NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 20-1537 ______________
CHRISTINA KNAPP; DOUGLASS KNAPP, Appellants
v.
UNITED STATES OF AMERICA, DEPARTMENT OF HEALTH AND HUMAN SERVICES ______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-18-cv-01422) District Judge: Honorable Malachy E. Mannion ______________
Submitted under Third Circuit L.A.R. 34.1(a) November 9, 2020
BEFORE: HARDIMAN, GREENBERG, and SCIRICA, Circuit Judges.
(Filed: November 10, 2020)
______________
OPINION * ______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on the appeal of Plaintiff-Appellants
Christina Knapp (“Ms. Knapp”) and her husband, Douglas Knapp. Appellants appeal
from the District Court’s February 28, 2020 order, granting summary judgment to the
United States (hereinafter, the “Government”) as it concluded that Appellants’ claim was
time-barred. 1 We will affirm substantially for the reasons the District Court set forth in
its opinion granting summary judgment but nevertheless make some comments of our
own.
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
This appeal arises from allegations of medical malpractice that Appellants raised
arising from Ms. Knapp’s care and treatment at the Pike County, Pennsylvania, Family
Health Center (the “Pike County Health Center”) in Hawley, Pennsylvania, by its
employee, Eileen Arenson, C.R.N.P. We see no need to set forth the far-reaching
consequences of the allegedly negligent treatment but we recite the significant facts of
the case germane to this opinion which essentially are procedural and are not in dispute.
Appellants state that Ms. Knapp first became aware of the circumstances that led to this
action on July 15, 2015, a date that the Government does not challenge.
1 We refer to the Knapp claims in the singular as a claim. 2 On May 26, 2017, Appellants initiated an action against the Pike County Health
Center and Ms. Arenson separate from this action in the Court of Common Pleas of Pike
County that is still pending. On June 23, 2017, the Pike County Health Center advised
Appellants that it was a recipient of federal funding and therefore any tort claim against it
was required to be made pursuant to the Federal Tort Claims Act (“FTCA”). 2 On June
28, 2017, because they had become aware of the federal aspects of this case, Appellants
faxed and hand delivered an SF-95 administrative tort claim form (hereinafter referred to
as an “SF-95”) to the Pike County Health Center. Ms. Arenson came into possession of
the SF-95 by July 18, 2017, and on July 19, 2017, she forwarded the SF-95 to an
employee at the Wayne Memorial Community Health Center (“WMCHC”), which is the
operator of the Pike County Health Center. On the same day the WMCHC emailed the
SF-95 to the United States Department of Health and Human Services (“HHS”). Thus,
HHS received the SF-95 on July 19, 2017.
On July 17, 2018, Appellants commenced this action in the Middle District of
Pennsylvania naming HHS as Defendant. Appellants explain that they initiated the
action because six months had passed since the SF-95 had been sent to the Pike County
Health Center and HHS had neither accepted nor rejected their claim. (See Appellants’
2 The Federally Supported Health Centers Assistance Act (“FSHCAA”) provides that employees of certain qualifying grant recipients should be “deemed to be an employee of the Public Health Service” for purposes of the Public Health Services Act, which protects Public Health Service employees from personal liability resulting from performing their official duties. See 42 U.S.C. § 233(a)-(g). Further, the FSHCAA provides that an FTCA claim is the exclusive remedy for a medical negligence claim against the United States. See 42 U.S.C. § 233(g)(1)(A). 3 Opening Br. 5.) The six-month period is significant because a claimant may treat the
passing of six months after he or she files a claim under the FTCA without the agency
disposing of the claim as a rejection of the claim. The Government responded to the
action by filing a motion to dismiss or, in the alternative, for summary judgment, arguing
Appellants’ claim was time-barred. Appellants sought an opportunity for discovery, but
the District Court would not allow that as it believed it would not lead to the discovery of
facts to save this case. The District Court granted the Government’s motion for summary
judgment on February 28, 2020, and this appeal followed.
III. ANALYSIS
We review de novo a district court’s grant of summary judgment, Cranbury Brick
Yard, LLC v. United States, 943 F.3d 701, 708 (3d Cir. 2019), but we review a district
court’s decision to deny a litigant the opportunity to take discovery for abuse of
discretion. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 268 (3d Cir. 2012).
“As a sovereign, the United States is immune from suit unless it consents to be
sued.” White-Squire v. U. S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citing
United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349 (1980)). That consent
“must be unequivocally expressed, and the terms of such consent define the court’s
subject matter jurisdiction.” Id. (internal quotation marks omitted) (citing Mitchell, 445
U.S. at 538). The FTCA includes a limited waiver of sovereign immunity, which
provides, in part, the following:
4 An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his [or her] claim shall have been finally denied by the agency in writing and sent by certified 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 . . . .
