It’s usually rude to read other people’s mail, but for law firms, if the mail in question is addressed to one of your former attorneys and comes from the U.S. Department of Health and Human Services, it may be wise to take a peek. One firm failed to do so, and as a result, their client will be unable to bring his lawsuit against the federal government, the 4th U.S. Circuit Court of Appeals has ruled.
John Raplee alleges that surgeons at the National Institute of Health, a division of HHS, negligently positioned him while he was under anesthesia, resulting in permanent damage to the muscles and nerves in his left foot. The Federal Tort Claims Act allows citizens to sue government employees for such damages, but requires them to follow a multi-step process that begins by a filing a claim with the appropriate government agency.
Raplee retained the Washington D.C.-area law firm of Ashcraft & Gerel to handle his lawsuit. In 2008, an attorney at the firm, Martin Trpis, filed Raplee’s claim with HHS. Trpis left the firm in 2010, and in 2012, HHS mailed its notice of denial by certified letter to Trpis at Ashcraft & Gerel, which started the clock on a six-month statute of limitations for Raplee to sue. The letter, however, was returned to HHS as undeliverable, its envelope stamped “Returned to Sender” with a handwritten note explaining that Trpis was “no longer at this company.”
Nearly five months after the statute of limitations expired, Raplee, through a different attorney at Ashcraft & Gerel, filed a complaint in federal court. The district court granted the government’s motion to dismiss, but the appeal was put on hold while the U.S. Supreme Court considered a separate case interpreting the FTCA’s statute of limitations. The Supreme Court ultimately ruled that the statute was simply intended to promote the orderly progress of litigation, and thus judges have the power to toll it if plaintiffs have pursued their rights diligently and only extraordinary circumstances prevented them from filing on time.
On appeal, Raplee sought the benefit of this equitable tolling exception, but on Nov. 22, a 4th Circuit panel unanimously disagreed, ruling that Raplee’s failure to receive the notice was due entirely to inaction on the part of his attorneys, and not to any wrongdoing by HHS.
“Nothing extraordinary occurred here. This is just the type of thing that can happen when busy lawyers inadvertently fail to handle personnel changes and office mail carefully,” Judge Diana Gribbon Motz wrote for the court. “Such conduct is unfortunately understandable; it hardly qualifies as an extraordinary circumstance.”
The court rejected Raplee’s argument that HHS wrongfully deprived him of notice that his claim had been denied by failing to send him a second notice. The court noted that the notice was sent to, and arrived at, the correct address, and HHS was not under any statutory obligation to do anything further.
Raplee’s argument that Trpis had abandoned him was likewise rejected. The court distinguished his case from a 2012 U.S. Supreme Court decision, Maples v. Thomas, where the court granted an extension to a death row inmate whose attorney had abandoned him. In the process, the court perhaps nodded toward Raplee’s next course of legal action.
“In a habeas case, like Maples, the injustice of holding a petitioner responsible for his attorneys’ abandonment is obvious. There is no redemption for habeas petitioners whose attorneys abandon them in this way. A malpractice suit cannot compensate them for the loss of freedom—or life itself,” Motz wrote. “In contrast, in a civil suit for damages, if a plaintiff misses a deadline because his attorney abandoned him, he can recover those damages from the attorney. For this reason, the Maples rule may not apply in civil actions seeking damages.”
The court also rejected Raplee’s argument that an “action is begun” under the FTCA as soon as a plaintiff takes some required step toward pursuing a tort claim against the United States. The plain text of the statute makes clear that it requires a plaintiff to actually file a civil lawsuit in federal court within the six month period, the court ruled. Palmer Foret of Ashcraft & Gerel represented Raplee on appeal. Foret did not return a phone call seeking comment on the decision.
The 17-page decision is Raplee v. U.S. (Lawyers Weekly No. 001-165-16). The full text of the opinion is available online at sclawyersweekly.com.
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