Reynolds v. United States of America

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Auendrea Reynolds,
Plaintiff,
v.
United States of America,
Defendant.
No. CV-23-00248-TUC-AMM
ORDER
Pending before the Court is Defendant United States of America’s Motion for
Summary Judgment. (Doc. 59.) The motion is fully briefed, and the Court heard argument
on March 4, 2026. (Docs. 60, 65–66, 76, 80, 89.) The issue presented is whether Reynolds
timely presented her administrative claim to the Department of Health and Human Services
(“HHS”). (Doc. 59.) For the reasons discussed herein, the Court finds that Reynolds failed
to do so, and the Court will grant Defendant’s motion.
I. BACKGROUND
This case arises from Plaintiff Auendrea Reynolds’s allegation that Canyonlands
Community Health Center (“Canyonlands”) and its individual providers Michael Baker,
FNPC, Roberta Boon, FNPC, and Laura Miller, MD, negligently failed to timely diagnose
and treat her melanoma. (Doc. 1.) At the time of the events alleged in the Complaint,
Canyonlands and the individual providers were deemed to be Public Health Service
(“PHS”) employees under 42 U.S.C. § 233(g). (Doc. 66, Plaintiff’s Statement of Facts
“PSOF” ¶ 22; Doc. 60, Defendant’s Statement of Facts “DSOF” ¶ 1.) On October 18, 2019,
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Reynolds visited Canyonlands due to a lesion on her thigh. (Doc. 1; DSOF ¶ 4.) She
followed up with a Canyonland’s provider on December 4, 2019 to discuss the lesion and
her depression, however she alleges the biopsy results were not mentioned during that
appointment. (Doc. 1.) On May 20, 2020, Reynolds returned to Canyonlands due to the
lesion doubling in size, and a repeat biopsy was performed at a subsequent appointment.
(Id.) Almost eight months after her initial appointment, she was diagnosed with melanoma
on June 15, 2020. (Id.) After learning of her melanoma diagnosis, Reynolds filed a medical
negligence lawsuit against Canyonlands and the individual providers. See Reynolds v.
United States, CV-23-00050-TUC-CKJ (“Reynolds I”), Doc. 1.
Reynolds I
Specifically, on March 31, 2022, Reynolds filed an action in Graham County
Superior Court alleging Canyonlands and the individual providers’ negligent acts or
omissions caused her injury. (PSOF ¶ 3; DSOF ¶ 1.) Reynolds alleged in that matter, and
consistently since, that she first learned of the alleged medical negligence on June 15, 2020.
(DSOF ¶ 1; Doc. 66-10 at 2;) Reynolds I, Doc. 1.
After Reynolds served Canyonlands on May 18, 2022, an Assistant U.S. Attorney
contacted Reynolds’s counsel and indicated that the action may be covered under the
Federal Tort Claims Act (“FTCA”). (PSOF ¶¶ 5, 9.) Reynolds subsequently completed an
administrative tort claim form (“SF-95”), which indicated the date of accident as June 15,
2022. (Id. ¶ 11; DSOF ¶ 3; Doc. 66-10 at 2.) Although her SF-95 marked the appropriate
agency as HHS c/o General Law Division, Reynolds instead addressed and mailed the form
to the U.S. Attorney General on June 7, 2022. (PSOF ¶¶ 11–13; DSOF ¶ 3.) While
Reynolds “denies that the Form SF-95 was addressed to the U.S. Attorney General” and
asserts the form was “clearly addressed” to HHS (Doc. 66 at 2), the receipt Reynolds
submitted as an exhibit shows the form was in fact mailed via FedEx Priority Overnight to
the “US Attorney General” at “950 Pennsylvania Ave NW, Washington, DC 20530-0009”
not HHS (Doc. 66-11 at 2).
The Department of Justice (“DOJ”) received Reynolds’s SF-95 on June 8, 2022, and
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thereafter forwarded it to its Torts Branch division, which received it on June 14, 2022.
