Holloway v. US

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [16-1402]

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Document: 00117103300

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Date Filed: 01/11/2017

Entry ID: 6061014

United States Court of Appeals
For the First Circuit
No. 16-1402
ERROL HOLLOWAY,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]

Before
Lynch, Selya, and Thompson,
Circuit Judges.

Thomas M. Libbos, Katherine L. Lamondia-Wrinkle, and Thomas
M. Libbos PC on brief for appellant.
Carmen M. Ortiz, United States Attorney, and Karen L. Goodwin,
Assistant United States Attorney, on brief for appellee.

January 11, 2017

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THOMPSON, Circuit Judge.
Preface
Errol Holloway appeals the grant of summary judgment to
the United States in this action under the Federal Tort Claims Act
("FTCA").

Spying no reversible error, we affirm.
How the Case Got Here1
We reconstruct the chronology of events giving rise to

this litigation:


June 22, 2012.

Holloway is injured while receiving treatment

at Caring Health Center, Inc., a federally funded healthcare
facility in Springfield, Massachusetts.


April 8, 2014.

Holloway — through his lawyer — files an

administrative claim with the Department of Health and Human
Services ("HHS"), using a Standard Form 95 ("SF 95").
fails to fill out the box for a sum certain.

But he

Text in that

box warns that "[f]ailure to specify may cause forfeiture of
your

rights."

Elsewhere

the

form

—

occasionally

using

boldface, underlining, and capitalized text — says that he
had to provide a sum certain for the claim to be considered
"presented," that he had "two years" to present the claim,

1

We summarize the background facts in the light most
agreeable to Holloway, as required on de novo review of a summaryjudgment ruling. See Baltodano v. Merck, Sharp, & Dohme (I.A.)
Corp., 637 F.3d 38, 41 (1st Cir. 2011).

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and that "[f]ailure to completely execute this form or to
supply the requested material within two years from the date
the claim accrued may render your claim invalid."


April 17, 2014.

HHS acknowledges receiving Holloway's SF 95

and requests medical records, itemized bills, evidence of
lost wages, and the like.


June 25, 2014.
Caring

Health

More than two years after the incident at
Center,

Holloway's

lawyer

submits

medical

bills, employment records, and other documents.


August 14, 2014.

A paralegal in the HHS general counsel's

office calls Holloway's attorney, mentions the missing sum
certain, and asks counsel to submit an amended SF 95 with the
required

sum

certain.

HHS

then

gets

an

amended

form

requesting a sum certain in the amount of $3,000,000 for
personal injuries.


August 21, 2014.

HHS denies Holloway's claim, saying "[t]he

evidence fails to establish that the alleged injuries were
due to the negligent or wrongful act or omission of a federal
employee acting within the scope of employment."
An unhappy Holloway sued the United States in federal
court in February 2015, seeking damages under the FTCA.

Convinced

that Holloway's failure to provide a timely sum-certain demand
deprived the court of jurisdiction, the United States moved to
dismiss the case for lack of subject-matter jurisdiction. Holloway
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responded with a double-pronged argument:
presented

his

investigatory

claim

because

needs;

his

second,

first, that he timely

submissions

and

limitations period should be tolled.

Entry ID: 6061014

satisfied

alternatively,

HHS's

that

the

The district judge referred

the motion to a magistrate judge.
After noting that the Supreme Court had recently held
that

the

FTCA's

limitations

period

is

nonjurisdictional

and

subject to equitable tolling, see United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1638 (2015), the magistrate judge treated the
motion as one for summary judgment and recommended that judgment
enter for the United States.

Her reasoning ran this way.

For

starters, she concluded that Holloway had neither timely specified
a sum certain nor timely provided documents from which "such a sum
could be ascertained" and so had not properly presented his claim
to HHS.
qualified

And then she found that nothing that took place here
as

extraordinary

circumstances

meriting

equitable

tolling, particularly since Holloway conceded that he did have
constructive
Holloway

or

actual

objected,

knowledge

attacking

untimeliness conclusion.

of

the

only

the

filing

requirements.

magistrate

judge's

Agreeing that Holloway "did not timely

satisfy" the FTCA's requirements, the district judge later adopted
the magistrate judge's recommendation on de novo review.
Which brings us to today, with Holloway asking us to
reverse and send the matter to trial.

