D. S.-W. v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 19-2434
______

D.J.S.-W., a minor, by her natural mother
and legal guardian, D’ERICKA STEWART,
Appellant

v.

UNITED STATES OF AMERICA
______

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-17-cv-01335)
Chief District Judge: Honorable Mark R. Hornak
______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 22, 2020

Before: HARDIMAN, RENDELL and FISHER, Circuit
Judges.

(Opinion Filed: June 22, 2020)
Vincent A. Coppola
Pribanic Pribanic & Archinaco
513 Court Place, First Floor
Pittsburgh, PA 15219
Counsel for Appellant

Scott W. Brady, United States Attorney
Haley F. Warden-Rodgers
Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
______

OPINION OF THE COURT
______

FISHER, Circuit Judge.
D.J.S.-W., a young girl who sustained a shoulder injury
during birth, argues that the limitations period for filing her
medical malpractice claim under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671–80, should be equitably
tolled. Because D.J.S.-W. fails to show both that she diligently
pursued her rights and that extraordinary circumstances
prevented her from timely filing, we decline to accord her such
an exceptional remedy. Accordingly, we will affirm the
District Court’s grant of summary judgment to the United
States.
I.
In late 2009, D.J.S.-W. was born at Sharon Regional
Health Center (Sharon Hospital) in Mercer County,

2
Pennsylvania, under the care of John Gallagher, M.D. During
delivery, D.J.S.-W. sustained a brachial plexus injury, which
allegedly caused permanent damage to her right shoulder and
arm.
In the next few months, D.J.S.-W.’s mother retained
counsel to pursue D.J.S.-W.’s potential malpractice claims
against Sharon Hospital and Dr. Gallagher. In 2010 and 2011,
in preparing to file D.J.S.-W.’s case, counsel requested medical
and billing records from Sharon Hospital on three occasions.
During this time, counsel also sent one request for medical
records directly to Dr. Gallagher. All four requests were
limited temporally “to those records pertinent to the time when
Dr. Gallagher’s alleged negligence occurred—the delivery of
[D.J.S.-W.] . . . and the 12 hours prior to the delivery, the time
at which [D.J.S.-W.’s mother] presented to Sharon . . . Hospital
to give birth.” App. 204 ¶ 12. Beyond these record requests,
counsel also visited Sharon Hospital’s website, which listed
Dr. Gallagher as an Obstetrics & Gynecology doctor, and
conducted a Google search of both Sharon Hospital and Dr.
Gallagher.
D.J.S.-W.’s counsel believed that Dr. Gallagher was
privately employed because Dr. Gallagher delivered D.J.S.-W.
at Sharon Hospital—an entity against which counsel had
previously litigated and knew to be private—and was listed on
the Sharon Hospital website. Despite his investigatory efforts
in preparing to file her case, D.J.S.-W.’s counsel did not
discover that at the time of D.J.S.-W.’s birth, Dr. Gallagher
was employed by Primary Health Network, a “deemed” federal
entity eligible for FTCA malpractice coverage. Under federal
law, entities that receive federal funding to serve medically
underserved populations, as well as “health practitioners that
such entities employ[,] ‘shall be deemed to be [employees] of
the Public Health Service.’” Lomando v. United States, 667

3
F.3d 363, 371 (3d Cir. 2011) (second alteration in original)
(quoting 42 U.S.C. § 233(g)(1)(A)). This status “is highly
significant” because “an action against the United States under
the FTCA is the exclusive remedy for persons alleging
‘personal injury . . . resulting from the performance of medical
. . . functions’ by Public Health Service employees acting
within the scope of their employment.” Id. (quoting 42 U.S.C.
§ 233(a)). Indeed, D.J.S.-W.’s counsel had litigated a prior case
in which the United States substituted itself for a defendant
doctor because he was a “deemed” federal employee.
During the preparation of D.J.S.-W.’s case, counsel did
not visit or call Sharon Hospital, Dr. Gallagher, or any Primary
Health Network office. He did not search the Health Resources
and Services Administration database, which would have
revealed that Primary Health Network was a “deemed” federal
entity (although, at the time, it did not list individual providers
like Dr. Gallagher). Nor did counsel visit Primary Health
Network’s website or search Primary Health Network on
Google. At the time, its website and each of its offices
indicated that Primary Health Network was a “Federally
Qualified Health Center.”
Furthermore, counsel never requested medical records
from Primary Health Network, nor did he ask for records from
any healthcare provider or facility that identified a responsive
date range earlier than D.J.S.-W.’s birth in November 2009.
Records from before D.J.S.-W.’s birth, however, show that at
the time of her birth, her mother had been a patient of Dr.
Gallagher’s for over ten years and had visited the Primary
Health Network office in Sharon, Pennsylvania. Of the medical
records counsel did ask for, he sent one request directly to
“John Gallagher, M.D., One Dayton Way, Suite 6, Sharon, PA
16146”—the street address of a Primary Health Network
office. App. 236. And of the records Dr. Gallagher sent in

