without prejudice due to failure to exhaust would be the narrowest

approach to disposing of this appeal, because it is undisputed that

Mr. Sanchez has never presented his claim to the Department of

Health and Human Services. See McNeil v. United States, 508 U.S.

106, 113 (1993); Celestine v. Mount Vernon Neighborhood Health

Ctr., 403 F.3d 76, 84 (2d Cir. 2005) (affirming a dismissal where

failure to exhaust barred the claim "and would continue to bar it

-8-
even if any possible unjust effects of disparities between state

and federal statutes of limitations were remedied by equitable

tolling."). Mr. Sanchez would then presumably present the claim to

the agency within sixty days of final entry of the judgment of

dismissal; the agency would deny the claim as untimely, and Mr.

Sanchez would file suit anew. At that point, the FTCA's exhaustion

requirement arguably would have been satisfied, leaving only the

question of timeliness. With the aid of the Westfall Act, Mr.

Sanchez would then present exactly the same arguments that he now

presents, asking us to find that this suit was commenced within two

years of when his claim accrued.

Little commends such an approach unless it is truly

necessary. Nor does any party request it, each presumably

recognizing that it would add expense and delay without offering

any countervailing pragmatic benefit. Accordingly, as we did in

Gonzalez, we find it most appropriate to forgo the question of

administrative exhaustion and go straight to the question of

timeliness upon which the final disposition of this case will

necessarily turn.7

7
In light of our decision to reach the timeliness question
first, we need not address whether exhaustion is waivable or
whether the government has waived that argument on appeal. Cf.
Dávila-Álvarez v. Escuela de Medicina Universidad Cent. del Caribe,
257 F.3d 58, 67 (1st Cir. 2001) (holding that the government waived
the exhaustion requirement).

-9-
B. When did the claim accrue?

The parties agree that our review of the district court's

ruling under Rule 12(b)(1)8 is de novo, as the relevant facts are

not disputed. See Donahue v. United States, 634 F.3d 615, 623 (1st

Cir. 2011) (noting that while appellate review of dismissals under

Rule 12(b)(1) "sometimes requires deference to the trial court," an

appeal involving "only the objective reasonableness of the

plaintiffs' failure to discern at an earlier time both their injury

and its likely cause" is reviewed de novo).

As noted above, the FTCA limitations period expires two

years after the claim accrues. 28 U.S.C. § 2401(b). A cause of

action generally accrues when the plaintiff is injured. Donahue,

634 F.3d at 623. Nevertheless, in FTCA medical malpractice cases,

the "discovery rule" may delay accrual until a plaintiff knows (or

reasonably should know) both that he is injured and what caused his

injury; it does not, however, postpone accrual until a potential

8
Although Plaintiff argues in seeking equitable tolling that
the timeliness of his complaint is not jurisdictional, he does not
appear to object to Rule 12(b)(1) as the vehicle for the dismissal
here. Even if the motion should have been brought under Rule
12(b)(6), however, it would then have been converted to a motion
for summary judgment, Fed. R. Civ. P. 12(d). See Cruz-Vázquez v.
Mennonite Gen. Hosp., Inc., 717 F.3d 63, 68 & n.6 (1st Cir. 2013)
(where motion should have been considered under Rule 12(b)(6), not
12(b)(1), reviewing the record under the summary judgment
standard). Given that the facts are undisputed and both sides were
heard and presented evidence on the timeliness issue, we cannot see
how the result would have changed had plaintiff asked the court to
proceed under Rule 56. Cf. Ramírez-Carlo v. United States, 496
F.3d 41, 46 (1st Cir. 2007) (reviewing a grant of summary judgment
as to the timeliness of an FTCA claim).

-10-
plaintiff also learns that his injury was negligently inflicted.

See id.; see also United States v. Kubrick, 444 U.S. 111, 122-23

(1979). The discovery rule incorporates an objective standard. To

delay commencement of the running of the statute of limitations,

"the factual basis for the cause of action must have been

inherently unknowable [that is, not capable of detection through

the exercise of reasonable diligence] at the time of injury."