(PSOF ¶ 16; DSOF ¶ 3.) On August 26, 2022, the Torts Branch division sent Reynolds a
letter indicating her administrative claim involved HHS, rather than the DOJ, and
confirmed it forwarded her claim to HHS. (PSOF ¶ 19; DSOF ¶ 3.) HHS received Reynolds
SF-95 on September 1, 2022. (DSOF ¶ 3.)
On January 23, 2023, the U.S. Attorney General, through the U.S. Attorney’s Office
Civil Division Chief, signed a Certification of Scope of Employment affirming that
Canyonlands “was an entity deemed by the Secretary of [HHS] to be an employee of the
Public Health Service pursuant to 42 U.S.C. § 233(g)” and that its individual providers
were employees of Canyonlands. Reynolds I, Docs. 1-7–1-10. Further, the certification
stated that Canyonlands and the individual providers were acting “within the scope of
[their] employment” with the PHS at the time of the matters alleged in the Complaint. Id.
Shortly after, on January 25, 2023, the United States filed a Notice of Removal in
the district court indicating it was removing the action “pursuant to 42 U.S.C. § 233(c).”
Reynolds I, Doc. 1 at 1. The notice stated that HHS had “deemed Canyonlands and its
employees . . . to be employees of the Public Health Service for purposes of coverage under
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., at all times described in the Complaint.”
Id. at 2. The notice further referenced and attached as exhibits the Certifications of Scope
of Employment for Canyonlands and each individual provider. Id.; Reynolds I, Doc. 1-7–
1-10. Relevant to the statute of limitations discussion below, in addition to stating the
certification was “[p]ursuant to 42 U.S.C. § 233(c),” the Notice of Removal also twice cites
28 U.S.C. § 2679(d).
Pursuant to 42 U.S.C. § 233(c), upon certification by the
Attorney General that a defendant was acting within the scope
of deemed federal employment at the time of the incident out
of which the claim arose, any civil action commenced upon a
claim for damages for personal injury or death resulting from
medical or related functions in a state court shall be removed
without bond at any time before trial to the district court of the
United States for the district and division where the action is
pending and shall be deemed a tort action against the United
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States under 28 U.S.C. § 2679(d). The United States is
automatically substituted in place of the covered employee. 28
U.S.C. § 2679(d)(1).
Reynolds I, Doc. 1 at 2. The Civil Cover Sheet attached to the Notice of Removal likewise
cites 28 U.S.C. § 2679(d)(2) as the “Cause of Action,” and the Supplemental Cover Sheet
indicates the reason the United States had not yet been served was because it was
“[s]ubstituted for deemed employees . . . pursuant to 28 [U.S.C. §] 2679(d)(1).” Reynolds
I, Doc. 1-1 at 1; Doc. 1-2 at 2.
Thereafter, the United States was substituted as Defendant for Canyonlands and the
individual providers pursuant to 42 U.S.C. § 233(c). (PSOF ¶ 22; DSOF ¶ 2.) Defendant
United States moved to dismiss that action for lack of jurisdiction asserting Reynolds had
failed to exhaust her administrative remedies before filing the action. (DSOF ¶ 2;) Reynolds
I, Doc. 3. In its motion, Defendant stated Canyonlands and the individual providers had
been certified as deemed PHS employees acting within the scope of their employment
“pursuant to 28 C.F.R. § 15.4, 28 U.S.C. § 2679(d)(1)[,] and 42 U.S.C. §233.” Reynolds I,
Doc. 3 at 1. The motion further asserted the United States had been substituted as a
defendant “by operation of 42 U.S.C. §§ 233(a)&(g) and 28 U.S.C. § 2679(d)(1).” Id. In
response to the motion, Reynolds “concede[d] that the federal court does not have subject
matter jurisdiction at this time and the matter should be dismissed without prejudice . . . .”
Reynolds I, Doc. 4 at 2. Accordingly, on May 30, 2023, the court granted the motion finding
“the parties agree federal court does not have subject matter jurisdiction at this time” and
dismissed the action without prejudice. (PSOF ¶ 23;) Reynolds I, Doc. 6.
Reynolds II
On June 2, 2023, Reynolds filed the present action against Defendant United States
alleging the same medical negligence claim under the FTCA. (Doc. 1; DSOF ¶ 4.) On
August 10, 2023, HHS denied Reynolds’s administrative claim. (DSOF ¶ 4.) The United
States filed its answer on August 21, 2023, without first filing a motion to dismiss.1 (Doc.
