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Raplee v. United States

United States Court of Appeals, Fourth Circuit

November 22, 2016

JOHN DAVID RAPLEE, JR., Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee MARYLAND ASSOCIATION FOR JUSTICE, Amicus Supporting Appellant.

          Argued: October 25, 2016

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-cv-01318-PWG)

         ARGUED:

          L. Palmer Foret, ASHCRAFT & GEREL, LLP, Rockville, Maryland, for Appellant.

          Neil R. White, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

         ON BRIEF:

          Wayne Mansulla, Peter T. Anderson, ASHCRAFT & GEREL, LLP, Rockville, Maryland, for Appellant.

          Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          Michael J. Winkelman, MCCARTHY & WINKELMAN LLP, Lanham, Maryland, for Amicus Curiae.

          Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

         Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and Senior Judge Davis joined.

          DIANA GRIBBON MOTZ, Circuit Judge

         John Raplee challenges the dismissal of his Federal Tort Claims Act ("FTCA") complaint as untimely. In compliance with state law, Raplee initially filed a medical malpractice claim with Maryland's alternative dispute resolution agency. Although he filed with the state agency within the FTCA's limitations period, he did not file a complaint in federal court until well after that period had passed. Raplee contends that by filing a required state administrative claim, an "action is begun" for the purposes of the FTCA's limitations period. 28 U.S.C. § 2401(b) (2012). Alternatively, he asserts that equitable tolling principles excuse his failure to comply with the limitations period. Because an "action is begun" under the FTCA only by filing a civil action in federal district court, Raplee's claim was untimely. Further, he has not demonstrated any extraordinary circumstances warranting equitable tolling. Accordingly, we affirm the judgment of the district court.

         I.

         In September 2006, Raplee underwent surgery at the National Institutes of Health, an operating division of the United States Department of Health and Human Services ("HHS"). Raplee alleges that the surgeons "negligently position[ed]" him while he was under anesthesia, resulting in permanent damage to the muscles and nerves in his left foot.

         The FTCA renders the United States liable for the torts of its employees, including the surgeons in this case, "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The FTCA requires a plaintiff pursuing a tort claim to follow a multi-step process. First, a plaintiff must file his claim with the appropriate federal agency, which then has the power to settle or deny it. 28 U.S.C. §§ 2401(b), 2675(a). The plaintiff may file a civil action against the United States only if the agency has denied the claim. 28 U.S.C. § 2675(a).

         In November 2006, Raplee retained the law firm Ashcraft & Gerel, LLP to represent him in his medical malpractice claim against the United States. On September 16, 2008, Ashcraft & Gerel, ...


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