                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________  ELEVENTH CIRCUIT
                                                                          JULY 15, 2008
                                    No. 07-13728                        THOMAS K. KAHN
                              ________________________                       CLERK


                     D. C. Docket No. 05-00419-CV-ORL-28KRS

CARL DELANO TORJAGBO,


                                                                        Plaintiff-Appellant,

                                            versus

UNITED STATES OF AMERICA,

                                                                       Defendant-Appellee.


                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                       (July 15, 2008)

Before BLACK and MARCUS, Circuit Judges, and EVANS,* District Judge.

PER CURIAM:

       *
         Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
      Pro se Appellant Carl Torjagbo is a licensed pilot who once served as a

flight instructor for the Patrick Air Force Base Aero Club, an organization that

provides recreational flying opportunities to members of the military. While

flying with a student on February 1, 2002, Torjagbo’s engine lost power and he

was forced to make an emergency landing. During the course of the landing,

Torjagbo broke his wrist and jaw.

      After filing an unsuccessful administrative grievance, Torjagbo filed suit in

the United States District Court for the Middle District of Florida under the

Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging the Government

should be held liable for his injuries because his crash was caused by (1) the

Government’s negligent maintenance and repair of the aircraft he was flying and

(2) military air traffic control’s negligence in handling his call for help. The

district court dismissed Torjagbo’s negligent air traffic control claim under Fed. R.

Civ. P. 12(b)(1) because Torjagbo failed to exhaust his administrative remedies as

required by 28 U.S.C. § 2675(a). The court entered summary judgment in the

Government’s favor on the negligent maintenance claim, finding a validly-

executed and legally-enforceable covenant not to sue barred Torjagbo from

bringing suit. Torjagbo appeals; we affirm.




                                          2
                                           I.

      Before bringing an action in district court under the FTCA, a claimant must

first exhaust his administrative remedies by filing an administrative grievance with

the appropriate federal agency within two years of the date the claim accrues. 28

U.S.C. §§ 2675(a), 2401(b). Failure to timely exhaust is a jurisdictional bar to

litigation in federal court, and a claim that is not filed properly with the

appropriate agency within two years of accrual is subject to dismissal in district

court for lack of subject matter jurisdiction. See Dalrymple v. United States, 460

F.3d 1318, 1326 (11th Cir. 2006) (affirming dismissal of suit for lack of subject

matter jurisdiction when claimant failed to provide agency with timely demand for

sum certain as required by 28 C.F.R. § 14.2(a)); see also T.L. ex rel. Ingram v.

United States, 443 F.3d 956, 961 (8th Cir. 2006) (collecting cases and concluding

“a plaintiff’s compliance with the statute of limitations is prerequisite to the

district court’s jurisdiction over a suit against the United States under the FTCA”).

When a claim is timely filed under 28 U.S.C. § 2401(b), a claimant is free to

amend his agency complaint any time during the administrative grievance process;

however, he may not do so once the agency has taken final action. See 28 C.F.R. §

14.2(c).




                                           3
      Torjagbo’s claim that air traffic control personnel at Patrick Air Force Base

were negligent in their handling of his plane malfunction accrued on February 1,

2002, the date the accident occurred. Therefore, Torjagbo had two years (or until

February 1, 2004) in which to file his administrative grievance. On May 13, 2003,

Torjagbo filed a grievance in which he alleged the Government had been negligent

in the maintenance and repair of his plane; however, he did not attempt to raise his

negligent air traffic control claim until April 15, 2005—more than one year after

the statute of limitations expired under § 2401(b) and three days after the agency

issued its final action denying his negligent maintenance claim.

      Despite the untimeliness of his proposed amendment, Torjagbo argues on

appeal that he is entitled to equitable tolling. He alleges the lawyer who

represented him at the beginning of his administrative appeal did not have access

to a transcript of the exchange between Torjagbo and air traffic control at the time

the original claim was filed, and that the lack of a written transcript excuses the

untimely filing.

      Equitable tolling is a form of extraordinary relief that courts have extended

“only sparingly,” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.

Ct. 453, 457 (1990), and only in situations in which a litigant has made an

“untimely fil[ing] because of extraordinary circumstances that are both beyond his

                                          4
control and unavoidable even with diligence,” Arce v. Garcia, 434 F.3d 1254,

1261 (11th Cir. 2006) (quoting Sandvik v. United States, 177 F.3d 1269, 1271

(11th Cir.1999). Even assuming equitable tolling were available for untimely

claims brought under the FTCA (a question this Court has not previously

answered and which we do not answer today), there are several obvious problems

with Torjagbo’s position. First, as a party to the conversation with air traffic

control, he did not need access to transcripts in order to bring his claim to the

attention of the administrative agency. He knew what he said and what air traffic

control had relayed back to him; he needed no additional evidence in order to raise

a claim. Second, it is irrelevant that Torjagbo’s lawyer was unaware of the

conversation at the time he filed Torjagbo’s administrative grievance. Not only

was it Torjagbo’s duty to provide his lawyer with relevant facts, but more

importantly, Torjagbo provides no reason why he did not amend the claim at any

time during the two years following the accident.