1 At oral argument, defense counsel averred the Government did not move to dismiss the
action at that time because it required discovery regarding Reynolds’s administrative claim.
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8; PSOF ¶ 26.) Thereafter, the parties filed their Joint Case Management Report, at which
time the parties did not dispute the Court’s jurisdiction.2 (Doc. 10; PSOF ¶¶ 26, 28–29.)
This matter then proceeded through discovery for the next sixteen months. (See PSOF ¶¶
30–37.)
Defendant United States now moves for summary judgment asserting Reynolds
failed to timely present her claim to HHS and therefore her claim is barred by the statute
of limitations and must be dismissed. (Doc. 59.) Reynolds raises four alternative arguments
for why her claim should be considered timely: (1) the statute of limitations was tolled on
March 31, 2022 when she filed her initial action in superior court; (2) her claim was
constructively filed before the limitations period ran on June 15, 2022 when the DOJ
received her SF-95; (3) Defendant conceded the Court had jurisdiction; and (4) her claim
is entitled to equitable tolling. (Doc. 65 at 5–13.)
II. LEGAL STANDARD
a. Summary Judgment
A court may grant summary judgment if the pleadings and supporting documents,
viewed in the light most favorable to the non-moving party, “show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
An issue is genuine when the disputed fact “could reasonably be resolved in favor of either
party.” Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986)). A disputed fact is material if it “might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248
(“Factual disputes that are irrelevant or unnecessary will not be counted.”).
b. Federal Tort Claims Act
“As a sovereign, the United States ‘is immune from suit save as it consents to be
sued.’” Myles v. United States, 47 F.4th 1005, 1011 (9th Cir. 2022) (quoting United States
v. Sherwood, 312 U.S. 584, 586 (1941)). “The FTCA, however, is an example of the federal
2 The Court also independently reviewed the matter for subject matter jurisdiction and did
not find it lacking at that time based on the pleadings before the Court.
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government consenting to be sued for certain types of actions.” Friedenberg v. Lane Cnty.,
68 F.4th 1113, 1124 (9th Cir. 2023). Under the FTCA, “the United States may be held
liable in tort for the actions or omissions of its employees ‘under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.’” Bennett v. United States, 44 F.4th
929, 933 (9th Cir. 2022) (first quoting 28 U.S.C. § 1346(b)(1); then citing id. § 2674).
Before an FTCA claim may be brought against the United States, a plaintiff must
timely present an administrative claim to the appropriate federal agency. See 28 U.S.C. §
2675(a). The appropriate agency is the one “whose activities [give] rise to the claim.” See
28 C.F.R. § 14.2(b)(1). The FTCA’s statutory limitations period establishes 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).
III. DISCUSSION
Reynolds does not contest that her claim accrued on the date she was diagnosed with
melanoma: June 15, 2020. (DSOF ¶¶ 1, 3–4; see PSOF at 1–2; Doc. 66-10.) Accordingly,
she had until June 15, 2022 to present her claim to HHS, unless the limitations period was
tolled by a statute or equitable remedy.
a. The two-year limitations period ran on June 15, 2022 and was not tolled
by 42 U.S.C. 233(c) or 28 U.S.C. § 2679(d)(5).
Reynolds first argues the limitations period did not run on June 15, 2022 because
either the Public Health Service Act (“PHSA”), 42 U.S.C. § 233(c), or the Westfall Act’s
savings clause, 28 U.S.C. § 2679(d)(5), suspended the limitations period when she filed
her civil action in state court. (Doc. 65 at 5–8.) The Court finds neither statute applies to
toll the limitations period that ran on June 15, 2022.
i. Section 233(c) does not suspend the limitations period as § 233
provides the exclusive remedy in this matter.
“Congress enacted the PHSA in 1944 to enable the federal government to meet the
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country’s growing public health needs.” Evans v. United States, 132 F.4th 473, 477 (7th
Cir. 2025) (citing Public Health Service Act, Pub. L. 78-410, 58 Stat. 682-792 (1944)).