Gonzalez, 284 F.3d at 288-89 (citation and internal quotation marks

omitted); see also Ramírez-Carlo v. United States, 496 F.3d 41, 47

(1st Cir. 2007). "Once a plaintiff knows of the injury and its

probable cause, he/she bears the responsibility of inquiring among

the medical and legal communities about whether he/she was wronged

and should take legal action." Gonzalez, 284 F.3d at 289 (citing

Kubrick, 444 U.S. at 123).

It is beyond reasonable dispute that the claim here

accrued well before April 11, 2010. Dr. Sanchez died on April 24,

2009, after giving birth. Her injury was then, by its nature,

complete and obvious. The cause--post-partum bleeding–-was both

known and chronicled contemporaneously. The death of a generally

healthy woman in childbirth is sufficiently rare in this country

today so as to make most reasonable people ask why it happened.

Mr. Sanchez is apparently just such a reasonable person, who wisely

and understandably turned to experts in an effort to answer that

-11-
question, retaining his present law firm sometime prior to February

2010.9

The decision to retain malpractice counsel following a

mother's death in childbirth is a telling sign that a reasonable

person would have concluded that "reasonable diligence" was called

for in order to determine whether there was negligence. Gonzalez,

284 F.3d at 289-90 (claim accrued at the latest when plaintiff

retained counsel); see also Ramírez-Carlo, 496 F.3d at 48. Here,

moreover, there was much information available to Plaintiff and his

counsel to raise further cause for diligent inquiry. The operative

and discharge reports10 identified the risk factors known before the

first surgery (placenta previa and possible placenta accreta),

explained what steps were taken, and expressly attributed Dr.

Sanchez's hemorrhage to "DIC"--that is, disseminated intravascular

9
Neither Mr. Sanchez nor his counsel have volunteered the
precise date counsel was retained. At oral argument, counsel
indicated that he was on board by no later than roughly two months
before he received, in February 2010, 427 pages of hospital records
in response to his request.
10
The government, which offered these reports, averred only
that it had received them from Plaintiff's counsel. Plaintiff does
not dispute that they were part of the 427 pages of reports
Plaintiff received in February 2010. (The records that Plaintiff
says were incomplete were the intraoperative, not postoperative,
reports.) Plaintiff also offers no evidence as to when his counsel
obtained the Amended Surgical Pathology Report.

-12-
coagulation, a dangerous bleeding condition.11 Those reports,

combined with the Amended Surgical Pathology Report that was

completed and available in May 2009, provide evidence that Dr.

Sanchez suffered from both placenta previa and placenta accreta,

the risky conditions on which plaintiff's complaint was premised.

Mr. Sanchez notes that the autopsy report was not

available until May of 2010. The autopsy report, though, largely

confirmed information in or suggested by the already available

records: it listed as the cause of death postpartum DIC of unknown

cause, and both placenta previa and placenta accreta as "final

diagnoses." In short, it revealed no new cause of injury.

Mr. Sanchez also argues that the claim did not accrue

until April 2012, when he received legible copies of the final six

pages of medical reports including the handwritten intraoperative

reports. He does not adequately explain, however, either what

efforts were made to get them sooner, or how their absence

precluded him from timely filing his claim. Cf. T.L. ex rel.

Ingram v. United States, 443 F.3d 956, 964-65 (8th Cir. 2006)

(noting that a cause of action may not accrue until critical

medical records are received, but declining to toll the limitations

11
Disseminated intravascular coagulation is "a hemorrhagic
syndrome that occurs following the uncontrolled activation of
clotting factors and fibrinolytic enzymes throughout small blood
vessels . . . resulting in tissue necrosis and bleeding." Stedman's
Medical Dictionary 371 (Maureen Barlow Pugh et al. eds., 27th ed.
2000).