4
response to counsel’s request, two pages included the words
“Primary Health Network” at the bottom of the page
immediately above Dr. Gallagher’s name and mailing address.
D.J.S.-W. v. United States, No. 2:17-cv-01335, 2019 WL
1894707, at *3, *11 (W.D. Pa. Apr. 29, 2019).
In late 2016—nearly seven years after the allegedly
negligent delivery—D.J.S.-W.’s mother filed suit on D.J.S.-
W.’s behalf against Dr. Gallagher and Sharon Hospital in
Pennsylvania state court. Despite Pennsylvania’s two-year
limitation for bringing personal injury actions, see 42 Pa. Cons.
Stat. § 5524(2), D.J.S.-W.’s counsel, “[a]cting according to his
custom and practice,” deliberately delayed filing D.J.S.-W.’s
case “in anticipation of acquiring additional knowledge
regarding the severity and permanency of [her] injuries,” App.
211 ¶ 72. In doing so, counsel relied on a Pennsylvania statute,
42 Pa. Cons. Stat. § 5533(b)(1), which tolls a minor plaintiff’s
action until she turns eighteen.
Soon after the case was filed, the Government removed
it to the U.S. District Court for the Western District of
Pennsylvania and moved to substitute the United States for Dr.
Gallagher because he was working within the scope of his
federal employment with Primary Health Network at the time
of the allegedly negligent delivery. The District Court granted
the motion for substitution, at which point the United States
moved to dismiss on the basis that D.J.S.-W. failed to timely
exhaust her administrative remedies as required under the
FTCA. The District Court then dismissed the case against the
United States without prejudice and remanded the case against
Sharon Hospital for lack of subject-matter jurisdiction.1

1
The case against Sharon Hospital was still pending in state
court when the parties briefed this appeal.

5
 After exhausting administrative remedies,2 D.J.S.-W.’s
counsel filed anew D.J.S.-W.’s claim against the United States
in the District Court. The United States moved to dismiss,
arguing that her action was untimely under the FTCA. The
District Court denied the motion, ordering the parties to engage
in limited discovery regarding the FTCA’s statute of
limitations and equitable tolling.
At the close of discovery, the United States moved for
summary judgment, again arguing that D.J.S.-W.’s suit was
untimely. Although conceding that she did not timely file,
D.J.S.-W. argued that she was entitled to equitable tolling of
the FTCA’s limitations period because she—or more
accurately, her counsel—“had no reason to know that [Dr.
Gallagher] was a ‘deemed’ federal employee or that further
inquiry into his status was required.” Supp. App. 26. The
District Court disagreed, holding that D.J.S.-W. failed to “meet
her burden to obtain the extraordinary remedy of equitable
tolling.” D.J.S.-W., 2019 WL 1894707, at *10. Accordingly,
the Court granted the Government’s motion for summary
judgment because D.J.S.-W.’s “negligence claim against the
United States is . . . barred as untimely.” Id. D.J.S.-W. appeals.
II.3
“As a sovereign, the United States is immune from suit
unless it consents to be sued.” Sconiers v. United States, 896

2
D.J.S.-W. presented her claims to the U.S. Department of
Health and Human Services. Her administrative claim was
deemed denied when the agency failed to act within six
months. See 28 U.S.C. § 2675(a).
3
The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1346(b)(1), and we have jurisdiction under 28 U.S.C.
§ 1291. “Our review of the District Court’s [summary

