                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2009

Santos v. USA
Precedential or Non-Precedential: Precedential

Docket No. 07-4613




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                                 PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 07-4613


            MERCY N. SANTOS,
           a Minor by Jenny Beato,
       her Parent and Natural Guardian,

                                          Appellant

                      v.

      UNITED STATES OF AMERICA


On Appeal from the United States District Court
    for the Middle District of Pennsylvania
           (D.C. Civ. No. 06-01216)
  Honorable Sylvia H. Rambo, District Judge


          Argued December 2, 2008
  BEFORE: AMBRO and GREENBERG, Circuit Judges,
           and O’NEILL,* District Judge

                     Filed: March 11, 2009


David J. Foster (argued)
Costopoulos, Foster & Fields
831 Market Street
P.O. Box 222
Lemoyne, PA 17043-0000

   Attorneys for Appellant

Michael J. Butler
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000

Gregory G. Katsas
Acting Assistant Attorney General
Civil Division
Phyllis J. Pyles
Director, Torts Branch
James G. Touhey, Jr.


*Honorable Thomas N. O’Neill, Jr., Senior United States
District Judge for the Eastern District of Pennsylvania, sitting by
designation.

                                2
Assistant Director, Torts Branch
Conor Kells (argued)
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 888, Ben Franklin Station
Washington, D.C. 20044

   Attorneys for Appellee


                 OPINION OF THE COURT


GREENBERG, Circuit Judge.


                    I. INTRODUCTION

        This matter comes on before this Court on an appeal by
plaintiff Mercy Nicole Santos by Jenny Beato, her Parent and
Natural Guardian, from an order of the District Court entered on
November 30, 2007, granting summary judgment to defendant
United States of America in this medical malpractice case under
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.
(“FTCA”). The District Court concluded that the FTCA’s two-
year statute of limitations barred Santos’s claim, rejecting her
contention that the running of the limitations period should be
equitably tolled so that her action would be timely. Santos v.
United States, 523 F. Supp. 2d 435 (M.D. Pa. 2007). Because
we conclude that the statute of limitations should be equitably

                               3
tolled, we will reverse the order of November 30, 2007, and will
remand this matter to the District Court for further proceedings.




                       II. BACKGROUND

        Mercy Nicole Santos was six years old when on
November 20, 2002, her mother, Jenny Beato, took her to York
Health Corporation’s (“York Health”)1 pediatric clinic in York,
Pennsylvania, because she had a swollen jaw and a fever.2 A
clinic physician diagnosed Santos as having tooth decay,
prescribed an antibiotic, and referred her to York Health’s dental
clinic. Nevertheless, the swelling continued and her condition
worsened.     Accordingly, Santos, on November 27, 2002,
returned to the pediatric clinic, where the personnel again


  1
      York Health later changed its name to Family First Health.

  2
    It should be understood that we are stating the facts as they
appeared on the Government’s motion for summary judgment
most favorably to Santos, and thus our recitation of the facts will
not bind the parties in the further proceedings that will ensue on
the remand we are directing. Obviously, we are not making
findings of fact with respect to the Government’s possible
liability for the alleged malpractice because on this appeal we
are concerned only with the statute of limitations and tolling
issues. We do observe, however, as did the District Court, that
the historical facts in this case essentially are not disputed. See
Santos, 523 F. Supp. 2d at 437.

                                 4
referred her to the dental clinic and again prescribed an
antibiotic. Santos then sought care at the York Health dental
clinic, where a dentist extracted a decaying tooth in the belief
that it created a small mass on Santos’s lower jaw and was
responsible for Santos’s continuing fever. Yet when Santos
returned to the dental clinic two days later for a follow-up
appointment, the swelling and fever had not abated. A dentist
examined her and told her to come back on December 2, 2002,
which she did. Subsequently, on December 12 and December
18, 2002, she went to the pediatric clinic complaining of
worsening neck pain and stiffness. The personnel there
prescribed antibiotics and painkillers and again referred her to
the dental clinic, where a dentist again observed her swelling
and neck stiffness but made no further diagnosis.

        On December 22, 2002, Santos’s mother took her to the
emergency room at York Hospital, a regional facility distinct
from York Health, because her neck pain, swelling, and fever all
had grown more severe. Personnel at the hospital performed a
Computed Tomography scan, or CT scan, that revealed a deep
neck-space infection extending from below Santos’s jaw into
her cervical spine. Santos had developed osteomyelitis, an
infection of the bone and bone marrow, that had destroyed parts
of her top two cervical vertebrae. After 19 days of surgery and
other hospital treatments for the severe infection, and several
months of wearing a cervical collar, Santos’s top two vertebrae
grew back fully fused together on the right side. This vertebrae
fusion permanently impairs her movement, as she cannot turn
her head to look over her shoulder, and the fusion likely will
cause Santos to suffer from an accelerated degenerative disc
disease in the vertebrae below the fused vertebrae.

                               5
        Santos’s mother retained counsel for her daughter, who
investigated Santos’s potential liability claim against York
Health and its employees. Santos’s counsel identified four
persons he believed were the negligent healthcare workers who
caused Santos’s injury, a doctor, two dentists, and a physician
assistant, and also identified their employer, York Health, an
apparently private corporation. Thereafter, Santos’s counsel
performed a public records search on York Health, corresponded
with York Health, obtained Santos’s medical records, visited the
clinic, and reviewed pertinent records onsite. To evaluate
Santos’s potential liability claim, her counsel retained a family
practice expert, a dental expert, a professor of pediatric
otolaryngology, and a board-certified spinal surgeon, all of
whom prepared expert reports.

        On May 25, 2005, about two years and five months after
a physician at York Hospital diagnosed Santos with
osteomyelitis, her counsel filed a malpractice action on her
behalf in the Court of Common Pleas of York County,
Pennsylvania, against the allegedly negligent parties, York
Health and the four professional employees. Santos’s counsel
believed that notwithstanding Pennsylvania’s two-year statute of
limitations on malpractice actions set forth in 42 Pa. Cons. Stat.
Ann. § 5524 (West 2004), her filing was timely because a
Pennsylvania statute, 42 Pa. Cons. Stat. § 5533(b)(1)(i)-(ii)
(West 2004), tolls the statute of limitations in a civil action
brought on behalf of a minor until she reaches her majority at
the age of 18 years. Undoubtedly, if the tolling statute had been
applicable, his belief would have been correct.

       Santos’s investigations did not reveal, however, that for

                                6
treatment purposes under the FTCA the allegedly negligent
healthcare workers and their employer, York Health, all had
been deemed employees of the United States pursuant to the
Public Health Service Act, 42 U.S.C. § 5201 et seq., as amended
by the Federally Supported Health Centers Assistance Act of
1992, Pub. L. No. 102-501, 106 Stat. 3268 (1992). See Public
Health Service Act, 42 U.S.C. § 233(g)-(n).3 This investigative
failure was understandable as publicly available information did
not reveal their federal status for malpractice purposes, though
there was public information explaining that York Health
received aid from, among numerous benefactors, the federal
government, and the clinic did not appear to be a federal facility.
The state-court defendants’ federal status was critical because
the FTCA’s statute of limitations requires a malpractice
claimant to bring an administrative claim with the applicable
federal agency, here the Department of Health and Human
Services, within two years after her cause of action accrues.
Moreover, and as critical in this litigation, the FTCA does not
include a tolling provision for minors comparable to that of
Pennsylvania and many other states. 28 U.S.C. § 2401(b).

       On September 2, 2005, as the FTCA provides, the
Attorney General’s designee certified that the state-court
defendants were federal employees acting within the scope of
their employment and removed the case to the District Court. 28


  3
    42 U.S.C. § 233(g)(1) deems even a corporate entity entitled
to the benefit of the tort protection of the Public Health Service
Act and the FTCA to be an “employee of the Public Health
Service.”

                                7
U.S.C. § 2679(d)(2). The Government then substituted the
United States as the sole party defendant. Id. Santos and the
Government thereafter stipulated to a voluntary dismissal of the
removed action without prejudice so that Santos could bring an
administrative claim as the FTCA requires. 28 U.S.C. §
2675(a).4

        Santos did not challenge the removal of her case to the
District Court or the substitution of parties and, accordingly, she
filed the contemplated administrative claim. The Department of
Health and Human Services, however, failed to take action on
her claim for six months, and its inaction was deemed a denial
of her claim. She then filed this suit in the District Court. After
answering the complaint, the Government moved for judgment
on the pleadings, or, in the alternative, for summary judgment,
on the ground that the FTCA’s two-year statute of limitations
barred Santos’s claim. On the proceedings on the motion,
Santos acknowledged that she filed her claim in the state court
more than two years after its accrual, but argued that the
FTCA’s statute of limitations should be equitably tolled so that
her claim would be timely because she did not know that the
allegedly negligent healthcare providers had been deemed
federal employees. The District Court rejected Santos’s tolling
argument and found that her claim was untimely because in its


  4
    In this stipulation, the Government waived the right to file
a motion to dismiss based on the FTCA’s statute of limitations
but reserved the right to plead as an affirmative defense “any
statute of limitations issues” and the right to file a motion to
dismiss on other grounds. App. at 102-03.