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But before tackling his

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many arguments, we pause to give a quick tutorial on the relevant
aspects of the FTCA.
The FTCA
The FTCA waives sovereign immunity for certain tortious
acts

and

omissions

of

§§ 1346(b)(1), 2674.

federal

employees.

See

28

U.S.C.

And like other sovereign-immunity waivers,

the FTCA gets a strict reading.

See, e.g., Donahue v. United

States, 634 F.3d 615, 622 (1st Cir. 2011).

What that means is

that judges "must faithfully enforce" the FTCA's "requirements,
neither

'extend[ing]

the

waiver

beyond

that

which

Congress

intended [nor assuming] authority to narrow the waiver.'"

Id.

(quoting United States v. Kubrick, 444 U.S. 111, 118 (1979)).
A key FTCA requirement is that a person cannot sue under
it

unless

he

first

presents

his

"claim"

to

the

relevant

administrative agency "within two years after such claim accrues"
— failure to present a claim within that period "forever bar[s]"
the claim.

28 U.S.C. § 2401(b).

An essential element of a claim

is "notification of the incident," via "an executed" SF 95 or
"other written" document, "accompanied by" a demand "for money
damages in a sum certain."
added).

See 28 C.F.R. § 14.2(a) (emphasis

The purpose behind the sum-certain requirement is to tip

the government off as to its "possible liability" so that it can
"'investigate

the

alleged

negligent

episode'"

to

settlement would be in the best interests of all.'"

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see

"'if

Coska v.

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United States, 114 F.3d 319, 322 (1st Cir. 1997) (quoting CorteReal v. United States, 949 F.2d 484, 486 (1st Cir. 1991), in turn
quoting Lopez v. United States, 758 F.2d 806, 809 (1st Cir. 1985));
see also Reilly v. United States, 863 F.2d 149, 173 (1st Cir. 1988)
(noting that "[t]he goal of the administrative claim requirement
is to let the government know what it is likely up against:
mandating that a claimant propound a definite monetary demand
ensures that '[t]he government will at all relevant times be aware
of its maximum possible exposure to liability and will be in a
position

to

make

intelligent

settlement

decisions'"

(quoting

Martinez v. United States, 780 F.2d 525, 530 (5th Cir. 1986))).
And because the FTCA ties "both the authority to settle a claim
and the source of settlement funds to the amount of the underlying
claim,"2 not having a sum certain obviously makes it harder for
the government to determine the claim's value and to "handl[e]"
the claim "efficiently."
Having

said

Kokotis, 223 F.3d at 279.

all

this,

we

must

acknowledge

that

we

"approach[] the notice requirement leniently, 'recognizing that

2

"[C]laims of $2,500 or less," for example, "can be settled
on the authority of '[t]he head of each Federal agency or his
designee' and are paid 'out of appropriations available to that
agency'"; "[c]laims of between $2,500 and $25,000 can be settled
on the same authority, but are paid out of a separate
appropriation"; and "claims in excess of $25,000 can only be
settled 'with the prior written approval of the Attorney General
or his designee.'" Kokotis v. USPS, 223 F.3d 275, 279 (4th Cir.
2000) (quoting 28 U.S.C. § 2672).

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individuals wishing to sue the government must comply with the
details of the law, but also keeping in mind that the law was not
intended to put up a barrier of technicalities to defeat their
claims.'"

Santiago–Ramírez v. Sec'y of Dept. of Def., 984 F.2d

16, 19 (1st Cir. 1993) (quoting Lopez, 758 F.2d at 809).

Perhaps

that is why our cases suggest that the failure to specify a sum
certain on the SF 95 may not be fatal if the claimant provides
documents

(e.g.,

medical

bills)

that

"lend"

themselves

"to

determination of a sum certain or even an approximate total of
damages claimed."

