Metropolitan News-Enterprise


Tuesday, October 1, 2019


Page 1


Ninth Circuit:

$20 Million Action Barred Because Claim Arrived One Day Late

Child Born Prematurely Can’t Maintain Action Based on Negligent Prenatal Care of His Mother; Mailing A Claim Too Close to Deadline to Assure Timely Arrival Not ‘Extraordinary,’ No Equitable Relief


By a MetNews Staff Writer


A 12-year-old who was born four month early cannot maintain his $20 million action for damages based on negligent prenatal care of his mother because his lawyer used U.S. mail in submitting his claim under the Federal Tort Claims Act and it arrived one day late, the Ninth U.S. Circuit Court of Appeals has declared.

The boy, identified in the opinion as “A.A,” was born June 6, 2007. He had two years within which to submit a claim to the Department of Health and Human Services (“HHS”) which funded the hospital at which his mother, Lorena Arreola, was treated.

That period would have ended June 7, 2009, but that was a Sunday, so it expired on Monday, June 8. The claim, sent from San Diego to Rockville, Maryland after 3 p.m. on June 4, was received on Tuesday, June 9.

That meant, the Ninth Circuit said in a memorandum opinion filed Friday, that District Court Judge Marilyn L. Huff of the Southern District of California was correct in granting summary judgment to the United States in the action brought by Arreola as guardian ad litem.

2017 Decision

Huff initially denied summary judgment, then granted it after reconsidering her ruling in light of the Ninth Circuit’s Jan. 13, 2017 decision in Okafor v. United States. In that case, Drug Enforcement Administration agents had seized $99,500 in cash from Chike Okafor’s bag, claiming the money was tied to a violation of the Controlled Substances Act.

He had until June 5, 2013, to protest the forfeiture; his objection, sent by FedEx, arrived one day late. Circuit Judge A. Wallace Tashima wrote:

“Even if, as Okafor contends, his counsel delivered his claim to FedEx for overnight delivery before the close of business on June 4, FedEx’s purported delivery delay does not constitute the kind of extraordinary circumstance that we have found to justify equitable tolling.”

Huff said she was obliged to follow Okafor, declaring:

“[T]he relevant facts at issue here are very similar to those of Okafor. In each case, the plaintiff relied on a mail delivery service to deliver a claim within a certain period of time, and each claim was delivered one day late. Under the clear language of Okafor, this cannot be considered an extraordinary circumstance for purposes of equitable tolling.”

Oral Argument

Oral argument took place in Pasadena nearly one year ago—on Oct. 11, 2018. The panel was comprised of Senior Circuit Judge Mary M. Schroeder, Circuit Judge Jacqueline H. Nguyen, and District Court Judge Michael H. Simon of the District of Oregon, sitting by designation.

A.A.’s attorney, Kenneth Sigelman, told the judges:

“I believe that there is a material distinction between the facts of the present case and the facts of Okafor,” elaborating:

  “The material distinction here is that there was a specific representation, that was online, from an establishment created by the Executive Branch of the United States government that first class mail would be delivered within three days. That was what the appellant relied on at the time that the claim was sent by certified U.S. mail.”

Judges’ Reactions

The judges were unreceptive to Sigelman’s argument. Simon asked:

“Isn’t it common knowledge that mail sometimes gets delayed?”

The attorney insisted:

“It’s an extraordinary circumstance when it’s not timely.”

Simon also queried why express mail wasn’t used. Sigelman responded that express mail pledges two-day delivery and his client relied on the representation as to the efficacy of first class mailing in achieving delivery within three days.

The visiting judge observed that the lawyer was treating the U.S. government as “one monolithic entity” rather than distinguishing the HHS from the Postal Service. Sigelman said the action is against the United States, not the HHS.

Schroeder noted that in Okafor, no equitable estoppel was found based on the failure of FedEx, a private company, to make a timely delivery.

“It’s harder to estop the government than it is a private entity,” she said, saying of the point Siegelman made:

“Does that make sense? Isn’t that backwards?”

The panel, as it signaled at oral argument, found the decision in Okafor to be compelling.

It said:

“That the U.S. Postal Service and the U.S. Department of Health and Human Services are both branches of the federal government makes no difference.”

The Postal Service, it pointed out, has been held to be “an independent establishment of the executive branch” that is “run more like a business.”

The case is A.A. v. United States, 17-55758.


Copyright 2019, Metropolitan News Company