                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

    LARRY HAGAN, et al.,
         Plaintiffs
         v.                                            Civil Action No. 12-916 (CKK)
    UNITED STATES OF AMERICA,
         Defendant
    DANA WILSON,
         Plaintiff
         v.                                             Civil Action No. 15-90 (CKK)
    UNITED STATES OF AMERICA,
         Defendant

                           MEMORANDUM OPINION and ORDER
                                   (July 7, 2016)
         These consolidated cases emerge from alleged medical malpractice by agents of the

United States with respect to Plaintiff L.C.H., a minor, that are connected to events in the earliest

years of L.C.H.’s life. Plaintiffs L.C.H. and his father Larry Hagan seek damages as result of

those events under the Federal Tort Claims Act (“FTCA”). 1 Before the Court is Defendant’s [34]

Motion to Dismiss or, in the Alternative, for Summary Judgment. Defendant now argues that the

claims brought by Plaintiffs L.C.H. and Hagan are untimely. The Court concludes that it is not

now proper to dismiss the claims based on the statute of limitations at this stage of the

proceedings and based on the current record. Upon consideration of the pleadings, 2 the relevant


1
 Plaintiff Dana Wilson, L.C.H.’s mother, also brings claims related to similar underlying facts.
Those claims, originally brought in the action Wilson v. United States, denominated 15-cv-90,
have been consolidated for all purposes with the claims in Hagan v. United States, but they are
not at issue in the currently pending motion.
2
    The Court’s consideration has focused on the following documents:
      • Def.’s Mot. to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Mot.”),
         ECF No. 34;
      • Pls.’ Mem. of Points and Auth. in Opp’n to Def.’s Mot. (“Pls.’ Opp’n”), ECF No. 36; and


                                                  1
legal authorities, and the record as a whole, the Court DENIES Defendant’s [34] Motion to

Dismiss, or in the Alternative for Summary Judgment. With respect to the motion to dismiss, the

Court concludes that dismissal is not warranted because it is not clear from the face of the

complaint that Plaintiffs have failed to comply with the statute of limitations. With respect to the

motion for summary judgment, the Court concludes that the motion is premature because the

parties have not yet had an opportunity to take discovery and because it appears that there are

disputed facts in the record. For these reasons and for the reasons stated further below, the

Motion to Dismiss is DENIED WITH PREJUDICE and the Motion for Summary Judgment is

DENIED WITHOUT PREJUDICE.

                                        I. BACKGROUND

       Given the issues presented in the motion now before the Court and the Court’s resolution

of that motion, the Court presents here the statutory and procedural background of this case,

reserving presentation of any relevant factual background for the discussion of the individual

issues below.


A. Statutory Background
       The Federal Tort Claims Act (“FTCA”) “waives the United States’s sovereign immunity

from tort claims and, subject to exceptions, renders the United States liable in tort as if it were a

private person.” Gross v. United States, 771 F.3d 10, 12 (D.C. Cir. 2014), cert. denied, 135 S. Ct.

1746 (2015). The Act further “provides 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


    • Def.’s Reply to Pls.’ Opp’n (“Def.’s Reply”), ECF No. 39.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).


                                                  2
such claim accrues’ and then brought to federal court ‘within six months’ after the agency acts

on the claim.” 3 United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015) (quoting 28

U.S.C. § 2401(b)). In Kwai Fun Wong, the Supreme Court clarified that these deadlines were not

jurisdictional. Id. Instead, as the Supreme Court explained, “The time limits in the FTCA are just

time limits, nothing more.” Id. at 1633. Therefore, these time limits are subject to equitable

tolling. Id. (“Even though [the time limits] govern litigation against the Government, a court can

toll them on equitable grounds.”). 4


B. Procedural Background
       On July 23, 2010, Plaintiffs L.C.H., by his father and next friend, Larry Hagan, and

Hagan himself filed administrative claims with certain departments of the United States

Government regarding the medical care that L.C.H. had received. Plaintiffs filed this action on

June 6, 2012, after the Government had failed to respond to those claims. Defendant then moved

to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the court did not have

subject matter jurisdiction because Plaintiffs had not filed a timely administrative claim.