Due to “concern[] about the level of malpractice premiums for federally-funded
neighborhood health centers,” Congress further amended the PHSA in 1992 by enacting
the Federally Supported Health Centers Assistance Act (“FSHCAA”). Id. at 478 (first
citing Federally Supported Health Centers Assistance Act, Pub. L. 102-501, 106 Stat.
3268–72 (1992); then citing 42 U.S.C. § 233(g)). The FSHCAA “grants absolute immunity
to PHS officers and employees for actions arising out of the performance of medical or
related functions within the scope of their employment by barring all actions against them
for such conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010).
Further, “[u]nder FSHCAA, federally funded health centers and their employees
can be ‘deemed’ federal employees of the PHS for the purposes of malpractice liability.”
Blumberger v. Tilley, 115 F.4th 1113, 1117 (9th Cir. 2024), cert. denied, 145 S. Ct. 2818
(2025) (citing 42 U.S.C. § 233(g)). “When deemed employees are sued for actions taken
within the scope of their employment, the United States is similarly substituted as the
defendant and the action proceeds as an FTCA suit.” Id. (citing § 233(a), (g)(1)(A).)
Importantly, the remedy under § 233 is exclusive of any other civil action. See § 233(a)
(making the remedy in the FTCA “provided by” 28 U.S.C. §§ 1346(b), 2672 “exclusive of
any civil action or proceeding” “for damage for personal injury, including death, resulting
from the performance of medical, surgical, dental, or related functions . . . by any
commissioned officer or employee of the [PHS] while acting within the scope of his office
or employment.”).
Reynolds argues § 233(c), “[t]he same statute which provided for substitution,
removal, and dismissal of the lawsuit against Canyonlands also provides for a suspension
of the time for ‘filing an application or claim’ ‘during the pendency of the civil action.’”
(Doc. 65 at 6 (citing § 233(c)).) Reynolds asserts § 233(c)’s last sentence suspended the
two-year limitations period from the date she filed her initial complaint in Graham County
on March 31, 2022, to the time it was dismissed by the district court on May 30, 2023,
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extending the limitation period to July 28, 2024. (Id. at 5–7.)
Section 233(c) states:
Upon a certification by the Attorney General that the defendant
was acting in the scope of his employment at the time of the
incident out of which the suit arose, any such civil action or
proceeding commenced in a State court shall be removed
without bond at any time before trial by the Attorney General
to the district court of the United States of the district and
division embracing the place wherein it is pending and the
proceeding deemed a tort action brought against the United
States under the provisions of Title 28 and all references
thereto. Should a United States district court determine on a
hearing on a motion to remand held before a trial on the merit
that the case so removed is one in which a remedy by suit
within the meaning of subsection (a) of this section is not
available against the United States, the case shall be remanded
to the State Court: Provided, That where such a remedy is
precluded because of the availability of a remedy through
proceedings for compensation or other benefits from the
United States as provided by any other law, the case shall be
dismissed, but in the event the running of any limitation of time
for commencing, or filing an application or claim in, such
proceedings for compensation or other benefits shall be
deemed to have been suspended during the pendency of the
civil action or proceeding under this section.
§ 233(c).
When interpreting statutes, the Court is bound by the text. See Hui, 559 U.S. at 812
(“We are required . . . to read the statute according to its text.”). Here, § 233(c)’s plain
language contemplates suspending a limitations period only when a case is remanded and
§ 233(a)’s exclusive remedy is “precluded because of the availability of a remedy through
proceedings for compensation or other benefits from the United States as provided by any
other law . . . .” § 233(c). By contrast, for cases like the present action, § 233 provides the
exclusive remedy because Canyonlands and the individual providers were deemed to be
PHS employees under § 233(g) and certified as acting within the scope of their duty under
§ 233(c). See § 233(a). This case has not been remanded, and no “availability of a remedy”
by other law exists. Reynolds does not cite authority, and the Court had found none,
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supporting a different interpretation. As such, the statutory language controls, and § 233(c)
does not suspend the limitations period in this matter. See Jimenez v. Quarterman, 555 U.S.
