                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-4155
                                   ___________

T.L., By and Through Her Mother and    *
Next Friend, Katherine Ingram,         *
                                       *
            Plaintiff/Appellant,       *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
United States of America,              *
                                       *
            Defendant/Appellee,        *
                                       *
Oliver; Ward, Dr.; Tenet Healthsystem *
DI, Inc.,                              *
                                       *
            Defendants.                *
                                  ___________

                             Submitted: October 12, 2005
                                Filed: April 6, 2006
                                 ___________

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
                            ___________

COLLOTON, Circuit Judge.

       Katherine Ingram, on behalf of her minor daughter, T.L., appeals the district
court’s1 grant of summary judgment dismissing her medical malpractice action against

      1
        The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680
(“FTCA”). We affirm.

                                           I.

       On December 17, 1997, Katherine Ingram gave birth to a daughter, T.L., who
suffered a hypoxic brain injury during delivery, and was later diagnosed with cerebral
palsy. Ingram, who was 15 years old at the time, began her pre-natal care at St. Louis
Comprehensive Health Center, Inc., a federally-funded medical facility. She was told
by her doctor at the health center that when she went into labor, she should go to
Deaconess Hospital, a private facility not funded by the federal government. Ingram
was admitted to Deaconess on December 16, and Dr. Tony Lam, who was employed
by People’s Health Centers, Inc., a federally-funded clinic, delivered T.L. the
following evening. After the delivery, T.L. was transferred to Cardinal Glennon
Children’s Hospital for specialized care and treatment.

       Shortly after T.L.’s birth, an attorney was retained on Ingram’s behalf, and the
attorney hired a professional photographer to take pictures of T.L. at the hospital six
days after T.L.’s birth. On March 2, 1998, Ingram’s counsel requested medical
records from Deaconess regarding T.L.’s delivery. T.L. has since been diagnosed
with cerebral palsy, which Ingram alleges was caused by Lam’s negligence during the
delivery.

       Ingram initially filed suit in the Circuit Court of the City of St. Louis on May
15, 2000, against Lam and another treating doctor, Aaron Pile. The government
certified, pursuant to 42 U.S.C. §233(c), that the doctors were employed at federally
supported health centers, id. § 233(g), and were working within the scope of their
employment at the time of T.L.’s birth. On that basis, the defendants removed the
action to the federal district court on September 12, 2000. The government was
granted leave to substitute the United States for the doctors, and the parties stipulated

                                          -2-
to a dismissal of the action without prejudice. Ingram filed an administrative claim
with the Department of Health and Human Services on November 22, 2000. The
agency failed to make a final disposition of the claim within six months, and Ingram
filed suit under the FTCA, 28 U.S.C. § 2675(a), in the district court on December 19,
2001. Ingram later moved to dismiss her allegations against Pile, and the court
granted the motion.

       The government then moved to dismiss or, in the alternative, for summary
judgment, on the remaining claim, arguing that the complaint was barred by the statute
of limitations. The court granted the motion, holding that Ingram’s cause of action
accrued when T.L. was transferred to Cardinal Glennon Hospital on December 18,
1997, because Ingram was informed that T.L. had “brain damage.” At that point, the
district court concluded, Ingram had a duty to exercise reasonable diligence in
determining the cause of the known injury, and because she failed to file an
administrative claim under the FTCA within two years after the claim accrued, her
action was barred by the statute of limitations.

                                           II.

       As a threshold matter, we find it important to consider whether compliance with
the FTCA’s statute of limitation is a jurisdictional prerequisite to bringing a suit or an
affirmative defense to the action. The district court, noting confusion in our court’s
decisions on the issue, assumed the view most favorable to the plaintiff. The court
thus characterized the statute of limitations as an affirmative defense, and considered
the government’s motion as one for summary judgment. See Motley v. United States,
295 F.3d 820, 822 (8th Cir. 2002). Under that approach, the district court was
required to consider all disputed facts in the light most favorable to the non-movant,
and Ingram’s appeal is based in part on her contention that the district court
improperly weighed conflicting evidence in dismissing her claim.



