D. S.-W. v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 19-2434

______

D.J.S.-W., a minor, by her natural mother

and legal guardian, D’ERICKA STEWART,

Appellant

v.

UNITED STATES OF AMERICA

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-17-cv-01335)

Chief District Judge: Honorable Mark R. Hornak

______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 22, 2020

Before: HARDIMAN, RENDELL and FISHER, Circuit

Judges.

(Opinion Filed: June 22, 2020)

Vincent A. Coppola

Pribanic Pribanic & Archinaco

513 Court Place, First Floor

Pittsburgh, PA 15219

Counsel for Appellant

Scott W. Brady, United States Attorney

Haley F. Warden-Rodgers

Laura S. Irwin

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

D.J.S.-W., a young girl who sustained a shoulder injury

during birth, argues that the limitations period for filing her

medical malpractice claim under the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 1346(b), 2671–80, should be equitably

tolled. Because D.J.S.-W. fails to show both that she diligently

pursued her rights and that extraordinary circumstances

prevented her from timely filing, we decline to accord her such

an exceptional remedy. Accordingly, we will affirm the

District Court’s grant of summary judgment to the United

States.

I.

In late 2009, D.J.S.-W. was born at Sharon Regional

Health Center (Sharon Hospital) in Mercer County,

2

Pennsylvania, under the care of John Gallagher, M.D. During

delivery, D.J.S.-W. sustained a brachial plexus injury, which

allegedly caused permanent damage to her right shoulder and

arm.

In the next few months, D.J.S.-W.’s mother retained

counsel to pursue D.J.S.-W.’s potential malpractice claims

against Sharon Hospital and Dr. Gallagher. In 2010 and 2011,

in preparing to file D.J.S.-W.’s case, counsel requested medical

and billing records from Sharon Hospital on three occasions.

During this time, counsel also sent one request for medical

records directly to Dr. Gallagher. All four requests were

limited temporally “to those records pertinent to the time when

Dr. Gallagher’s alleged negligence occurred—the delivery of

[D.J.S.-W.] . . . and the 12 hours prior to the delivery, the time

at which [D.J.S.-W.’s mother] presented to Sharon . . . Hospital

to give birth.” App. 204 ¶ 12. Beyond these record requests,

counsel also visited Sharon Hospital’s website, which listed

Dr. Gallagher as an Obstetrics & Gynecology doctor, and

conducted a Google search of both Sharon Hospital and Dr.

Gallagher.

D.J.S.-W.’s counsel believed that Dr. Gallagher was

privately employed because Dr. Gallagher delivered D.J.S.-W.

at Sharon Hospital—an entity against which counsel had

previously litigated and knew to be private—and was listed on

the Sharon Hospital website. Despite his investigatory efforts

in preparing to file her case, D.J.S.-W.’s counsel did not

discover that at the time of D.J.S.-W.’s birth, Dr. Gallagher

was employed by Primary Health Network, a “deemed” federal

entity eligible for FTCA malpractice coverage. Under federal

law, entities that receive federal funding to serve medically

underserved populations, as well as “health practitioners that

such entities employ[,] ‘shall be deemed to be [employees] of

the Public Health Service.’” Lomando v. United States, 667

3

F.3d 363, 371 (3d Cir. 2011) (second alteration in original)

(quoting 42 U.S.C. § 233(g)(1)(A)). This status “is highly

significant” because “an action against the United States under

the FTCA is the exclusive remedy for persons alleging

‘personal injury . . . resulting from the performance of medical

. . . functions’ by Public Health Service employees acting

within the scope of their employment.” Id. (quoting 42 U.S.C.

§ 233(a)). Indeed, D.J.S.-W.’s counsel had litigated a prior case

in which the United States substituted itself for a defendant

doctor because he was a “deemed” federal employee.

During the preparation of D.J.S.-W.’s case, counsel did

not visit or call Sharon Hospital, Dr. Gallagher, or any Primary

Health Network office. He did not search the Health Resources

and Services Administration database, which would have

revealed that Primary Health Network was a “deemed” federal

entity (although, at the time, it did not list individual providers

like Dr. Gallagher). Nor did counsel visit Primary Health

Network’s website or search Primary Health Network on

Google. At the time, its website and each of its offices

indicated that Primary Health Network was a “Federally

Qualified Health Center.”