6
F.3d 595, 597 (3d Cir. 2018) (quoting White-Squire v. U.S.
Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010)). The FTCA
represents “a limited waiver of th[at] sovereign immunity,”
Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d
Cir. 2009), providing that “[t]he United States shall be liable,
respecting . . . [certain] tort claims, in the same manner and to
the same extent as a private individual under like
circumstances,” 28 U.S.C. § 2674.
Bringing a claim under the FTCA requires following
various procedural requirements. The FTCA dictates that “a
tort claim against the United States ‘shall be forever barred’
unless it is presented to the ‘appropriate Federal agency within
two years after [it] accrues’ and then brought to federal court
‘within six months’ after the agency acts on the claim.” United
States v. Wong, 575 U.S. 402, 405 (2015) (quoting 28 U.S.C.
§ 2401(b)). If the agency fails to act within six months, the
claimant may proceed to file her case in district court. 28
U.S.C. § 2675(a).
Here, both parties agree that D.J.S.-W.’s case—which
was first filed in state court almost seven years after her birth,
the date on which her claim accrued—was not timely presented
to the appropriate agency in accordance with these
requirements. And although D.J.S.-W.’s counsel deliberately
delayed filing her case in reliance on Pennsylvania’s tolling
statute, that law cannot save D.J.S.-W.’s untimely claim
against the United States because “state-law tolling statutes do

judgment] decision is plenary.” State Auto Prop. & Cas. Ins. v.
Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Summary
judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

7
not apply to the FTCA’s limitations period.” Santos, 559 F.3d
at 193. Thus, the sole issue on appeal is whether D.J.S.-W. has
shown that she is entitled to the extraordinary remedy of
equitable tolling of the FTCA’s limitations period.4 We first
clarify the test that a litigant seeking equitable tolling must
satisfy. We then explain why D.J.S.-W. fails to meet that
standard in this case.
A. Our Equitable-Tolling Test
It is well established that a court may “rescue a claim
otherwise barred as untimely by a statute of limitations when a
plaintiff [shows she] has ‘been prevented from filing in a
timely manner due to sufficiently inequitable circumstances.’”
Id. at 197 (quoting Seitzinger v. Reading Hosp. & Med. Ctr.,
165 F.3d 236, 240 (3d Cir. 1999)). Tolling “is [an]
extraordinary” remedy, id., and “is proper only when the
‘principles of equity would make [the] rigid application [of a
limitation period] unfair,” Miller v. N.J. State Dep’t of Corr.,
145 F.3d 616, 618 (3d Cir. 1998) (alterations in original)
(quoting Shendock v. Dir., Office of Workers’ Comp.
Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en banc)). “It
is especially appropriate to be restrictive” in extending this
remedy “in cases involving the waiver of the sovereign
immunity of the United States,” such as those arising under the
FTCA. Santos, 559 F.3d at 197–98.
Our Court uses the term “equitable tolling” broadly to
encompass several situations under which a statute of
limitations period may be tolled on equitable grounds. We have
said that:

4
“The time limits in the FTCA are just time limits,” not
jurisdictional requirements, and, therefore, “a court can toll
them on equitable grounds.” Wong, 575 U.S. at 412.

8
 [T]here are three principal, though not exclusive,
situations in which equitable tolling may be
appropriate: (1) where the defendant has actively
misled the plaintiff respecting the plaintiff’s
cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from
asserting . . . her rights; or (3) where the plaintiff
has timely asserted . . . her rights mistakenly in
the wrong forum.5
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994), abrogated on other grounds by Rotkiske
v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018) (en banc), aff’d
140 S. Ct. 355 (2019). In addition, a litigant “will not receive
the benefit of” tolling in any of these situations “unless she

5
Our Court often refers to all three of these situations “as
falling under the overarching heading of ‘equitable tolling’”
because each “tolls a limitations period on equitable grounds.”
Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 550 (4th Cir.
2019) (describing the Third Circuit’s approach). Other circuits
use the phrase to refer only to the second situation in our list—
that is, “when a plaintiff’s failure to timely file suit is not
attributable [to] wrongful conduct by the defendant.” Id.; see
also Zappone v. United States, 870 F.3d 551, 556 (6th Cir.
2017); Valdez ex rel. Donely v. United States, 518 F.3d 173,
183 (2d Cir. 2008); Cada v. Baxter Healthcare Corp., 920 F.2d
446, 451 (7th Cir. 1990). In recent years, the Supreme Court
has also used the phrase “equitable tolling” in this more
specific sense. See Holland v. Florida, 560 U.S. 631, 644–45
(2010). As we explain above, only the second of our three
tolling scenarios is at issue here, so we need not (and do not)
resolve the difference in terminology.