                                8
view she had not exercised due diligence in inquiring into the
federal status of York Health and the individual providers.
Thus, the Court granted summary judgment to the United States.
Santos, 523 F. Supp. 2d 436-37. Santos then filed a timely
appeal.




   III. JURISDICTION AND STANDARD OF REVIEW

        The District Court had subject-matter jurisdiction under
the FTCA, 28 U.S.C. § 1346(b), and we exercise jurisdiction
under 28 U.S.C. § 1291. Our standard of review of the District
Court’s order granting summary judgment is plenary, see Doe v.
Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007), as is
our review of the District Court’s finding that Santos failed to
file her action within the period the statute of limitations
allowed. See KingVision Pay-Per-View, Corp. v. 898 Belmont,
Inc., 366 F.3d 217, 220 (3d Cir. 2004).




                      IV. DISCUSSION

A. The Federal Tort Claims Act

        As she recognizes, Santos must seek her recovery by
proceeding under the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq.,
a limited waiver of the sovereign immunity of the United States
providing that:


                               9
       The United States shall be liable, respecting the
       provisions of this title relating to tort claims, in
       the same manner and to the same extent as a
       private individual under like circumstances, but
       shall not be liable for interest prior to judgment or
       for punitive damages.

28 U.S.C. § 2674. To make a claim under the FTCA, a claimant
first must file her claim with the administrative agency allegedly
responsible for her injuries. 28 U.S.C. § 2675(a); see Reo v.
United States Postal Serv., 98 F.3d 73, 75 (3d Cir. 1996)
(discussing the FTCA). If the agency denies the claim or fails
to resolve it within six months, as happened here, she then may
file an action on her claim in a district court. 28 U.S.C. §§
2675(a), 2672. District courts have exclusive jurisdiction over
suits against the United States brought under the FTCA. 28
U.S.C. § 1346(b).

        Even though substantively the FTCA follows state
liability law, it includes a two-year limitations provision stating
that “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 . . . .” 28
U.S.C. § 2401(b). Moreover, federal law, not state law, governs
the determination of the often decisive question to answer for
statute of limitations purposes of when a claim has accrued
under the FTCA. Miller v. Philadelphia Geriatric Ctr., 463 F.3d
266, 270 (3d Cir. 2006); Zeleznik v. United States, 770 F.2d 20,
22 (3d Cir. 1985). Similarly, state-law tolling statutes do not
apply to the FTCA’s limitations period, and thus the
Pennsylvania tolling statute, the basis for Santos’s timing in

                                10
bringing her state-court action, is inapplicable here. Id. at 22;
Sexton v. United States, 832 F.2d 629, 633 n.4 (D.C. Cir. 1987)
(citing Zeleznik); see also Phillips v. United States, 260 F.3d
1316, 1318-20 (11th Cir. 2001).

        Obviously, under the FTCA as originally enacted, if a
claimant pursued her claim in the wrong forum she might find
the claim barred. Congress apparently regarded this result as
harsh. Consequently, in a 1988 amendment to the FTCA, the
Westfall Act, 28 U.S.C. §§ 2671 et seq., Congress established a
procedure for a claimant to follow if she initially files a FTCA
claim in the wrong forum. The FTCA now provides that tort
claims filed in state court against federal employees acting
within the scope of their employment “shall be removed . . . to
the district court of the United States [where the claim is
pending] . . . and the United States shall be substituted as the
party defendant.” 28 U.S.C. § 2679(d)(2). The amendment also
includes a clause that saves from being barred by the statute of
limitations certain timely claims filed in the wrong forum, such
as in a state or a federal court rather than with the appropriate
administrative agency. Pursuant to this savings clause an errant
plaintiff whose suit is removed to a district court, and then
dismissed because she failed to bring the timely required
administrative claim, will be credited with the date that she filed
her claim in the wrong forum for purposes of the FTCA’s statute
of limitations. Such claims will be deemed timely under section
2401(b) if

       (A) the claim would have been timely had it been
       filed on the date the underlying civil action was
       commenced, and (B) the claim is presented to the

                                11
       appropriate Federal agency within 60 days after
       dismissal of the civil action.

28 U.S.C. § 2679(d)(5). Unfortunately for Santos, the absence
of a tolling provision in section 2679(d)(5) meant that the claim
she filed in the state court after the FTCA’s two-year statute of
limitations period had expired was not statutorily saved, and she
does not contend otherwise.

         It is undisputed that Santos’s claim accrued on December
22, 2002, when she was six years old, when her mother took her
to the York Hospital emergency room and the physicians there
correctly identified her osteomyelitis by use of a CT scan.
Accordingly, when Santos commenced her action against York
Health and four of its employees in the Court of Common Pleas
of York County, Pennsylvania, on May 22, 2005, more than two
years had elapsed after her claim accrued. It therefore follows
that in the absence of equitable tolling extending the time for her
to file her claim, 28 U.S.C. § 2401(b) would bar her claim as
untimely because even if Santos had filed her claim with the
Department of Health and Human Services on May 22, 2005, it
would have been untimely. Consequently, the FTCA’s savings
clause does not apply to her claim, a point not in dispute.
Nevertheless, Santos argues that, in what she regards as the
extraordinary circumstances of her case (i.e., her reasonable
diligence through her counsel in pursuing her claim), the
difficulty in determining that York Health and its employees had
been deemed federal employees, and the approximately 11-year
difference between the state-law and FTCA limitations periods,
the FTCA’s statute of limitations should be equitably tolled so
that her claim is deemed to be timely.

                                12
B. The Equitable Tolling Doctrine Applies to the FTCA’s
Statute of Limitations.

        The first disputed issue that we must address is whether
in any circumstance there can be equitable tolling to relax the
FTCA’s limitations period. At one time we held that the
FTCA’s statute of limitations was jurisdictional. See, e.g.,
Bradley v. United States, 856 F.2d 575, 577-78 (3d Cir. 1988),
vacated on other grounds, 490 U.S. 1002, 109 S.Ct. 1634
(1989). But the Supreme Court subsequently held that federal
statutes of limitations are not jurisdictional and that “the same
rebuttable presumption of equitable tolling applicable to suits
against private defendants should also apply to suits against the
United States.” Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89,
93-96, 111 S.Ct. 453, 456-57 (1990). The Court reasoned that
“[o]nce Congress has made such a waiver [of its sovereign
immunity], we think that making the rule of equitable tolling
applicable to suits against the Government, in the same way that
is applicable to private suits, amounts to little, if any, broadening
of the congressional waiver.” Id. at 95, 111 S.Ct. at 457. The
Court observed that this general rule “is likely to be a realistic
assessment of legislative intent as well as a practically useful
principle of interpretation.” Id.

        Applying Irwin, we have held that the FTCA’s statute of
limitations is not jurisdictional, and thus in appropriate
circumstances the equitable tolling doctrine can apply in actions
under it. Hughes v. United States, 263 F.3d 272, 278 (3d Cir.
2001); see Hedges v. United States, 404 F.3d 744, 748 (3d Cir.
2005) (federal courts apply equitable tolling to wide range of
cases against the Government, including FTCA claims). Other

                                 13
courts of appeals also have applied equitable tolling in suits
against the United States. Hedges, 404 F.3d at 748 (citing other
courts of appeals); T.L. ex rel. Ingram v. United States, 443 F.3d
956, 961 (8th Cir. 2006) (citing courts of appeals holding that
FTCA’s limitations provision is jurisdictional but that equitable
tolling nevertheless applies because Congress so intended). On
the other hand, a court of appeals quite recently held that the
FTCA’s statute of limitation is jurisdictional and thus if a case
is brought beyond the limitations period the court does “not have
jurisdiction and, therefore, cannot apply the doctrines of
equitable estoppel or equitable tolling that might otherwise
allow [the] Plaintiff’s case to proceed.” Marley v. United States,
548 F.3d 1286, 1289 (9th Cir. 2008).

        The Government contends, however, that we should not
equitably toll the statute of limitations in this case
notwithstanding Santos’s asserted diligence in pursuing her
action and in doing so attempting to identify the correct
defendants. It predicates this argument on the FTCA’s savings
clause, which deems timely claims brought erroneously in state
court, rather than before the appropriate federal agency, within
two years after they accrue. 28 U.S.C. § 2697(d)(5). The
Government contends that inasmuch as Congress explicitly
provided a statutory exception to the FTCA’s limitations period,
we should not recognize additional nonstatutory equitable
exceptions to the statutory limitations period. In support of its
position, the Government cites TRW v. Andrews, 534 U.S. 19,
122 S.Ct. 441 (2001), a case under the Fair Credit Reporting Act
(“FCRA”), which in certain circumstances confers a private
right of action on consumers so that they may sue credit
agencies. The FCRA, as in effect at the time of TRW, contained

                               14
a statute of limitations providing that actions to enforce liability
under the FCRA must be brought “within two years from the
date [liability accrues]” except in cases of willful
misrepresentation by the defendant, in which case claims must
be brought “within two years after [the plaintiff’s] discovery . .
. of the misrepresentation.” TRW, 534 U.S. at 22, 122 S.Ct. at
444 (citing 15 U.S.C. § 1681p) (1994 ed.) (internal quotation
marks omitted).