Defendant argued that the filing timelines in 28 U.S.C. § 2401(b) were jurisdictional and that

Plaintiffs had failed to comply with the jurisdictional prerequisites for this action.


3
 The statute provides in full: “A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency within two years after such
claim accrues or unless action is begun within six months after the date of mailing, by certified
or registered mail, of notice of final denial of the claim by the agency to which it was presented.”
28 U.S.C. § 2401(b).
4
 “[A] litigant is entitled to equitable tolling of a statute of limitations only if the litigant
establishes two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.’ ” Menominee Indian
Tribe of Wisconsin v. United States, 136 S. Ct. 750, 755 (2016) (quoting Holland v. Florida, 560
U.S. 631, 649 (2010)) (internal quotation marks omitted); see also New York Republican State
Comm. v. S.E.C., 799 F.3d 1126, 1134 (D.C. Cir. 2015).


                                                  3
       In resolving that motion, the court concluded that the filing deadlines in section 2401(b)

were jurisdictional and granted the motion to dismiss. 5 See Memorandum Opinion, dated Dec.

14, 2012 (“Mem. Opinion”), ECF No. 21, at 6-7. The court noted that it is the burden of the party

invoking the court’s jurisdiction to establish subject matter jurisdiction and that, under Rule

12(b)(1), the court may consider materials outside the pleadings. Id. at 5; see also Coal. for

Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (on a motion under Rule

12(b)(1), “where necessary, the court may consider the complaint supplemented by undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's

resolution of disputed facts”). After a thorough examination of the record, including an

examination of the medical records submitted, the court concluded that the injury underlying the

case had occurred in September 2007 and that the claims at issue had, therefore, accrued at that

time. Because the court concluded that the statute of limitations in section 2401(b) was

jurisdictional, there was no occasion to consider other responses to Defendant’s statute of

limitations argument, such as equitable tolling. See Mem. Op. at 6-7; see also Kwai Fun Wong,

135 S. Ct. at 1631 (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-134

(2008) (equitable factors cannot be considered if statute of limitations is jurisdictional).

Therefore, the court concluded that the administrative complaint filed in July, 2010, had not been

filed within two years of the accrual of the claims in this case. Based on this analysis, the court

dismissed the case for want of subject matter jurisdiction.

       Plaintiffs appealed to the United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”). See Hagan v. United States, D.C. Cir. No. 13-5048, Doc. No. 1461959.


5
 At the time, this case was assigned to then-district judge Robert L. Wilkins, who was
subsequently elevated to the United States Court of Appeals for the District of Columbia Circuit.
The case was subsequent re-assigned to the undersigned judge.

                                                  4
While the appeal was pending, the United States Supreme Court issued Kwai Fun Wong,

discussed above, holding that section 2401(b) is not jurisdictional and that equitable tolling is

available under the FTCA. See Kwai Fun Wong, 135 S. Ct. at 1629, 1633. The parties agreed that

the case should be remanded to this Court, although they did not agree on the precise action the

D.C. Circuit should take. Upon consideration of the parties’ requests, the D.C. Circuit

“ORDERED that the district court’s order issued December 14, 2012 dismissing the case for

lack of jurisdiction, be vacated and the case remanded to the district court for further proceedings

consistent with the Supreme Court’s opinion in United States v. Kwai Fun Wong, 135 S. Ct.

1625 (2015).” Order dated Sept. 10, 2015, Hagan v. United States, D.C. Cir. No. 13-5048

(formatting in original). The D.C. Circuit did not provide any further instructions regarding the

remand to the district court.