113, 118 (2009) (“[W]hen the statutory language is plain, we must enforce it according to
its terms.”).
ii. The Westfall Act’s savings clause does not apply because
Reynolds’s claim is under § 233(c), which does not incorporate §
2679(d).
Reynolds next argues the Westfall Act’s “savings clause” should toll the limitation
period. (Doc. 65 at 7–8.) “The Federal Employees Liability Reform and Tort Compensation
Act of 1988, commonly known as the Westfall Act, accords federal employees absolute
immunity from common-law tort claims arising out of acts they undertake in the course of
their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). “The Westfall Act
amended the FTCA to make its remedy against the United States the exclusive remedy for
most claims against Government employees arising out of their official conduct.” Hui, 559
U.S. at 806. “In providing this official immunity, Congress used essentially the same
language as it did in § 233(a), stating that the remedy against the United States is ‘exclusive
of any other civil action or proceeding.’” Id. (citing § 2679(b)(1)).
The Westfall Act’s “saving clause” extends the FTCA’s two-year statute of
limitations in cases removed under § 2679(d) and subsequently dismissed for failure to
timely present an administrative claim. See 28 U.S.C. § 2679(d)(5). The provision states:
Whenever an action or proceeding in which the United States
is substituted as the party defendant under this subsection is
dismissed for failure first to present a claim pursuant to section
2675(a) of this title, such a claim shall be deemed to be timely
presented under section 2401(b) of this title 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 appropriate Federal agency
within 60 days after dismissal of the civil action.
Id.
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To determine whether the savings clause applies to toll Reynolds’s limitation
period, the Court considers whether this action is under § 2679(d), and, if not, whether the
savings clause nonetheless applies.
Relevant for an action brought in state court, “[u]pon [scope of employment]
certification by the Attorney General,” “any civil action or proceeding commenced upon
such a claim in a State court shall be removed without bond at any time before trial by the
Attorney General . . . .” § 2679(d)(2). “Such action or proceeding shall be deemed to be an
action or proceeding brought against the United States under the provisions of this title and
all references thereto, and the United States shall be substituted as the party defendant.” Id.
Notably, “[t]his certification of the Attorney General shall conclusively establish scope of
office or employment for purposes of removal.” Id. The Supreme Court has interpreted this
provision to mean that “[o]n the jurisdictional issues . . . the Attorney General’s
certification is conclusive for purposes of removal . . . .” Osborn, 549 U.S. at 231. The
Court explained that “[s]ection 2679(d)(2) is operative when the Attorney General certifies
scope of employment, triggering removal of the case to a federal forum” and “render[ing]
the federal court exclusively competent and categorically precludes a remand to the state
court.” Id. at 243 (describing § 2679(d) as an “antishuttling provision[]” that “aims to
prevent ‘prolonged litigation of questions of jurisdiction of the district court to which the
cause is removed.’” (quoting United States v. Rice, 327 U.S. 742, 751 (1946))). Thus, upon
§ 2679(d) certification, a district court has jurisdiction under the Westfall Act.
Here, while Defendant United States’ Notice of Removal and Motion to Dismiss in
Reynolds I cites § 2679(d) several times, the Attorney General’s certification clearly states
the case was certified and removed under 42 U.S.C. § 233(c). See Reynolds I, Docs. 1–1-
2, 1-7–1-10, 3. Reynolds acknowledges the certification deeming Canyonlands and the
individual providers employees was pursuant to § 233(c). (PSOF ¶ 22.) Further, the Notice
of Removal and the certification describe that Reynolds seeks damages for negligent
medical care provided by an entity and its employees that HHS deemed PHS employees
“[f]or the purposes of” § 233. Reynolds I, Docs. 1, 1-7–1-10; § 233(g). The certificate does
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not cite § 2679(d), and the facts do not support an action against a federal employee under
§ 2679 because Canyonlands and the individual providers are “deemed” employees only
under § 233(g)’s statutory authority. As such, this action proceeds under § 233(c) only.
Nevertheless, the Court considers whether the Westfall Act’s savings clause applies.