       Even if equitable tolling is available under the FTCA, the doctrine would

not excuse Torjagbo’s failure to timely file his negligent air traffic control claim

because he did not act with the required diligence. In the absence of equitable

tolling, Torjagbo’s negligent air traffic control claim is untimely under 28 U.S.C. §




                                          5
2401(b). See also 28 C.F.R. § 14.2(c). Consequently, we affirm the district

court’s dismissal of the claim.

                                           II.

        Torjagbo raises two challenges to the district court’s entry of summary

judgment on his negligent maintenance and repair claim. First, he contends the

district court improperly weighed the facts when it found Torjagbo had signed a

covenant not to sue—a fact he now vehemently denies. Second, he contends the

court erred by finding the terms of the covenant are enforceable.

A. Authenticity of the Covenant Not to Sue

        In connection with its request for summary judgment, the Government

produced from Torjagbo’s Aero Club file a copy of a document titled “Covenant

Not to Sue and Indemnity Agreement.” The document is dated May 15, 2001,

bears Carl Torjagbo’s printed name and apparent signature, and states in relevant

part:

        I, Carl Torjagbo, am about to voluntarily participate in various
        activities, including flying activities, of the [left blank in original]
        Aero Club as a pilot, student pilot[,] copilot, instructor, or passenger.
        In consideration of the Aero Club permitting me to participate in
        these activities, I . . . hereby covenant and agree that I will never
        institute, prosecute, o[r] in any way aid in the institution or
        prosecution of, any demand, claim, or suit against the US
        Government for any destruction, loss, damage, or injury (including
        death) to my person or property which may occur from any cause

                                            6
      whatsoever as a result of my participation in the activities of the Aero
      Club.

      ....
      I know, understand, and agree that I am freely assuming the risk of
      my personal injury, death, or property damage, loss or destruction that
      may result while participating in Aero Club activities, including such
      injuries, death, damage, loss or destruction as may be caused by the
      negligence of the US Government.

Dist. Ct. Dkt. #29, Exh. 5.

      During the administrative grievance process, Torjagbo admitted signing the

covenant but argued it was unenforceable. In a letter to agency decisionmakers

dated April 15, 2005, Torjagbo asserted:

      As for the Covenant not to sue, it is not clear and unequivocal. It is
      ambiguous[.] And both you and [sic] know it will be thrown out of
      court because

      a. It does not have my full name. The Pilot in command is Carl
      Delano Torjagbo not Carl Torjagbo

      b. It is not a Barr [sic] if it is negligence. There are provision [sic] in
      public law that Prevents you from using that to shield yourself from
      torts you commit.

      c. It was not filled out properly. It does not say which aero club I
      was working for. Both you and I know that these agreements are over
      a period of time. We are required to renew them every year. My
      understanding when I was Signing that was not to sue on the date
      stated on the sheet. There is no Law in the history of mankind that
      allows you to contract your right’s [sic] away Forever.




                                           7
Id. During deposition, however, Torjagbo both denied the signature on the

document was his and testified he “did not remember” signing the covenant not to

sue. (He did admit, however, that the signature resembled his own.) Torjagbo

contends the court erred by resolving a dispute of material fact in the

Government’s favor on summary judgment.

      The standard for summary judgment mirrors the standard for a directed

verdict under Fed. R. Civ. P. 50(a): “the trial judge must direct a verdict if, under

the governing law, there can be but one reasonable conclusion as to the verdict.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 2511

(1986). “Where the record taken as a whole could not lead a rational trier of fact

to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,

1356 (1986) (quoting First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253,

289, 88 S. Ct. 1575, 1592 (1968)). The standard for creating a genuine dispute of

material fact requires courts to “make all reasonable inferences in favor of the

party opposing summary judgment,” Chapman v. AI Transp., 229 F.3d 1012,

1023 (11th Cir. 2000) (en banc) (emphasis added), not to make all possible

inferences in the nonmoving party’s favor.




                                          8
       In this case, the district court determined Torjagbo failed to raise a genuine

issue of fact regarding the authenticity of his signature. Torjagbo’s admission

during the administrative grievance process (which he does not convincingly

contest), combined with his equivocal statements at deposition that the signature

was not his but that he did not “remember” whether he had signed the covenant,

gives rise to only one reasonable inference: he signed the covenant but does not

wish to be bound by it. Based on the evidence in the record,1 a reasonable jury

could not find in his favor on the authenticity of the covenant not to sue.

Consequently, the district court did not err by finding it had been validly executed.

B. Enforceability of the Covenant Not to Sue

       After determining Torjagbo had signed the covenant not to sue, the district

court went on to conclude the covenant was enforceable. Torjagbo challenges this

decision, contending the covenant is invalid because it (1) contains no time

limitation specifying the dates covered by the release and (2) employs overly

broad language.




       1
          In its opinion, the district court discussed allegations made in Torjagbo’s supplemental
response to the Government’s motion for summary judgment. In that response, Torjagbo sets
forth in detail new allegations regarding the events surrounding his alleged decision not to sign
the covenant. These allegations were not the subject of an affidavit or any other form of
admissible evidence; therefore, we have not considered them.