                                           -3-
       Our earliest cases arising under the FTCA treated the statute of limitations as
jurisdictional. The federal courts have jurisdiction over claims under the FTCA only
to the extent that the United States has waived its sovereign immunity. When the
United States consents to be sued, “[t]he terms of its consent to be sued in any court
define the court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312
U.S. 584, 586 (1941). The statute of limitations is a condition of the waiver of
sovereign immunity under the FTCA, see Wollman v. Gross, 637 F.2d 544, 547 (8th
Cir. 1980), and we thus reasoned that “[c]ompliance with the statute of limitations of
28 U.S.C. § 2401(b) is a jurisdictional prerequisite to suit.” Osborn v. United States,
918 F.2d 724, 730 (8th Cir. 1990); see also Radman v. United States, 752 F.2d 343,
344 (8th Cir. 1985).

       In 1991, however, we reversed course in light of the Supreme Court’s decision
in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), and held that
compliance with the statute of limitations was not a jurisdictional prerequisite to suing
the government under the FTCA. Schmidt v. United States, 933 F.2d 639 (8th Cir.
1991). In Irwin, the Supreme Court held that 42 U.S.C. § 2000e-16(c), which requires
a plaintiff to file a Title VII employment discrimination claim against the government
within 30 days of final agency action, could be equitably tolled. The Court concluded
that once Congress has made a waiver of sovereign immunity, the application of the
rule of equitable tolling to suits against the government “amounts to little, if any,
broadening of the congressional waiver,” and “is likely to be a realistic assessment of
legislative intent.” Id. at 95.

       We reasoned in Schmidt that a necessary corollary to the express holding of
Irwin was “an implied holding” that compliance with the statute of limitations was not
a jurisdictional prerequisite to an action against the government, because “[i]f the
statute of limitations were jurisdictional, the court would have no power to consider
tolling it.” Schmidt, 933 F.2d at 640. Schmidt thus considered the failure to comply



                                          -4-
with the statute of limitations in the FTCA as an affirmative defense which the
government has the burden of establishing. Id.

       Since Schmidt, some panels of this court have treated the statute of limitations
as an affirmative defense, Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir. 1994) (per
curiam); Slaaten v. United States, 990 F.2d 1038, 1043 n.5 (8th Cir. 1993); Arigo v.
United States, 980 F.2d 1159, 1161 (8th Cir. 1992), while others returned to the view
that compliance with the statute of limitations is a jurisdictional prerequisite. McCoy
v. United States, 264 F.3d 792, 794 (8th Cir. 2001) (citing Walker v. United States,
176 F.3d 437, 438 (8th Cir. 1999) (per curiam)). We noted in Motley the conflicting
precedent, but found it unnecessary to pursue the matter. 295 F.3d at 822.

       We think it is important in this case to resolve whether the statute of limitations
is a jurisdictional prerequisite or an affirmative defense. Ingram argues with some
force that the district court resolved disputed factual issues in granting the motion for
summary judgment, and if the statute of limitations is an affirmative defense, then the
resolution of factual disputes would be improper. But if the statute of limitations is
jurisdictional, then the district court not only may, but must, resolve factual disputes
as necessary to determine its jurisdiction. Osborn, 918 F.2d at 729-30.