Furthermore, counsel never requested medical records

from Primary Health Network, nor did he ask for records from

any healthcare provider or facility that identified a responsive

date range earlier than D.J.S.-W.’s birth in November 2009.

Records from before D.J.S.-W.’s birth, however, show that at

the time of her birth, her mother had been a patient of Dr.

Gallagher’s for over ten years and had visited the Primary

Health Network office in Sharon, Pennsylvania. Of the medical

records counsel did ask for, he sent one request directly to

“John Gallagher, M.D., One Dayton Way, Suite 6, Sharon, PA

16146”—the street address of a Primary Health Network

office. App. 236. And of the records Dr. Gallagher sent in

4

response to counsel’s request, two pages included the words

“Primary Health Network” at the bottom of the page

immediately above Dr. Gallagher’s name and mailing address.

D.J.S.-W. v. United States, No. 2:17-cv-01335, 2019 WL

1894707, at *3, *11 (W.D. Pa. Apr. 29, 2019).

In late 2016—nearly seven years after the allegedly

negligent delivery—D.J.S.-W.’s mother filed suit on D.J.S.-

W.’s behalf against Dr. Gallagher and Sharon Hospital in

Pennsylvania state court. Despite Pennsylvania’s two-year

limitation for bringing personal injury actions, see 42 Pa. Cons.

Stat. § 5524(2), D.J.S.-W.’s counsel, “[a]cting according to his

custom and practice,” deliberately delayed filing D.J.S.-W.’s

case “in anticipation of acquiring additional knowledge

regarding the severity and permanency of [her] injuries,” App.

211 ¶ 72. In doing so, counsel relied on a Pennsylvania statute,

42 Pa. Cons. Stat. § 5533(b)(1), which tolls a minor plaintiff’s

action until she turns eighteen.

Soon after the case was filed, the Government removed

it to the U.S. District Court for the Western District of

Pennsylvania and moved to substitute the United States for Dr.

Gallagher because he was working within the scope of his

federal employment with Primary Health Network at the time

of the allegedly negligent delivery. The District Court granted

the motion for substitution, at which point the United States

moved to dismiss on the basis that D.J.S.-W. failed to timely

exhaust her administrative remedies as required under the

FTCA. The District Court then dismissed the case against the

United States without prejudice and remanded the case against

Sharon Hospital for lack of subject-matter jurisdiction.1

1

The case against Sharon Hospital was still pending in state

court when the parties briefed this appeal.

5

After exhausting administrative remedies,2 D.J.S.-W.’s

counsel filed anew D.J.S.-W.’s claim against the United States

in the District Court. The United States moved to dismiss,

arguing that her action was untimely under the FTCA. The

District Court denied the motion, ordering the parties to engage

in limited discovery regarding the FTCA’s statute of

limitations and equitable tolling.

At the close of discovery, the United States moved for

summary judgment, again arguing that D.J.S.-W.’s suit was

untimely. Although conceding that she did not timely file,

D.J.S.-W. argued that she was entitled to equitable tolling of

the FTCA’s limitations period because she—or more

accurately, her counsel—“had no reason to know that [Dr.

Gallagher] was a ‘deemed’ federal employee or that further

inquiry into his status was required.” Supp. App. 26. The

District Court disagreed, holding that D.J.S.-W. failed to “meet

her burden to obtain the extraordinary remedy of equitable

tolling.” D.J.S.-W., 2019 WL 1894707, at *10. Accordingly,

the Court granted the Government’s motion for summary

judgment because D.J.S.-W.’s “negligence claim against the

United States is . . . barred as untimely.” Id. D.J.S.-W. appeals.

II.3

“As a sovereign, the United States is immune from suit

unless it consents to be sued.” Sconiers v. United States, 896

2

D.J.S.-W. presented her claims to the U.S. Department of

Health and Human Services. Her administrative claim was

deemed denied when the agency failed to act within six

months. See 28 U.S.C. § 2675(a).

3

The District Court had jurisdiction pursuant to 28 U.S.C. §§

1331 and 1346(b)(1), and we have jurisdiction under 28 U.S.C.