                                                 9
      This case was filed in Florida; therefore, we apply Florida’s conflict of law

rules to determine the substantive law that governs the parties’ covenant not to

sue. Richards v. United States, 369 U.S. 1, 11, 82 S. Ct. 585, 592 (1962) (holding

the law of the forum state governs all substantive and conflict of law questions in

an FTCA action). Under Florida’s conflict of law rules, “in the absence of a

contractual provision specifying governing law, a contract, other than one for

performance of services, is governed by law of the state in which the contract is

made.” Shaps v. Provident Life & Acc. Ins. Co., 244 F.3d 876, 881 (11th Cir.

2001); Shaps v. Provident Life & Acc. Ins. Co., 826 So. 2d 250, 254 n.3 (Fla.

2002). The Covenant Not to Sue was executed in Florida, and therefore is

governed by Florida’s substantive law. Lumbermens Mut. Cas. Co. v. August, 530

So. 2d 293, 295 (Fla. 1988).

      Under Florida law, “a party is bound by, and a court is powerless to rewrite,

the clear and unambiguous terms of a voluntary contract.” Med. Ctr. Health Plan

v. Brick, 572 So. 2d 548, 551 (Fla. 1st DCA 1990). The covenant Torjagbo signed

stated plainly that he would never institute any suit against the Government for

any “injury (including death) to [his] person or property which m[ight] occur from

any cause whatsoever as a result of [his] participation in the activities of the Aero

Club.” By signing the document, he further attested that he was “freely assuming

                                          10
the risk of [his] personal injury, . . . including such injuries . . . as may be caused

by the negligence of the US Government.”

      Nevertheless, Torjagbo contends the covenant is unenforceable because it

does not specify the time during which it remained in effect. He argues that Aero

Club members could not be certain when they signed the release whether it applied

to Aero Club activities undertaken on the day they signed the document, or

whether it extended indefinitely into the future.

      As a general matter, Torjagbo has a point. Florida courts construe

exculpatory clauses strictly against the party seeking to be relieved of liability, and

in the past have refused to enforce similar releases that do not make explicit the

term covered by the release. See, e.g., Cain v. Banka, 932 So. 2d 575, 580 (Fla.

5th DCA 2006) (holding exculpatory clause without specified duration “was not

sufficiently clear and unequivocal to inform the plaintiff that he was executing a

perpetual release of personal injury claims”). But a technical omission is harmless

when a party understands the meaning of the document he is signing. The

requirement that an exculpatory clause employ “clear and understandable”

language is designed to insure that “an ordinary and knowledgeable person will

know what he is contracting away.” See id. at 578. In his April 15, 2005 letter to

agency decisionmakers, Torjagbo acknowledged the covenant he signed was

                                           11
required to be renewed only once each year. Torjagbo’s covenant is dated May

15, 2001. His accident occurred February 1, 2002. By his own admission, then,

he understood the covenant to cover the time during which he was injured.

      Torjagbo’s overbreadth argument is equally unavailing. Although

exculpatory clauses are “disfavored” under Florida law, they are enforceable so

long as they are “clear and unequivocal.” Shaw v. Premier Health and Fitness

Center, Inc., 937 So. 2d 1204, 1204-05 (Fla. 1st DCA 2006). In cases involving

recreational clubs, Florida courts have repeatedly upheld the validity of

exculpatory clauses in similar to the one at issue in this case. See Gayon v. Bally’s

Total Fitness Corp., 802 So. 2d 420 (Fla. 3d DCA 2001); Hopkins v. The Boat

Club, Inc., 866 So. 2d 108 (Fla. 1st DCA 2004).

      Torjagbo has not distinguished his covenant not to sue from similar

covenants found enforceable by Florida courts, and we find no independent

ground for doing so. The covenant states explicitly that “[i]n consideration of the

Aero Club permitting [Torjagbo] to participate in [flying activities, he] will never

institute, prosecute, o[r] in any way aid in the institution or prosecution of, any

demand, claim, or suit against the US Government for any . . . injury (including

death) to [his] person or property which may occur from any cause whatsoever as

a result of [his] participation in the activities of the Aero Club.” He agreed to

                                          12
“freely assum[e] the risk of [his] personal injury, death, or property damage . . . ,

including such injuries, death, damage, loss or destruction as may be caused by the

negligence of the US Government.” By signing the covenant, Torjagbo clearly

and unequivocally waived his right to bring his negligence action for physical

injuries he incurred while serving as a flight instructor for the Patrick Air Force

Base Aero Club. Consequently, the district court did not err by concluding the

covenant barred Torjagbo’s negligent maintenance and repair claim against the

Government.

                                          III.

      The district court did not err by dismissing Torjagbo’s negligent air traffic

control claim for lack of subject matter jurisdiction. Similarly, the court did not

err by finding Torjagbo had failed to raise a genuine dispute of material fact

regarding the authenticity of the covenant not to sue he executed on May 15, 2001.

Finally, because the covenant is enforceable under Florida law, the district court

did not err by granting the Government’s motion for summary judgment on

Torjagbo’s negligent maintenance and repair claim. The judgment of the district

court is AFFIRMED.




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