Claire Gilvar and Casey Chamberlain v. United States

11-2951-cv Claire Gilvar and Casey Chamberlain v. United States of America UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 14th day of March, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 GUIDO CALABRESI, 9 ROSEMARY S. POOLER, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 CLAIRE GILVAR, CASEY CHAMBERLAIN, 14 Plaintiffs-Appellants, 15 16 -v.- 11-2951-cv 17 18 UNITED STATES OF AMERICA, 19 Defendant-Appellee. 20 - - - - - - - - - - - - - - - - - - - -X 21 22 FOR APPELLANTS: Ira H. Goldfarb (Bart J. Eagle, 23 Law Offices of Bart J. Eagle, 24 PLLC, New York, NY, on the 25 brief), Friedman, Levy, Goldfarb 26 & Green, P.C., New York, NY. 27 1 1 FOR APPELLEE: Joseph A. Pantoja (Sarah S. 2 Normand, on the brief), 3 Assistant United States 4 Attorneys, for Preet Bharara, 5 United States Attorney for the 6 Southern District of New York, 7 New York, NY. 8 9 Appeal from a judgment of the United States District 10 Court for the Southern District of New York (Swain, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 13 AND DECREED that the judgment of the district court be 14 AFFIRMED. 15 16 Plaintiffs Claire Gilvar and Casey Chamberlain appeal 17 from a judgment entered by the United States District Court 18 for the Southern District of New York (Swain, J.) dismissing 19 their claims under the Federal Tort Claims Act (“FTCA”) for 20 lack of subject matter jurisdiction. We assume the parties’ 21 familiarity with the facts, procedural history, and issues 22 presented on appeal. 23 24 In January 2009, Plaintiffs each filed an 25 administrative claim with the Department of Defense alleging 26 that its negligence had contributed to the injuries they 27 suffered in connection with an anthrax attack in September 28 2001. They ultimately filed this suit, which the district 29 court dismissed after concluding that Plaintiffs’ 30 administrative claims had not been filed within two years of 31 accrual--a jurisdictional defect for a suit filed under the 32 FTCA. See Johnson v. The Smithsonian Inst., 189 F.3d 180, 33 189 (2d Cir. 1999); see also 28 U.S.C. § 2401(b) (“A tort 34 claim against the United States shall be forever barred 35 unless it is presented in writing to the appropriate Federal 36 agency within two years after such claim accrues.”). 37 38 We review de novo a district court’s dismissal of a 39 FTCA claim as untimely. See Kronisch v. United States, 150 40 F.3d 112, 120 (2d Cir. 1998). Because the question of 41 timeliness is jurisdictional, the plaintiff bears the burden 42 of pleading and proving timeliness. See In re Agent Orange 43 Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987). We 44 agree with the district court that Plaintiffs have failed to 45 do so. Although the FBI did not publicly disclose until 46 2008 that a government researcher was behind the attacks, 47 the accrual of an FTCA claim does not depend on the progress 2 1 of a criminal investigation. See Skwira v. United States, 2 344 F.3d 64, 84 (1st Cir. 2003) (Boudin, J., concurring). 3 Rather, a claim normally accrues at the time of injury. 4 Kronisch, 150 F.3d at 121. Where either “the government 5 conceals the acts giving rise to plaintiff’s claim” or 6 “where [the] plaintiff would reasonably have had difficulty 7 discerning the fact or cause of injury at the time it was 8 inflicted, the so-called ‘diligence-discovery rule of 9 accrual’ applies.” Id. Moreover, the filing of an 10 administrative claim is not equivalent to the filing of a 11 lawsuit: the administrative claim serves the important 12 statutory goal of putting the federal government on notice 13 so that it can investigate the claim (a condition of the 14 waiver of sovereign immunity) and therefore requires less 15 knowledge on the part of plaintiff than the filing of a 16 lawsuit. See Marley v. United States, 567 F.3d 1030, 1036 17 (9th Cir. 2009) (“The FTCA includes a detailed 18 administrative process for handling tort claims against 19 agencies. The statutory filing deadline is a key part of 20 that process and plainly facilitates the administration of 21 claims.” (internal quotation marks omitted)); Skwira, 344 22 F.3d at 81 (“[T]o file an administrative claim and preserve 23 ones rights under the FTCA, one need only be in possession 24 of sufficient information for the agency to investigate the 25 claims.” (internal quotation marks omitted)). 26 27 As a result, even with the benefit of the diligence- 28 discovery rule, Plaintiffs’ claims accrued well before 29 January 2007 (two years before the administrative claims 30 were filed), when they should have formed a reasonable 31 suspicion that the government was connected to the anthrax 32 attacks. See Kronisch, 150 F.3d at 122; Skwira, 344 F.3d at 33 77. It was not necessary to know the identity of the 34 individual perpetrator in order to discern the government’s 35 negligence. The weight of the publicly available 36 information following the attacks indicated that the anthrax 37 originated at a United States government facility. At this 38 point, Plaintiffs, with reasonable diligence, “should have 39 discovered the critical facts of both [their] injury and its 40 cause” sufficient to file an administrative claim. 41 Kronisch, 150 F.3d at 121 (internal quotation marks 42 omitted). 43 44 We need not decide whether FTCA claims are subject to 45 equitable tolling, an open question in this Circuit. See 46 A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 47 (2d Cir. 2011). “This Court has applied the doctrine as a 3 1 matter of fairness where a plaintiff has been prevented in 2 some extraordinary way from exercising his rights, or has 3 asserted his rights in the wrong forum.” Johnson v. Nyack 4 Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation 5 marks and alterations omitted). Those circumstances are not 6 met in this case, where we have already found that 7 Plaintiffs possessed sufficient information to seek legal 8 advice more than two years before they filed their claims. 9 10 Finding no merit in appellants’ remaining arguments, we 11 hereby AFFIRM the judgment of the district court. 12 13 14 FOR THE COURT: 15 CATHERINE O’HAGAN WOLFE, CLERK 16 17 4