Hester v. LE et al

Brief/Memorandum in Support

N.D. Tex.June 12, 2017

Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page i IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT Respectfully Submitted, JOHN R. PARKER UNITED STATES ATTORNEY /s/ Mattie Peterson Compton Mattie Peterson Compton Assistant United States Attorney Texas Bar No. 04652300 Burnett Plaza, Suite 1700 801 Cherry Street, Unit #4 Fort Worth, TX 76102 Telephone: 817-252-5200 Facsimile: 817-252-5458 Email: mattie.compton@usdoj.gov DELL HESTER, Plaintiff, v. HIEN DINH LE, et al. Defendants. Civil Action No. 3:17-CV-01407-G Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 1 of 19 PageID 103 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page ii TABLE OF CONTENTS I. BACKGROUND AND FACTS ...................................................................................... 2 Plaintiff’s Administrative Claim .............................................................................. 2 II. ISSUES TO BE DECIDED ............................................................................................ 4 III. LAW AND ARGUMENT ............................................................................................. 4 A. STANDARD – Rule 12(b)(1) ............................................................................. 4 B. STANDARD – Rule 56(c) ................................................................................... 5 C. FTCA REQUIREMENT OF TIMELY EXHAUSTION OF ADMINISTRATIVE REMEDIES AND FILING SUIT ..................................... 6 D. ARGUMENT ....................................................................................................... 8 IV. CONCLUSION ........................................................................................................... 12 Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 2 of 19 PageID 104 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page iii TABLE OF AUTHORITIES CASES Atorie Air v. F.A.A., 942 F.2d 954 (5th Cir. 1991) .................................................................................... 6 Broussard v. United States, 989 F.2d 171 (5th Cir. 1993) .................................................................................... 6 Carr v. Veterans Administration, 522 F.2d 1355 (5th Cir. 1975) .............................................................................. 3, 8 Carter v. McHugh, 869 F. Supp. 2d 784 (W.D. Tex. 2012) ........................................................... 1-2, 10 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................................. 5 Childers v. United States, 442 F.2d 1299 (5th Cir.), cert denied, 404 U.S. 857 (1971) ................................ 1, 8 Clark v. Tarrant Cnty., 798 F.2d 736 (5th Cir. 1986) .................................................................................... 5 Estate of Carr ex. rel. Carr v. United States, 482 F. Supp. 2d 842 (W.D. Tex. 2007) .................................................................... 8 Farmer v. United States, 539 F. App’x. 584 (5th Cir. 2013) ............................................................................ 6 F.D.I.C. v. Meyer, 510 U.S. 471 (1994) ................................................................................................. 6 Frantz v. United States, 29 F.3d 222 (5th Cir. 1994) ...................................................................................... 7 Galindo v. U.S. Dep’t of Justice, 153 F. App’x 333 (5th Cir. 2005) ........................................................................... 10 Galvin v. Occupational Safety and Health Admin., 860 F.2d 181 (5th Cir. 1988) .................................................................................... 6 Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 3 of 19 PageID 105 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page iv Granger v. Aaron’s, Inc., 636 F.3d 708 (5th Cir. 2011) ............................................................................ 10, 11 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006 (5th Cir. 1998) .................................................................................. 4 Houston v. U.S. Postal Service, 823 F.2d 896 (5th Cir. 1987), cert. denied, 485 U.S. 1006 (1988) ...................... 6, 8 Howery v. Allstate Ins. Co., 243 F.3d 912 (5th Cir.), cert. denied, 534 U.S. 993 (2001) ..................................... 4 In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281 (5th Cir. 2012) .................................................................................... 6 Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) ........................................................................................... 10, 11 Izen v. Catalina, 398 F.3d 363 (5th Cir. 2005) .................................................................................... 7 Lane v. Pena, 518 U.S. 187 (1996) ................................................................................................. 