-13-
period where the plaintiff did not show that only the missing

records held the critical information). He points to no

information in these records that is both newly revealed and

reasonably necessary to ascertaining the cause of the injury. In

sum, in this case arising out of an unexpected nosocomial death,

witnessed by identifiable professionals who chronicled the injury,

its cause, and their own acts, the claim accrued at the latest by

the date prior to February 2010 when Mr. Sanchez retained counsel

to investigate a malpractice claim. Whether it accrued earlier, we

need not decide.

C. Is equitable tolling available under the FTCA?

There exists a long running debate over whether the

concept of equitable tolling can be used to delay the running of

the timeliness requirements that are conditions to the FTCA's

waiver of sovereign immunity. Rather than focusing directly on the

language and history of the FTCA as one might expect, courts have

generally approached this question indirectly, asking whether the

applicable time limit is "jurisdictional" and, if so, deeming

equitable tolling to be unavailable. See, e.g., Kwai Fun Wong v.

Beebe, 732 F.3d 1030, 1035-47 (9th Cir. 2013); Arteaga v. United

States, 711 F.3d 828, 832-3 (7th Cir. 2013); see generally John R.

Sand & Gravel Co. v. United States, 552 U.S. 130, 133-38 (2008)

(discussing the relationship between absolute or "jurisdictional"

deadlines and equitable tolling). Most recently, the Supreme Court

-14-
has given added credence to this approach. See Sebelius v. Auburn

Reg'l Med. Ctr., 133 S.Ct. 817, 824 (2013) ("[W]ere we to type the

governing statute 'jurisdictional'" there could "be no equitable

tolling." (citation omitted)).

This circuit has previously opined that the FTCA's

timeliness requirements are jurisdictional. See, e.g.,

Román-Cancel v. United States, 613 F.3d 37, 42 (1st Cir. 2010)

(explaining that "[c]ompliance with the FTCA's temporal deadlines

is both mandatory and jurisdictional"). We have also nevertheless

assumed that equitable tolling can be applied to those deadlines.

See Ramírez-Carlo v. United States, 496 F.3d 41, 48-49 & n.3 (1st

Cir. 2007); Rakes v. United States, 442 F.3d 7, 25 (1st Cir. 2006).

But see McIntyre v. United States, 387 F.3d 38, 61 & n.8 (1st Cir.

2004) (questioning whether equitable tolling applies to FTCA). We

are not, it seems, the only circuit to have proceeded in this

manner. See T.L. ex rel. Ingram v. United States, 443 F.3d 956,

961 (8th Cir. 2006).

The observation in Sebelius and like cases that labeling

these deadlines "jurisdictional" would preclude application of

equitable tolling suggests that something must eventually give in

our circuit's jurisprudence. The Supreme Court's most recent

guidance on what is "jurisdictional" suggests that we may have

erred in presuming that subject matter jurisdiction hinged on

compliance with the FTCA's deadlines for presenting claims. See

-15-
generally Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (pressing

"a strict distinction between truly jurisdictional rules . . . and

nonjurisdictional claim-processing rules" (citations and quotation

marks omitted)). If we did so err, however, it does not follow

that we also erred in presuming that equitable tolling can stay the

running of the FTCA's deadlines. To the contrary, classifying the

deadlines as non-jurisdictional enhances the case for finding

equitable tolling to be available. See Kwai Fun Wong, 732 F.3d at

1038 (FTCA deadlines are not jurisdictional and equitable tolling

is available), overruling Marley v. United States, 567 F.3d 1030

(9th Cir. 2009).

To decide the case now before us, we need not

definitively unravel this skein. Rather, we can approach this case

as we approached our decision in Gonzalez, giving the plaintiff the

benefit of assuming that equity can toll the running of the FTCA's

limitations period if a factual basis for tolling exists.

D. Has plaintiff established a factual basis for invoking
equitable tolling?

The trap for the unwary into which Mr. Sanchez has fallen

arises because doctors who work at facilities that may appear to be

nongovernmental may nevertheless be deemed federal employees

because of the manner in which their employers receive federal

funds. See 42 U.S.C. § 233(g). The risk of encountering such a

trap need be taken seriously. A publicly-searchable federal

database suggests that, for 2014, there are thirty-one entities

-16-
like LCHC in Massachusetts and seventy-seven in the First Circuit.