§ 1291. “Our review of the District Court’s [summary

6

F.3d 595, 597 (3d Cir. 2018) (quoting White-Squire v. U.S.

Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010)). The FTCA

represents “a limited waiver of th[at] sovereign immunity,”

Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d

Cir. 2009), providing that “[t]he United States shall be liable,

respecting . . . [certain] tort claims, in the same manner and to

the same extent as a private individual under like

circumstances,” 28 U.S.C. § 2674.

Bringing a claim under the FTCA requires following

various procedural requirements. The FTCA dictates that “a

tort claim against the United States ‘shall be forever barred’

unless it is presented to the ‘appropriate Federal agency within

two years after [it] accrues’ and then brought to federal court

‘within six months’ after the agency acts on the claim.” United

States v. Wong, 575 U.S. 402, 405 (2015) (quoting 28 U.S.C.

§ 2401(b)). If the agency fails to act within six months, the

claimant may proceed to file her case in district court. 28

U.S.C. § 2675(a).

Here, both parties agree that D.J.S.-W.’s case—which

was first filed in state court almost seven years after her birth,

the date on which her claim accrued—was not timely presented

to the appropriate agency in accordance with these

requirements. And although D.J.S.-W.’s counsel deliberately

delayed filing her case in reliance on Pennsylvania’s tolling

statute, that law cannot save D.J.S.-W.’s untimely claim

against the United States because “state-law tolling statutes do

judgment] decision is plenary.” State Auto Prop. & Cas. Ins. v.

Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Summary

judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

7

not apply to the FTCA’s limitations period.” Santos, 559 F.3d

at 193. Thus, the sole issue on appeal is whether D.J.S.-W. has

shown that she is entitled to the extraordinary remedy of

equitable tolling of the FTCA’s limitations period.4 We first

clarify the test that a litigant seeking equitable tolling must

satisfy. We then explain why D.J.S.-W. fails to meet that

standard in this case.

A. Our Equitable-Tolling Test

It is well established that a court may “rescue a claim

otherwise barred as untimely by a statute of limitations when a

plaintiff [shows she] has ‘been prevented from filing in a

timely manner due to sufficiently inequitable circumstances.’”

Id. at 197 (quoting Seitzinger v. Reading Hosp. & Med. Ctr.,

165 F.3d 236, 240 (3d Cir. 1999)). Tolling “is [an]

extraordinary” remedy, id., and “is proper only when the

‘principles of equity would make [the] rigid application [of a

limitation period] unfair,” Miller v. N.J. State Dep’t of Corr.,

145 F.3d 616, 618 (3d Cir. 1998) (alterations in original)

(quoting Shendock v. Dir., Office of Workers’ Comp.

Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en banc)). “It

is especially appropriate to be restrictive” in extending this

remedy “in cases involving the waiver of the sovereign

immunity of the United States,” such as those arising under the

FTCA. Santos, 559 F.3d at 197–98.

Our Court uses the term “equitable tolling” broadly to

encompass several situations under which a statute of

limitations period may be tolled on equitable grounds. We have

said that:

4

“The time limits in the FTCA are just time limits,” not

jurisdictional requirements, and, therefore, “a court can toll

them on equitable grounds.” Wong, 575 U.S. at 412.

8

[T]here are three principal, though not exclusive,

situations in which equitable tolling may be

appropriate: (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 . . . her rights; or (3) where the plaintiff

has timely asserted . . . her rights mistakenly in

the wrong forum.5

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,

1387 (3d Cir. 1994), abrogated on other grounds by Rotkiske

v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018) (en banc), aff’d

140 S. Ct. 355 (2019). In addition, a litigant “will not receive

the benefit of” tolling in any of these situations “unless she

5

Our Court often refers to all three of these situations “as

falling under the overarching heading of ‘equitable tolling’”

because each “tolls a limitations period on equitable grounds.”

Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 550 (4th Cir.

2019) (describing the Third Circuit’s approach). Other circuits

use the phrase to refer only to the second situation in our list—

that is, “when a plaintiff’s failure to timely file suit is not

attributable [to] wrongful conduct by the defendant.” Id.; see

also Zappone v. United States, 870 F.3d 551, 556 (6th Cir.

