HELYN M. JONES, Administrator of Estate of David E. Jones v. UNITED STATES OF AMERICA Pursuant to FRAP 43 a

Honorable Paul S. Diamond, United States District Judge for the Eastern District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-4882
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*HELYN M. JONES, Administrator of Estate of David E. Jones
Appellant
v.
UNITED STATES OF AMERICA
*(Pursuant to FRAP 43(a))
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 07-cv-743)
Magistrate Judge: Honorable Mary Pat Thynge
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 29, 2010
Before: FUENTES and FISHER, Circuit Judges, and DIAMOND, District Judge.*
(Filed: February 23, 2010 )
____________
OPINION OF THE COURT
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DIAMOND, District Judge.
David E. Jones appeals from the District Court’s grant of summary judgment,
dismissing as time-barred his negligence action against the United States. For the reasons
that follow, we will affirm.
I.
Because we write primarily for the Parties, we will recite only those facts
pertinent to our analysis.
Jones, a Korean War veteran, had outpatient surgery to repair a protruding
umbilical hernia on January 11, 2000 at the Wilmington Veterans Administration Medical
Center (VAMC). (App. 91.) He was admitted to the VAMC for observation after the
surgery, and discharged the next day. (Id.) On January 13, 2000, Jones experienced
severe complications. He was admitted to the VAMC emergency room and underwent
exploratory abdominal surgery. (Id.) He remained in intensive care at the hospital until
January 21, 2000. (Id.) After his discharge, Jones experienced additional post-operative
complications. He underwent a third surgery at the VAMC in March 2001 to correct a
ventral hernia. (Id.)
Jones contends that the VMAC performed the first two surgeries incompetently.
He alleges that the procedures left him unable to perform his job as a truck driver, and
that he experiences constant pain and has difficulty controlling his bowels.

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Jones sought assistance from the Vietnam Veterans of America, a Congressionally-
chartered organization that helps veterans prepare and file claims with the federal
government. Pursuant to a power of attorney, Vietnam Veterans sent a letter to the
Department of Veterans Affairs on March 13, 2000, stating that Jones “wishes to open a
claim for service connected disability for complications from operation received at
Wilmington VA Hospital for hernia operation, and scars.” (App. 25.) The letter did not
include any allegations of negligence. On March 15, 2000, the VA responded in a letter
that it was “working on [Jones’] claim,” but had not received Form 21-526, required from
those seeking disability benefits. (App. 28.)
Vietnam Veterans returned a completed, but unsigned, Form 21-526 to the VA on
December 18, 2000. On that part of the form asking the applicant to state the “nature of
sickness, disease or injuries for which this claim is made and date each began,” Jones
wrote “s/c [service-connected] disability for complications from operation received at
VAMC, Wilmington for hernia operation and scars.” (App. 29.) In its January 16, 2001
letter, the VA acknowledged receiving Jones’ disability claim. (App. 34.) Over the next
year, the VA sent Jones a series of letters requesting more information, including the
exact definition or nature of his disability, a signed Form 21-526, a list of physicians who
treated him, and “evidence of current additional disability due to the [hernia] treatment.”
(App. 34, 37, 40, 41, 52.) Because Jones is illiterate, he was assisted by his daughter and
the Vietnam Veterans. Because Jones failed to respond to many of the requests, the VA

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denied his application on March 22, 2002. (App. 72-74.) The decision became final on
March 22, 2003 when Jones failed to appeal.
Jones testified that he learned of his right to file a lawsuit under the Federal Tort
Claims Act when he consulted a lawyer in May 2003. See 28 U.S.C. § 1346. With the
help of the Veterans Assistance Program at Widener Law School, Jones wrote to the VA
that he was now alleging medical malpractice and enclosed the required SF-95 form and a
claim for money damages in a sum certain. (App. 63.) The VA received the form on
June 2, 2003. Jones v. United States, 2008 U.S. Dist. LEXIS 94469, at *5 (D. Del. Nov.
20, 2008).
Jones also continued to pursue disability benefits, moving to reopen his claim on
August 19, 2003. (App. 82.) He appealed the VA’s disability decision to the Board of
Veterans’ Appeals, which on October 26, 2006 remanded to the VA for reconsideration.
(App. 138.) On September 24, 2007, the VA granted Jones’ claim, assigned him a sixty
percent disability rating, and awarded him benefits retroactive to August 19, 2003. (App.
158.)
On November 20, 2007, Jones brought the instant FTCA suit against the United
States, alleging negligent medical practice, lack of informed consent, and battery. The
Parties consented to have the case decided by a Magistrate Judge, who granted the
Government’s motion for summary judgment, ruling that Jones’ action was time-barred.
Jones, 2008 U.S. Dist. LEXIS 94469, at *19.