The Ninth Circuit has not directly decided this issue. However, the Seventh Circuit Court
of Appeals’ decision in Evans v. United States is persuasive. 132 F.4th 473 (7th Cir. 2025).
In that case, the court held the plain statutory language indicates § 2679(d)(5) applies only
to cases where the United States is substituted as a party under § 2679(d). See Evans, 132
F.4th at 479 (“[T]he text of § 2679(d) demonstrates that Congress intended the savings
provision in the Westfall Act to apply only when the United States replaces a federal
employee as a defendant under § 2679(d), not § 233(c).”). The court contrasted § 233(c)
from § 2679(d) by pointing to § 233’s unique certification provision and highlighting the
“more limited tolling provision” that was added in 2003. Id. at 478–79. Further, the
Supreme Court held § 233(a) does not incorporate the entirety of the FTCA, but “refers
only to ‘[t]he remedy against the United States provided by sections 1346(b) and 2672.”
Hui, 559 U.S. at 809 (citing § 233(a)) (rejecting the argument that § 233(a) incorporates
the FTCA in its entirety into § 233). “Thus, only those portions of chapter 171 that establish
the FTCA remedy are incorporated by § 233(a)’s reference to § 1346. Section 2679(b) is
not such a provision.” Id.
These cases support a finding that the Westfall Act is functionally broader than §
233(c) and its savings clause does not apply to suspend the limitations period for a case
brought under the more-narrow § 233(c). See Gozlon-Peretz v. United States, 498 U.S. 395,
407 (1991) (“[A] specific [statutory] provision controls over one of more general
application.”).
b. Reynolds did not constructively present her claim to HHS.
Reynolds alternatively argues her claim was timely presented to HHS when she
constructively served her SF-95 on the DOJ on June 8, 2022 and the DOJ failed to forward
the form “forthwith” to HHS. (Doc. 65 at 8.) She contends that if the DOJ had forwarded
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the form to HHS “when they forwarded it to the FTCA division,” the SF-95 “would have
been received by HHS within the [June 15, 2022] two-year limitations period.” (Id.)
An administrative claim is not presented until it is received by the proper agency;
the common law mailbox rule does not apply to the FTCA. See 28 C.F.R. § 14.2; Vacek v.
U.S. Postal Serv., 447 F.3d 1248, 1252 (9th Cir. 2006). Courts have found administrative
claims to be “constructively filed” where the improper agency received the claim and failed
to transfer it “forthwith” to the appropriate agency. See 28 C.F.R. § 14.2(b)(1) (when a
claim is submitted to an inappropriate agency, “that agency shall transfer it forthwith to the
appropriate agency, if the proper agency can be identified from the claim, and advise the
claimant of the transfer.”); see also Bukala v. United States, 854 F.2d 201 (7th Cir. 1988).
“However, claimants who wait to the last minute or the eleventh hour and file with the
wrong agency cannot take advantage of constructive filing.” Bhatnagar v. United States,
No. 14-CV-00327-MEJ, 2015 WL 2398360, at *6 (N.D. Cal. May 19, 2015) (finding
constructive filing has not been applied “where the claim was filed within one or two weeks
of the expiration of the statute of limitations”).
Here, Reynolds waited until June 7, 2022—eight days before her claim expired—to
mail her administrative claim and then sent it to the wrong agency. (PSOF ¶¶ 11–13; DSOF
¶ 3.) DOJ received the form on June 8, 2022, and forwarded it to its Torts Branch division,
which received it on June 14, 2022. While it is true that the Torts Branch division did not
forward the form to HHS until several weeks later, on August 26, 2022, the Court finds
that delay is immaterial because the statute of limitations had already well-run by June 15,
2022. Further, this case is unlike those where the agency failed to forward the claim
altogether. See Green v. United States, 872 F.2d 236 (8th Cir. 1989) (finding the plaintiff’s
claim was constructively filed when the inappropriate agency received the claim and never
forwarded it to the appropriate agency). Because the Court finds Reynolds waited to the
eleventh hour to mail her claim, she may not take advantage of constructive filing. See
Bukala, 854 F.2d at 204 n. 4 (“Absent governmental misconduct . . . last-minute filings are
surely the least compelling cases for allowing constructive filing.”).