        The issue presented in TRW was whether a general
discovery rule, which delays the beginning of a limitations
period until the plaintiff knew or should have known of her
injury, applied in determining when a claim accrues under the
FCRA. The Court held that a general discovery rule was not
applicable in calculating the FCRA’s limitations period because
the statute’s text and structure establishing the two-year
limitation period and in the same sentence a specific and limited
exception for cases of willful misrepresentation, evinced
congressional intent to preclude judicial implication of a broader
discovery rule. The Court reasoned that a judicially recognized
general discovery rule under the FCRA would render the
narrower statutory misrepresentation rule “insignificant, if not
wholly superfluous.” See id. at 31, 444 S.Ct. at 449. The Court
explained that “[w]here Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are not
to be implied, in the absence of evidence of a contrary
legislative intent.” Id. at 28, 444 S.Ct. at 447 (internal citations
and quotation marks omitted).

        We believe that Congress, in adopting the statute of
limitations in the FTCA, did not demonstrate that it intended to

                                15
preclude equitable tolling as it did in the FCRA. We reach this
conclusion because Congress structured the two statutes
differently. Thus, while Congress placed the FCRA’s exception
to the limitations provision within the same sentence as the
general limitations provision connected by “except,” 15 U.S.C.
§ 1681p (1994 ed.), in contrast it placed the FTCA’s savings
clause providing that certain claims filed within two years with
the wrong agency are timely in a section distinct from the
limitations provision. 28 U.S.C. §§ 2679(d)(5); 2401(b). The
placement of the separate statutory savings provision does not
suggest that Congress intended it to preclude equitable tolling,
which the Supreme Court has presumed and held to apply in
actions against the United States, Irwin, 498 U.S. at 95-96, 111
S.Ct. at 458; see also Hughes, 263 F.3d at 278; Hedges, 404
F.3d at 748; Ingram, 443 F.3d at 960-61, particularly in an area
of law where equitable concerns may be greater. TRW, 534
U.S. at 27, 122 S.Ct. at 446-47 (distinguishing claim in that
case, private action against a credit agency under FCRA, from
medical malpractice claims).

        The Government also argues that equitably tolling the
statute of limitations would render the FTCA’s savings clause
“insignificant, if not wholly superfluous.” See id. at 31, 122
S.Ct. at 449. But we reject this argument because the savings
clause is applicable in cases in which equitable tolling would not
be. For example, the FTCA’s savings clause lacks any due
diligence requirement and thus encompasses a “garden-variety
claim of excusable neglect,” a situation in which equitable
tolling would not apply. See Irwin, 498 U.S. at 96, 111 S.Ct. at
458.


                               16
        At bottom, the Government’s argument seems to blur two
issues: whether equitable tolling can apply to the FTCA’s
limitations period in any circumstance and whether it should
apply in this case. We view the Government’s arguments
supporting the first contention as a subtle invitation to overrule
Hughes, but we cannot take that step as that case is binding on
us. Third Circuit IOP 9.1. Consequently, we will address the
second issue and do so below.

        In reaching our result that equitable tolling is possible
under the FTCA, we recognize that the reasoning in certain
recent Supreme Court decisions might call into question whether
equitable tolling is available in FTCA claims and thus raise
doubt as to the continuing viability of our holding in Hughes.
See John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750,
755-56 (2008) (distinguishing statutes of limitations protecting
individual defendants, subject to waiver and equitable tolling,
from those limiting the scope of governmental waiver of
sovereign immunity, where equitable considerations are less
likely to apply); United States v. Beggerly, 524 U.S. 38, 48-49,
118 S.Ct. 1862, 1868 (1998) (equitable tolling not available in
Quiet Title Act claims against United States, where limitations
period was 12 years and limitations period already effectively
allowed for equitable tolling); United States v. Brockamp, 519
U.S. 347, 350-54, 117 S.Ct. 849, 850-53 (1997) (equitable
tolling not available to tax refund claims, where limitation
provision was detailed and technical, and where applying
equitable tolling could create an immense administrative
burden); United States v. Kubrick, 444 U.S. 111, 117-18, 100
S.Ct. 352, 357 (1979) (cautioning courts neither to extend nor to
narrow the FTCA’s statute of limitations from what Congress

                               17
intended, because assertion of a claim within the limitations
period is a condition of FTCA’s waiver of sovereign immunity);
see also Marley, 548 F.3d at 1289.

       Notwithstanding the foregoing cases, Irwin remains good
law, for the Court in John R. applied but did not overrule Irwin
in holding that its presumption that equitable tolling applied had
been rebutted. John R., 128 S.Ct. at 755-56. Consequently,
these cases do not lead us to conclude that equitable tolling
cannot apply under the FTCA.

        The FTCA waives the sovereign immunity of the United
States to the extent that it is liable on tort claims “in the same
manner and to the same extent as a private individual under like
circumstances,” but includes a straightforward limitations
provision separate from the waiver of immunity section. 28
U.S.C. §§ 2674, 2401(b). Considering that the FTCA creates
tort liability “in the same manner” as liability is imposed on
private individuals, the limitation provision is non-technical
with a period of only two years, the circumstances surrounding
tort and medical malpractice claims reasonably may justify
applying equitable tolling to such claims, and neither the text
nor structure of the freestanding statutory tolling provision
suggests that Congress intended to preclude equitable tolling, we
think that our holding in Hughes that there can be equitable
tolling in suits under the FTCA remains good law which
survives the later Supreme Court decisions to which we have
referred. Hughes, 263 F.3d at 278; accord Ingram, 443 F.3d at
961-63 (equitable tolling applies even though limitation
provision is jurisdictional); see Hedges, 404 F.3d at 748-51
(discussing factors to consider in determining whether Irwin

                               18
presumption is rebutted); but see Marley, 548 F.3d at 1290.
Thus, though we agree with the Government that “the statute of
limitations was not tolled due to [Santos’s] status as a minor,”
appellee’s br. at 16, we conclude that we cannot in all
circumstances preclude equitable tolling of the statute of
limitations in FTCA actions because if we did so we
unjustifiably would take upon ourselves the authority to narrow
the congressional waiver of the sovereign immunity of the
United States. See Kubrick, 444 U.S. at 117-18, 100 S.Ct. at
357.




C. Equitable Tolling Applies Here.

        Inasmuch as equitable tolling can apply in cases under
the FTCA, we turn to the question whether we should equitably
toll the FTCA’s statute of limitations in this case. Equitable
tolling, if available, can rescue a claim otherwise barred as
untimely by a statute of limitations when a plaintiff has “been
prevented from filing in a timely manner due to sufficiently
inequitable circumstances.” Seitzinger v. Reading Hosp. &
Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999). “This occurs (1)
where the defendant has actively misled the plaintiff respecting
the plaintiff’s cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or her
rights; or (3) where the plaintiff has timely asserted his or her
rights mistakenly in the wrong forum.” Hedges, 404 F.3d at 751
(internal citations omitted); School Dist. v. Marshall, 657 F.2d
16, 19-20 (3d Cir. 1981) (internal citations omitted).


                               19
        But a plaintiff will not receive the benefit of equitable
tolling unless she exercised due diligence in pursuing and
preserving her claim. Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58.
The principles of equitable tolling thus do not extend to
“garden-variety claims of excusable neglect.” Id. at 96, 111
S.Ct. at 458. The remedy of equitable tolling is extraordinary,
and we extend it “only sparingly.” Id. at 96, 111 S.Ct. at 457;
Hedges, 404 F.3d at 751. It is especially appropriate to be
restrictive with respect to extension of equitable tolling in cases
involving the waiver of the sovereign immunity of the United
States. The Supreme Court made that point clear when it
indicated that inasmuch as the FTCA “waives the immunity of
the United States, . . . in construing the [FTCA’s] statute of
limitations, which is a condition of that waiver, we should not
take it upon ourselves to extend the waiver beyond that which
Congress intended,” and the Court should not “assume the
authority to narrow the waiver that Congress intended.”
Kubrick, 444 U.S. at 117-19, 100 S.Ct. at 357.

1. Santos Otherwise Diligently Pursued Her Claim.

       It is clear that even though Santos did not determine
before she brought her state court action that York Health and
its employees had been deemed to be federal employees for
FTCA purposes in malpractice actions, she diligently and
vigorously pursued her claim. In this regard, after her claim
accrued on December 22, 2002, she retained diligent counsel,
who requested and reviewed her medical records, visited,
corresponded with, and performed a public records search on
York Health, and retained a family practice expert, a dental
expert, a professor of pediatric otolaryngology, and a board-

                                20
certified spinal surgeon, all of whom prepared expert reports.
We have brought considerable experience to the federal bench
which we are confident allows us to identify a diligent counsel,
and based on that experience and our examination of the record
in this case we believe that no reasonable person can doubt that
Santos’s counsel was diligent. Yet we do not suggest that
Santos’s mere compliance with the statutorily tolled state statute
of limitations and her counsel’s thorough preparation of her case
entitles her to equitable tolling under the FTCA. See Norman v.
United States, 467 F.3d 773, 776 (D.C. Cir. 2006). On the other
hand, Santos’s compliance with state law and preparation of her
case do evidence her general diligence and thus are significant,
even though her diligence in itself could not overcome her
failure to identify York Health and its personnel as federal
employees.