7 Martinez v. United States, 728 F.2d 694 (5th Cir. 1984) .................................................................................... 2 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ................................................................................................. 5 McGuire v. Turnbo, 137 F.3d 321 (5th Cir. 1998) .................................................................................... 6 McLaurin v. United States, 392 F.3d 774 (5th Cir. 2004) .................................................................................... 7 McNeil v. United States, 508 U.S. 106 (1993) ................................................................................................. 7 Metro Life Ins. Co. v. Atkins, 225 F.3d 510 (5th Cir. 2000) .................................................................................... 7 Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 4 of 19 PageID 106 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page v Montoya v. United States, 841 F.2d 102 (5th Cir. 1988) .................................................................................... 7 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ............................................................................................... 10 Nichols v. United States, 7 Wall. 122 L. Ed. 125 (1868) .................................................................................. 7 Perez v. United States, 167 F.3d 913 (5th Cir. 1999) .................................................................................. 10 Price v. United States, 69 F.3d 46 (5th Cir. 1995) ........................................................................................ 7 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ................................................................................ 7, 8 Smart v. United States, No. ED-14-CV-0208-EC, 2015 WL 222343 (W.D. Tex. Jan. 14, 2015)........... 2, 11 South Coast Corp. v. Comm’r of Internal Rev., 180 F.2d 878 (5th Cir. 1950) ................................................................................. 6-7 Teemac v. Henderson, 298 F.3d 452 (5th Cir. 2002) .................................................................................. 10 Trinity Marine Prods., Inc. v. United States, 812 F.3d 481 (5th Cir. 2016) .................................................................................... 9 United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) ......................................................................................... 8, 9 Wardsworth v. United States, 721 F.2d 503 (5th Cir. 1983) .................................................................................... 7 Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402 (5th Cir. 1995) .................................................................................... 10 Wilson v. United States Penitentiary Leavenworth, 450 F. App’x. 397 (5th Cir. 2011) ................................................................ 1, 10, 11 Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 5 of 19 PageID 107 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page vi STATUTES & REGULATIONS 28 C.F.R. § 14.2(a) .............................................................................................................. 2 28 C.F.R. § 14.9 ................................................................................................................... 3 39 C.F.R. § 912.9(a) ............................................................................................................ 3 28 U.S.C. § 1346(b) ............................................................................................................. 6 28 U.S.C. § 2401(b) ......................................................................... 1, 2, 3, 4, 7, 8, 9, 10, 12 28 U.S.C. § 2671 et seq ................................................................................................... 1, 6 28 U.S.C. § 2675(a) ............................................................................................................. 2 28 U.S.C. § 2679(b)(1) ........................................................................................................ 6 Fed. R. Civ. P. 12(b)(1) ................................................................................................... 1, 4 Fed R. Civ. P. 56(c) ......................................................................................................... 