See Kokaras v. United States, 980 F.2d 20, 22

(1st Cir. 1992); see also Coska, 114 F.3d at 323 (noting that "[i]t
is the information available rather than the form in which it is
presented that is crucial," but finding dismissal of plaintiff's
claim appropriate where (among other things) "there was essential
information missing from the packet and the letters" submitted
there, "namely, the amount of damages being sought from the United
States").
With

this

legal

primer

in

particulars of Holloway's challenges.

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place,

we

turn

to

the

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Arguments and Analysis3
Conceding — as he must — that his SF 95 did not include
a sum certain, Holloway raises several arguments for reversal.
None has merit, as the United States is quick to point out.
Quoting Santiago–Ramírez's language about our taking a
"lenient"

view

of

the

FTCA's

claim-presentment

requirements,

Holloway argues first that we should reverse the lower court's
untimeliness ruling because his sum-certain omission was (emphasis
his) "inadvertent":

as he sees things, an inadvertent omission —

in and of itself — excuses him from having to satisfy the sumcertain requirement.

But the cases of ours that he talks about —

Kokaras and Corte-Real, for example — do not support his argument.
The Kokaras plaintiffs filed an SF 95 with the United
States Post Office following a collision with a mail truck.
980 F.2d at 21.

See

In box A of the form, labeled "Property Damage,"

plaintiffs wrote "$2,906.61" and in box B, labeled "Personal
Injury," they wrote "to be determined."
labeled "Total," blank.

Id.

Id.

They left box C,

Later — but still within the two-

3

Keep in mind, please, that we give fresh review to the grant
of summary judgment, affirming if — after giving Holloway the
benefit of all reasonable inferences in the record — there is no
"genuine dispute" of "material fact" and the United States "is
entitled to judgment as a matter of law." See Fed. R. Civ. P.
56(a); Tutor Perini Corp. v. Banc Am. Sec. LLC, 842 F.3d 71, 84
(1st Cir. 2016).

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year statute of limitations — they hired a lawyer who, during
unsuccessful settlement talks, handed over medical records and
bills.

Id.

Ultimately, we upheld the dismissal of the personal-

injury claim, holding that plaintiffs did not timely state a sum
certain — "[n]owhere on form SF 95 is a sum certain for the personal
injuries stated," we wrote.

Id. at 22-23.

We also held that they

did not timely provide the agency with documents with enough info
to otherwise satisfy the sum-certain requirement (we did let the
property-damages claim proceed because their SF 95 did specify a
sum certain).
The

Id.
Corte-Real

plaintiff

filed

an

SF

95

that

had

"$100,000 plus because still treating and out of work" written in
the box requiring him to state the dollar amount attributable to
his personal injury.

See 949 F.2d at 485.

But he wrote "$100,000"

— without any qualifying language — in the box requiring him to
list the total dollar amount of his claims.

Id.

Emphasizing "the

importance and absolute necessity of adher[ing] to the sum certain
requirement," we said:
Where as here a claim clearly states a specific sum and
meets the sum certain requirement in all respects but
for concern over the possible detraction of improper
surplusage of this insubstantial variety, we see no
reason not to strike the surplusage rather than the claim
itself.
Id. at 486-87.

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From all of this it is clear that Holloway's talk about
inadvertent omissions is a distraction:

Kokaras and Corte-Real

whisper no hint of a suggestion that their outcomes turned on
whether the plaintiffs accidently or intentionally failed to fill
in the sum-certain box.

As always in this type of case — given

the FTCA's goal of efficiently handling claims and our desire not
to promote "bureaucratic overkill," see Corte-Real, 949 F.2d at
486 — what matters is whether the plaintiff timely specified a sum
certain on the SF 95 or otherwise timely provided documents from
which a sum certain could be ascertained.

And keeping our eyes

firmly fixed on that standard, we trudge on.4
Perhaps sensing the grave problem with his inadvertentomission argument, Holloway fashions a fallback position — namely,
that despite his accidently omitting a sum certain from his SF 95,
HHS's "investigatory needs were satisfied" in the end and so
dismissal on timeliness grounds was not called for.