2. Santos Diligently Inquired into the Employment Status of
York Health and its Personnel.

       The Government argues, however, that even if Santos
generally was diligent, she did not exercise due diligence in
inquiring into the employment status of York Health and its
healthcare providers with respect to malpractice claims.
Consequently, it contends that equitable tolling should not
apply, even if Santos had been diligent with respect to the other
aspects of her case. In support of its contention, the
Government cites our decision in Zeleznik v. United States, 770




                               21
F.2d 20.5 Zeleznik was an action against the Immigration and
Naturalization Service (“INS”) for the wrongful death of the
plaintiffs’ son. The plaintiffs sued the INS when they
discovered, more than two years after their son’s death, that the
INS had released their son’s killer just days before the murder
even though the killer had confessed to the INS that he did not
have an authorized status in the United States, was in fraudulent
possession of a United States passport, and had been involved
in illegal drug sales. Id. at 20-22.

        We held in Zeleznik that the FTCA’s two-year statute of
limitations barred the plaintiffs’ claim because it had accrued
when they learned of their son’s death and its immediate cause.
Thus, they were put on notice of the need to investigate their
claim even though at the time of his death they had not learned
of the INS’s involvement. We explained, following the
Supreme Court’s decision in Kubrick, that “the accrual date is
not postponed until the injured party knows every fact necessary
to bring his action.” Id. at 23. Because the plaintiffs knew of
their son’s death and its immediate cause, even though they did
not know of the INS’s involvement, they possessed sufficient
critical facts to investigate their claim, and inasmuch as the INS
did not actively conceal its involvement in the case, the accrual
of the claim was not postponed by reason of the plaintiffs’ lack
of actual notice of that involvement. Id. at 24.

       But the issue here is not when Santos’s claim accrued, as


 5
  At oral argument, the Government stated that Zeleznik is our
most directly applicable precedent governing in this case.

                               22
that date is undisputed. It therefore follows that Zeleznik is not
directly on point. In this regard, we emphasize that the
discovery rule, which governs a claim’s accrual date for statute
of limitations purposes, is distinct from equitable tolling, which
applies where circumstances unfairly prevent a plaintiff from
asserting her claim. See Hedges, 404 F.3d at 750-51
(distinguishing between an equitable discovery rule governing
when a claim accrues and equitable tolling); see also Valdez v.
United States, 518 F.3d 173, 182 (2d Cir. 2008) (“Equitable
tolling is frequently confused both with fraudulent concealment
on the one hand and with the discovery rule–governing . . .
accrual–on the other.”) (internal citations and quotation marks
omitted); Norman, 467 F.3d at 774-78 (addressing equitable
estoppel issue where date that claim accrued was undisputed).
The issue here is whether the limitations period should be tolled
because the circumstances of this particular case unfairly
precluded Santos from timely filing her claim.

        The Government cites cases from other courts of appeals
holding that equitable tolling did not apply in those cases to the
FTCA’s statute of limitations because the plaintiffs bringing
state-law suits failed to perform reasonable investigations that
would have demonstrated that the defendants had been deemed
federal employees covered by the FTCA. Norman, 467 F.3d
777-78; Ingram, 443 F.3d at 964; Gonzalez v. United States, 284
F.3d 281, 291-92 (1st Cir. 2002). In Norman, the plaintiff who
was struck by an automobile brought an untimely suit against
the driver, a federal agency employee covered by the FTCA,
without investigating either the driver or his employer. Norman,
467 F.3d at 774-76. The Court of Appeals for the District of
Columbia Circuit concluded that equitable tolling did not apply

                               23
because “at no time during the FTCA’s two-year statute of
limitations did [the plaintiff] make any effort–diligent or
otherwise–to identify [the defendant’s] employer.” Id. at 778.
Norman is instructive because it contrasts with this case, in
which Santos correctly identified the entity that was the
employer of the four individual state-court defendants for all
purposes other than under the FTCA.

        In Gonzalez, a medical malpractice case, there was no
evidence that the plaintiff made “any inquiry whatsoever” into
the employment of the defendants, who were federal employees
covered by the FTCA. Gonzalez, 284 F.3d at 291. The Court
of Appeals for the First Circuit held that the FTCA’s limitations
period was not equitably tolled because “[a]lthough the plaintiff
did not know the federal status of the defendants at the time of
her treatment, she and her attorneys had two years to ascertain
the legal status of the doctors and could easily have learned it.”
Id. at 291.

        Similarly, the Court of Appeals for the Eighth Circuit in
Ingram, also a medical malpractice case, declined to toll the
FTCA’s statute of limitations where the plaintiff was unaware
of, but the Government did not hide, the fact that the allegedly
negligent doctor was a federal employee subject to the FTCA.
Ingram, 443 F.3d at 963-65 (citing Garza v. United States
Bureau of Prisons, 284 F.3d 930, 935 (8th Cir. 2002)). In both
Norman and Gonzalez, a simple investigation could have
revealed the critical information, i.e., the federal or non-federal
employment status of the defendants. Norman, 467 F.3d at 776-
78; Gonzalez, 284 F.3d at 291. But see Ingram, 443 F.3d at
963-64; cf. Gould v. United States, 905 F.2d 738, 745 (4th Cir.

                                24
1990) (en banc) (where issue was accrual of claim under FTCA,
plaintiff could have ascertained that defendant, a commissioned
officer of United States Public Health Service, was a federal
employee simply by contacting Department of Health and
Human Services).6

       In this case, the District Court noted that it was not clear
whether Santos knew or should have known that York Health
received federal funds, but nevertheless found that Santos
“failed to exercise due diligence by attempting to ascertain the
federal status of her health care providers.” Santos, 523 F.
Supp. 2d at 443. The District Court reached its conclusion
because of Santos’s admission that she did not confirm her
belief based on correspondence with and inquiries into York
Health and its employees that the allegedly negligent healthcare
workers and their employer were subject to claims under
Pennsylvania law.

      Yet Santos’s belief was far from a baseless assumption.
See Gonzalez, 284 F.3d at 292 (plaintiff who “failed to make


  6
    At oral argument before us the Government also discussed
Whittlesey v. Cole, 142 F.3d 340, 343 (6th Cir. 1998). In that
case, the Court of Appeals for the Sixth Circuit considered
whether the equitable discovery rule (governing claim accrual)
and a state-law statutory tolling provision applied to the
Tennessee statute of limitations where the defendant was not a
federal employee subject to the FTCA. Neither the discovery
rule nor Tennessee law is at issue here, and thus Whittlesey is
not helpful to us.

                                25
any inquiries whatsoever” into employment status of allegedly
negligent healthcare providers not duly diligent). To start with,
York Health apparently looked like a private clinic, and except
for FTCA purposes the clinic and its employees were private
actors, rather than federal employees. As the District Court
explained, the “[h]ealth care workers at private clinics, even
ones receiving some federal aid, are not federal employees in the
usual sense. After all, they do not perform a traditional
government function or work in a government building, and they
are not on the federal payroll.” Santos, 523 F. Supp. 2d at 442.
Moreover, Santos based her implicit conclusion that York
Health and its employees could be liable under state law on
inquiries, reviews of records, and other contacts with York
Health. Santos’s counsel identified the individuals whose
alleged negligence injured her, and further identified their
employer, York Health, an apparently private corporation that he
investigated by performing a public records search. Cf.
Norman, 466 F.3d at 776 (plaintiff suing individual defendant
without determining individual defendant’s employer was not
duly diligent).

       In addition, we reiterate that Santos’s counsel
corresponded with York Health, obtained Santos’s medical
records, visited its facility, and retained several expert witnesses.
None of these inquiries, records, visits, or correspondence gave
him a clue that the healthcare providers or York Health had been
deemed federal employees or that Santos should contact the
Department of Health and Human Services for more information
about them. Indeed, the District Court acknowledged that
Santos’s “assumption that her doctors were private actors
subject to state law . . . was not at all unreasonable.” 523 F.

                                 26
Supp. 2d at 442.

       The Government nonetheless claims that Santos could
have ascertained that the FTCA protected York Health and its
healthcare providers, and undoubtedly if she had been alerted to
the need to explore their federal employment status then the
Government’s contention would be correct. Specifically,
according to the Government, “[s]ources of information,
including the very webpage cited in the affidavit of Plaintiff’s
counsel [as not revealing that York Health had been deemed a
federal employee], were available, from which the status of
York Health could be ascertained.” Appellee’s br. at 24. This
website’s main page stated that York Health receives funding
from various federal, state, local, and charitable sources:

          The York Health Corporation receives grant
          support from the United States Department of
          Health and Human Services, the United Way of
          York County, the Family Health Council of
          Central Pennsylvania, the York County
          Community Development Department, the York
          City Bureau of Health, and the Pennsylvania
          Commission on Crime and Delinquency.