2017); Valdez ex rel. Donely v. United States, 518 F.3d 173,

183 (2d Cir. 2008); Cada v. Baxter Healthcare Corp., 920 F.2d

446, 451 (7th Cir. 1990). In recent years, the Supreme Court

has also used the phrase “equitable tolling” in this more

specific sense. See Holland v. Florida, 560 U.S. 631, 644–45

(2010). As we explain above, only the second of our three

tolling scenarios is at issue here, so we need not (and do not)

resolve the difference in terminology.

9

exercised due diligence in pursuing and preserving her claim.”

Santos, 559 F.3d at 197. That is, tolling will never extend to “a

garden variety claim of excusable neglect, such as a simple

miscalculation that leads a lawyer to miss a filing deadline.”

Holland, 560 U.S. at 651–52 (internal quotation marks and

citations omitted).

The second tolling situation is at issue here—D.J.S.-W.

argues that she encountered extraordinary circumstances that

prevented her from timely filing.6 Thus, to be entitled to

equitable tolling, D.J.S.-W. must show that she “in some

extraordinary way has been prevented from asserting . . . her

rights,” and that she “exercised due diligence in pursuing and

preserving her claim.” See Santos, 559 F.3d at 197 (internal

quotation marks omitted). This is the same test that the

Supreme Court uses to assess whether a petitioner may be

entitled to equitable tolling in the habeas context. See Holland,

560 U.S. at 649 (“[A] ‘petitioner’ is ‘entitled to equitable

tolling’ only if he shows ‘(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance

stood in his way’ and prevented timely filing.” (quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005))). In Menominee

Indian Tribe of Wisconsin v. United States, the Supreme Court

applied the same test to assess a Tribe’s claim that equitable

6

D.J.S.-W. does not explicitly state that her claim falls under

the second tolling situation in our list. But her argument relies

heavily on Santos, which involved the second tolling doctrine.

See 559 F.3d at 203. Furthermore, neither of the other two

bases applies—D.J.S.-W. does not argue that she was actively

misled, and all parties agree that she did not timely assert her

claim in state court. Nor does D.J.S.-W. argue that any other

tolling doctrine should apply.

10

tolling should excuse its failure to timely present a contract

dispute to a federal contracting officer. 136 S. Ct. 750, 754–56

(2016). In doing so, the Court noted that it has “never held that

[Holland’s] equitable-tolling test necessarily applies outside

the habeas context” and, therefore, it has not yet “decide[d]

whether an even stricter” or “a more generous test” may apply

to nonhabeas cases. Id. at 756 n.2.7

Nevertheless, because the Holland test is the same as

our test for assessing equitable tolling in the nonhabeas

context, Menominee is instructive. In particular, the Court

made two observations that help us more clearly define the

contours of our test.

First, it stated that the two requirements—extraordinary

circumstances and diligence—are “distinct elements,” both of

which must be satisfied for a litigant to be eligible for tolling.

Id. at 756. Treating the two requirements as separate prongs,

the Court said, was consistent with its prior language

describing the components as “elements,” id. (citing Pace, 544

U.S. at 418), and its practice of denying “requests for equitable

tolling where a litigant failed to satisfy one without addressing

whether he satisfied the other,” id. (citing Lawrence v. Florida,

549 U.S. 327, 336–37 (2007), and Pace, 544 U.S. at 418).

We agree with this characterization of the equitable-

tolling test. Although our prior case law may appear to have

blended the two components, this is merely a reflection of the

fact that, in practice, the two elements often go hand in hand.

For example, if no extraordinary circumstances stood in the

7

In recent years, the Court has also referenced the Holland

equitable-tolling test in other nonhabeas cases. See, e.g., Wong,

575 U.S. at 407–08; Lozano v. Montoya Alvarez, 572 U.S. 1,

10 (2014).