       When we are confronted with conflicting circuit precedent, the better practice
normally is to follow the earliest opinion, as it should have controlled the subsequent
panels that created the conflict. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d
1220, 1228 n.8 (8th Cir. 1995); McMellon v. United States, 387 F.3d 329, 333 (4th
Cir. 2004) (en banc); cf. Graham v. Contract Transp., Inc., 220 F.3d 910, 914 (8th
Cir. 2000). In this instance, however, it is not clear which opinion should be
considered the “earliest” for that purpose. Our decisions in Radman and Osborn first
held that the statute of limitations is jurisdictional. Schmidt then deviated from our
prior panel decisions, but it did so based on an interpretation of the Supreme Court’s
decision in Irwin, and it is well settled that a panel may depart from circuit precedent

                                           -5-
based on an intervening opinion of the Supreme Court that undermines the prior
precedent. Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). Our panel decision
in McCoy then departed from the decision in Schmidt without mentioning Schmidt,
although the intervening Supreme Court decision in United States v. Brockamp, 519
U.S. 347 (1997), arguably justified the departure. Cf. Perez v. United States, 167 F.3d
913, 916 (5th Cir. 1999) (suggesting the decision in Brockamp may lead the Eighth
Circuit to reconsider Schmidt). Brockamp made clear that the availability of equitable
tolling depends on congressional intent, and held that tolling was not available in
connection with tax refund claims. 519 U.S. at 353-54.

       Having now surveyed the entire landscape, we believe that to the extent the
Supreme Court’s decision in Irwin justified a departure from circuit precedent holding
that the FTCA statute of limitations is a jurisdictional prerequisite (a proposition we
accept based on panel precedent in Schmidt), the Court’s subsequent decision in
Brockamp clarifies Irwin and calls for a return to our court’s original view that the
statute of limitations defines the court’s jurisdiction. Schmidt was apparently
premised on an understanding that Irwin announced an equitable power of the federal
courts to toll a statute of limitations in all suits against the government. The existence
of such an equitable power, the court thought, was inconsistent with holding that
compliance with the statute of limitations in the FTCA is a jurisdictional requirement.

       The intervening decision in Brockamp, however, demonstrates that the
availability of equitable tolling depends on congressional intent, and is not necessarily
available as a matter of general equitable power in all actions against the government.
As Brockamp illuminates, the rule of equitable tolling applies in FTCA cases only
because Congress intended it to apply. It is thus one of the “terms” of the
government’s consent to be sued, Sherwood, 312 U.S. at 586, and there is no
inconsistency between viewing compliance with the statute of limitations as a
jurisdictional prerequisite and applying the rule of equitable tolling. See Heinrich v.
Sweet, 44 F. Supp. 2d 408, 414-15 (D. Mass 1999); Dillard v. Runyon, 928 F. Supp.

                                           -6-
1316, 1324 (S.D.N.Y. 1996); Willis v. United States, 879 F. Supp. 889, 891-92 (C.D.
Ill. 1994), aff’d on other grounds, 65 F.3d 171 (7th Cir. 1995). We thus align
ourselves with several other circuits in holding that considerations of equitable tolling
simply make up part of the court’s determination whether an action falls within the
scope of the waiver of sovereign immunity granted by Congress, and thus within the
jurisdiction of the federal courts. See Skwira v. United States, 344 F.3d 64, 71 (1st
Cir. 2003); Millares Guiraldes De Tineo v. United States, 137 F.3d 715, 719 (2d Cir.
1998); Hart v. Dep’t of Labor, 116 F.3d 1338, 1339 (10th Cir. 1997); Gould v. United
States Dep’t of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990). But see
Hedges v. United States, 404 F.3d 744, 747-51 (3d Cir. 2005).

                                          III.

       Because 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, the court must resolve material issues of disputed fact and determine whether
the action was timely filed. Osborn, 918 F.2d at 729-30. Therefore, because the
government’s motion should have been considered as a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1), it would not have been error for the court
to make credibility determinations and to weigh conflicting evidence in resolving the
motion. We therefore bypass Ingram’s contentions that the district court improperly
dismissed evidence favorable to her position in the context of a motion for summary
judgment. Rather, to the extent Ingram argues that the district court relied on facts
that are not undisputed, we accept the district court’s findings of fact unless they are
clearly erroneous. Fed. R. Civ. P. 52(b).