Id. at 10 (citing archived website).7 In addition, the webpage


      7
       Our quotation is from the archived website. See
http://web.archive.org/web/20040505050805/http://www.york

                              27
indicated that York Health was a “federally-qualified health
center.” 8

        The foregoing statements indicated that York Health
received partial federal financial support from the Government.
But they would not reveal to a reasonably diligent plaintiff that
its doctors and clinics had been deemed federal employees under
the Public Heath Service Act, 42 U.S.C. § 233(g)-(n), and thus
were subject to the FTCA inasmuch as the Government gives
financial aid to many entities, public and private, but their
employees are not thereby federalized. In this regard, we point
out York Health and its employees did not become employees
of the other entities supporting them. With respect to the
significance or not of federal aid, we cannot conceive that
anyone would contend that on the basis of the common law
application of the doctrine of respondeat superior the entities
contributing to York Health’s funding, including the United
States itself, would be liable for York Health’s employees’
malpractice. After all, if making a contribution to an entity
could have such a consequence, contributions to many charities,
service and community organizations, foundations, and other
nonprofit organizations would cease. Surely potential donors to
such entities would not run the risk that by making their



healthcorp.com/index.html.

    8
     This phrase at most indicates that federal law could be
applicable to specific situations such as determining eligibility
for a provider to participate in Medicare and reimbursement
rates under that program.

                               28
contributions they would become liable for a future plaintiff’s
injuries attributable to such an entity’s torts. Furthermore, if
York Health was a federal employee it would not be expected
that charitable organizations and state and local governmental
agencies would be giving it aid.9

        The Government asserts that in addition to the website,
which did not indicate that York Health and its employees had
been deemed federal employees, other “sources of information
. . . were available” from which Santos could have learned this
critical fact. Appellee’s br at 24. At oral argument, when we
asked what publicly available information would have alerted
Santos that the allegedly negligent healthcare providers and
York Health had been deemed federal employees, the
Government stated that the Department of Health and Human
Services maintains a database of clinics that receive funding and
are deemed federal employees. Yet the Government did not
indicate that the database was publicly available, or how it
would be accessed, and the record does not specify where there
is a public source setting forth the information. The absence of
such a source is not surprising. As the District Court noted, the
FTCA does not include a “requirement that deemed facilities


  9
    Lest it be thought that the Government was compelled as a
matter of law to treat Santos as it did, we point out that in the
somewhat comparable litigation involving the timeliness of a
claim under the FTCA in Bradley v. United States, 856 F.2d
575, vacated and remanded, 490 U.S. 1002, 109 S.Ct. 1634, on
remand, 875 F.2d 65 (3d Cir. 1989) (per curiam), it took a very
different approach than it does here.

                               29
publicize their status as federal entities, nor does [the
Department of Health and Human Services] publish this
information.” Santos, 523 F. Supp. 2d at 447.

        The Government also asserts that “[a] simple inquiry
directed at the health center would have been sufficient in and
of itself.” Appellee’s br. at 30. While the record does not
indicate whether this assertion is true, clearly it presents an odd
scenario in which Santos, a potential claimant, should have
relied on her adversary to inform her of the applicability of the
FTCA and its two-year statute of limitations. In any case, the
Government does not contend that the healthcare providers or
York Health would have been obligated legally to reveal their
federal status. Moreover, while we do not doubt that the
management of York Health understood its FTCA liability
status, we are by no means certain that this knowledge extended
to its employees, and the record is silent on this point. Overall,
it seems to us, as far as we can see from the record, that Santos
and her counsel had no reason to inquire as to the possible
federal status of York Health and its employees.

3. Santos Was Precluded from Discovering That York Health
and the Defendant Caregivers Were Federal Employees.

        So where should Santos have looked to determine that the
caregivers and York Health had been deemed federal
employees, and what information could have alerted her of the
need to do so? As a practical matter, York Health’s federal
status, if not covert, was at least oblique. Of course, Santos
faces her statute of limitations barrier because of the
Government’s

                                30
       failure to disclose that physicians . . . who provide
       services in private voluntary hospitals and in what
       appear to be private clinics, are de jure federal
       employees. Patients receiving such treatment are
       not aware, because they are never told or put on
       any notice, that the clinics they attend are
       government-funded or that doctors treating them
       are government employees. Such an omission
       does not rise to the level of fraud. Nevertheless,
       by not formulating a regulation that would require
       notice to a patient that the doctor rendering
       service to him is an employee of the United
       States, the Department of Health & Human
       Services has created a potential statute of
       limitations trap in states [that] may provide a
       longer period of time than the FTCA to file a
       complaint. The number of cases in which the
       United States has sought to take advantage of this
       trap suggests that it is aware of the consequences
       of its failure to disclose the material facts of
       federal employment by doctors who might
       reasonably be viewed as private practitioners.
       This conduct, if anything, is more problematic
       than the non-disclosure that justified invoking the
       doctrine of equitable tolling in [an earlier case].




Valdez, 518 F.3d at 183 (internal citations omitted); see Albright
v. Keystone Rural Health Center, 320 F. Supp. 2d 286 (M.D. Pa.
2004) (equitably tolling FTCA’s statute of limitations in medical

                                31
malpractice case where combination of Pennsylvania’s minors’
tolling statute and difficulty of ascertaining federal status of
defendants resulted in extraordinary circumstances precluding
plaintiff from timely filing her claim).10

        Here, though York Health’s website indicated that it
received federal, state, local, and charitable funding, it did not
provide notice to Santos that York Health and its employees
were federal employees covered by the FTCA. And the
Government has not identified, at least to us, any publicly
available sources of information from which Santos could have
learned this critical fact or, even if the information had been
available, what circumstances should have led her to inquire into
York Health’s federal status for purposes of the FTCA. We
reiterate that Santos correctly identified the allegedly negligent
healthcare providers, determined that they were employees of
York Health, and performed a public-records search on York
Health. Santos’s counsel also visited the clinic’s facilities,
corresponded with the clinic, and reviewed her medical records.
But these inquiries did not reveal that the apparently private
York Health and its employees had been deemed to be federal
employees subject to the FTCA. And while Santos conceded
that “the clinic did nothing to affirmatively mislead her as to its
federal status,” Santos, 523 F. Supp. 2d at 443, such affirmative
misconduct is not required to find that she exercised due
diligence sufficient for equitable tolling to apply. See, e.g.,


  10
    While we reach the same result as the court in Albright, on
which Santos heavily relies, we do so for somewhat different
reasons as discussed here.

                                32
Valdez, 518 F.3d at 183. In considering all of the circumstances
of this case, we have concluded that it satisfies the second of the
three possible bases for concluding that there should be
equitable tolling that we have set forth, for Santos “in some
extraordinary way has been prevented from asserting . . . her
rights.” Hedges, 404 F.3d at 751.

        We reach our conclusion applying equitable tolling with
great caution, keeping in mind that we neither should expand
nor contract the United States’ waiver of its sovereign immunity,
Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 357, and that equitable
tolling is an extraordinary remedy that we rarely apply. Hedges,
404 F.3d at 751. Here, however, inasmuch as the United States
partially has waived its sovereign immunity under the FTCA, it
would be inequitable to allow it to avoid potential liability by
reason of a limitations provision whose applicability a
reasonably diligent claimant did not discover.




                      V. CONCLUSION

        We make one final observation about the inequity of the
Government’s position that should be apparent to all. The only
reason that Santos has been barred from bringing her action is
that at the time of her injury she was a minor, so her counsel
understandably believed that the Pennsylvania statutory tolling
rule protecting minors applied in her case. Moreover, though
there can be tolling under state law for reasons other than a
plaintiff’s minority, it is nevertheless likely that a plaintiff
invoking such statutory tolling will be a minor relying on her

                                33
minority. Thus, the Government is contending for a result likely
to prejudice the weakest and most vulnerable members of our
society who surely are compelled to rely on others for the
assertion of their rights, particularly when she is of tender years
as was Santos when her cause of action accrued. There is no
escape from the reality that the statute of limitations trap to
which the court referred in Valdez is a perfect vehicle to ensnare
children. In this regard we pose the following rhetorical
question: can any rational person believe that Santos, who was
six years old when her claim accrued at that time had any
personal knowledge of malpractice actions and the FTCA? 11
Furthermore, we have no doubt at all that if Santos had been 18
years old on December 22, 2002, when her cause of action
accrued she would have brought her claim in the state court
within two years of that date so that the Westfall Act would
have saved it. We believe that in reaching our conclusion we
are acting consistently with congressional intent, as we do not
think that Congress in the circumstances here would want to bar
Santos from an opportunity to prove her claim.

       Because of the extraordinary facts in this case centering
on Santos’s reasonable diligence and the federal involvement
that was oblique at best, we conclude that the equitable tolling
doctrine applies here to toll the FTCA’s statute of limitations
until Santos learned after filing her claim in state court that the
state-court defendants had been deemed federal employees.


  11
    In posing this question we are aware that we have indicated
that “we impute to their parents or guardian the knowledge of
their injury.” Miller, 463 F.3d at 274.

                                34
Santos’s claim is thus timely under 28 U.S.C. § 2401(b). We
accordingly will reverse the order of the District Court entered
November 30, 2007, granting summary judgment to the United
States, and will remand the case to the District Court for further
proceedings consistent with this opinion.




O’Neill, J., dissenting:




       I respectfully dissent.




       I agree with the majority’s statement of the facts and
characterization of the issues before us. The first disputed issue,
whether in any circumstance there can be equitable tolling of the
FTCA’s limitations period, is complicated and has created a
significant circuit split.