1, 5 Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 6 of 19 PageID 108 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT Plaintiff Dell Hester sued the U.S. Postal Service (“USPS”) and an employee of USPS under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., following a minor motor vehicle accident with a USPS vehicle at the intersection of Lawrence and Myrtle streets in Dallas, Texas. The United States moves for dismissal under Fed. R. Civ. P. 12(b)(1) or 56(c), because Plaintiff failed to file this action within six months of the denial of his administrative claim by USPS as required under 28 U.S.C. § 2401(b). The United States further shows that there are no grounds for equitable tolling given plaintiff’s lack of diligence, and the fact that the USPS did nothing to prevent him from filing a timely suit against the United States in U.S. District Court. See Childers v. United States, 442 F.2d 1299 (5th Cir.), cert denied, 404 U.S. 857 (1971); Wilson v. United States Penitentiary Leavenworth, 450 F. App’x. 397 (5th Cir. 2011); Carter v. McHugh, 869 F. Supp. 2d DELL HESTER, Plaintiff, v. HIEN DINH LE, et al. Defendants. Civil Action No. 3:17-CV-01407-G Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 7 of 19 PageID 109 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 2 784, 790-792 (W.D. Tex. 2012); Smart v. United States, No. ED-14-CV-0208-EC, 2015 WL 222343, *6 (W.D. Tex. Jan. 14, 2015). I. BACKGROUND AND FACTS On February 14, 2015, Hester was driving southbound on Myrtle Street in a 2014 Chevrolet Camaro. (Ex. A, Declaration of Nathan T Solomon, at ¶ 7, with Incident Report, at Ex. 1, App’x 001-04). Hester had a passenger, named Donna Branch, sitting in the front passenger seat. As Hester approached the intersection of Lawrence and Myrtle, USPS employee Hien Dinh Le, who was stopped at a stop sign, entered the intersection causing Hester to strike the USPS vehicle. Mr. Le was in the scope of his employment. (App’x 001-02 at ¶ 2). USPS settled a claim with passenger Donna Branch. (App’x 001- 02 at ¶ 17 ). Plaintiff’s Administrative Claim Hester submitted a timely administrative claim to the USPS on June 12, 2015.1 (App’x 001-02 at ¶ 6 ; App’x 005-06). Applicable provisions are 28 U.S.C. § 2401(b)2 and 28 U.S.C. § 2675(a).3 1 The relevant date for purposes of presentment of an administrative claim to the responsible federal agency is the date of receipt of the tort based claim by the agency. 28 U.S.C. § 2401(b); 28 C.F.R. § 14.2(a) (Attorney General’s regulations governing FTCA administrative claims); Martinez v. United States, 728 F.2d 694, 696 n. 3 (5th Cir. 1984). 2 28 U.S.C. § 2401(b) sets forth the applicable statute of limitations for filing an administrative claim. It provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 3 28 U.S.C. § 2675(a) provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless claimant shall have first presented the claim to the appropriate Federal agency and his claim Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 8 of 19 PageID 110 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 3 On January 29, 2016, the USPS formally denied plaintiff’s administrative claim because the parties were “were not able to reach a mutually satisfactory settlement of this claim.” (App’x 001-02 at ¶ 10; App’x 008-09). The denial letter which was sent certified mail, return receipt requested (App’x 001-02 at ¶ 11; App’x 008-09), advised plaintiff of his right to either (1) seek reconsideration, or (2) file suit against the United States in U.S. District Court under the FTCA within six months of the date of the denial letter in accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a).4 The letter reads in pertinent part: In accordance with 28 U.S.C. § 2401 (b) and 39 C.F.R. 912.9(a), if dissatisfied with the Postal Service’s final denial of an administrative claim, a claimant may file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of that final action. Accordingly, any suit filed in regards to this denial must be filed no later than six (6) months from the date of the mailing of this letter, which is the date shown above. Further, note the United States of America is the only proper defendant in a civil action brought pursuant to the Federal Tort Claims Act and such suit may be heard only by a federal district court. Alternatively, and in accordance with the regulations set out at 39 C.F.R. 912.9(b), prior to the commencement of suit and prior to the expiration of the six (6) month period provided in 28 U.S.C. § 2401 (b), a claimant, his duly authorized agent, or legal representative, may file a written request for reconsideration with the postal official who issued the final denial of the claim. Upon the timely filing of a request for reconsideration, the Postal Service shall have six (6) months from the date of filing in which to make a disposition of the claim and the claimant’s option under 28 U.S.C. § 2675(a) shall not accrue until six (6) months after the filing of the request for reconsideration. A request for reconsideration of a final denial of a claim shall be deemed to have been filed when received in this office. shall have been finally denied by the agency in writing and sent by certified mail or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 4 The relevant date for purposes of filing a civil action following denial of an administrative claim is the date of mailing of the notice of denial to claimant. 28 U.S.C. § 2401(b); 28 C.F.R. § 14.9; Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir. 1975). Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 9 of 19 PageID 111 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 4 (App’x 001-02 at ¶ 11; App’x 009-09). Six months passed from the date of final denial of Hester’s administrative claim and no request for reconsideration was received by the USPS (App’x 001-02 at ¶ 18), and no civil action was filed against the United States of America. Then, on January 20, 2017, almost one year after the denial of plaintiff’s administrative claim, Hester filed suit in the District Court for the 116th Judicial District in Dallas County, Texas. (Dkt. 1, Complaint). II. ISSUES TO BE DECIDED Whether this action should be dismissed based on plaintiff’s failure to file suit against the United States in U.S. District Court within six months of the denial of his administrative claim as required under 28 U.S.C. § 2401(b). III. LAW AND ARGUMENT A. STANDARD – Rule 12(b)(1). Parties invoking the jurisdiction of the federal courts have the burden to establish jurisdiction by affirmatively alleging the facts conferring jurisdiction in their complaints, and mere conclusory statements do not suffice. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001). Rule 12(b)(1) governs challenges to a court’s jurisdiction. A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 10 of 19 PageID 112 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 5 record; or (3) the complaint, supplemented by undisputed facts, plus the court’s resolution of disputed facts. Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th Cir. 1986). B. STANDARD – Rule 56(c). Summary judgment under Rule 56(c) is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When the moving party has carried its burden, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 588. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party’s claim. Celotex, supra, 477 U.S. at 317, 322. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue of fact exists for trial. Celotex, 477 U.S. at 324. Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 11 of 19 PageID 113 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 6 C. FTCA REQUIREMENT OF TIMELY EXHAUSTION OF ADMINISTRATIVE REMEDIES AND FILING SUIT “It is elementary that the United States, as sovereign, is immune from suits save as it consents to be sued . . . and [that] the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Farmer v. United States, 539 F. App’x. 584, 585 (5th Cir. 2013), citing Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993). “The FTCA acts as a limited waiver of sovereign immunity allowing the United States to be sued for the negligent or wrongful acts or omissions of its employees while acting within the scope of their duties. 28 U.S.C. § 1346(b), 2671 et seq.; F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994); McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998); Houston v. U.S. Postal Service, 823 F.2d 896, 902-04 (5th Cir. 1987), cert. denied, 485 U.S. 1006 (1988). The United States is the only proper defendant in suits brought under the FTCA, and the remedy is exclusive of any other civil action or proceeding. 28 U.S.C. § 2679(b)(1). In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 287 (5th Cir. 2012). Neither a federal agency nor its employees can be sued in their own names. Atorie Air v. F.A.A., 942 F.2d 954, 957 (5th Cir. 1991); Galvin v. Occupational Safety and Health Admin., 860 F.2d 181, 183 (5th Cir. 1988). Further, “the federal district courts have exclusive jurisdiction over FTCA suits.” 28 U.S.C. §1346(b); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 287 (5th Cir. 2012). In fashioning limited waivers of immunity, “Congress may impose such conditions as it chooses.” South Coast Corp. v. Comm’r of Internal Rev., Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 12 of 19 PageID 114 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 7 180 F.2d 878, 884 (5th Cir. 1950), citing Nichols v. United States, 7 Wall. 122, 19 L.Ed. 125 (1868). The circumstances of this waiver must be scrupulously observed in favor of the sovereign and not expanded by the courts. Lane v. Pena, 518 U.S. 187, 192 (1996); McLaurin v. United States, 392 F.3d 774, 782 n. 34 (5th Cir. 2004); Metro Life Ins. Co. v. Atkins, 225 F.3d 510, 511 (5th Cir. 2000). By claiming jurisdiction under the FTCA, plaintiff is bound by the terms of the FTCA, including the requirement of filing an administrative claim and its statute of limitations. McNeil v. United States, 508 U.S. 106, 113 (1993); Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005); Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995). 