9
exercised due diligence in pursuing and preserving her claim.”
Santos, 559 F.3d at 197. That is, tolling will never extend to “a
garden variety claim of excusable neglect, such as a simple
miscalculation that leads a lawyer to miss a filing deadline.”
Holland, 560 U.S. at 651–52 (internal quotation marks and
citations omitted).
The second tolling situation is at issue here—D.J.S.-W.
argues that she encountered extraordinary circumstances that
prevented her from timely filing.6 Thus, to be entitled to
equitable tolling, D.J.S.-W. must show that she “in some
extraordinary way has been prevented from asserting . . . her
rights,” and that she “exercised due diligence in pursuing and
preserving her claim.” See Santos, 559 F.3d at 197 (internal
quotation marks omitted). This is the same test that the
Supreme Court uses to assess whether a petitioner may be
entitled to equitable tolling in the habeas context. See Holland,
560 U.S. at 649 (“[A] ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005))). In Menominee
Indian Tribe of Wisconsin v. United States, the Supreme Court
applied the same test to assess a Tribe’s claim that equitable

6
D.J.S.-W. does not explicitly state that her claim falls under
the second tolling situation in our list. But her argument relies
heavily on Santos, which involved the second tolling doctrine.
See 559 F.3d at 203. Furthermore, neither of the other two
bases applies—D.J.S.-W. does not argue that she was actively
misled, and all parties agree that she did not timely assert her
claim in state court. Nor does D.J.S.-W. argue that any other
tolling doctrine should apply.

10
tolling should excuse its failure to timely present a contract
dispute to a federal contracting officer. 136 S. Ct. 750, 754–56
(2016). In doing so, the Court noted that it has “never held that
[Holland’s] equitable-tolling test necessarily applies outside
the habeas context” and, therefore, it has not yet “decide[d]
whether an even stricter” or “a more generous test” may apply
to nonhabeas cases. Id. at 756 n.2.7
Nevertheless, because the Holland test is the same as
our test for assessing equitable tolling in the nonhabeas
context, Menominee is instructive. In particular, the Court
made two observations that help us more clearly define the
contours of our test.
First, it stated that the two requirements—extraordinary
circumstances and diligence—are “distinct elements,” both of
which must be satisfied for a litigant to be eligible for tolling.
Id. at 756. Treating the two requirements as separate prongs,
the Court said, was consistent with its prior language
describing the components as “elements,” id. (citing Pace, 544
U.S. at 418), and its practice of denying “requests for equitable
tolling where a litigant failed to satisfy one without addressing
whether he satisfied the other,” id. (citing Lawrence v. Florida,
549 U.S. 327, 336–37 (2007), and Pace, 544 U.S. at 418).
We agree with this characterization of the equitable-
tolling test. Although our prior case law may appear to have
blended the two components, this is merely a reflection of the
fact that, in practice, the two elements often go hand in hand.
For example, if no extraordinary circumstances stood in the

7
In recent years, the Court has also referenced the Holland
equitable-tolling test in other nonhabeas cases. See, e.g., Wong,
575 U.S. at 407–08; Lozano v. Montoya Alvarez, 572 U.S. 1,
10 (2014).