      Under the FTCA, claims against the United States are barred unless an
administrative claim is filed with the appropriate agency within two years after the
claim accrues. 28 U.S.C. § 2401(b). In medical malpractice cases, a claim accrues
when the plaintiff “actually knew or in the exercise of reasonable diligence should

                                          -7-
have known, the cause and existence of his injury.” Motley, 295 F.3d at 822 (internal
quotation omitted).

       Ingram argues that her claim accrued, at the earliest, in August 1999, and that
because she filed an administrative claim in November 2000, she was within the two-
year statute of limitations. She contends that she had no reason to know of her
daughter’s cerebral palsy until August 1999, when T.L. was 18 months old, and that
no doctor ever told her that Dr. Lam’s alleged negligence during delivery caused
T.L.’s cerebral palsy.

       Knowing the cause and existence of an injury, however, is not the same as
knowing that a legal right has been violated. Motley, 295 F.3d at 822. “Once a
plaintiff knows or should know that he has been injured and who has inflicted the
injury, ‘[t]here are others who can tell him if he has been wronged, and he need only
ask.’” Id. (quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)).

       The district court found that Ingram was aware of the injury to T.L. by
December 18, 1997, when T.L. was transferred to Cardinal Glennon Hospital. The
court noted that the consent form that Ingram signed to authorize the transfer
diagnosed T.L. with “respiratory distress,” indicated that she was “incubated,” and
that she demonstrated “lip smacking and twitching.” (J.A. at 64). The court also
pointed out that the medical records from Cardinal Glennon Hospital indicate that
Ingram and T.L.’s grandparents were informed on December 18 that T.L. had “severe,
permanent brain injury and [a] poor prognosis.”2 (J.A. at 69). Hospital records reflect


      2
        Ingram argues that the medical records introduced by the government in
support of its motion were unauthenticated and thus improperly considered by the
district court. But Ingram did not raise any challenge to the medical record evidence
in the district court, so any objection to the district court’s consideration of the
materials was forfeited, and we review the record only for plain error. See Diesel
Machinery, Inc. v. B.R. Lee Industries, 418 F.3d 820, 835 (8th Cir. 2005). Given that

                                         -8-
that a few days later, Ingram informed a doctor at Lutheran Hospital, where Ingram
stayed for observation after the delivery at Deaconess, that her baby had “sustained
some brain damage.” (Id. at 71.) In light of this evidence, the district court’s
determination that Ingram knew of the existence of T.L.’s brain injury on December
18, 1997, was not clearly erroneous.

       Ingram claims that even if she was informed that T.L. had brain damage, she
was unaware that T.L. had cerebral palsy until she began to suspect that something
was wrong with her daughter in August 1999. A plaintiff has a duty, however, “to
seek advice regarding the possibility of legal action” once she is “armed with the facts
about the harm done to [her].” Osborn, 918 F.2d at 731 (internal quotations omitted).
Once Ingram was aware in December 1997 that her daughter had “severe, permanent
brain injury,” she was on notice of the injury. Cerebral palsy is “a disability resulting
from damage to the brain before, during, or shortly after birth, and outwardly
manifested by muscular incoordination and speech disturbances.” Merriam-Webster’s
Medical Desk Dictionary 129 (rev. ed. 2005). The accrual of a claim based on brain
injury at birth is not tolled merely because the injury worsens and develops into
cerebral palsy. Ingram had a duty under the law to seek advice about possible legal
action at the time she knew of T.L.’s brain injury, not only after the full effects of the
brain damage were manifested.

       Ingram also argues that the claim did not accrue until she was aware of the
cause of her daughter’s cerebral palsy. She points to the fact that a treating physician
who examined T.L. when she was six months old noted that T.L. was
“developmentally [within normal limits] thus far.” Ingram contends that this opinion
is evidence that her claim did not accrue earlier, because she was not yet aware of the


Ingram provided these records to the government, referred to one of the records in the
district court in support for her arguments, and does not identify any unfair prejudice
arising from the district court’s consideration of the records, we find no plain error
warranting relief. Id.