       After the case was remanded to this Court, the Court ordered the parties to file a Joint

Status Report regarding future proceedings in this consolidated action. Order, dated Dec. 14,

2015, ECF No. 30. At the parties’ request, the Court subsequently entered a briefing schedule for

Defendant’s planned renewed motion to dismiss. Minute Order, dated January 19, 2016; see also

Joint Status Report, dated Jan. 14., 2016, ECF No. 33. The Court notes that the parties did not

reference any plans to file motions for summary judgment on the current record. Defendant then

filed the pending motion according to the approved schedule. As noted above, Defendant moved

to dismiss under Rule 12(b)(6) for failure to state a claim and, in the alternative, for summary

judgment; the motion is based solely on Defendant’s argument that Plaintiffs did not comply

with the statute of limitations in section 2401(b). See generally Def.’s Mot. Plaintiffs opposed

that motion, arguing that the motion should be denied based on the present record and that, if the




                                                 5
Court were to find the present record inadequate to deny the motions, the Court should allow

discovery before definitively resolving issues pertaining to the statute of limitations.

                                      II. LEGAL STANDARD

        Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

        Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that it] ... is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.




                                                   6
                                         III. DISCUSSION

        Defendant moves to dismiss under Rule 12(b)(6) and, in the alternative, moves the Court

to grant summary judgment in its favor—both based solely on statute of limitations grounds. 6

The Court addresses the motion to dismiss followed by the motion for summary judgment.


A. Motion to Dismiss
        Defendant moves to dismiss based on the argument that Plaintiffs did not satisfy the

statute of limitations in section 2401(b). In this Circuit, it is well established that “[b]ecause

statute of limitations issues often depend on contested questions of fact, dismissal is appropriate

only if the complaint on its face is conclusively time-barred.” Bregman v. Perles, 747 F.3d 873,

875 (D.C. Cir. 2014). Moreover, the D.C. Circuit has cautioned that “courts should hesitate to

dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.”

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). As other district judges in this

district have explained, “Put another way, a defendant is entitled to succeed on a Rule 12(b)(6)

motion to dismiss brought on statutes of limitations grounds only if the facts that give rise to this

affirmative defense are clear on the face of the plaintiff’s complaint.” Lattisaw v. D.C., 118 F.

Supp. 3d 142, 153 (D.D.C. 2015) (citing Smith–Haynie v. District of Columbia, 155 F.3d 575,

578 (D.C. Cir. 1998)); accord Campbell v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 130 F.

Supp. 3d 236, 254 (D.D.C. 2015). In this case, because the Court cannot conclude based on the

face of the complaint alone that the applicable statute of limitations bars the claims in this case,

the Court denies the motion to dismiss.



6
 The Court notes, as a preliminary matter, that none of the parties has clearly distinguished their
arguments pertaining to the motion to dismiss and their arguments pertaining to the motion
summary judgment. Their failure to do so is notable because the standards for each request are
distinct and require evaluating different information.

                                                   7
       In the pending motion to dismiss, Defendant does not even attempt to show that dismissal

is warranted on statute of limitations grounds based on an analysis of allegations in the

complaint. See Def.’s Mot. at 9-11. Instead, Defendant persists on relying, substantially, on

materials in the record that were submitted in the briefing on Defendant’s original motion to

dismiss under Rule 12(b)(1). 7 See id. As noted above, Defendant’s failure to distinguish between

its motion to dismiss and its motion, in the alternative, for summary judgment is a stumbling

block to the Court’s efficient resolution of the pending matter. Importantly, in evaluating a

motion for failure to state a claim under Rule 12(b)(6), the Court cannot rely on the same set of

materials as in evaluating a motion under Rule 12(b)(1) for lack of jurisdiction or in resolving a

motion for summary judgment. Compare Coal. for Underground Expansion, 333 F.3d at 198

(standard for materials on which a court may rely under Rule 12(b)(1)) and Fed. R. Civ. P. 56

(standard for summary judgment) with Ward v. District of Columbia Dep’t of Youth Rehab.

Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (standard for materials on which a court may rely

under Rule 12(b)(6)).

       With respect to a motion for failure to state a claim, it is true that a court may consider

“documents attached as exhibits or incorporated by reference in the complaint,” or “documents

upon which the plaintiff’s complaint necessarily relies even if the document is produced not by

the plaintiff in the complaint but by the defendant in a motion to dismiss”—in addition to

allegations in the complaint. Ward, 768 F. Supp. 2d at 119 (citations omitted). But Defendant has

never justified reliance on the materials referenced in its briefing under these several bases—



7
 Perhaps this is because Defendant continues to refer to the statute of limitations in section
2401(b) as jurisdictional despite a clear holding from the Supreme Court to the contrary. See
Def.’s Mot. at 6 (“One of the jurisdictional prerequisites to filing suit under the FTCA is a statute
of limitations.”).

