Case: 17-20595      Document: 00514465267         Page: 1    Date Filed: 05/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 17-20595                             May 9, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
CLARA ELLIS, Individually and as Representative of the Estate of Larry
Ellis, Sr.; LARRY ELLIS, JR., Individually,

              Plaintiffs - Appellants

v.

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; DOCTOR
JAMES SCHERIDICK, also known as Doctor James Schrodick; DOCTOR
SAMIR S. AWAD; DOCTOR SHAD F. OBRIEDAT, also known as Doctor
Shadi Fobreidat; DOCTOR ERIC K. SHINSEKI; DOCTOR JOSEPH;
DOCTOR BERGER; DOCTOR KUMUDHA RAMASUBBU; KEVIN CURTIS,

              Defendants - Appellees




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:16-CV-1319


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-20595
      This case stems from the alleged tortious conduct of U.S. Department of
Veteran Affairs doctors in the unfortunate death of Larry Ellis, Sr. The district
court denied relief, ruling that Appellants’ claims are time-barred. We affirm.
                               BACKGROUND
      Larry Ellis, Sr. received treatment at the Michael E. DeBakey Veteran
Affairs Medical Center from January 28, 2011, to March 25, 2011. During that
time, Ellis suffered from cardiac related complications. Nonetheless, the VA
released Ellis from the hospital. He tragically died three days later at his home
on March 28, 2011.
      The day before Ellis’ release from the VA, on March 24, 2011, Appellant
Clara Ellis filed an administrative complaint with the VA on her husband’s
behalf, alleging “injury and wrongful deaths caused by doctors here at the
VAMC in Houston, TX.”
      After an initial denial and request for reconsideration, the VA finally
denied the claim on August 20, 2013. As part of that denial, the VA informed
Ms. Ellis that if she was “dissatisfied with the action taken on [her] claim” she
could “file suit in accordance with the Federal Tort Claims Act,” so long as she
filed “within 6 months after the date of the mailing of this notice.”
      Appellant failed to timely file suit in federal court, instead continuing to
pursue her administrative claim with the VA. On July 25, 2016, the VA
informed Ms. Ellis that because her initial claim had been denied and she had
not timely filed for relief in federal court, the VA no longer had jurisdiction to
consider her claim.
      Meanwhile, Larry Ellis, Jr., decedent’s son, filed an administrative claim
with the VA on October 26, 2016. The VA rejected that claim, asserting that
the VA did not have jurisdiction because the claim was well past the two-year
statute of limitations under the FTCA.
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                                 No. 17-20595
      Appellants filed the instant action on May 11, 2016, seeking relief under
the FTCA. The district court denied relief on both claims, holding that the
claims were time-barred. This appeal timely followed.
                                DISCUSSION
      Appellants contend that the district court erred in finding their claims
time-barred. They further assert that equitable tolling saves their claims. We
disagree.
      “The FTCA grants a limited waiver of sovereign immunity for tort suits
brought against the United States or its agencies.” Pleasant v. U.S. ex rel.
Overton Brooks Veterans Admin. Hosp., 

, 448 (5th Cir. 2014)
(citing 28 U.S.C. §§ 2674, 2679(a)). A claim under the FTCA “shall be forever
barred unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun within six
months . . . of notice of final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b). “Although phrased in the disjunctive, ‘this
statute requires a claimant to file an administrative claim within two years [of
accrual] and file suit within six months of its denial.’” Ramming v. United
States, 

, 162 (5th Cir. 2001) (quoting Hous. v. U.S. Postal Serv.,

, 902 (5th Cir. 1987)).
      The alleged negligent conduct occurred in or around March 2011.
Appellant Larry Ellis, Jr. filed his administrative complaint regarding that
conduct on October 26, 2016. The district court did not err in finding this claim
time-barred, as it was not filed with the VA until over five years after accrual
of the claim. See 28 U.S.C. § 2401(b).
      Appellant Clara Ellis, in contrast, timely filed her administrative claim
with the VA on March 24, 2011. After an initial denial and request for
reconsideration, the VA finally denied Ms. Ellis’ claim on August 20, 2013. Ms.
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                                       No. 17-20595
Ellis did not, however, file her claim in federal court until May 11, 2016, well
after the six-month period mandated by the FTCA.
       Ms. Ellis urges us to apply the doctrine of equitable tolling to save her
claim. 1 “[T]he FTCA’s [six-month] time bar[] [is] nonjurisdictional and subject
to equitable tolling.” United States v. Kwai Fun Wong, 

, 1638
(2015). Nonetheless, we apply that doctrine “sparingly,” and Appellant “has
the burden to provide justification” for doing so. Granger v. Aaron’s, Inc., 

, 712 (5th Cir. 2011). Appellant has not met that burden.
       Appellant argues that equitable tolling saves her claims because the
VA’s chief counsel allegedly failed to properly process her administrative claim
and misled her into believing that the administrative complaint would
continue so long as she provided additional evidence. We have recognized that
equitable tolling can be appropriate where an agency misleads the plaintiff
about the nature of her rights. 

not such a case. The record evidence
shows that the VA processed and finally denied Ms. Ellis’ claim on two
occasions. In doing so, the VA informed Ms. Ellis of her right to file suit in
federal court within six months of that denial. There is no evidence that any
individual from the VA misled Ms. Ellis regarding her right to do so in a timely
manner.
                                     CONCLUSION
       The district court did not err in concluding that Appellants’ FTCA claims
are time-barred. We affirm.



       1  Appellants appear to assert that both Ms. Ellis’ and Larry Ellis, Jr.’s claims are
subject to equitable tolling. However, Appellants offer no argument, explanation, or authority
supporting how any alleged misrepresentations led to Larry Ellis, Jr.’s failure to timely file
his administrative claim. “A party that asserts an argument on appeal, but fails to adequately
brief it, is deemed to have waived it.” Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge
Parish, 327 F. App’x 472, 483 (5th Cir. 2009).
                                              4