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c. The United States did not waive the statutory limitations requirement.
Reynolds next argues Defendant “conceded that the court had jurisdiction and it was
proper.” (Doc. 65 at 13.) Defendant responds that although “failure to comply with the
FTCA’s statute of limitations is no longer purely a jurisdictional defect . . . proof of
compliance remains a condition of Congress’s limited waiver of the United States’
sovereign immunity for tort claims.” (Doc. 76 at 3.)
The Supreme Court held the FTCA’s two-year statute of limitations requirement is
“nonjurisdictional and subject to equitable tolling.” United States v. Wong, 575 U.S. 402,
420 (2015). By contrast, for a jurisdictional requirement, “a litigant’s failure to comply
with the bar deprives a court of all authority to hear a case.” Id. at 409–10. Despite this, the
FTCA’s exhaustion requirement remains a prerequisite to the United States’ limited waiver
of sovereign immunity. See United States v. Kubrick, 444 U.S. 111, 117–18 (1979) (“[T]he
[FTCA] waives the immunity of the United States and that in construing the 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.”). Thus, the United States did not
waive the statute of limitations, and, absent equitable tolling, Reynolds’s claim is
statutorily barred.
d. Reynolds’s claim is not entitled to equitable tolling.
Reynolds lastly argues that even if the Court finds her claim was not timely filed,
her claim is entitled to equitable tolling. (Doc. 65 at 10–13.) To be eligible for the
extraordinary remedy of equitable tolling, a plaintiff must show “‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
As support for equitable tolling, Plaintiff indicates her counsel was referred the case
in late December 2021, and she signed the contingency fee arrangement on January 18,
2022. (Doc. 65 at 10.) Plaintiff further asserts her counsel “was only alerted to the
possibility that this was a FTCA claim 10 to 14 days before the statute of limitations and
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still was able to have the Form 95 served in time and forwarded to a second federal agency.”
(Id. at 11.) Plaintiff argues the following “extraordinary circumstances” impeded her ability
to timely file her administrative claim: Canyonlands had an agent for service, a private
attorney, and neither the private attorney nor the U.S. Attorney’s Office knew whether she
had an FTCA claim. (Id.) Defendant counters that Plaintiff did not exercise due diligence
in bringing her claim, and she could have “readily determined that the FTCA applied to
her suit by asking [Canyonlands] about its status or researching HHS’s publicly available
websites.” (Doc. 59 at 7.) Defendant cites the Health Resources and Services
Administration’s website, which indicates Canyonlands is a federally funded facility.3 (Id.
at 3.)
The Court has considered Reynolds’s argument for equitable tolling and finds she
presented no evidence of diligently pursuing her claims nor extraordinary circumstances
preventing her from presenting her administrative claim. Reynolds waited over 21 months
to initially file her action in state court, and another month to begin serving the defendants.
Further, given that Canyonlands’ “deemed” status was publicly available through HHS’s
website, Reynolds’s failure to send her SF-95 form until June 7, 2022 weighs strongly
against her argument. As such, the facts of this matter do not warrant the extraordinary
remedy of equitable tolling.
IV. CONCLUSION
The PHSA is Reynolds’s exclusive remedy against Defendant United States, and
she failed to timely present her administrative claim to HHS. As such, she failed to meet
the statutory requirements, and Reynolds’s Complaint must be dismissed.
Accordingly,
IT IS ORDERED that Defendant United States of America’s Motion for Summary
Judgment is GRANTED. (Doc. 59.)
3 At oral argument, Defendant United States requested the Court consider as part of its
motion a previously undisclosed, printed copy of a website archive showing Canyonlands’
website in 2022 wherein Canyonlands’ identifies itself as a deemed PHS employee under
42 U.S.C. § 233(g)–(n). (Doc. 95.) Defendant concedes that the achieved website was
untimely disclosed. As such, the Court will deny Defendant’s request and will not consider
the archived website in its decision. See Fed. R. Civ. P. 56.
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IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED. (Doc.
1.) The Clerk of Court shall docket accordingly, term any pending motions, and close the
file in this case.
Dated this 26th day of March, 2026.
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