       In Irwin v. Department of Veterans Affairs, 498 U.S. 89
(1990), the Supreme Court held that non-jurisdictional statutes
of limitations governing actions against the United States are
subject to “the same rebuttable presumption of equitable tolling
applicable to suits against private defendants.” Id. at 96. The
majority follows this Court’s precedent in finding that the
FTCA’s statute of limitations is non-jurisdictional and that
equitable tolling can apply. See Hughes v. United States, 263
F.3d 272, 278 (3d Cir. 2001).

                                 35
       However, as the majority notes, a substantial circuit split
exists on whether the FTCA is jurisdictional and whether
equitable tolling applies.12 The Court of Appeals for the Ninth


  12
     See e.g., Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir. 2002), noting that it “has repeatedly held that compliance
with this statutory requirement is a jurisdictional prerequisite to
suit that cannot be waived” (citations omitted); but see de
Casenave v. United States, 991 F.2d 11, 13 n.2 (1st Cir. 1993),
holding that “[i]n light of the Supreme Court's holding in Irwin
. . . the district court's refusal to entertain plaintiffs' tolling
argument [with respect to Section 2401(b)] was erroneous”;
Valdez ex rel. Donely v. United States, 518 F.3d 173, 185 (2d
Cir. 2008), declining to determine whether to apply equitable
tolling to the FTCA statute of limitations; Hughes, 263 F.3d at
278, holding that the FTCA’s statute of limitations is non-
jurisdictional and applying equitable tolling; Gould v. U.S. Dep't
of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990),
finding that the FTCA statute of limitations is jurisdictional and
unwaivable, so equitable tolling cannot be applied; Johnson v.
United States, 460 F.3d 616, 619 (5th Cir. 2006), noting that it
has not yet determined whether the FTCA is jurisdictional; but
see Perez v. United States, 167 F.3d 913, 916-17 (5th Cir. 1999),
holding that the FTCA statute of limitations may be subject to
equitable tolling; Glarner v. U.S. Dept. of Veterans Admin., 30
F.3d 697, 701 (6th Cir. 1994), holding that the FTCA statute of
limitations is not jurisdictional and can be equitably tolled;
McCall ex rel. Estate of Bess v. United States, 310 F.3d 984,
987 (7th Cir. 2002), treating the statute of limitations as an
affirmative defense and applying equitable tolling; T.L. ex rel.

                                36
Circuit’s decision in Marley v. United States, 548 F.3d 1286
(9th Cir. 2008), notes that the issue is further complicated by the
Supreme Court’s recent decision in John R. Sand & Gravel Co.
v. United States, 128 S. Ct. 750 (2008).13 A definitive Supreme


Ingram v. United States, 443 F.3d 956, 961 (8th Cir. 2006),
holding that “there is no inconsistency between viewing
compliance with the statute of limitations as a jurisdictional
prerequisite and applying the rule of equitable tolling” (citations
omitted); Marley v. United States, 548 F.3d 1286, 1290 (9th Cir.
2008), noting that it has long held that the FTCA’s statute of
limitations is jurisdictional and thus equitable tolling may not be
applied; Trobaugh v. United States, 35 Fed. Appx. 812, 815
(10th Cir. 2002), applying equitable tolling to the FTCA’s
statute of limitations; but see Farlaino v. United States, 108 F.3d
1388, at *4 (10th Cir. 1997) (unpublished), noting that the
FTCA limitations periods are jurisdictional and not subject to
estoppel or waiver principles; Torjagbo v. United States, 285
Fed. Appx. 615, 618 (11th Cir. 2008), finding that the FTCA is
jurisdictional but declining to determine whether equitable
tolling applies; Norman v. United States, 467 F.3d 773, 776
(D.C. Cir. 2006), noting that it had not yet determined whether
the FTCA’s statute of limitations is jurisdictional.
   13
       The Marley Court noted that the Supreme Court held in
John R. Sand & Gravel that the rebuttable presumption of Irwin
is not the correct rule when past precedents analyzing the
specific statute at issue are available. Marley, 548 F.3d at 1292-
93, citing John R. Sand & Gravel, 128 S. Ct. at 755-56; see also
Belton v. United States, 2008 WL 2273272, at *9 (E.D. Wis.
June 2, 2008).

                                37
Court holding on this issue would eliminate the confusion and
permit the law to be applied uniformly.




        However, I find it unnecessary to address this issue
because, regardless of whether the FTCA statute of limitations
can be equitably tolled, Santos fails to show that equitable
tolling is appropriate in this case. The majority would apply
equitable tolling here because it believes that Santos and her
attorney exercised due diligence and that she was precluded
from discovering that her doctors and their employer were
federal employees under the FTCA. It is on this ground that I
dissent.

      The Supreme Court permits

      equitable tolling in situations where the claimant has
      actively pursued his judicial remedies by filing a
      defective pleading during the statutory period, or where
      the complainant has been induced or tricked by his
      adversary's misconduct into allowing the filing deadline
      to pass. We have generally been much less forgiving in
      receiving late filings where the claimant failed to
      exercise due diligence in preserving his legal rights . . .
      . But the principles of equitable tolling described above
      do not extend to what is at best a garden variety claim of
      excusable neglect.

Irwin, 498 U.S. at 95-96 (footnotes omitted). Under Irwin,
equitable tolling is available where a plaintiff has actively

                              38
pursued judicial remedies but filed a defective pleading if
plaintiff has exercised due diligence. Id. However, equitable
tolling is an extraordinary remedy which should be extended
only sparingly. Hedges v. United States, 404 F.3d 744, 751 (3d
Cir. 2005), citing Irwin, 498 U.S. at 96. 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 96.

        As the majority noted, we have found that equitable
tolling is available in three circumstances. Sch. Dist. of
Allentown v. Marshall, 657 F.2d 15, 19-20 (3d Cir. 1981).
Santos does not allege that defendant actively misled her
regarding the cause of action or that she raised the statutory
claim in a timely fashion but in the wrong forum as she filed
approximately five months after the FTCA statute of limitations
had elapsed. Instead, plaintiff alleges that she is entitled to
equitable tolling because she was prevented “in some
extraordinary way” from asserting her rights because nothing
put her on notice that she should inquire into whether York
Health and her doctors were covered by the FTCA and the
FTCA statute of limitations is eleven years shorter than the state
statute of limitations. Hedges v. United States, 404 F.3d 744,
751 (3d Cir. 2005). The majority claims that, despite an
otherwise diligent investigation including medical records
requests, public records searches and conversations with York
Health employees, nothing put Santos and her attorney on notice
to inquire into whether York Health employees were deemed
federal employees under the FTCA before filing her state law
claim.


                               39
       I disagree with the majority’s holding that Santos
exercised due diligence in ascertaining the federal status of her
health care providers. She retained an attorney six months after
her claim accrued and requested medical records immediately.
While Santos and her attorney were clearly diligent in obtaining
medical records and expert opinions, they did not exercise due
diligence in inquiring into the effect of York Health’s federal
grants or federal qualifications. Santos and her attorney had two
years to ask whether the hospital was private or federal while
her attorney prepared her case. As other courts have held, for
Santos and her attorney merely to assume that York Health was
a private entity without making any inquiries to confirm this
assumption constitutes a lack of due diligence.14 I agree with


  14
      See e.g., Ingram, 443 F.3d at 964, holding that even if the
plaintiff “had no reason to suspect” that the clinic was protected
by the FTCA, “[t]he statute of limitations is not tolled, however,
simply because a plaintiff is unaware that an alleged tortfeasor
is a federal employee . . . . A plaintiff thus must inquire into the
employment status of her doctor”; Norman, 467 F.3d at 775-76,
declining to apply equitable remedies because defendants were
not required to inform plaintiff of their federal status; Gonzalez,
284 F.3d at 291-92, holding that medical malpractice FTCA
claim should not be equitably tolled despite the plaintiff’s claim
of “blameless ignorance” of federal status of her doctors; Gould,
905 F.2d at 745-46, holding that “blameless ignorance” is
insufficient and that “[t]he burden is on plaintiffs to show that
due diligence was exercised and that critical information,
reasonable investigation notwithstanding, was undiscoverable;
Jones v. United States, 2007 WL 4557211, at *11-12 (M.D. Fla.

                                40
our sister courts and the district courts that have addressed this
issue that Santos’ failure to inquire into her doctors’ federal
status constitutes “a garden variety claim of excusable neglect.”
Irwin, 498 U.S. at 95-96.

      Santos argues that she was never informed of York
Health’s FTCA coverage. However, employees protected by the
FTCA have no duty to disclose their federal legal status. Gould,


Dec. 21, 2007), finding that the court could not apply equitable
tolling to indigent single mother who failed to file her claim
under the FTCA within the two year statute of limitations
because she did not inquire as to the employment status of the
doctors; Schappacher v. United States, 475 F. Supp.2d 749, 755-
56 (S.D. Ohio 2007), holding that the statute of limitations
should not be equitably tolled because of the plaintiffs’
ignorance about doctor’s federal status because they made no
inquiry and there was no evidence that doctor affirmatively
misled the plaintiff; but see Valdez, 518 F.3d at 183, noting in
dicta that the government’s decision not to require notice to
patients of a doctor’s federal status creates a potential statute of
limitations trap in many states and that the government has taken
advantage of this trap many times; Albright v. Keystone Rural
Health Center, 320 F. Supp.2d 286 (M.D. Pa. 2004), finding that
equitable tolling of the FTCA’s statute of limitations was
justified in a medical malpractice case where the combination of
Pennsylvania Minor’s Tolling statute and difficulty of
ascertaining federal status of defendants resulted in
extraordinary circumstances precluding plaintiff from timely
filing her claim.