28 U.S.C. § 2675(a); see also White-Squire, 592 F.3d at 457.
The applicable statute of limitations, 28 U.S.C. § 2401(b), provides that a claimant
must present his or her tort claim against the United States “in writing to the appropriate
Federal agency within two years after [the] claim accrues” or it “shall be forever
barred[.]” The tort claim accrues “when a plaintiff knows of both the existence and the
cause of [the] injury.” Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 271 (3d Cir. 2006).
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 20-1537 ______________
CHRISTINA KNAPP; DOUGLASS KNAPP, Appellants
v.
UNITED STATES OF AMERICA, DEPARTMENT OF HEALTH AND HUMAN SERVICES ______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-18-cv-01422) District Judge: Honorable Malachy E. Mannion ______________
Submitted under Third Circuit L.A.R. 34.1(a) November 9, 2020
BEFORE: HARDIMAN, GREENBERG, and SCIRICA, Circuit Judges.
(Filed: November 10, 2020)
______________
OPINION * ______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on the appeal of Plaintiff-Appellants
Christina Knapp (“Ms. Knapp”) and her husband, Douglas Knapp. Appellants appeal
from the District Court’s February 28, 2020 order, granting summary judgment to the
United States (hereinafter, the “Government”) as it concluded that Appellants’ claim was
time-barred. 1 We will affirm substantially for the reasons the District Court set forth in
its opinion granting summary judgment but nevertheless make some comments of our
own.
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
This appeal arises from allegations of medical malpractice that Appellants raised
arising from Ms. Knapp’s care and treatment at the Pike County, Pennsylvania, Family
Health Center (the “Pike County Health Center”) in Hawley, Pennsylvania, by its
employee, Eileen Arenson, C.R.N.P. We see no need to set forth the far-reaching
consequences of the allegedly negligent treatment but we recite the significant facts of
the case germane to this opinion which essentially are procedural and are not in dispute.
Appellants state that Ms. Knapp first became aware of the circumstances that led to this
action on July 15, 2015, a date that the Government does not challenge.
1 We refer to the Knapp claims in the singular as a claim. 2 On May 26, 2017, Appellants initiated an action against the Pike County Health
Center and Ms. Arenson separate from this action in the Court of Common Pleas of Pike
County that is still pending. On June 23, 2017, the Pike County Health Center advised
Appellants that it was a recipient of federal funding and therefore any tort claim against it
was required to be made pursuant to the Federal Tort Claims Act (“FTCA”). 2 On June
28, 2017, because they had become aware of the federal aspects of this case, Appellants
faxed and hand delivered an SF-95 administrative tort claim form (hereinafter referred to
as an “SF-95”) to the Pike County Health Center. Ms. Arenson came into possession of
the SF-95 by July 18, 2017, and on July 19, 2017, she forwarded the SF-95 to an
employee at the Wayne Memorial Community Health Center (“WMCHC”), which is the
operator of the Pike County Health Center. On the same day the WMCHC emailed the
SF-95 to the United States Department of Health and Human Services (“HHS”). Thus,
HHS received the SF-95 on July 19, 2017.
On July 17, 2018, Appellants commenced this action in the Middle District of
Pennsylvania naming HHS as Defendant. Appellants explain that they initiated the
action because six months had passed since the SF-95 had been sent to the Pike County
Health Center and HHS had neither accepted nor rejected their claim. (See Appellants’
2 The Federally Supported Health Centers Assistance Act (“FSHCAA”) provides that employees of certain qualifying grant recipients should be “deemed to be an employee of the Public Health Service” for purposes of the Public Health Services Act, which protects Public Health Service employees from personal liability resulting from performing their official duties. See 42 U.S.C. § 233(a)-(g). Further, the FSHCAA provides that an FTCA claim is the exclusive remedy for a medical negligence claim against the United States. See 42 U.S.C. § 233(g)(1)(A). 3 Opening Br. 5.) The six-month period is significant because a claimant may treat the
passing of six months after he or she files a claim under the FTCA without the agency
disposing of the claim as a rejection of the claim. The Government responded to the
action by filing a motion to dismiss or, in the alternative, for summary judgment, arguing
Appellants’ claim was time-barred. Appellants sought an opportunity for discovery, but
the District Court would not allow that as it believed it would not lead to the discovery of
facts to save this case. The District Court granted the Government’s motion for summary
judgment on February 28, 2020, and this appeal followed.
III. ANALYSIS
We review de novo a district court’s grant of summary judgment, Cranbury Brick
Yard, LLC v. United States, 943 F.3d 701, 708 (3d Cir. 2019), but we review a district
court’s decision to deny a litigant the opportunity to take discovery for abuse of
discretion. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 268 (3d Cir. 2012).
