Mary Jo Keller, the surviving mother, in her own right v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY JO KELLER, the surviving
mother, in her own right and on behalf of
all statutory beneficiaries and as personal
representative for the Estate of deceased
Amanda Keller,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 17-17194
D.C. No. 2:11-cv-02345-PGR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted December 6, 2019
San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,** Senior
District Judge.
FILED
DEC 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dean D. Pregerson, Senior District Judge for the
Central District of California, sitting by designation.

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Mary Jo Keller (“Keller”) appeals the district court’s grant of summary
judgment in favor of the United States and its denial of her motion for
reconsideration of claims under the Federal Tort Claims Act (“FTCA”). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Keller’s daughter died on September 7, 2007, after her car broke through a
median cable barrier and struck another vehicle on Interstate 10 in Arizona.
Keller’s claims accrued on this date. See Hensley v. United States, 531 F.3d 1052,
1057 (9th Cir. 2008). Keller had two years from that date to present her claims to
the appropriate federal agency. See 28 U.S.C. §§ 2675(a), 2401(b). However,
Keller did not file a claim with the Federal Highway Administration (“FHWA”)
until December 16, 2010, well after the limitations period had run.
“We review de novo a district court’s interpretation of the statute of
limitations under the FTCA, and its decision as to whether a statute of limitations
bars a claim.” Hensley, 531 F.3d at 1056 (internal citations omitted). The district
court properly found that Keller’s action was time-barred unless equitable tolling
applied. See United States v. Kwai Fun Wong, 575 U.S. 402, 420 (2015). For
equitable tolling, Keller must show that (1) she pursued her rights diligently and
(2) an extraordinary circumstance “stood in [her] way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted);
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see also Menominee Indian Tribe of Wisc. v. United States, 136 S. Ct. 750, 756
(2016) (holding that both prongs must be satisfied).
The district court found that Keller did not pursue her rights diligently, on
the ground that her attorney had knowledge of the United States’ potential liability
before the expiration of her FTCA limitations period, based on other cases he
litigated involving the same Arizona cable barrier design at issue here. In so
holding, the district court erred. Keller’s lawyer’s knowledge, acquired in different
cases, cannot be imputed to Keller for the purposes of equitable tolling. See In re
Perle, 725 F.3d 1023, 1027–28 (9th Cir. 2013) (holding in the bankruptcy context
that a lawyer’s knowledge of a debtor’s bankruptcy could not be imputed to the
lawyer’s creditor client because the knowledge was gained while representing a
different client).
Keller’s equitable tolling argument nonetheless fails because she has not
satisfied the second prong. She did not show that extraordinary
circumstances—via a theory of fraudulent concealment—prevented her from
timely filing her administrative claim. A litigant invoking fraudulent concealment
must allege facts showing “affirmative conduct” that would “lead a reasonable
person to believe that he did not have a claim for relief.” Rutledge v. Bos. Woven
Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978); see also Conmar Corp. v.
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Mitsui & Co. (USA), Inc., 858 F.2d 499, 502 (9th Cir. 1988) (holding that the
appellant must show that the appellee “affirmatively misled” it). Keller has not
shown that FHWA officials affirmatively misled her. The 2005 FHWA
memorandum erroneously stating that the at-issue median cable barrier design was
compliant with mandatory guidance was not a fraudulent misrepresentation.
Moreover, the United States’ potential liability in this case should have been
apparent, both from the accident’s occurrence on an interstate highway, and the
2005 memorandum, which indicated the FHWA’s role in approving median cable
barriers. Even if the FHWA had discovered its negligence after publishing the
2005 memorandum, it had “no general duty to announce that fact to the world at
large.” Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir. 1984).
AFFIRMED.
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