11

litigant’s way, but she nevertheless failed to timely file, it is

likely that she did not diligently investigate and pursue her

claim. See, e.g., id. at 756–57 (declining to equitably toll

limitations period because Tribe’s failure to timely present its

claims was caused “not by an obstacle outside its control, but

by [its] mistaken belief that presentment was unneeded”);

Hedges v. United States, 404 F.3d 744, 752–54 (3d Cir. 2005)

(declining to equitably toll limitations period because

plaintiff’s pro se status and mental incompetence were not

extraordinary circumstances and “[d]iligent research would

likely have revealed . . . the existence” of his claim). Similarly,

if, despite pursuing her claim diligently, a litigant was still

unable to timely file, it is likely that some extraordinary

circumstance stood in her way and prevented her from doing

so. See Santos, 559 F.3d at 198–203 (holding plaintiff entitled

to equitable tolling when she “diligently and vigorously

pursued her claim” and, yet, she was unable to ascertain

hospital’s federal status). Today, we follow Menominee’s

guidance and confirm that the two requirements are distinct

prongs, both of which a litigant must satisfy before equitable

tolling may apply.

Second, the Supreme Court also “reaffirm[ed]” that the

extraordinary-circumstances element “is met only where the

circumstances that caused a litigant’s delay are both

extraordinary and beyond [her] control.” Menominee, 136 S.

Ct. at 756. We agree with this description of the extraordinary-

circumstances prong. Indeed, because equitable tolling is an

extreme remedy that we extend “only sparingly,” Irwin v.

Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990), it “would

make little sense if [it] were available when a litigant was

responsible for [her] own delay,” Menominee, 136 S. Ct. at

756. In addition, because the extraordinary-circumstances and

diligence components are distinct elements, “the diligence

12

prong already covers those affairs within the litigant’s control”

and the “extraordinary-circumstances prong, by contrast, is

meant to cover matters outside [her] control.” Menominee, 136

S. Ct. at 756. Accordingly, we also clarify today, following the

Supreme Court’s guidance, that a litigant will only meet the

extraordinary-circumstances prong of our test for equitable

tolling when she shows that her delay was attributable to

circumstances that were “both extraordinary and beyond [her]

control.” Id.

In sum, for a litigant to be entitled to equitable tolling,

she must establish two elements: “(1) that [s]he has been

pursuing her rights diligently, and (2) that some extraordinary

circumstance stood in h[er] way and prevented timely filing.”

Id. at 755; see also Santos, 559 F.3d at 197. The two

components are distinct elements, both of which the litigant

must satisfy. And to meet the extraordinary-circumstances

element, the litigant must show that the circumstances were

“extraordinary and beyond [her] control.” Menominee, 136 S.

Ct. at 756.

B. D.J.S.-W. Fails to Meet Our Equitable-Tolling

Standard

Here, D.J.S.-W. fails to satisfy either prong of this test.

She did not diligently pursue her rights because she failed to

take reasonable steps to confirm Dr. Gallagher’s employment

status. Nor did any circumstances, both extraordinary and

outside her control, stand in her way and prevent her “from

discovering Dr. Gallagher’s true affiliations.” D.J.S.-W., 2019

WL 1894707, at *9 (citing Menominee,136 S. Ct. at 755).

D.J.S.-W. emphasizes our decision in Santos, in which

we tolled the FTCA’s limitations period to rescue Santos’s

untimely claim because the government had created a trap that

prevented her from learning, despite her counsel’s diligent

13

investigation, that her alleged tortfeasors were federally

employed. 559 F.3d at 204. Santos is similar to this case: a

minor filed medical malpractice claims in state court against a

healthcare facility, known as York Health, and several of its

employees. Id. at 190–91. Her counsel filed her suit after the

two-year limitations period had run in reliance on

Pennsylvania’s tolling statute. Id. at 191. As it turned out,

however, York Health was a “deemed” federal entity. Id. at

191–92. After the government substituted the United States as

defendant and moved for summary judgment, Santos argued

that the FTCA’s limitations period should be equitably tolled.

Id. at 192.

We agreed with Santos and reversed the district court’s

grant of summary judgment to the United States. Id. at 204.