U.S. Dep't of Health and Human Servs. Health Res. and Servs.

Admin., Search current deemed entities,

http://bphc.hrsa.gov/ftca/healthcenters/ftcahcdeemedentitysearch.

html (last visited Dec. 16, 2013). Understood in this context,

Gonzalez instructs that lawyers handling medical malpractice cases

cannot simply assume without investigation that the longer of the

two potentially applicable limitations periods controls. Instead,

they need make inquiry (or, perhaps, simply sue within two years of

accrual).12 See Gonzalez, 284 F.3d at 291 (noting that "[n]o

evidence has been presented that [plaintiff] or her attorneys made

any inquiry whatsoever as to the status of the defendants as

federal employees."). As the Seventh Circuit recently explained,

It's not asking too much of the medical
malpractice bar to be aware of the existence
of federally funded health centers that can be
sued for malpractice only under the Federal
Tort Claims Act . . . and if a member of that
bar is not aware and misleads a client, . . .
the lawyer may be liable for legal malpractice
but the government can still invoke the
statute of limitations.

Arteaga v. United States, 711 F.3d 828, 834-35 (7th Cir. 2013)

(citations omitted).

12
Massachusetts attorneys have added incentive to consider
a two-year deadline. Massachusetts requires claims against it to
be presented to the appropriate entity within two years of accrual,
see Mass. Gen. Laws ch. 258, § 4, and does not toll that period
simply because a plaintiff is unaware that their doctor may have
been a public employee. See Krasnow v. Allen, 29 Mass. App. Ct.
562, 566-70 (1990).

-17-
 Good lawyers, like good doctors, make mistakes. Mr.

Sanchez's counsel either were unaware of the FTCA two-year

deadline, or simply assumed without asking that none of the

possible defendants were federal employees. Counsel do not say

which it was. Given what otherwise appears to be a firm dedication

to their client's case, one suspects it was the former. In any

event, neither inaction born of ignorance nor recklessness in the

face of a known risk could provide a basis for establishing

diligence given the holding in Gonzalez. And "due diligence is a

sine qua non for equitable tolling." Donahue v. United States, 634

F.3d 615, 629 (1st Cir. 2011).

Mr. Sanchez also argues that any inquiry regarding the

employment status of the doctors would have been unavailing. He

contends that LCHC never informed him of its federal status, that

his wife's records did not reveal that the doctors were federal

employees, and that the Department of Health and Human Services

relied on internal records, not publicly available information, to

certify the status of LCHC and the doctors for litigation purposes.

The government contends that, if plaintiff had used it, a website

and hotline for the U.S. Department of Health and Human Services,

Health Resources and Services Administration would have adequately

informed him that LCHC and its employees were federally funded and

might be covered by the FTCA. As Mr. Sanchez notes, however, in

2009 and 2010, that website would not have informed him that the

-18-
specific doctors who treated his wife were deemed to be federal

employees, and not every clinic that receives federal funds (or was

listed on that website) was necessarily covered by section 233. In

addition, we observe that the information regarding FTCA coverage

and the hotline was hardly conspicuous on the site.

Even so, the information on the website, had counsel

availed themselves of it, would certainly have put them on at least

heightened inquiry notice regarding the treating doctors' deemed-

federal status. Moreover, a Lexis or Westlaw search for Lynn

Community Health Center would have revealed Harrison v. United

States, 284 F.3d 293 (1st Cir. 2002), a 2002 FTCA medical

malpractice case against another of LCHC's doctors. Simply put, no

reasonably diligent lawyer who checked any of these sources of

information would have let two years pass without doing much more.