To give his

position a patina of plausibility, he contends that the documents
he

provided

in

response

to

HHS's

request

disclosed

"enough"

information to satisfy the sum-certain requirement and thus he

4

After marching us through our caselaw, Holloway insists that
other "circuit courts" have "refused to order dismissal" in
"factually analogous situations."
But he does not point to a
single case from another circuit court to back up his statement.
So we consider his other-circuits-support-my-position argument
waived for lack of development. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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should be deemed to have fully complied with his FTCA obligations.
More, he believes that HHS's rejection of his FTCA claim "on the
merits"

shows

that

he

investigatory purpose."

in

no

way

crippled

"the

agency's

Call us unconvinced.

As for the "documents" facet of Holloway's argument, we
see two problems.

One is that he submitted those papers after the

limitations period had run.

The other is that those documents —

like the documents considered insufficient in Coska and Kokotis —
lack the necessary info to calculate a sum certain. The magistrate
judge here did a fine job of listing the documents' shortcomings.
"Plaintiff's medical bills," she wrote (as a for-instance), "d[o]
not consistently identify the service provided, the total cost of
the service, the amount of the cost covered by insurance, or the
amount of the cost covered by Plaintiff," and "the employment
records" contain no "indication as to the amount in lost wages
Plaintiff might be claiming."
us to the same conclusion.

Our own review of the records leads

If more were needed — and it plainly

is not — Holloway's brief spends no time trying to explain away
the flaws spotlighted below.
for them.

And we will not do counsel's work

See Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 356

(1st Cir. 1994).
As for the "merits" facet of Holloway's argument, we
note that even if HHS had enough info to conclude that a federal
employee's negligence did not cause his injuries, all of HHS's

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investigatory needs were not satisfied without a sum certain.
Remember, a sum certain helps the appropriate decisionmakers to
decide whether settlement is the best option and, if it is, to
also determine where to get the settlement funds from.
Coska, 114 F.3d at 322; Reilly, 863 F.2d at 173.

See, e.g.,

Holloway's brief

does not say anything about these important needs.
Taking

a

different

tack,

Holloway

argues

that,

if

nothing else, HHS misled him into thinking that its investigatory
needs were satisfied and so the United States should not have been
allowed to seek dismissal on timeliness grounds. But this argument
has no oomph.

Recall how the SF 95 let him know — as plain as day

— that he had two years to present his claim, that for a claim to
be considered presented a sum-certain dollar amount had to be
included, and that he may forfeit his rights by failing to comply.
Recall too how our caselaw highlights how important a timelystated sum certain is.

Well, Holloway makes no effort to explain

how his theory about being misled can fly given the clarity of the
SF 95 and our caselaw.

Cf. United States v. Dwyer, 843 F.2d 60,

64 (1st Cir. 1988) (emphasizing that courts "publish" opinions "so
that future lawyers" will "know the law").

Also and critically,

because (as we just said) he does not address all of the agency's
important investigatory needs, he never explains how any HHS action

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here

—

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which

further

undermines his I-was-misled argument.5
In a parting shot, Holloway argues that he is entitled
to equitable tolling of the FTCA's limitations period.

But he did

not raise this argument in his objection to the magistrate judge's
recommended decision.
of this issue.

And our waiver rule bars any consideration

See Sch. Union No. 37 v. United Nat'l Ins. Co.,

617 F.3d 554, 564 (1st Cir. 2010).
Conclusion
For the reasons expressed above, we affirm the judgment
entered below.

5

Holloway's argument kind of sort of has a whiff of equitable
estoppel — a "doctrine . . . used sparingly against the
government." United States v. Ledée, 772 F.3d 21, 29 (1st Cir.
2014); see also Nagle v. Acton–Boxborough Reg'l Sch. Dist., 576
F.3d 1, 3 (1st Cir. 2009) (explaining that "under federal
precedent, governments in the past have not been subject to
estoppel or, more recently, have been held not subject to estoppel,
save [in] exceptional situations that we have called 'hen's-teeth
rare'" (quoting Costa v. INS, 233 F.3d 31, 38 (1st Cir. 2000))).
But he does not develop the equitable-estoppel point, meaning any
such argument is waived. See Zannino, 895 F.2d at 17.

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