CCL filed its reply brief in support of its petition for certiorari in Sanchez v. United  States, No. 13-1249, September 4, asking the U.S. Supreme Court to grant full review of this case, which raises the availability of equitable tolling under the Federal Tort Claims Act (FTCA).  At the end of June, the Court granted review in two cases raising the same issue.  In United States v. Wong, set for oral argument on December 10, 2014, the Court will consider whether equitable tolling is available to plaintiffs who filed their original complaint about negligence at the hands of the Immigration and Naturalization Service prematurely, before their administrative complaint had reached disposition, and then again a month after the applicable six-month statute of limitations had expired.  In United States v. June, to be argued the same day, the plaintiff had brought an action against the Federal Highway Administration after it disclosed its earlier decision that a highway barrier, which failed and caused a fatality, had met national standards was erroneous. The disclosure occurred after a two-year statute of limitations had expired.  In both cases, the U.S. Court of Appeals for the Ninth Circuit had found equitable tolling applied to permit the cases to go forward. The United States successfully sought certiorari in both cases, setting up the upcoming arguments in the Supreme Court.

In Sanchez, CCL’s client, a woman, who was a doctor herself, died giving birth because her private doctors allegedly committed malpractice. The case was filed within the three-year statute of limitations applicable in Massachusetts.  However, because the doctors worked for a private community health clinic that received a particular type of federal grant, federal law deemed them federal employees for purposes of any malpractice lawsuit.  Thus, after the case was filed in state court, the United States substituted itself as defendant, removed the case to federal court, and won its dismissal because it was not filed within the two-year statute of limitations applicable to FTCA actions.  The First Circuit affirmed, joining the view expressed by the Seventh Circuit, that medical malpractice lawyers must make efforts to determine whether private doctors can be deemed federal employees, although the opinion acknowledged that this was a “trap for the unwary” and that most efforts to determine federal cloaking of this sort are unlikely to succeed. The United States opposed review – or even the holding of the case during the pendency of Wong and June – because there was no evidence that plaintiffs’ counsel undertook any effort to discover the hidden federal status of the decedents otherwise private doctors.

In urging the Court to take the case nevertheless, CCL’s Robert S. Peck argued that the issue of deemed federal status was distinct and more prevalent than the bases for equitable tolling at issue in Wong and June, that the United States and First Circuit had asserted a requirement for maximum feasible diligence, rather than the proper reasonable diligence standard, that reasonable diligence was met by the extraordinary effort that is required to bring a medical malpractice case, as the Second and Third Circuits had recognized in similar cases, and that there should be no requirement to mount efforts that will only prove futile to claim equitable relief. To require more, the brief argued “borders on requiring extreme diligence or, more likely, clairvoyance.”

The case is scheduled for review by the Court on September 29, during what is known as the “Long Conference,” where the justices review petitions accumulated over the summer.