Santos, we said, diligently pursued her claim: she hired

counsel, “who requested and reviewed her medical records,

[and] visited, corresponded with, and performed a public

records search on York Health.” Id. at 198. Yet, “[n]one of

these inquiries, records, visits, or correspondence gave him a

clue that the healthcare providers or York Health had been

deemed federal employees.” Id. at 200–01. York Health’s

federal status, we concluded, “if not covert, was at least

oblique.” Id. at 202. Although York Health’s website indicated

that it received funds from federal sources and that it was a

“federally-qualified health center,” there were no “publicly

available sources of information from which Santos could have

learned” that York Health was in fact a federal entity. Id. at

201–03. Moreover, “even if the information had been

available,” there were no circumstances that “should have led

[Santos’s counsel] to inquire into York Health’s federal status”

in the first place. Id. at 203. Thus, we held that “the equitable

14

tolling doctrine applie[d] . . . to toll the FTCA’s statute of

limitations.” Id. at 204.8

Despite D.J.S.-W.’s arguments to the contrary, even a

cursory read of Santos reveals that Santos’s counsel went to far

greater lengths to confirm her alleged tortfeasors’ employment

status than D.J.S.-W.’s counsel did here. While counsel in

Santos performed a public records search on, corresponded

with, and visited York Health as part of his investigation,

D.J.S.-W.’s counsel merely assumed that Dr. Gallagher was

employed by Sharon Hospital—which he knew to be a private

entity—because D.J.S.-W. was born there and Dr. Gallagher

was listed as a “team member” on its website. But, as D.J.S.-

W.’s counsel admits, he never corresponded with, called, or

visited Sharon Hospital or Dr. Gallagher to confirm this belief.

8

The Government argues that “Menominee may undermine the

holding in Santos” because “Santos’s counsel’s erroneous

belief that York Health was a private entity . . . was neither

extraordinary nor ‘an obstacle beyond [his] control.’”

Appellee’s Br. 25–26 (quoting Menominee, 136 S. Ct. at 756

& n.3). We disagree. In Santos, we concluded that the

government had created a “trap” for litigants like Santos

because there were no “publicly available sources of

information from which Santos could have” discovered York

Health’s federal status, nor were there any circumstances that

should have “led her to inquire into York Health’s federal

status.” 559 F.3d at 203. Despite diligent research, the opacity

of York Health’s federal status was an extraordinary

circumstance that stood in Santos’s way and prevented her

from timely filing. Thus, our holding in Santos would not

change under the clarified test we discuss today.

15

D.J.S.-W. argues that her counsel’s efforts were diligent

because there was no “trigger” that would have prompted him

to examine Dr. Gallagher’s true employer, Primary Health

Network. Appellant’s Br. 15. This is not so. There were

numerous red flags that would have caused a diligent plaintiff

or her counsel to investigate Dr. Gallagher’s employment

status. As the District Court observed, “[i]t ordinarily should

not come as a surprise to a medical malpractice lawyer . . . that

an obstetric physician’s relationship to a hospital may simply

be” that he has “admitting privileges to deliver his patients’

babies.” D.J.S.-W., 2019 WL 1894707, at *9 (internal footnote

omitted). Given that such an arrangement is not uncommon, it

seems strange that counsel did not either ask D.J.S.-W.’s

mother “where she normally saw Dr. Gallagher for her pre-

natal care” or expand the temporal scope of his record request

to ensure Dr. Gallagher had not treated her at another facility.

Id.

There were also other triggers that should have

prompted counsel to investigate Dr. Gallagher’s employment

status. For example, counsel’s own law office sent record

requests to Sharon Hospital and Dr. Gallagher at different

addresses. Indeed, had counsel visited or searched the address

to which his office sent the request to Dr. Gallagher, he would

have discovered that it was a street address for Primary Health

Network. In addition, two of the pages of records sent by Dr.

Gallagher in response to that request contained the phrase

“Primary Health Network” at the bottom of the page above Dr.

Gallagher’s name and address. See id. at *3, *11. Finally,

D.J.S.-W.’s counsel should have been on heightened alert

given his own personal experience in litigating a malpractice

case involving the substitution of the United States for a

defendant physician because he was an employee of a

“deemed” federal entity.

16

Had counsel taken the reasonable step of investigating

these red flags, he could have easily discovered that Dr.

Gallagher was employed by Primary Health Network. Had

counsel then investigated Primary Health Network, he could

have discovered that it was a “deemed” federal entity. Indeed,

unlike counsel in Santos, who corresponded with, performed a

public search on, and visited York Health, D.J.S.-W.’s counsel

did not take any of these steps. Had he visited a Primary Health

Network office or searched its website, he would have seen that

Primary Health Network “held itself out as a ‘federally

qualified health center’ via,” inter alia, “physical signs in its

waiting rooms . . . and notices on its website.” Id. at *9. If, like

in Santos, these statements were insufficient to alert counsel to

Primary Health Network’s “deemed” federal status, see Santos,

559 F.3d at 201–02, he could have double checked by

searching Primary Health Network in the Health Resources

and Services Administration database.