11
litigant’s way, but she nevertheless failed to timely file, it is
likely that she did not diligently investigate and pursue her
claim. See, e.g., id. at 756–57 (declining to equitably toll
limitations period because Tribe’s failure to timely present its
claims was caused “not by an obstacle outside its control, but
by [its] mistaken belief that presentment was unneeded”);
Hedges v. United States, 404 F.3d 744, 752–54 (3d Cir. 2005)
(declining to equitably toll limitations period because
plaintiff’s pro se status and mental incompetence were not
extraordinary circumstances and “[d]iligent research would
likely have revealed . . . the existence” of his claim). Similarly,
if, despite pursuing her claim diligently, a litigant was still
unable to timely file, it is likely that some extraordinary
circumstance stood in her way and prevented her from doing
so. See Santos, 559 F.3d at 198–203 (holding plaintiff entitled
to equitable tolling when she “diligently and vigorously
pursued her claim” and, yet, she was unable to ascertain
hospital’s federal status). Today, we follow Menominee’s
guidance and confirm that the two requirements are distinct
prongs, both of which a litigant must satisfy before equitable
tolling may apply.
Second, the Supreme Court also “reaffirm[ed]” that the
extraordinary-circumstances element “is met only where the
circumstances that caused a litigant’s delay are both
extraordinary and beyond [her] control.” Menominee, 136 S.
Ct. at 756. We agree with this description of the extraordinary-
circumstances prong. Indeed, because equitable tolling is an
extreme remedy that we extend “only sparingly,” Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990), it “would
make little sense if [it] were available when a litigant was
responsible for [her] own delay,” Menominee, 136 S. Ct. at
756. In addition, because the extraordinary-circumstances and
diligence components are distinct elements, “the diligence

12
prong already covers those affairs within the litigant’s control”
and the “extraordinary-circumstances prong, by contrast, is
meant to cover matters outside [her] control.” Menominee, 136
S. Ct. at 756. Accordingly, we also clarify today, following the
Supreme Court’s guidance, that a litigant will only meet the
extraordinary-circumstances prong of our test for equitable
tolling when she shows that her delay was attributable to
circumstances that were “both extraordinary and beyond [her]
control.” Id.
In sum, for a litigant to be entitled to equitable tolling,
she must establish two elements: “(1) that [s]he has been
pursuing her rights diligently, and (2) that some extraordinary
circumstance stood in h[er] way and prevented timely filing.”
Id. at 755; see also Santos, 559 F.3d at 197. The two
components are distinct elements, both of which the litigant
must satisfy. And to meet the extraordinary-circumstances
element, the litigant must show that the circumstances were
“extraordinary and beyond [her] control.” Menominee, 136 S.
Ct. at 756.
B. D.J.S.-W. Fails to Meet Our Equitable-Tolling
Standard
Here, D.J.S.-W. fails to satisfy either prong of this test.
She did not diligently pursue her rights because she failed to
take reasonable steps to confirm Dr. Gallagher’s employment
status. Nor did any circumstances, both extraordinary and
outside her control, stand in her way and prevent her “from
discovering Dr. Gallagher’s true affiliations.” D.J.S.-W., 2019
WL 1894707, at *9 (citing Menominee,136 S. Ct. at 755).
D.J.S.-W. emphasizes our decision in Santos, in which
we tolled the FTCA’s limitations period to rescue Santos’s
untimely claim because the government had created a trap that
prevented her from learning, despite her counsel’s diligent

13
investigation, that her alleged tortfeasors were federally
employed. 559 F.3d at 204. Santos is similar to this case: a
minor filed medical malpractice claims in state court against a
healthcare facility, known as York Health, and several of its
employees. Id. at 190–91. Her counsel filed her suit after the
two-year limitations period had run in reliance on
Pennsylvania’s tolling statute. Id. at 191. As it turned out,
however, York Health was a “deemed” federal entity. Id. at
191–92. After the government substituted the United States as
defendant and moved for summary judgment, Santos argued
that the FTCA’s limitations period should be equitably tolled.
Id. at 192.
We agreed with Santos and reversed the district court’s
grant of summary judgment to the United States. Id. at 204.
Santos, we said, diligently pursued her claim: she hired
counsel, “who requested and reviewed her medical records,
[and] visited, corresponded with, and performed a public
records search on York Health.” Id. at 198. Yet, “[n]one of
these inquiries, records, visits, or correspondence gave him a
clue that the healthcare providers or York Health had been
deemed federal employees.” Id. at 200–01. York Health’s
federal status, we concluded, “if not covert, was at least
oblique.” Id. at 202. Although York Health’s website indicated
that it received funds from federal sources and that it was a
“federally-qualified health center,” there were no “publicly
available sources of information from which Santos could have
learned” that York Health was in fact a federal entity. Id. at
201–03. Moreover, “even if the information had been
available,” there were no circumstances that “should have led
[Santos’s counsel] to inquire into York Health’s federal status”
in the first place. Id. at 203. Thus, we held that “the equitable

