Case: 12-11731 Date Filed: 09/11/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11731
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00050-SPM-GRJ
MICHAEL V. SCORDATO,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllDefendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 11, 2012)
Before HULL, MARTIN and HILL, Circuit Judges.
PER CURIAM:
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Michael V. Scordato appeals the dismissal of his federal tort claims action
against the Veterans Administration (the “VA”) for lack of subject matter
jurisdiction due to the untimely filing of his administrative claim. See Fed. R. Civ.
P. 12(b)(1). See also Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir.
2001). The district court dismissed his claim because he filed it more than two
years after he was informed of and wrote a letter challenging what he alleged to be
the basis for the tort action – a misdiagnosis of his mental condition by the VA.
Scordato argues that the limitations period did not begin to run until the Board of
Veterans Appeals (the “Board”) affirmed that diagnosis.1 Based upon that later
date, Scordato’s claim would be timely filed. We disagree.
A tort claim against the United States “accrues when the plaintiff is, or in
the exercise of reasonable diligence should be, aware of both [his] injury, and its
connection with some act of the defendant.” McCullough v. United States, 607
F.3d 1355, 1359 (11th Cir. 2010). In this case, Scordato alleges that his injury is a
misdiagnosis by VA doctors. This misdiagnosis is alleged to have come to his
attention on July 31, 2006 when Scordato was examined for schizophrenia by a
1
In his letter, Scordato appears to challenge his most recent diagnosis as incorrect.
Subsequently, his challenge became that his past VA treatment for schizophrenia was the result
of misdiagnosis. His claim, therefore, morphed from an appeal of a denial of benefits for lack of
a service connected disability into a tort claim for past misdiagnoses and unnecessary treatment.
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VA doctor. Despite having been treated for this condition for many years by the
VA, the diagnosis on July 31, 2006 was that he had a personality disorder, not
schizophrenia. On August 26, 2006, Scordato challenged this diagnosis and
requested review by the Board. The issue for our review is whether Scordato’s
letter challenging the July 31, 2006 diagnosis triggered the limitations period. We
conclude that it did.
Scordato was obligated to pursue his tort claim within two years of learning
that he had an injury – his past incorrect treatment – and that it was the result of
the VA’s misdiagnosis that he was schizophrenic. See McCullough, 607 F.3d at
1359. There is no question that he knew this no later than August 26, 2006, when
he wrote a letter to the Board challenging his diagnosis. The Board’s subsequent
decision affirming the diagnosis “did not reveal any new facts needed to discover
the causal link” between his injury and the VA’s alleged actions. Id. at 1359-60
(federal tort claim not timely filed despite plaintiff’s difficulty obtaining medical
records because “he did not need his medical records to learn the ‘critical facts’
indicating he had been hurt and who had inflicted the injury”); Chasteen v. United
States, 334 Fed. App’x 271, 273-74 (11th Cir. 2009) (plaintiff’s claim accrued
before autopsy report was issued because autopsy merely confirmed what plaintiff
already believed).
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Scordato asserts, however, that his letter cannot have triggered the
limitations period despite his knowledge of his alleged injury and its connection to
the VA because “technically” the diagnosis was not “final” until the Board
affirmed it. He offers no authority for this assertion and we are aware of none.
Furthermore, the issue is not when the diagnosis became “final,” but rather when
Scordato became aware of it. As the record shows and the district court found,
this date was no later than that when Scordato challenged that diagnosis.
Accordingly, we conclude that the limitations period began to run on
August 26, 2006, and that Scordato’s December 2008 administrative claim was
filed untimely.
The decision of the district court is
AFFIRMED.
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