                                           -9-
specific diagnosis and cause of the cerebral palsy. The medical record in question,
however, also stated that T.L. was afflicted with “hypoxic-ischemic encephalopathy,”
a term for irreversible brain damage caused by a lack of oxygen and blood flow to the
brain, often occurring during birth. Stedman’s Medical Dictionary 588 (27th ed.
2000); Debbie Mcpartland, Introduction to Hypoxic Ischemic Encephalopathy (Nov.
16, 2000), available at http://www.suite101.com/article.cfm/hypoxic_ischemic_
encephalopathy/36008. The medical record thus provided continuing notice both of
the injury and even the probable cause of the injury. And even examining in isolation
the statement that T.L. was “developmentally within normal limits,” we cannot agree
that conflicting or inaccurate diagnoses are sufficient to toll the statute of limitations,
for it would be impractical to conclude that the limitations period stops and starts
depending on the diagnosis of each doctor who examines a patient after the occurrence
of an injury. Once a plaintiff is aware of the facts of the harm done to her, she has a
duty to exercise due diligence in investigating its cause, and “[w]hether the advice
received is competent or incompetent makes no difference to the accrual of [her]
claim.” Osborn, 918 F.2d at 731.

       As the district court noted, moreover, there is evidence that Ingram began to
contemplate possible legal action while still at the hospital after T.L.’s birth. An
attorney was retained shortly after the birth, and while he was originally hired to
investigate a fall taken by Ingram at the hospital, he was informed that T.L. was born
with cuts and bruises on her head, face, and neck. A employee from the attorney’s
office sent a professional legal photographer to photograph T.L. six days after she was
born, and the attorney requested medical records from Deaconess within three months.
This evidence indicates that Ingram knew of and was investigating the cause and
existence of T.L.’s injury shortly after T.L.’s birth. The district court thus did not
clearly err in determining that T.L.’s brain damage was the injury, that the cerebral
palsy was the degree of this injury, and that a claim accrued as of December 18, 1997,
when Ingram knew of the cause and existence of T.L.’s brain injury.



                                           -10-
                                          IV.

       Ingram next argues that even if the claim accrued on December 18, 1997, the
statute of limitations was tolled for three separate reasons: (1) she did not know and
could not reasonably have known that Dr. Lam was employed by a federally-funded
clinic, (2) she requested but did not receive complete medical records from the
hospital, and (3) she was a minor when T.L. was born. The doctrine of equitable
tolling applies to FTCA claims against the government, but does not apply to “garden
variety” claims of excusable neglect, Irwin, 498 U.S. at 458, and should be invoked
only in exceptional circumstances. Motley, 295 F.3d at 824. The burden is on the
party claiming the benefit of the exception to the statute of limitations to show that he
or she is entitled to it. Irwin, 498 U.S. at 458.

       On the first point, Ingram contends that she delivered T.L. at Deaconess, a
private hospital, and had no reason to suspect that her baby was delivered by an
employee of People’s Health Centers, Inc., a federally-funded clinic at which she was
never a patient. Ingram also points out that there is no indication in her medical
records that Dr. Lam was employed by a federally-funded clinic, and argues that one
record even implies that he was a “house” physician, i.e., an employee of Deaconess.
A newborn nursery register for December 17, 1997, includes a notation indicating that
T.L.’s delivery was an “HC” (i.e., house case) at Deaconess.

       The statute of limitations is not tolled, however, simply because a plaintiff is
unaware that an alleged tortfeasor is a federal employee. Motley, 295 F.3d at 824. We
said in Wollman v. Gross that while the contrary result might be “desirable,” to accept
this argument “would be in effect rewriting the two-year statute of limitations of 28
U.S.C. § 2401(b) to allow the state statute of limitations to apply whenever plaintiff
is unaware of the status of the defendant as a federal employee acting within the scope
of his employment.” 637 F.2d at 548-49. A plaintiff thus must inquire into the
employment status of her doctor.