“As a sovereign, the United States is immune from suit unless it consents to be
sued.” White-Squire v. U. S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citing
United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349 (1980)). That consent
“must be unequivocally expressed, and the terms of such consent define the court’s
subject matter jurisdiction.” Id. (internal quotation marks omitted) (citing Mitchell, 445
U.S. at 538). The FTCA includes a limited waiver of sovereign immunity, which
provides, in part, the following:
4 An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his [or her] claim shall have been finally denied by the agency in writing and sent by certified 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 . . . .
28 U.S.C. § 2675(a); see also White-Squire, 592 F.3d at 457.
The applicable statute of limitations, 28 U.S.C. § 2401(b), provides that a claimant
must present his or her tort claim against the United States “in writing to the appropriate
Federal agency within two years after [the] claim accrues” or it “shall be forever
barred[.]” The tort claim accrues “when a plaintiff knows of both the existence and the
cause of [the] injury.” Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 271 (3d Cir. 2006).
Claimants, therefore, are required to exhaust their administrative remedies before they
can initiate a suit in federal court, and “the requirement that the appropriate [F]ederal
agency act on a claim before suit can be brought is jurisdictional and cannot be waived.”
Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003) (citation omitted); see also
McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980 (1993).
Applying these principles, Appellants’ claim accrued on July 15, 2015, and,
therefore, they were required to present the SF-95 to HHS—the appropriate Federal
agency—by July 17, 2017. 3 HHS did not receive Appellants’ SF-95 until July 19, 2017,
3 July 15, 2017 fell on a Saturday. 5 a date beyond the two-year time limit for presentation of the claim. Consequently, in the
absence of overriding law, Appellants’ claim would be time-barred.
Appellants argue that their claim can be saved under the Westfall Act, which
allows claimants who initially file their FTCA claims in the wrong forum and are
time-barred to save their claims so long as they meet certain requirements. See 28 U.S.C.
§ 2679(d)(5). (See Appellants’ Opening Br. 10-17.) The Westfall Act’s savings clause
“saves from being barred by the statute of limitations certain timely claims filed in the
wrong forum, such as in a state or a federal court rather than with the appropriate
administrative agency.” Santos v. United States, 559 F.3d. 189, 193 (3d Cir. 2009).
Therefore, the “plaintiff whose suit is removed to a district court, and then dismissed
because [he or] she failed to bring the timely required administrative claim, will be
credited with the date that [he or] she filed [the] claim in the wrong forum for purposes of
the FTCA’s statute of limitations.” Id. at 193-94.
For the savings clause to apply on the basis that it was timely filed but in a state
court, as here, plaintiffs must have: (1) filed their state court action within two years of
the alleged injury; (2) presented their FTCA claim to the correct federal agency within 60
days of the removal and dismissal of the wrongly filed state court action; and (3) if
denied by the agency, appealed to a federal district court within six months. See 28
U.S.C. §§ 2401(b), 2679(d). Here, the District Court correctly found Appellants failed to
6 satisfy the second element of this test. 4 In fact, as the District Court noted, Appellants
never presented their claim to any Federal agency; rather, they faxed and hand delivered
the SF-95 to the Pike County Health Center. (See Feb. 28, 2020 Op. at 12-13.)
Moreover, the parties recognize that the original state court action has not been dismissed
and is still pending. (See Appellants’ Opening Br. 5; Gov’t Opening Br. 17.)
Although not critical to its outcome, the District Court appropriately noted that
Appellants “acknowledge that they were on notice that their action fell under the FTCA
prior to the deadline to present their SF-95 to HHS.” (Id. at 13; see also id. (“It was
incumbent on counsel for [Appellants] to determine the procedural machinations under
the FTCA and how to properly present [Appellants’] SF-95 to the [correct] federal
agency within the deadline.”).) Even with that knowledge, Appellants failed to present
their claim to the appropriate federal agency, HHS, and their arguments that the Westfall
Act saves their claim lacks merit. Accordingly, we will affirm the Court’s February 28,
2020 order granting the Government’s Motion for Summary Judgment. 5
4 The District Court seemed to question whether the Westfall Act could apply to a health care center in the circumstances in this case. But we do not address that issue as Appellants failed to meet the savings clause’s basic requirements. 5 Appellants’ argument that the District Court abused its discretion by denying discovery lacks merit as Appellants did not file an affidavit or declaration under Federal Rule of Civil Procedure 56(d), requesting specific discovery and explaining why it had not been obtained previously. (See Appellants’ Opening Br. 6; Appellee’s Br. 18.) See Shelton v. Blesdoe, 775 F.3d 554, 568 (3d Cir. 2015) (stating that summary judgment may be granted if the nonmoving party did not file an adequate affidavit or declaration under Federal Rule of Civil Procedure 56(d)); see also Bradley v. United States, 299 F.3d 197, 207 (3d Cir. 2002) (explaining that our circuit favors strict compliance with Federal Rule of Civil Procedure 56 and there is a “strong presumption” against finding constructive compliance, which we recognize in only the “most exceptional” circumstances). 7