14
tolling doctrine applie[d] . . . to toll the FTCA’s statute of
limitations.” Id. at 204.8
Despite D.J.S.-W.’s arguments to the contrary, even a
cursory read of Santos reveals that Santos’s counsel went to far
greater lengths to confirm her alleged tortfeasors’ employment
status than D.J.S.-W.’s counsel did here. While counsel in
Santos performed a public records search on, corresponded
with, and visited York Health as part of his investigation,
D.J.S.-W.’s counsel merely assumed that Dr. Gallagher was
employed by Sharon Hospital—which he knew to be a private
entity—because D.J.S.-W. was born there and Dr. Gallagher
was listed as a “team member” on its website. But, as D.J.S.-
W.’s counsel admits, he never corresponded with, called, or
visited Sharon Hospital or Dr. Gallagher to confirm this belief.

8
The Government argues that “Menominee may undermine the
holding in Santos” because “Santos’s counsel’s erroneous
belief that York Health was a private entity . . . was neither
extraordinary nor ‘an obstacle beyond [his] control.’”
Appellee’s Br. 25–26 (quoting Menominee, 136 S. Ct. at 756
& n.3). We disagree. In Santos, we concluded that the
government had created a “trap” for litigants like Santos
because there were no “publicly available sources of
information from which Santos could have” discovered York
Health’s federal status, nor were there any circumstances that
should have “led her to inquire into York Health’s federal
status.” 559 F.3d at 203. Despite diligent research, the opacity
of York Health’s federal status was an extraordinary
circumstance that stood in Santos’s way and prevented her
from timely filing. Thus, our holding in Santos would not
change under the clarified test we discuss today.

15
 D.J.S.-W. argues that her counsel’s efforts were diligent
because there was no “trigger” that would have prompted him
to examine Dr. Gallagher’s true employer, Primary Health
Network. Appellant’s Br. 15. This is not so. There were
numerous red flags that would have caused a diligent plaintiff
or her counsel to investigate Dr. Gallagher’s employment
status. As the District Court observed, “[i]t ordinarily should
not come as a surprise to a medical malpractice lawyer . . . that
an obstetric physician’s relationship to a hospital may simply
be” that he has “admitting privileges to deliver his patients’
babies.” D.J.S.-W., 2019 WL 1894707, at *9 (internal footnote
omitted). Given that such an arrangement is not uncommon, it
seems strange that counsel did not either ask D.J.S.-W.’s
mother “where she normally saw Dr. Gallagher for her pre-
natal care” or expand the temporal scope of his record request
to ensure Dr. Gallagher had not treated her at another facility.
Id.
There were also other triggers that should have
prompted counsel to investigate Dr. Gallagher’s employment
status. For example, counsel’s own law office sent record
requests to Sharon Hospital and Dr. Gallagher at different
addresses. Indeed, had counsel visited or searched the address
to which his office sent the request to Dr. Gallagher, he would
have discovered that it was a street address for Primary Health
Network. In addition, two of the pages of records sent by Dr.
Gallagher in response to that request contained the phrase
“Primary Health Network” at the bottom of the page above Dr.
Gallagher’s name and address. See id. at *3, *11. Finally,
D.J.S.-W.’s counsel should have been on heightened alert
given his own personal experience in litigating a malpractice
case involving the substitution of the United States for a
defendant physician because he was an employee of a
“deemed” federal entity.