                                          -11-
       “Where the government or its agents have not misled or deceived a plaintiff, or
otherwise hidden the legal identity of alleged tortfeasors as federal employees, the
cause of action still accrues when the existence of an injury and its cause are known.”
Garza v. United States Bureau of Prisons, 284 F.3d 930, 935 (8th Cir. 2002). Ingram
knew the identity of the doctor who delivered her baby, and there is no indication that
Dr. Lam or the United States attempted to conceal Dr. Lam’s status as a federal
employee. The mistaken notations on the private hospital’s records cannot be
attributed to the United States. Therefore, the limitations period is not tolled on this
basis.

       Ingram also contends that the limitations period should be equitably tolled
because she timely requested medical records from Deaconess, but did not receive a
full and complete copy of the records. She argues that a complete copy of the “fetal
heart monitoring strips” used during the care of T.L. is essential to determining the
existence and cause of T.L.’s cerebral palsy, and that the hospital’s failure to provide
these records entitles her to equitable tolling. According to the affidavit of Ingram’s
attorney, he began requesting the strips on December 23, 1997, but was provided with
only a partial and partly illegible copy. Deaconess later reported that all of the
original strips are missing. The district court nonetheless refused to toll the limitations
period on this basis, explaining that the loss or destruction of some fetal monitoring
strips did not overcome the plaintiff’s duty to exercise diligence in filing her claim.
The court observed that the loss of these records is a fact that would continue to exist
throughout the litigation, whether or not the plaintiff had timely filed her claim. We
agree with the district court.

      “[W]here a plaintiff has timely requested records that contain the specific facts
of negligence that caused his injury, and those facts are not otherwise knowable, the
cause of action does not accrue until he receives the records.” Garza, 284 F.3d at 935-
36. Ingram does not argue, however, that the fetal heart monitoring strips were the
only record showing that T.L. had suffered a brain injury. In fact, the district court

                                           -12-
found that Ingram had been informed of the injury by hospital staff shortly after T.L.’s
birth. Ingram was provided with many other medical records well before the
limitations period expired, and, in the exercise of due diligence, she could have
obtained a medical opinion as to the cause of T.L.’s brain injury within the limitations
period. There was thus no error in declining to toll the limitations period based on the
inability to discover the entirety of the hospital’s records concerning T.L.’s care.

      Ingram argues finally that the statute of limitations should be equitably tolled
because she was 15 years old when T.L. was born. Ingram notes that she had no legal
guardian at the time, although her grandmother had cared for her since she was six
years old. In Wilson ex rel. Wilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005), we
held that the FTCA limitations period was not tolled merely because an infant’s
mother was also an “infant parent” at the time of the delivery. We noted that while
the mother could not herself commence a civil suit, she was responsible for her
daughter’s well-being, knew of the alleged injuries and their cause just days after the
delivery, and could make an administrative claim while still an “infant.” Id. at 527.

       Ingram is T.L.’s mother and has been responsible for her care since T.L.’s birth,
as evidenced by her signature on the form consenting to transfer T.L.’s care from
Deaconess to Cardinal Glennon Children’s Hospital. The district court found that
Ingram was aware of T.L.’s brain damage shortly after her birth. Although Ingram
herself did not have an appointed guardian, her grandmother was actively involved in
her care, was informed of T.L.’s brain damage and poor prognosis, and eventually
became Ingram’s guardian for the purpose of filing the civil suit against the doctors
in state court. Ingram’s family even retained an attorney for her six days after T.L.’s
birth. Although a minor, Ingram could have filed an administrative claim. Wilson,
403 F.3d at 527. Under these circumstances, it is not inequitable to apply the ordinary
rule that infancy does not toll the statute of limitations.

                                   *       *       *

                                         -13-
For the foregoing reasons, we affirm the judgment of the district court.
                ______________________________




                                 -14-
