Raplee, Jr. v. United State of America

Filing 34

MEMORANDUM OPINION AND ORDER advising that this case WILLNOT BE REOPENED because Plaintiff has failed to establish that equitable tolling is appropriate. Signed by Judge Paul W. Grimm on 12/22/2015. (kw2s, Deputy Clerk)(Copy emailed to The Fourth Circuit 12/22/15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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JOHN DAVID RAPLEE, JR.,
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Plaintiff,
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v.

Case No.: PWG-13-1318
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THE UNITED STATES OF AMERICA,
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Defendant.
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MEMORANDUM OPINION AND ORDER
This case is before me on remand from the Fourth Circuit to consider the limited issue of
whether equitable tolling provides relief to Plaintiff John D. Raplee, Jr., in his claims against
Defendant the United States of America. Because I find that Raplee did not pursue his rights
diligently and that no extraordinary circumstances prevented the timely filing of his Federal Tort
Claims Act (FTCA) claim, Raplee’s claims are barred under 28 U.S.C. § 2401(b).
I.

BACKGROUND
A. Factual Background
The factual background in this case is straightforward.

Raplee alleged medical

malpractice relating to a surgery that he had on September 18, 2006. Compl. ¶ 16, ECF No. 1.
Raplee initiated an administrative action before the Department of Health and Human Services
(“HHS”), and “HHS acknowledged receipt of the claim on September 17, 2008.” Pl.’s Brief 4.
On June 19, 2012, nearly four years after Raplee initiated his claim with HHS, “HHS mailed a
notice of final denial letter to counsel for Mr. Raplee . . . . However, neither Mr. Raplee nor his

attorneys ever received the denial letter and it is not disputed that the letter was returned to HHS
unopened.” Id.; see also Joint Rec. A209–10, ECF No. 29-1.1
HHS addressed the letter to Martin Trpis, the attorney of record in Raplee’s HHS claim,
and sent the letter to Trpis’s address at Ashcraft & Gerel, LLP (“Ashcraft & Gerel”), Suite 1002,
One Central Plaza, 11300 Rockville Pike, Rockville, Maryland, 20852. Joint Rec. A2010. This
is the same address that was on the letter Trpis sent to HHS regarding Raplee’s claim and was
the only address that HHS had for Raplee. Id. at A209–10. Trpis had left Ashcraft & Gerel
sometime around 2010. Id. at A211. From the time Trpis left around 2010 to the time that HHS
sent out the denial letter on June 19, 2012, there is no evidence that Trpis or anyone at Ashcraft
& Gerel sent any letter or made any other communication with HHS updating HHS that Trpis
had left the firm or that another attorney took over the case. Id. at A211, A215–16. The denial
letter was returned unopened to HHS. Id. at A211–12. Additionally, there is no evidence that
any attorney at Ashcraft & Gerel—whether Trpis or any attorney who took over Raplee’s case—
followed up with HHS regarding the status of Raplee’s claim. Id. at A215–16. On November 8,
2012, Raplee filed a statement of claim with Maryland’s Health Care Alternative Dispute
Resolution Office (the “ADR Office”). Pl.’s Brief 4. Subsequently, Plaintiff filed this action in
federal court on May 3, 2013. See Comp.
Ashcraft & Gerel, through Trpis, represented Raplee starting no later than Septemeber
16, 2008, when Trpis filed an administrative claim with HHS on Raplee’s behalf. See A209–10.
Ashcraft & Gerel have represented Raplee throughout the proceedings before this Court, see

1

These citations are to the Joint Record submitted by the parties in their Appeal to the
Fourth Circuit. Unless otherwise indicated, these citations are to the transcript of the February
10, 2014, motions hearing. See ECF Nos. 17 & 18.
2

Compl.; Reply, and in Raplee’s appeal to the Fourth Circuit, see Joint Appendix Cover Sheet,
ECF No. 29-1.
B. Procedural Background
On February 10, 2014, I dismissed this case for lack of jurisdiction. See February 11,
2014, Letter Order, ECF No. 18. Although Raplee’s claim was filed with the ADR Office within
the six-month statute of limitations that began with HHS’s mailing of its denial letter, I found
that filing a claim with the ADR Office “does not begin an ‘action’ for the purposes of the
Federal Tort Claims Act, 28 U.S.C. § 2401(b).” Id. In addition, I found that Raplee’s FTCA
claims were barred by the FTCA statute of limitations and held that “[b]ecause the limitations
period is jurisdictional, it cannot be tolled.” Id. Raplee appealed this decision to the Fourth
Circuit, see ECF No. 19, and the Fourth Circuit stayed its consideration of the appeal pending the
Supreme Court’s decision in United States v. Wong, No. 13-1074, see ECF No. 24. On April 22,
2015, the Supreme Court ruled in Wong that the FTCA limitations period was not jurisdictional
and therefore subject to equitable tolling. 135 S. Ct. 1625, 1629 (2015).
In light of this decision, the parties in this case filed a consent motion for limited remand
to this Court for consideration of whether the six-month filing deadline under 28 U.S.C.
§ 2401(b) should have been equitably tolled, see ECF No. 25-1, which the Fourth Circuit granted
on May 19, 2015, ECF No. 25. On May 27, 2015, I ordered the parties to provide supplemental
briefing on this issue. See ECF No. 26. Raplee filed a supplemental briefing arguing that
equitable tolling was appropriate in this case, Pl.’s Brief, ECF No. 27, and Defendant opposed,
Opp’n, ECF No. 29.

