         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

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 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

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 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




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