                                41
905 F.2d at 745. Santos concedes that she was not affirmatively
misled by York Health or the government - Santos simply made
no inquiry into York Health’s status while receiving treatment
nor during the two years that followed when an administrative
FTCA claim could have been timely filed. Santos’ attorney
conceded that he did not confirm his assumption that York
Health and its employees were private entities. To toll the
FTCA statute of limitations because plaintiff is ignorant of
defendant’s federal status, plaintiff “must at the very least show
that the information could not have been found by a timely
diligent inquiry. . . .” Motley, 295 F.3d at 824, citing Gonzales,
284 F.3d at 291. Here, as in Motley, Santos had two years after
discovering the alleged negligence to learn of the Public Health
Service Act, 42 U.S.C. § 5201 et seq., (the Act) as amended by
the Federally Supported Health Centers Assistance Act of 1992,
Pub. L. No. 102-501, 106 Stat. 3268 (1992), for which York
Health had been deemed eligible since October 7, 1993, and to
inquire into its possible application to her claim. The “failure to
do so was a mistake of law that does not entitle [Santos] to
equitable tolling.” Id., citing Kubrick, 444 U.S. at 123-24.
“[H]owever harsh it may seem, the law is clear that, absent
active concealment, a plaintiff's ignorance of a person's status as
a federal employee does not excuse plaintiff's failure to file a
timely administrative claim.” Kelly v. Total Health Care, Inc.,
2000 WL 151280, at *1 (D. Md. Jan. 28, 2000), aff’d 3 Fed.
Appx. 15 (4th Cir. 2000).

       The majority attempts to distinguish factually-similar
cases cited by the government that place the burden on plaintiffs
to investigate defendants’ legal status. The majority notes that
Santos’ attorney identified the doctors and their employer as

                                42
defendants but did not have cause to discover their status as
federal employees while, in the other cases, the plaintiffs failed
to inquire into the identity of the defendants’ employer. The
majority argues that these cases did not apply equitable tolling
because the plaintiffs “failed to perform reasonable
investigations that would have demonstrated that the defendants
had been deemed federal employees covered by the FTCA.” I
do not agree that these cases are distinguishable on the basis that
the plaintiffs failed to inquire about the doctors’ employer.15
Instead, these cases do not apply equitable tolling for the same
reason it is not applicable here: the plaintiffs failed to inquire
into the defendant’s federal status regardless of whether they
correctly identified the defendants’ employer.

      In Gonzalez, a child’s mother consulted an attorney four
months after the doctors’ allegedly tortious conduct and filed a
claim shortly after the FTCA’s limitations period expired.
Gonzalez, 284 F.3d at 285-86. The plaintiff claimed that she


    15
        I note that Norman is distinguishable from this case
because inquiry into the defendant’s employer likely would have
led to his federal status because the employer was the
Environmental Protection Agency. However, though the
majority relies on Norman as instructive, the Norman Court
gives no indication that the plaintiff’s identification of the
defendant’s employer would have been sufficient to justify
equitable tolling. See Norman, 467 F.3d at 776, holding that
“[a]t a minimum, due diligence requires efforts to learn the
employment status of the defendant” and that the plaintiff had
not met that minimum.

                                43
was “blamelessly ignorant” and could not discover the
defendants’ legal status. Id. at 291. The Court of Appeals for
the First Circuit held that the plaintiff could not show due
diligence justifying equitable tolling because she presented no
evidence that she or her attorneys inquired as to defendants’
federal status. Id. The Court found that the plaintiff had two
years to ascertain the defendants’ legal status and that to assume
state jurisdiction without confirmation was a lack of due
diligence. Id. at 291-92. Like Gonzalez, Santos and her
attorney failed to inquire into defendants’ legal status or confirm
their assumption that state law applied. The majority cites the
case as finding that “there was no evidence that the plaintiff
made any inquiry whatsoever into the employment of the
defendants.” However, the Court found “no evidence ha[d]
been presented that [plaintiff] or her attorneys made any inquiry
whatsoever as to the status of the defendants as federal
employees.” The majority suggests that a “simple investigation”
by Gonzales would have revealed the doctors’ federal status but
that it was impossible for Santos to discover that York Health
was a federal employee. It is difficult to see how this could be.
If Gonzales had discovered that her doctors worked for a
different hospital, General Lawrence Family Health Center, then
Gonzales would still have to learn the hospital’s legal status - a
step that the majority believes Santos was precluded from
discovering although she knew her doctors’ employer. Thus,
like Gonzales, Santos and her attorney could easily have learned
the legal status of her doctors.

       In Ingram, a 15-year-old mother’s attorney started
investigating six days after the doctors’ allegedly tortious
conduct during her child’s birth, requested medical records

                                44
within months and filed a claim within two and a half years.
Ingram, 443 F.3d at 958. The plaintiff argued that she had no
reason to suspect that her baby was delivered by a federal
employee at the private hospital and that medical records made
no such indication. Id. at 964. The Court of Appeals for the
Eighth Circuit declined to apply equitable tolling because
Ingram was unaware that her doctor was a federal employee
when she knew her doctor’s identity and there was no indication
that the doctor or the United States attempted to conceal his
federal employee status. Id. Santos and her attorney similarly
received medical records that did not put her on notice of
defendants’ federal status though she knew the identity of her
doctors and their employer. The Ingram Court relied not on
Ingram’s failure to inquire into her doctors’ employer but on her
failure to inquire into her doctor’s legal status. That Santos
identified her doctors’ employer does not distinguish Ingram or
Gonzalez and extinguish her obligation to inquire into her
doctors’ legal status.

       Moreover, instead of following our sister courts in these
factually-similar cases, the majority attempts to distinguish them
and relies on the decision of the Court of Appeals for the Second
Circuit in Valdez to support its proposition that Santos was
precluded from discovering York Health’s federal status.
However, the discussion cited is dicta. The Valdez Court
remanded the case on the issue of when the action accrued and
the discussion cited by the majority began by noting that Valdez
“involve[d] a special circumstance that may warrant equitable
tolling” and concluded by stating that it was unnecessary to
determine whether due diligence justified equitable tolling
because it was remanding on the issue of accrual. See Valdez,

                               45
518 F.3d at 183, 185, emphasis added.

         Under the majority’s standard, for a plaintiff to identify
her doctors and her doctors’ employer but not to ask about their
federal status because general diligence did not put her on notice
to inquire is sufficient to justify equitable tolling. The majority
believes that Santos’ and her attorney’s assumption was “far
from [] baseless” when York Health looked like a private clinic,
that its employees do not resemble traditional federal employees
and that nothing revealed in general diligence “gave [Santos’
attorney] a clue” that York Health and its employees were
federal employees. However, plaintiffs have an affirmative duty
to investigate defendant’s legal status; defendants do not have
a duty to disclose their identity as federally-protected employees.
Gould, 905 F.2d at 745. The majority believes that Santos was
precluded from discovering that York Health was a federal
employee because neither York Health nor any “publically-
available sources” provided notice of federal status and that
even if the information were available no circumstances should
have led her to inquire. The source that prompts the inquiry is
not the facts; it is the law itself.16


  16
     Additionally, the majority suggests that if federal grants to
an otherwise private hospital impose liability on the federal
government for its medical malpractice then, by that same logic,
no one would donate to non-profits because of the risk of
liability for the non-profits’ malpractice and the federal
government would be liable for all entities to which it provides
support. This is logically flawed as the circumstance which
creates liability for the federal government in this case is the

                                46
        The information was not “undiscoverable” or even
difficult to discover - the plaintiff need only know the law and
ask. The only obstacle in learning of the defendant’s federal
status stemmed from ignorance of the applicable statutes, case
law and literature in this area,17 not from determining whether
the Act applied. Santos has presented no evidence that an
inquiry into her doctors’ and York Health’s legal status would


Public Health Service Act, not the financial support itself. For
plaintiffs who know of the law, the existence of federal support
is therefore sufficient notice that the Act could apply. In the
present situation, it is not merely that York Health received
federal support; it is that the United States waived its immunity
and consented to be liable for the malpractice of those deemed
federal employees under the Act if acting within the scope of
their employment when a claim is timely filed.
   17
      Case law in other courts and academic literature published
before the FTCA statute of limitations tolled in this case should
have operated to put Santos and her experienced medical
malpractice attorney on notice of the requirement to inquire into
her doctors’ legal status. See e.g., Motley, 295 F.3d at 824;
Gonzales, 284 F.3d at 291; Kelly, 2000 WL 151280, at *1;
Joseph P. Griffith Jr., Medical Malpractice Litigation and
Federally Funded Health Centers: A Primer on the Federally
Supported Health Centers Assistance Act, 14-JAN S.C. Lawyer
32, 37 (2003); Richard W. Bourne, A Day Late, A Dollar Short:
Opening a Governmental Snare Which Tricks Poor Victims Out
of Medical Malpractice Claims, 62 U. Pitt. L. Rev. 87 (2000).
If Santos’ counsel had read any of the cases or articles cited, he
would have been aware of this problem.