Mr. Sanchez has also offered no evidence that a phone

call or letter to LCHC inquiring about its (or its doctors') status

would have been ignored, or would have generated a misleading

response. We have examined the record for any indication that the

doctors, LCHC, or the government gave plaintiff any false

information or delayed unduly in answering important requests so as

to thwart, intentionally or otherwise, efforts by plaintiff to

ascertain whether this suit belonged in federal court. We have

found none.

-19-
 We agree that the federal government could do more to

publicize or alleviate the statute of limitations trap created by

section 233. Be that as it may, the absence of due diligence here

is no less patent, and likely more so, than in Gonzalez. As we

noted above, and as was not the case in Gonzalez, a doctor from

LCHC had already been identified as a federal employee in an FTCA

suit. Both Gonzalez and Harrison were decided in 2002, well before

the events in question here. If, on these facts, we were to find

the statutory deadlines tolled, then it would follow that Gonzalez

was wrong.

Understandably, finding Gonzalez to be wrongly decided is

precisely what plaintiff invites us to do. Departing from circuit

precedent, however, can be justified only by "supervening

authority" (such as a ruling of the Supreme Court or this Court en

banc), Muskat v. United States, 554 F.3d 183, 189 (1st Cir. 2009),

or "in those relatively rare instances in which authority that

postdates the original decision, although not directly controlling,

nevertheless offers a sound reason for believing that the former

panel, in light of fresh developments, would change its collective

mind." United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011)

(citation and quotation marks omitted). The latter justification

is narrowly construed, Igartúa v. United States, 626 F.3d 592,

603-04 (1st Cir. 2010), and imposes an "exacting standard,"

Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 96 (1st Cir.

-20-
2012); see also San Juan Cable LLC v. P.R. Tel. Co., Inc., 612 F.3d

25, 34 (1st Cir. 2010) (noting that the contrary conclusion of

another circuit court does not "divest [a panel] opinion of its

customary stare decisis effect within the circuit").

To suggest that the development of the law in other

circuits, had it been known to the Gonzalez panel, would have

caused it to change its collective mind, Mr. Sanchez relies on

cases from two other circuits: Santos ex rel. Beato v. United

States, 559 F.3d 189 (3d Cir. 2009), and Valdez ex rel. Donely v.

United States, 518 F.3d 173 (2d Cir. 2008). Plaintiff is correct

that these and subsequent cases from those two circuits reject the

proposition that by failing to ask specifically about possible

federal employment, counsel necessarily fail the due diligence

test. Neither circuit, however, blesses complete inaction. In

Santos, for example, counsel actually ran a public records search

on the relevant doctors' employer. Santos, 559 F.3d at 200. In

Phillips v. Generations Family Health Ctr., 723 F.3d 144 (2d Cir.

2013), the Second Circuit recently distinguished a case in which

counsel did "literally nothing to investigate the defendant's

status" and adopted an approach to equitable tolling that

incorporates, among other factors, the prior knowledge and

experience of counsel. Id. at 152-56. That approach runs the risk

of effectively holding better, more knowledgeable practitioners to

a higher standard of care. This seems a bit odd, but we need not

-21-
consider it further because Mr. Sanchez's counsel offers no

significant evidence of their medical malpractice experience. More

importantly, whether one views the approaches taken by those two

circuits as appropriate or not, they hardly paint a picture of a

rush to the exit so as to allow us to overrule our own controlling

precedent here.

Statutes of limitations balance a desire to decide claims

on their merits against a desire to provide repose and avoid the

unfairness of litigating stale claims encumbered by faded memories.

Under federal law, Congress strikes the chosen balance, leaving

perhaps some room for equitable dispensation where due diligence

could not have saved a claim. Here, with no good explanation for

the complete failure to try to ascertain which limitations period

applied, no pertinent precedent allows the individual dispensation

requested. We note, however, that while Mr. Sanchez has thus lost

his claim against his wife's doctors, he may not have yet lost

altogether his chance to recover full compensation for that loss

from any professionals responsible for the effects of the judgment

in this case.

IV. Conclusion

For these reasons, the judgment of the district court is

affirmed.

-22-