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II.
The District Court had subject-matter jurisdiction under the FTCA, 28 U.S.C. §
1346(b), and we exercise jurisdiction under 28 U.S.C. § 1291.
III.
We exercise plenary review over a District Court’s grant of summary judgment
and apply the same test applied by the District Court. Saldana v. Kmart Corp., 260 F.3d
228, 231 (3d Cir. 2001). Summary judgment is appropriate when the “pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
IV.
An FTCA claim for negligence against the Government must be presented to the
appropriate federal agency “within two years after such claim accrues.” 28 U.S.C. §
2401. The claim accrues “when a plaintiff knows of both the existence and the cause of
his injury.” Miller v. Phila. Geriatric Center, 463 F.3d 266, 272 (3d Cir. 2006). The
claim is “presented” (thus tolling the running of the limitations period) when an executed
SF-95 and a claim for money damages in a sum certain are received by the government
agency. 28 C.F.R. § 14.2.

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Jones alleges that the first two surgeries – which took place in January 2000 –
were incompetently performed. Accordingly, the Government contends – as it did below
– that Jones’ limitations period began to run in January 2000. See Miller, 463 F.3d at 271
(limitations period begins to run when cause of action accrues). Although the Magistrate
Judge appeared to agree, treating Jones as generously as she could, she ruled that March
9, 2001 – the date of the third surgery – was the latest date that the limitations period
could have begun to run. Jones, 2008 U.S. Dist. LEXIS 94469 at *8. Thus she ruled that
because Jones was obligated to present his negligence claim no later than March 9, 2003,
the VA’s receipt of the claim on June 2, 2003 was outside the limitations period. Id. at
*13.
Jones concedes that he brought his claim more than two years after it accrued. As
he did below, he contends here that his claim was not time-barred, however, because the
running of the limitations period was equitably tolled.
Equitable tolling may apply to claims brought against the Government. See Irwin
v. Dep’t of Veteran Affairs, 498 U.S. 89, 93-96 (1990) (because federal statutes of
limitation are not jurisdictional, “the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also apply to suits against the United
States”). In Hughes v. United States, we first held that in appropriate circumstances,
equitable tolling could apply to claims brought under the FTCA. 263 F.3d 272, 278 (3d
Cir. 2001). We have recently re-affirmed that holding. Santos v. United States, 559 F.3d

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189, 197 (3d Cir. 2009) (“[W]e think that our holding in Hughes that there can be
equitable tolling in suits under the FTCA remains good law. . .”).
As we cautioned in Santos, however, “a plaintiff will not receive the benefit of
equitable tolling unless she exercised due diligence in pursuing and preserving her claim”
because “[t]he principles of equitable tolling . . . do not extend to ‘garden-variety claims
of excusable neglect.’” Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96). The
“remedy of equitable tolling is extraordinary, and we will extend it only sparingly.”
Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). We further noted in Santos
that “it is especially appropriate to be restrictive with respect to extension of equitable
tolling in cases involving the waiver of the sovereign immunity of the United States.”
Santos, 559 F.3d at 197 (citing United States v. Kubrick, 444 U.S. 111, 117-19 (1979)).
Equitable tolling may apply to FTCA claims in three instances:
(1) where the defendant has actively misled the plaintiff
respecting the plaintiff’s cause of action; (2) where the
plaintiff in some extraordinary way has been prevented from
asserting his or her rights; or (3) where the plaintiff has timely
asserted his or her rights mistakenly in the wrong forum.”
Hedges, 404 F.3d at 751(internal citations omitted). Jones contends that he has met all
three of these requirements. We do not agree.
In Jones’ view, the VA actively misled him by failing to advise him that he could
pursue both a negligence action and a disability claim. He believes that the paperwork
the VA sent him while investigating his disability claim “would lull any claimant into