                               47
not have discovered it.

        The majority suggests that this situation presents an “odd
scenario” wherein a plaintiff must rely on her adversary to
provide accurate information, that York Health is under no legal
obligation to respond truthfully to Santos’ inquiry into its legal
status and that York Health employees may not be aware of their
federal status. However, if Santos had exercised diligence by
making the inquiry and York Health had misrepresented its legal
status, equitable tolling likely would have been appropriate
because Santos could claim that she was misled. Irwin, 498
U.S. at 95-96. Also, Santos need not have relied on York
Health’s statement of its legal status. If Santos or her attorney
had been aware of the Public Health Service Act, they could
have looked up the clinic on a Department of Health and Human
Services website that lists clinics under the Act:
http://www.bphc.hrsa.gov/. This website was available for this
purpose no later than January 2003, almost two years before the
FTCA statute of limitations ran in this case. See Griffith,
Medical Malpractice Litigation, supra, at 37, describing
procedures for determining whether a health center is covered
by the Act and referencing the website. The majority excuses
Santos and her attorney of the duty to inquire as to potential
defendants’ legal status if nothing puts them on notice to inquire
while Congress has imposed no duty to disclose on federal
employees covered by the FTCA. If plaintiffs need not ask and
defendants need not tell, then the burden lies with neither party
and equitable tolling is provided as a benefit to those who do not
learn the law regardless of how much general diligence is done
in the case.


                               48
        Santos is in this situation because she and her attorney
believed that she had additional time to file under the
Pennsylvania Minor’s Tolling Statute.18 We agree with the
majority that a plaintiff’s minority status cannot toll the FTCA’s
statute of limitations because the knowledge of the injury and
the correct party to sue is imputed to the parents.19 Thus,


  18
       The Pennsylvania Minors’ Tolling Statute states:

        (i) If an individual entitled to bring a civil action is an
        unemancipated minor at the time the cause of action
        accrues, the period of minority shall not be deemed a
        portion of the time period within which the action must
        be commenced. Such person shall have the same time for
        commencing an action after attaining majority as is
        allowed to others by the provisions of this subchapter.
        (ii) As used in this paragraph, the term "minor" shall
        mean any individual who has not yet attained 18 years of
        age.

42 Pa. C.S.A. § 5533(b)(1)(i-ii).
  19
     See e.g., Ingram, 443 F.3d 956, holding that even the status
of mother of injured infant as a minor when daughter was born
did not toll the two-year statute of limitations under the FTCA;
Wilson ex rel. Wilson v. Gunn, 403 F.3d 524 (8th Cir. 2005),
cert. denied, 126 S. Ct. 367 (2005), holding that infancy does
not ordinarily toll the FTCA statute of limitations because the
parents or guardians of an infant plaintiff are under a duty to
investigate an injury and its cause and to take legal action within
the time prescribed; McCall, 310 F.3d 984, holding that neither

                                49
children in states with minority tolling statutes are in an identical
position to adults in states with longer statutes of limitations for
torts than that provided by the FTCA 20 and I have looked to
those cases for guidance. Courts have not extended equitable
tolling for adults in states that have longer statutes of limitations
for tort claims than the FTCA’s limitations period. See e.g.,
Gonzalez, 284 F.3d at 291-92, holding that plaintiff who
incorrectly believed that the Massachusetts’ three-year statute of
limitations applied had not exercised due diligence where
plaintiff failed to inquire into employment status of her doctor,
who made no attempt to conceal his federal employee status;
Kelly, 2000 WL 151280, *1 (D. Md. 2000), holding that
plaintiff who filed within the Maryland statute of limitations had
not exercised due diligence where defendant had not actively
concealed federal status though it did not publicize that
defendants were deemed to be federal employees.


minor’s infancy nor mental incompetency, allegedly caused by
United States, tolled FTCA administrative statute of limitations;
MacMillan v. United States, 46 F.3d 377, 381 (5th Cir. 1995),
holding that the limitations period is not tolled during minority
of putative plaintiff because parent's knowledge of injuries is
imputed to plaintiff; Robbins v. United States, 624 F.2d 971,
972 (10th Cir. 1980), same; Mann v. United States, 399 F.2d
672, 673 (9th Cir. 1968), holding that the time limitation is not
tolled during a claimant's minority.
  20
     As the District Court noted, “Fifteen states have statutes of
limitations for medical malpractice claims that exceed the two
year limit under the FTCA.” Santos v. United States, 523 F.
Supp.2d 435, 442 (M.D. Pa. 2007), collecting statutes.

                                 50
        As there is no case law in this Court involving a
similarly-situated minor, I look to precedential law governing
similarly-sympathetic plaintiffs. In McNeil v. U.S., 508 U.S.
106 (1993), the Supreme Court held that a pro se litigant’s claim
was properly dismissed because he failed to heed clear statutory
text to wait until his administrative proceedings terminated
before instituting an action in federal court under the FTCA. Id.
at 113. The Court noted that it has never suggested that
procedural rules in ordinary civil litigation should be interpreted
so as to excuse mistakes by those who proceed without counsel.
Id. How can we allow an attorney’s mistake of law to justify
equitable tolling if precedent does not allow a pro se litigant’s
claim to proceed when it involves a mistake of law? Moreover,
this Court has declined to extend equitable tolling to pro se
litigants finding a lack of due diligence for failure to discover
the proper causes of actions before the statute of limitations
expired. See e.g., Hedges, 404 F.3d at 752-53, citing McNeil,
508 U.S. at 113; United States v. Sosa, 364 F.3d 507, 512 (4th
Cir. 2004), stating that a pro se plaintiff's “misconception about
the operation of the statute of limitations” was “neither
extraordinary nor a circumstance external to his control”
sufficient to warrant equitable tolling; see also Huertas v. City
of Philadelphia, 188 Fed. Appx. 136, 138 (3d Cir. 2006),
holding that a plaintiff’s “ignorance, inexperience and pro se
status” do not equitably toll the statute of limitations in a
personal injury case. The Hedges Court also held that the
plaintiff’s “mental incompetence, even rising to the level of
insanity, did not toll a federal statute of limitations for claims
against the Government” separately and in combination with the
plaintiff’s pro se status. Hedges, 404 F.3d at 753, citing Barren
v. United States, 839 F.2d 987 (3d Cir. 1988), denying equitable

                                51
tolling for mental incompetence in a FTCA claim. It is
inconsistent and, indeed, incomprehensible to extend equitable
tolling to a child whose parent was aware of her injury and
immediately employed an attorney experienced in medical
malpractice when we do not extend it to mentally-incompetent
and pro se litigants because of their mistakes of law.

        As this Court has previously noted, “[p]rocedural
requirements established by Congress for gaining access to the
federal courts are not to be disregarded by courts out of a vague
sympathy for particular litigants.” Hedges, 404 F.3d at 754. “In
the long run, experience teaches that strict adherence to the
procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.” Id. at 753,
citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
152 (1984). While statutes of limitations can work a substantial
hardship on plaintiffs and may harshly impact innocent parties
by making it impossible to enforce otherwise valid claims, we
must apply the law as written. “As the Supreme Court has
instructed, it is clearly the prerogative of Congress, not the
judiciary, to reform the terms and scope of waiver of sovereign
immunity beyond that which Congress intended.” Gould, 905
F.2d at 747, citing U. S. v. Kubrick, 444 U.S. 111, 117-19
(1979). In fact, Congress amended the FTCA in 1988 to provide
statutory tolling of its statute of limitations for timely claims
brought erroneously in state court rather than before the
appropriate federal agency. 28 U.S.C. § 2697(d)(5). This
provision protects the claims of plaintiffs unaware of
defendants’ federal status in states with statutes of limitations
for tort claims of two years or less. Thus, any remaining “traps”
within the FTCA’s statute of limitations for minors in states

                               52
with minor’s tolling statutes or adults in states with tort statutes
of limitations longer than two years are for Congress, not this
Court, to correct. See Bourne, A Day Late, discussing methods
by which Congress could address this issue. To hold otherwise
would effectively rewrite the two year statute of limitations of
2401(b) to allow the state statute of limitations or a state minor’s
tolling statute to apply whenever a plaintiff is unaware of a
defendant’s federal status.

       In sum, if Santos and her attorney had considered the
Public Health Service Act, the relevant case law and literature
they would have known that York Health and Santos’ doctors
could be federal employees and that her cause of action could be
governed by the FTCA. Their ignorance of the law and their
failure to inquire into the possibility of its application are the
only possible grounds for equitable tolling. As I previously
noted, this is a “garden variety claim of excusable neglect”and
not an example of due diligence that justifies equitable tolling.
Irwin, 498 U.S. at 96. This is not one of the rare situations
which justifies equitable tolling.

         I would affirm the well-reasoned decision of the District
Court.




                                53