                                                  8
whether as materials incorporated by reference in the complaint, materials on which the

complaint necessarily relies, or otherwise. Nor is it apparent that the materials on which

Defendant seeks to rely would be appropriate bases for a motion to dismiss. In short, Defendant

has provided no basis for the Court to dismiss the claims in this case under Rule 12(b)(6).

       Notably, Defendant argues that this Court should adopt the same reasoning and

conclusion regarding the accrual date for the claims in this action as set out previously as the

basis for dismissing the claims for lack of subject matter jurisdiction. 8 See Def.’s Reply at 5 n.5.

Yet, in resolving the original motion to dismiss for lack of subject matter jurisdiction, the Court

relied substantially on materials outside of the complaint that were submitted together with the

parties’ briefing. See Mem. Op. at 8-11. It is apparent from the court’s earlier opinion that the

court found it necessary to consult with materials in the record outside of the complaint to

resolve the jurisdictional question that was then before it. In specific, the Court consulted those

materials to identify the relevant “injury” in this case and, concomitantly, whether Plaintiffs’

filings complied with the applicable statute of limitations. See id. at 8. This was wholly proper

because the court was then resolving a motion to dismiss on jurisdictional grounds. See Coal. for

Underground Expansion, 333 F.3d at 198. Indeed, the court was then obligated to assure itself of

its own jurisdiction, and it was proper to consider such materials in order to do so. See Fogo De

Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1138 (D.C. Cir. 2014). But,


8
  In the now-pending motion to dismiss, Defendant originally argued that the court’s previous
determination as to the accrual of the claims in this case was “the law of the case.” Def.’s Mot. at
12-13. As Defendant subsequently admitted, this is patently incorrect. See Def.’s Reply at 5 n.5;
see also United States v. Burroughs, 810 F.3d 833, 838 (2016) (under law of the case doctrine, a
“legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the
opportunity to do so existed, governs future stages of the same litigation, and the parties are
deemed to have waived the right to challenge that decision at a later time”) (citation and internal
quotation marks omitted). Accordingly, the earlier determination, which has since been vacated,
is not binding on this Court.

                                                  9
in light of the Supreme Court’s decision in Kwai Fun Wong, and the D.C. Circuit’s remand in

this case, this Court is now in a different position. As a result, the Court cannot rely on the same

set of materials used previously to resolve the motion to dismiss under Rule 12(b)(1). Therefore,

the Court cannot adopt the earlier analysis regarding the accrual of the claims in this case.

Indeed, the fact that it was necessary to consult materials outside of the complaint to resolve the

motion to dismiss under Rule 12(b)(1), suggests that it would not have been feasible to resolve

the statute of limitations question based on the face of the complaint alone. Indeed, even in the

pending motion, penned after the Supreme Court’s decision and the D.C, Circuit’s remand in this

case, Defendant has provided no basis for the Court to conclude that, based on the complaint

alone, the claims in this action are barred by the statute of limitations.

       In short, as explained above, the D.C. Circuit has cautioned against granting motions to

dismiss on statute of limitations grounds, and has held that “dismissal is appropriate only if the

complaint on its face is conclusively time-barred.” Bregman, 747 F.3d at 875. Defendant has not

argued, let alone shown, that this complaint is, on its face, “conclusively time-barred.” Just as the

D.C. Circuit has warned, the application of the statute of limitations in this case depends on

disputed issues of fact, particularly on the complicated set of events that occurred between 2007

and 2009. Therefore, the Court cannot and will not dismiss this case under Rule 12(b)(6).


B. Motion for Summary Judgment
       The Court now turns to Defendant’s motion, in the alternative, for summary judgment.