Raplee then filed his reply.

Reply, ECF No. 33.

The Maryland

Association for Justice (“Justice Association”) filed a motion for leave to file an amicus curiae
brief on the equitable tolling issue, ECF No. 30, which I granted, ECF No. 31. The Justice

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Association filed is amicus brief on July 6, 2015. ECF No. 32. Raplee requested a hearing on
the equitable tolling issue, but a hearing is not necessary in this case. See Loc. R. 105.6.
II.

DISCUSSION
A. Standard
The matter before this Court on limited remand from the Fourth Circuit is whether

equitable tolling provides relief to Raplee with respect to his claims against Defendant that
would otherwise be barred under FTCA’s six-month statute of limitations. See ECF No. 25-1. A
plaintiff 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.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).
The doctrine of equitable tolling
has been applied in “two generally distinct kinds of situations. In the first,
the plaintiffs were prevented from asserting their claims by some kind of
wrongful conduct on the part of the defendant. In the second,
extraordinary circumstances beyond plaintiffs' control made it impossible
to file the claims on time.”
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (quoting Alvarez-Machain v. United
States, 107 F.3d 696, 700 (9th Cir. 1996)). Equitable tolling is an extreme remedy and its
application “must be guarded and infrequent” and “any resort to equity must be reserved for
those rare instances where—due to circumstances external to the party’s own conduct—it would
be unconscionable to enforce the limitation period against the party and gross injustice would
result.” Id.
B. Diligence

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For the plaintiff to satisfy the first prong of diligence, he must show “reasonable
diligence, not maximum feasible diligence.” Id. (internal citations and quotation marks omitted).
Here, Raplee has failed to show reasonable diligence regarding his claims. Pursuant to 28 U.S.C.
§ 2675(a), “[t]he 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.” This section provides diligent counsel with the opportunity
to pursue a plaintiff’s rights in federal court if the agency has not issued a determination within
six months. See 28 U.S.C. § 2401(a).
In his brief, Plaintiff argues that he demonstrated diligence in the form of providing
medical records to HHS on June 26, 2009, Pl.’s Brief 5, and by “retain[ing] an expert,
obtain[ing] an expert report, and fil[ing] a statement of claim as a pre-requisite to suit in
compliance Maryland and Federal law, all within the FTCA’s statute of limitations period,” id. at
3–4 (footnote omitted). These activities occurred between January 2011 and February 2013. Id.
Although these activities suggest that Plaintiff’s counsel was working on this case, they do not
rise to the level of reasonable diligence.
I previously found that
more than three years after the initial claim was filed and long after Mr. Trpis had
left, it does not appear as though anyone who took over the file had the—had
noticed this and sent in a change of address or a change of counsel’s name. And
they could have taken action at any time after six months after the claim had been
filed.
Joint Rec. A215–16. There is no evidence that Plaintiff’s counsel corresponded with HHS in any
way to update the attorney of record or inquire regarding the status of the administrative claim.
Further, Plaintiff’s counsel did not pursue Plaintiff’s rights in federal court until nearly four years
after Plaintiff filed his administrative claim with HHS, even though Plaintiff’s counsel could
have initiated a federal action six months after filing the claim with HHS. This action, or more
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accurately, inaction, constitutes a lack of diligence that has been previously recognized by this
Court. See Preston v. United States, No. ELH-14-1920 (D. Md. filed June 13, 2014), May 18,
2015, Letter Order, ECF No. 18 (finding equitable tolling unavailable where “instead of
diligently pursuing her claim, plaintiff waited more than one year after filing her administrative
claim to take any action.”). Further, Raplee fails to provide any evidence of communications
between himself and counsel that may show diligence on his own behalf.2 For these reasons, I
find that Plaintiff has failed to meet the diligence requirement for equitable tolling.
C. Extraordinary Circumstances
Even if Plaintiff were able to satisfy the diligence requirement, Plaintiff has also failed to
demonstrate that extraordinary circumstances prevented his timely filing. Plaintiff presents two
arguments that supports his argument that he missed the six-month statute of limitations deadline
due to extraordinary circumstances: (i) that Defendant “wrongfully induced” him to miss the
deadline, Pl.’s Brief 6–9, and (ii) that Raplee’s attorney’s conduct constitutes an extraordinary
circumstance, id. at 9–11.
In prior proceedings before this Court, I previously rejected Plaintiff’s first argument. I
found that HHS’s mailing of the denial letter was not defective service: “HHS sent the letter to
the correct address and that’s the correct address today.” See Joint Rec. A213–215.