16
 Had counsel taken the reasonable step of investigating
these red flags, he could have easily discovered that Dr.
Gallagher was employed by Primary Health Network. Had
counsel then investigated Primary Health Network, he could
have discovered that it was a “deemed” federal entity. Indeed,
unlike counsel in Santos, who corresponded with, performed a
public search on, and visited York Health, D.J.S.-W.’s counsel
did not take any of these steps. Had he visited a Primary Health
Network office or searched its website, he would have seen that
Primary Health Network “held itself out as a ‘federally
qualified health center’ via,” inter alia, “physical signs in its
waiting rooms . . . and notices on its website.” Id. at *9. If, like
in Santos, these statements were insufficient to alert counsel to
Primary Health Network’s “deemed” federal status, see Santos,
559 F.3d at 201–02, he could have double checked by
searching Primary Health Network in the Health Resources
and Services Administration database.
In sum, D.J.S.-W. did not exercise due diligence to meet
our equitable-tolling standard. Rather, her effort here—or,
more accurately, her counsel’s effort—was, at most, a “garden
variety claim of excusable neglect,” see Irwin, 498 U.S. at 96,
to which “[t]he principles of equitable tolling . . . do not
extend,” Santos, 559 F.3d at 197.
Because a plaintiff must meet both prongs of the
equitable-tolling test, we could conclude our discussion here,
having determined that D.J.S.-W. did not diligently pursue her
claim. See Menominee, 136 S. Ct. at 757 n.5. We briefly note,
however, that D.J.S.-W. also fails to demonstrate that any
extraordinary circumstances “stood in h[er] way and prevented
timely filing.” Id. at 755 (quoting Holland, 560 U.S. at 649).
The plaintiff in Santos encountered extraordinary
circumstances because the government had created “a potential
statute of limitations trap” that prevented her from discovering

17
the defendant’s federal status. 559 F.3d at 202 (quoting Valdez,
518 F.3d at 183). The government itself ensured that “York
Health’s federal status, if not covert, was at least oblique,” and
there were no “publicly available sources of information from
which Santos could have learned this critical fact,” nor were
there any “circumstances [that] should have led her to inquire
into York Health’s federal status.” Id. at 203.
According to D.J.S.-W., the circumstances in her case
were similarly extraordinary. She argues that Dr. Gallagher
created a trap, like that in Santos, because he knew that his
biography on Sharon Hospital’s website “created the illusion”
that he was employed by “that private hospital,” which could,
in turn, “relax the guard of even the most diligent person.”
Appellant’s Br. 14. There was, however, no trap here, and Dr.
Gallagher’s employment with Primary Health Network was far
from “oblique.” As discussed above, had counsel discussed the
issue with his client, expanded the temporal scope of his record
requests, called Sharon Hospital or Dr. Gallagher, or
investigated the address to which he sent one of his record
requests and which appeared on some of the records he
received, he would have discovered Dr. Gallagher’s true
employer. As the District Court stated, “[t]he real trap that . . .
[c]ounsel fell into was the assumption that a doctor who has a
biographical page on a private healthcare facility’s website . . .
cannot be employed by another facility or entity.” D.J.S.-W.,
2019 WL 1894707, at *8. This miscalculation was certainly not
“beyond [counsel’s] control,” and, thus, no extraordinary
circumstances stood in D.J.S.-W.’s way to prevent her from
timely filing her claim.9 See Menominee, 136 S. Ct. at 756.

9
D.J.S.-W. argues that Dr. Gallagher “bore responsibility to
make sure that his status was unambiguous to his patients.”
Appellant’s Br. 14. Accordingly, she asks us to announce a rule

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 III.
Because we conclude that equitable tolling does not
save D.J.S.-W.’s untimely claim, we will affirm the District
Court’s order granting summary judgment in favor of the
United States.

that doctors like Dr. Gallagher who generally treat patients at
private hospitals, “may not insulate [themselves] against
application of equitable tolling” unless they notify “the patient
in some reasonably direct manner of the federal affiliation.”
Appellant’s Br. 15. But it is D.J.S.-W. who bore the burden to
timely assert her rights or to show that, despite her diligent
investigation, she was prevented from doing so by
extraordinary circumstances. D.J.S.-W. offers no legal basis
for imposing an affirmative reporting requirement on
healthcare providers like Dr. Gallagher. See, e.g., Arteaga v.
United States, 711 F.3d 828, 834 (7th Cir. 2013) (“No
physician, clinic, hospital, or other medical provider is required
to provide patients with detailed instructions on how to sue the
provider for malpractice.”); Hedges, 404 F.3d at 752 (rejecting
argument that “the Government has an affirmative duty to
inform litigants, including pro se litigants, that they have viable
judicial . . . remedies”).

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