Defendant argues, as noted above, that based on the record before the Court this case must be

dismissed on statute of limitations grounds. Plaintiffs respond first that, based on the record

before the Court, Defendant’s motion for summary judgment should be denied. Specifically,

Plaintiffs argue that the claims in this case are timely because (1) the accrual date for the claims


                                                  10
was later than previously determined in dismissing this case for want of jurisdiction and

(2) notwithstanding the accrual date, the statute of limitations should be deemed to have been

equitable tolled. For both of these reasons, Plaintiffs argue that their complaint complies with the

statute of limitations in section 2401(b). Plaintiffs also argue that, if the Court does not conclude

that the current record requires the denial of Defendant’s motion for summary judgment, the

Court should allow discovery because additional discoverable information would support the

conclusion that they have satisfied the statute of limitations.

          The Court concludes that it is simply premature to resolve a motion for summary

judgment in this case, even one narrowly limited to the question of the statute of limitations. The

Court has not yet set a period of time for discovery. Nor has the Court sanctioned the filing of a

motion for summary judgment. Notably, in proposing a schedule for further proceedings on

remand, the parties only requested that the Court set a briefing schedule for a renewed motion to

dismiss. See Joint Status Report, ECF No. 33, at 2. The Court, then, set a schedule, only for the

briefing of a renewed motion to dismiss. See Minute Order, dated January 19, 2016. The parties

never jointly agreed to brief a motion for summary judgment or partial motion for summary

judgment based on the current record. Nor did the Court ever indicate that doing so would be

sanctioned. Based on the motions filed and on the record submitted, the Court now concludes

that it is not proper to resolve the merits of the motion for summary judgment on the current

record.

          Moreover, as the parties’ briefing reveals in abundance, this case involves a complicated

factual background, and what at least appears at this stage to be disputed facts regarding that

background. Accordingly, the Court concludes that it is not appropriate to resolve the case on a

motion for summary judgment based on the selections of the record provided by the two sides—



                                                  11
particularly before the parties have had an opportunity to take discovery. The D.C. Circuit’s

words of caution regarding resolving cases on statute of limitations grounds when there are

disputed issues of fact, discussed fully above, has substantial force here, too, where the factual

record has yet to be fully developed. See Bregman, 747 F.3d at 875 (“Because statute of

limitations issues often depend on contested questions of fact, dismissal is appropriate only if the

complaint on its face is conclusively time-barred.”). Given that there appear to be disputed facts

in this case and given that Plaintiffs maintain that they could obtain facts relevant to the pending

motion through discovery, see Pls.’ Opp’n at 32-36 (citing Fed. R. Civ. P. 56(d)), the Court

concludes that it is premature, at this time, to resolve this case on the basis of a motion for

summary judgment.

                                          *       *       *

       In sum, the Court denies Defendant’s motion to dismiss because it cannot conclude that

the claims in this case are barred by the statute of limitations on the face of the complaint. With

respect to Defendant’s motion for summary judgment, the Court concludes that it is premature to

resolve this case on the basis of the statute of limitations given that discovery has not yet been

conducted and because there appear to be disputed facts in the record as presented thus far.

       It is important to emphasize what is not being decided today. The Court’s decision is

based on the present posture of the case and based on the present record. The Court does not

address the merits of the statute of limitations questions raised by the parties. Nor does the Court

foreclose, in any way, the parties from raising these issues at the proper time and on the proper

record. To be clear, Defendant may, if it so chooses, raise its statute of limitations arguments

once again after discovery in a motion for summary judgment. The Court will evaluate the merits

of those issues if and when they are raised at a later point in these proceedings.



                                                  12
                              IV. CONCLUSION AND ORDER

       For the foregoing reasons, it is hereby ORDERED that Defendant’s [34] Motion to

Dismiss and in the Alternative for Summary Judgment is DENIED.

       It is further ORDERED that the Motion to Dismiss is DENIED WITH PREJUDICE and

the Motion for Summary Judgment is DENIED WITHOUT PREJUDICE.

       The Court will separately issue an order setting an Initial Scheduling Conference for this

consolidated action.

Dated: July 7, 2016
                                                       /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




                                               13