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In Holland, the petitioner
not only wrote his attorney numerous letters seeking crucial information and
providing direction; he also repeatedly contacted the state courts, their clerks, and
the Florida State Bar Association in an effort to have Collins—the central
impediment to the pursuit of his legal remedy—removed from his case. And, the
very day that Holland discovered that his AEDPA clock had expired due to
Collins’ failings, Holland prepared his own habeas petition pro se and promptly
filed it with the District Court.

560 U.S. at 653. There is no similar evidence that has been presented to the Court that Raplee
independently took activity to pursue his claims in a manner that would establish due diligence.
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Regarding Plaintiff’s second argument, the Supreme Court has “previously held that ‘a
garden variety claim of excusable neglect,’ such as a simple ‘miscalculation’ that leads a lawyer
to miss a filing deadline, does not warrant equitable tolling.” See Holland, 560 U.S. at 651–52
(internal citations omitted) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)
and Lawrence v. Florida, 549 U.S. 327, 336 (2007)). However, failures on the part of counsel
that “violate[] fundamental canons of professional responsibility, which require attorneys to
perform reasonably competent legal work, to communicate with their clients, to implement
clients’ reasonable requests, to keep their clients informed of key developments in their cases,
and never to abandon a client” may be so egregious as to constitute an extraordinary
circumstance where equitable tolling is appropriate. See id. at 652–53.
Justice Alito provided further guidance on the difference between attorney negligence,
which does not merit equitable tolling, and attorney abandonment, which does, in his concurring
opinion in Holland, which the majority in Maples v. Thomas, 132 S. Ct. 912, 923 (2012) later
endorsed. In Maples, the Supreme Court found that “under agency principles, a client cannot be
charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be
faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of
record, in fact, are not representing him.” Id. at 924. In Maples, petitioner’s pro hac vice
counsel left their law firm, Sullivan and Cromwell, to take legal positions that precluded them
from continuing as petitioner’s counsel. See id. at. 924–25. This action severed the attorneyclient relationship between the petitioner and his counsel, leaving petitioner abandoned. In
addition, Sullivan and Cromwell did not provide sufficient evidence that it engaged in significant
work in Maples’s case after the departure of his counsel of record. Id. at 925. Further, Maples’s

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local counsel of record failed to act as Maples’s agent “in any meaningful sense of that word.”
Id. at 927 (quoting Holland, 560 U.S. at 659 (Alito, J., concurring)).
Counsel for Plaintiff attempt to blame all of the attorney misconduct on Trpis, but that is
only one half of the equation. As I previously found, “Trpis manifestly should have notified
HHS when he left the firm. That was his obligation as an attorney to do so and to enter the
appearance of someone else or bring it to the attention of the firm to do so.” Joint Rec. A215.
At the same time, Plaintiff’s current counsel at Ashcraft & Gerel share the blame: “more than
three years after the initial claim was filed and long after Mr. Trpis had left, it does not appear as
though anyone who took over the file had the—had noticed this and sent in a change of address
or a change of counsel’s name.” Id. at A215–16. Throughout this time, attorneys at Ashcraft &
Gerel continued to represent Raplee, albeit as discussed above, in a less than diligent manner,
obtaining an expert and expert report and filing a statement of claim on behalf of Raplee. Pl.’s
Brief 3–4. Although Raplee may have been abandoned by Trpis, he was not abandoned by the
other lawyers at Ashcraft & Gerel, who continued to represent him with respect to these claims
unlike the circumstances in Maples. His attorneys had a professional obligation to update the
attorney of record with respect to the administrative claim before HHS and take steps to ensure
that Raplee did not lose his ability to proceed with his claim in federal court. This failure is
attorney negligence, which has long been recognized as falling short of an extraordinary
circumstance warranting equitable tolling. See, e.g., Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003) (citing Irwin, 498 U.S. at 96).3

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Further, Raplee’s situation differs from the petitioners seeking habeas relief in Holland
and Maples. As the Supreme Court recognized in Holland, “the failures seriously prejudiced a
client who thereby lost what was likely his single opportunity for habeas review of the
lawfulness of his imprisonment and of his death sentence.” 560 U.S. at 653. Raplee’s case
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For these reasons, I find that Plaintiff has failed to meet the extraordinary circumstances
requirement for equitable tolling.
III.

CONCLUSION
Accordingly, I find that Plaintiff has demonstrated neither required element to equitably

toll the statute of limitations on his FTCA claim and that equitable tolling cannot be applied in
this case to extend the statute of limitations. Raplee’s claims are barred under 28 U.S.C.
§ 2401(b).
ORDER
Having decided the issue for which the Fourth Circuit remanded this case to this Court,
see ECF No. 25, it is this 22nd day of December, 2015, hereby ORDERED that this case WILL
NOT BE REOPENED because Plaintiff has failed to establish that equitable tolling is
appropriate. The Clerk IS DIRECTED to send a copy of this memorandum opinion and order to
the Fourth Circuit.
So ordered.

/S/
Paul W. Grimm
United States District Judge
dpb

differs in that alternative means of relief may be available against his former or current attorneys
even if his case against Defendant is dismissed because it is time-barred.
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