In sum, D.J.S.-W. did not exercise due diligence to meet

our equitable-tolling standard. Rather, her effort here—or,

more accurately, her counsel’s effort—was, at most, a “garden

variety claim of excusable neglect,” see Irwin, 498 U.S. at 96,

to which “[t]he principles of equitable tolling . . . do not

extend,” Santos, 559 F.3d at 197.

Because a plaintiff must meet both prongs of the

equitable-tolling test, we could conclude our discussion here,

having determined that D.J.S.-W. did not diligently pursue her

claim. See Menominee, 136 S. Ct. at 757 n.5. We briefly note,

however, that D.J.S.-W. also fails to demonstrate that any

extraordinary circumstances “stood in h[er] way and prevented

timely filing.” Id. at 755 (quoting Holland, 560 U.S. at 649).

The plaintiff in Santos encountered extraordinary

circumstances because the government had created “a potential

statute of limitations trap” that prevented her from discovering

17

the defendant’s federal status. 559 F.3d at 202 (quoting Valdez,

518 F.3d at 183). The government itself ensured that “York

Health’s federal status, if not covert, was at least oblique,” and

there were no “publicly available sources of information from

which Santos could have learned this critical fact,” nor were

there any “circumstances [that] should have led her to inquire

into York Health’s federal status.” Id. at 203.

According to D.J.S.-W., the circumstances in her case

were similarly extraordinary. She argues that Dr. Gallagher

created a trap, like that in Santos, because he knew that his

biography on Sharon Hospital’s website “created the illusion”

that he was employed by “that private hospital,” which could,

in turn, “relax the guard of even the most diligent person.”

Appellant’s Br. 14. There was, however, no trap here, and Dr.

Gallagher’s employment with Primary Health Network was far

from “oblique.” As discussed above, had counsel discussed the

issue with his client, expanded the temporal scope of his record

requests, called Sharon Hospital or Dr. Gallagher, or

investigated the address to which he sent one of his record

requests and which appeared on some of the records he

received, he would have discovered Dr. Gallagher’s true

employer. As the District Court stated, “[t]he real trap that . . .

[c]ounsel fell into was the assumption that a doctor who has a

biographical page on a private healthcare facility’s website . . .

cannot be employed by another facility or entity.” D.J.S.-W.,

2019 WL 1894707, at *8. This miscalculation was certainly not

“beyond [counsel’s] control,” and, thus, no extraordinary

circumstances stood in D.J.S.-W.’s way to prevent her from

timely filing her claim.9 See Menominee, 136 S. Ct. at 756.

9

D.J.S.-W. argues that Dr. Gallagher “bore responsibility to

make sure that his status was unambiguous to his patients.”

Appellant’s Br. 14. Accordingly, she asks us to announce a rule

18

III.

Because we conclude that equitable tolling does not

save D.J.S.-W.’s untimely claim, we will affirm the District

Court’s order granting summary judgment in favor of the

United States.

that doctors like Dr. Gallagher who generally treat patients at

private hospitals, “may not insulate [themselves] against

application of equitable tolling” unless they notify “the patient

in some reasonably direct manner of the federal affiliation.”

Appellant’s Br. 15. But it is D.J.S.-W. who bore the burden to

timely assert her rights or to show that, despite her diligent

investigation, she was prevented from doing so by

extraordinary circumstances. D.J.S.-W. offers no legal basis

for imposing an affirmative reporting requirement on

healthcare providers like Dr. Gallagher. See, e.g., Arteaga v.

United States, 711 F.3d 828, 834 (7th Cir. 2013) (“No

physician, clinic, hospital, or other medical provider is required

to provide patients with detailed instructions on how to sue the

provider for malpractice.”); Hedges, 404 F.3d at 752 (rejecting

argument that “the Government has an affirmative duty to

inform litigants, including pro se litigants, that they have viable

judicial . . . remedies”).

19