28 U.S.C. § 2401(b) sets forth the applicable statute of limitations for filing an administrative claim prior to initiating an FTCA action. It provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b); Ramming v. United States, 281 F.3d 158, 165 (5th Cir. 2001). The requirement of presentment of an administrative claim is intended to ease court congestion and avoid unnecessary litigation by making it possible for the Government to expedite fair settlement of tort claims asserted against the United States. Frantz v. United States, 29 F.3d 222, 224 (5th Cir. 1994); Montoya v. United States, 841 F.2d 102, 104 (5th Cir. 1988); Wardsworth v. United States, 721 F.2d 503, 505 (5th Cir. 1983). Under Section 2401(b), a civil action may be brought under the FTCA only if the claimant first presents an administrative claim to the responsible federal agency and then Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 13 of 19 PageID 115 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 8 files suit against the United States within six months of the denial of the administrative claim. See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1633 (2015) (citing 28 U.S.C. § 2401(b)). “Although phrased in the disjunctive, ‘this statute requires a claimant to file an administrative claim within two years [of the accrual] and file suit within six months of its denial.’” Ramming, 281 F.3d at 162 (emphasis in original) (quoting Houston, 823 F.2d at 902). “[A] suit instituted within two years from the date the claim accrued, but more than six months after the notice by registered mail of the denial of the claim was barred by section 2401(b), Title 28 U.S.C.A.” Childers v. United States, 442 F.2d 1299, 1301 (5th Cir.), cert. denied, 404 U.S. 857 (1971); see Houston v. United States Postal Service, 823 F.2d 896 (5th Cir. 1987); Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir. 1975); Estate of Carr ex rel. Carr v. United States, 482 F. Supp. 2d 842, 849 (W.D. Tex. 2007) (suit filed after the six month statute of limitations was barred under 28 U.S.C. § 2401(b)). D. ARGUMENT In Houston v. United States, 823 F.2d 896 (5th Cir. 1987), plaintiff was involved in a collision with a U.S. Postal vehicle and employee. He filed a timely administrative claim with the USPS, but then failed to file suit against the United States in U.S. District Court within six months of the denial of his claim. Almost two years later, he filed suit a state court suit against the USPS and its employee driver. In dismissing plaintiff’s state court suit, the Court held that the FTCA’s procedural prerequisites applied and plaintiff had failed to comply with the prerequisites of the FTCA. The court stated: Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 14 of 19 PageID 116 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 9 Like the federal court, the Louisiana court could not have adjudicated Houston’s claim. The state courts have no jurisdiction to hear even properly exhausted tort claims against the United States. 28 U.S.C. § 1346(b) (vesting exclusive jurisdiction over FTCA cases in the federal courts). The state court also could not have adjudicated Houston’s claim against the driver or the USPS because Houston’s exclusive remedy was against the United States. Id. at 903-04. In this case, Hester’s administrative claim was timely filed with the USPS on June 12, 2015. After due consideration, his claim was formally denied on January 29, 2016. The denial letter specifically instructed him of his rights: that he needed to either (1) request reconsideration or (2) file suit against the United States in U.S. District Court within six months of the date of denial. On July 29, 2016, six months passed without a suit being filed against the United States in U.S. District Court. Hester filed this civil action on January 20, 2017 in state court, which was untimely and violates the statutory requirements of 28 U.S.C. § 2401(b). Historically, a claimant’s failure to timely exhaust administrative remedies pursuant to § 2401(b) was a jurisdictional issue, subject to dismissal pursuant to Rule 12(b)(1). However, a recent Supreme Court case deemed the FTCA’s time limitations akin to statutes of limitations, making dismissal pursuant to Rule 12(b)(6) appropriate in some circumstances. See United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). The practical effect of Wong is that the FTCA’s two-year limitations period may now be subject to equitable tolling in limited cases where the specific facts warrant such relief. See Trinity Marine Prods., Inc. v. United States, 812 F.3d 481, 488 (5th Cir. 2016). Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 15 of 19 PageID 117 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 10 Equitable tolling is an extraordinary remedy applied “sparingly.” Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-115 (2002)). The party who invokes equitable tolling bears the burden of proof. Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995) (per curiam). “[It] has been granted most frequently when a defendant has actively misled a plaintiff about the cause of action or has prevented him ‘in some extraordinary way from asserting his rights.’” Wilson v. U.S. Penitentiary Leavenworth, 450 F. App’x. 397, 399 (5th Cir. 2011) (quoting Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002)). “A plaintiff who does not act diligently in pursing his or her claim cannot rely on theories of equity to save that claim.” Galindo v. U.S. Dep’t of Justice, 153 F. App’x. 333, 334 (5th Cir. 2005), quoting Wilson, 65 F.3d at 404-405. Also, “the principals of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.” Perez v. United States, 167 F.3d 913, 917 (5th Cir. 1999), quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Carter v. McHugh, 869 F. Supp. 2d 784, 790-792 (W.D. Tex. 2012) involved an injury in a U.S. Army commissary that resulted in an administrative claim being filed with the Army. The Army wrote to plaintiff’s counsel with an “offer” to settle and a “final denial” should the offer not be accepted. Plaintiff’s attorney refused the offer and failed to file suit within six months of the denial of the administrative claim because of a “staff miscommunication” with regard a filing date. The Court looked beyond the then unsettled issue of whether § 2401(b) was jurisdictional, and decided that equitable tolling was not warranted because there was no suggestion that plaintiff was induced or tricked Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 16 of 19 PageID 118 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 11 into letting the deadline pass and no other extraordinary circumstances were present. The complaint was untimely filed because of “attorney error or neglect” that does not warrant equitable tolling. Id. at 791 (citing Granger v. Aaron’s Inc., 636 F.3d 708, 712 (5th Cir. 2011), and Irwin v. Dep’t Veterans Affairs, 498 U.S. 89, 96 (1990) (holding that a lawyer’s absence was “at best a garden variety claim of excusable neglect” that did not warrant equitable tolling)). In Wilson v. United States Penitentiary Leavenworth, 450 F. App’x. 397 (5th Cir. 2011), plaintiff failed to file his complaint within six months of the denial of his administrative claim; he was not entitled to equitable tolling because he could not show he pursued his remedy with due diligence, and could not prove that defendant had prevented him from filing an action. Smart v. United States, No. ED-14-CV-0208-EC, 2015 WL 222343 (W.D. Tex. Jan. 14, 2015), involved a medical negligence action against the Department of Veterans Affairs (“VA”). The VA denied plaintiff’s administrative claim on November 1, 2013, and the denial letter was sent to plaintiff’s address on record. On January 2, 2014, plaintiff contacted the VA to inquire about the status of his claim, having not received the denial. He was then told of the effective date of denial, and of the need to file suit in the four months remaining, or by May 1, 2014. Suit was filed on June 3, 2014, and plaintiff argued equitable tolling based on inadequate notice. Equitable tolling was denied because he had not diligently pursued his rights by filing suit within the remaining four months after being advised to do so. Id. at *7. Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 17 of 19 PageID 119 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 12 Assuming plaintiff will assert that the doctrine of equitable tolling applies to this case, he has not plead equitable tolling in his complaint, and the facts do not support its application. There are no grounds that support equitable tolling and there is no evidence that anyone prevented plaintiff from filing a timely suit against the United States in U.S. District Court, as instructed by USPS. The fact remains that Plaintiff failed to diligently pursue his rights by filing suit within the six months mandated by statute. Upon receipt of the denial letter, Hester should have heeded the clear instruction, and either (1) sought reconsideration, or (2) filed suit against the United States in U.S. District Court under the FTCA. He did neither. Moreover, Plaintiff alone chose to ignore these clear instructions, and he alone chose to pursue an untimely state court action against the individual driver and the USPS. Accordingly, equitable tolling should be denied in this case. IV. CONCLUSION Because Hester failed to file suit against the United States within six months after the denial of his administrative claim on January 29, 2016 and because there are no grounds for the application of equitable tolling, this action should be dismissed based on plaintiff’s failure to comply with the requirements of 28 U.S.C. § 2401(b). Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 18 of 19 PageID 120 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 13 Dated: June 12, 2017 Respectfully Submitted, JOHN R. PARKER UNITED STATES ATTORNEY /s/ Mattie Peterson Compton Mattie Peterson Compton Assistant United States Attorney Texas Bar No. 04652300 Burnett Plaza, Suite 1700 801 Cherry Street, Unit #4 Fort Worth, TX 76102 Telephone: 817-252-5200 Facsimile: 817-252-5458 Email: mattie.compton@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served this 12th day of June 2017, via certified mail, return receipt requested to the following: Ryan E. Rogers 1909 Woodall Rodgers Freeway Suite 200 Dallas, TX 75201 /s/ Mattie Peterson Compton Mattie Peterson Compton Assistant United States Attorney Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 19 of 19 PageID 121