UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1539
MARGARET A. LUCAS, Individually, as Widow and Wrongful
Death Beneficiary, and as Personal Representative of the
Estate of John A. Lucas, Deceased; STEPHANIE L. CADEN,
Individually, as Daughter and Wrongful Death Beneficiary of
John A. Lucas, Deceased; CAROLINE A. LUCAS, Individually,
as Daughter and Wrongful Death Beneficiary of John A.
Lucas, Deceased,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee,
and
WALTER REED NATIONAL MILITARY MEDICAL CENTER, f/k/a National
Naval Medical Center,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:14-cv-02032-DKC)
Argued: October 25, 2016 Decided: November 22, 2016
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION,
P.C., Washington, D.C., for Appellants. Molissa Heather Farber,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Patrick M. Regan, Christopher J. Regan,
REGAN ZAMBRI LONG, Washington, D.C., for Appellants. Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Margaret Lucas appeals the dismissal of her Federal Torts
Claims Act (“FTCA”) complaint as untimely. We agree with the
district court that the FTCA’s limitations period bars her
claim. Nor has she shown extraordinary circumstances that call
for equitably tolling that bar. We therefore affirm.
I.
In November 2003, Margaret Lucas’s husband, John Lucas,
underwent surgery to repair a paraesophageal hernia at what was
then the National Naval Medical Center in Bethesda, Maryland.
As part of the procedure, surgeons implanted mesh in Mr. Lucas’s
body to prevent future herniation. The mesh migrated, allegedly
causing Mr. Lucas’s health to deteriorate drastically over the
next several years. Mr. Lucas suffered cardiac arrest in June
2009 and never regained consciousness. He died on August 11,
2009.
On February 23, 2010, Margaret Lucas and her two surviving
daughters filed a medical malpractice claim with the Department
of the Navy. Nearly four years passed before the Navy mailed
its notice of final denial on November 8, 2013. Under the FTCA,
a plaintiff has six months to initiate an action after the
appropriate government agency mails her notice of its denial of
her claim. 28 U.S.C. § 2401(b) (2012). Accordingly, Lucas had
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until May 8, 2014, to bring her FTCA claim against the United
States.
The parties agree that, because state law determines the
liability of the United States under the FTCA, 28 U.S.C. § 2674,
medical malpractice plaintiffs seeking relief under the FTCA
must comply with the state’s substantive requirements. Maryland
law, which the parties recognize controls here, requires a
plaintiff to submit her medical malpractice claim to the state’s
Health Care Alternative Dispute Resolution Office before filing
it in court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a), -
04(a)(1)(i) (West 2016). A plaintiff must then file an expert
report certifying that the claim is meritorious within ninety
days. Id. § 3-2A-04(b)(1)(i)(1). Once a plaintiff has filed an
expert report, she may waive arbitration and proceed to court.
Id. § 3-2A-06B(a).
After receiving notice of the Navy’s denial, Lucas quickly
filed her claim with the state agency on November 21, 2013.
However, she did not file her expert report and waive
arbitration until May 19, 2014 -- eleven days after the FTCA’s
six-month limitations period passed. And Lucas did not file her
complaint in federal district court until one month later.
The United States moved to dismiss the complaint for lack
of subject matter jurisdiction on the ground that it was
untimely. The district court stayed the proceedings pending the
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Supreme Court’s resolution of United States v. Kwai Fun Wong,
135 S.Ct. 1625 (2015). In that case, the Court held that the
FTCA’s filing deadline under § 2401(b) is not jurisdictional and
allows for equitable tolling. 135 S. Ct. at 1629. After Kwai
Fun Wong, the United States moved to dismiss Lucas’s complaint
for failure to state a claim. The district court granted the
motion. The court reasoned that § 2401(b) applied and that no
extraordinary circumstances warranted tolling the limitations
period.
II.
On appeal, Lucas first argues that her claim was timely
because filing a required state administrative claim begins an
“action” under § 2401(b). But the text of § 2401(b) plainly
establishes that “action” refers only to a federal civil action.
See Raplee v. United States, --- F.3d --- (4th Cir. 2016).
Therefore, § 2401(b) requires a plaintiff to file a complaint
with a federal district court within six months after the
relevant federal agency mails her notice that it has denied her
claim. Lucas filed her federal complaint more than a month
after this deadline passed. Therefore, her complaint was
untimely.
Although § 2401(b) allows for equitable tolling, Lucas’s
case does not call for it. We generally review the district
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court’s denial of equitable tolling for abuse of discretion.
Rouse v. Lee, 339 F.3d 238, 247 n.6 (4th Cir. 2003) (en banc).
But see Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (noting
that in some circumstances review is de novo).
A statute can be equitably tolled only if a plaintiff shows
that (1) she pursued her claim with reasonable diligence and (2)
extraordinary circumstances prevented her from filing on time.
See Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable
tolling is an extraordinary remedy limited to those occasions
when “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).
Regardless of whether Lucas pursued her claim diligently,
she has failed to show any “extraordinary circumstances”
preventing her from filing on time. In fact, Lucas does not
point to any intervening events that detained her. Rather, she
argues only that Maryland’s pre-filing requirements themselves
constitute extraordinary circumstances.
Maryland’s pre-filing requirements certainly place a burden
on medical malpractice plaintiffs. However, this hardly counts
as an extraordinary circumstance. The requirements apply to all
medical malpractice claims that arise in Maryland. Lucas’s
argument would require us to hold that it is unconscionable to
require an FTCA plaintiff to comply with state tort law. We
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lack the power to do so. A state unquestionably has the
prerogative to place whatever requirements it chooses on its
tort causes of action. And Congress clearly intended FTCA
plaintiffs to comply with those requirements. See, e.g.,
Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011).
The record contains no evidence that Maryland’s
requirements prevented Lucas from filing on time. Lucas had
more than four years to prepare the required state filings and
her federal complaint. Moreover, the state agency processed
Lucas’s filings without delay. The agency issued its order of
transfer –- allowing Lucas to proceed to federal court –- the
day after Lucas filed her expert report and waived arbitration.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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