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believing that his claim was adequately and appropriately being addressed.” (Appellant’s
Br. at 16.)
The VA did not actively mislead Jones. To the contrary, the paperwork he
acknowledges receiving indicates only that the VA sought to process Jones’ disability
claim. Although the VA was obligated to “develop the facts pertinent to [Jones’] claim,”
it was not required to advise Jones with respect to other legal remedies that might be
available. See 38 C.F.R. § 3.103. In Hedges, we explicitly refused to hold that a
government agency “has an affirmative duty to inform litigants, including pro se litigants,
that they have viable judicial, as well as administrative remedies.” Hedges, 404 F.3d at
752. We explained that “we are unwilling to place such a responsibility on the
Government which has inquiries from millions of individuals each year.” Id.
Accordingly, Jones is not entitled to equitable tolling on this ground See also Lake v.
Arnold, 232 F.3d 360, 367 (3d Cir. 2000) (plaintiff’s mental disability and illiteracy did
not warrant equitable tolling).
Jones also argues that his case is similar to Santos, where we applied equitable
tolling after finding that Mercy Santos – who was six years old when she was allegedly
subjected to negligent care – had been prevented from asserting her rights in “some
extraordinary way.” Santos, 559 F.3d at 203-04. The defendant agency in Santos was the
York Health Corporation’s pediatric clinic. Id. at 190. Although Ms. Santos and her
counsel pursued her negligence claim diligently, counsel – who researched publicly

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available clinic records – was unable to learn that because the clinic received federal
funds, it was a federal entity for FTCA purposes. Id. at 200-01. Counsel thus
erroneously believed that a longer limitations period applied to Ms. Santos’ claim when
he belatedly filed her negligence claim in state court. Id. at 191. We found that in light
of Ms. Santos’ tender years, and because information disclosing the clinic’s federal status
was “if not covert, . . . at least oblique,” Ms. Santos had been prevented from asserting
her rights in an extraordinary way, thus triggering equitable tolling. Id. at 202.
Jones’ effort to analogize his case to that of Ms. Santos is misplaced. As Jones
well knew, the VMAC is a federal facility. Moreover, Jones was not diligent in pursuing
his negligence claim. Rather, he waited almost three and a half years after sustaining
injury to consult a lawyer. See Kubrick, 444 U.S. at 124 n.10 (plaintiff did not exercise
“all reasonable diligence” in pursuing his tort claim because “he sought no advice within
two years [after his injury] as to whether he had been legally wronged”). The record does
not show – and Jones does not suggest – that the VA prevented him from consulting with
counsel sooner. See Hedges, 404 F.3d at 746, 752. Accordingly, his decision to wait
until May 2003 to seek legal advice does not demonstrate the diligence necessary to make
this an extraordinary case warranting the extension of equitable tolling.
Jones also appears to suggest that he mistakenly asserted his rights in the wrong
forum. He contends (without any further explanation) that he “did everything he could to
prosecute his claim for malpractice yet ended up in the wrong forum.” (Appellant’s Br. at

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18.) This is a puzzling remark, given that Jones brought his claims in the correct fora: (1)
he properly sought disability benefits from the VA; (2) he properly (albeit belatedly) filed
his SF-95 with the VA and later brought suit in the District Court. Accordingly, Jones
cannot show that he raised “the precise statutory claim in issue but has mistakenly done
so in the wrong forum.” School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 20
(3d Cir. 1981). Rather, he brought his FTCA claim in the correct forum after the claim
was time-barred. Accordingly, the “wrong forum” equitable tolling requirement has not
been met.
In sum, regardless of whether Jones was obligated to initiate his negligence claim
by January 2002 or March 2003, it is evident that he acted outside the two-year
limitations period. In the circumstances presented, we are constrained to conclude that
Jones has presented a “garden-variety claim[] of excusable neglect,” not an extraordinary
circumstance that warrants equitable tolling. Santos, 559 F.3d at 197 (citing Irwin, 498
U.S. at 96). Because Jones’ claim is thus time-barred, the Magistrate Judge correctly
determined that the United States was “entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
V.
For the reasons discussed above, we will affirm the decision of the Magistrate
Judge.

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