Michael H. Redlin v. United States of America

Michael Redlin appeals the district court’s order

dismissing as untimely his negligence action brought under

the Federal Tort Claims Act (FTCA). Because Redlin failed

to file the action within six months after the Department of

Veteran Affairs (VA) mailed a notice of final denial of

Redlin’s initial claim, and the statute of limitations did not

restart when the VA declined to consider Redlin’s second

attempt to file the same claim, we affirm. See 28 U.S.C.

§ 2401(b).

I

We begin with an overview of the legal framework

governing FTCA claims. A tort action cannot be brought

against the United States “unless the claimant shall have first

presented the claim to the appropriate Federal agency and his

claim shall have been finally denied by the agency in writing

and sent by certified or registered mail.” 28 U.S.C.

§ 2675(a). Congress established a deadline for bringing such

actions:

A tort claim against the United States 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 after the date of

mailing, by certified or registered mail, of

notice of final denial of the claim by the

agency to which it was presented.

REDLIN V. UNITED STATES 5

Id. § 2401(b). Section 2401(b) has been interpreted as

including two separate timeliness requirements. A claim is

timely only if it has been: (1) submitted to the appropriate

federal agency within two years of accrual and (2) filed in

federal court within six months of the agency’s final denial.

See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629

(2015).

Under regulations promulgated by the Department of

Justice, a claim is “presented” to the agency for purposes of

§ 2401(b) when the agency receives the claim. See 28 C.F.R.

§ 14.2(a).1 A claimant can file an amendment to the claim at

any time before the agency has taken final action on the

claim. See id. § 14.2(c).2 An agency’s final denial of a claim

1 Section 14.2(a) states in full:

For purposes of the provisions of 28 U.S.C. 2401(b),

2672, and 2675, a claim shall be deemed to have been

presented when a Federal agency receives from a

claimant, his duly authorized agent or legal

representative, an executed Standard Form 95 or other

written notification of an incident, accompanied by a

claim for money damages in a sum certain for injury to

or loss of property, personal injury, or death alleged to

have occurred by reason of the incident; and the title or

legal capacity of the person signing, and is

accompanied by evidence of his authority to present a

claim on behalf of the claimant as agent, executor,

administrator, parent, guardian, or other representative.

28 C.F.R. § 14.2(a).

2 Section 14.2(c) states in full:

A claim presented in compliance with paragraph (a) of

this section may be amended by the claimant at any

REDLIN 6 V. UNITED STATES

must be in writing, and must “include a statement that, if the

claimant is dissatisfied with the agency action, he may file

suit in an appropriate U.S. District Court not later than

6 months after the date of mailing of the notification.” Id.

§ 14.9(a).3

A claimant has six months after the date the agency mails

the notice of final denial to file a legal action in federal court.

See 28 U.S.C. § 2401(b). The regulations provide another

option: within that same six-month period, a claimant may

file a request for reconsideration with the agency. See

time prior to final agency action or prior to the exercise

of the claimant’s option under 28 U.S.C. 2675(a).

Amendments shall be submitted in writing and signed

by the claimant or his duly authorized agent or legal

representative. Upon the timely filing of an amendment

to a pending claim, the agency shall have six months in

which to make a final disposition of the claim as

amended and the claimant’s option under 28 U.S.C.

2675(a) shall not accrue until six months after the filing

of an amendment.

28 C.F.R. § 14.2(c).

3 Section 14.9(a) states in full:

Final denial of an administrative claim shall be in

writing and sent to the claimant, his attorney, or legal

representative by certified or registered mail. The

notification of final denial may include a statement of

the reasons for the denial and shall include a statement

that, if the claimant is dissatisfied with the agency

action, he may file suit in an appropriate U.S. District

Court not later than 6 months after the date of mailing

of the notification.

28 C.F.R. § 14.9(a).

REDLIN V. UNITED STATES 7

28 C.F.R. § 14.9(b).4 Like the original claim, a request for

reconsideration is deemed filed when it is received by the

agency. See Gervais v. United States, 865 F.2d 196, 197–98

(9th Cir. 1988). A timely request for reconsideration tolls the

six-month statute of limitations for bringing an action in

district court. See id. at 196–97; see also 28 C.F.R. § 14.9(b).

The agency has six months from the date of filing of a request

for reconsideration in which to make a final disposition of the

claim, and the claimant then has six months from the date of

mailing of that final disposition to file a legal action. See

Gervais, 865 F.2d at 196–97; see also 28 C.F.R. § 14.9(b).

II

We now turn to the facts of this case. According to his

complaint, Michael Redlin was treated at a VA facility in

Tucson, Arizona. Beginning on or about September 25, 2014,

4 Section 14.9(b) states in full:

Prior to the commencement of suit and prior to the

expiration of the 6-month period provided in 28 U.S.C.

2401(b), a claimant, his duly authorized agent, or legal

representative, may file a written request with the

agency for reconsideration of a final denial of a claim

under paragraph (a) of this section. Upon the timely

filing of a request for reconsideration the agency shall

have 6 months from the date of filing in which to make

a final disposition of the claim and the claimant’s

option under 28 U.S.C. 2675(a) shall not accrue until

6 months after the filing of a request for

reconsideration. Final agency action on a request for

reconsideration shall be effected in accordance with the

provisions of paragraph (a) of this section.

28 C.F.R. § 14.9(b).

REDLIN 8 V. UNITED STATES

the VA “failed to promptly diagnose and discontinue

treatment of a chest tube placed within the plaintiff’s lung

parenchyma [internal lung structures and tissues] which

resulted in permanent damage and loss of pulmonary

function.”

Redlin presented a claim based on this September 25,

2014 incident to the VA on a standard government claim

form.5 The claim, which requested damages of $200,000,

was received by the agency on January 7, 2015. The VA

issued a final denial of Redlin’s claim in a letter dated July

14, 2015, and sent to Redlin by certified mail. The VA’s

denial letter stated that, after conducting an investigation, the

VA had determined that “there was no negligent or wrongful

act on the part of an employee of the [VA] acting within the

scope of employment that caused [Redlin] compensable

harm.”

As required by the regulations, 28 C.F.R. § 14.9(a), the

denial letter set out the steps Redlin could take if he was

“dissatisfied with this decision.” First, Redlin could file a

request for reconsideration with the VA General Counsel.

“To be timely, VA must receive this request within six

months of the mailing of this final denial.” Alternatively,

Redlin “may file suit directly under the FTCA, 28 U.S.C.

§§ 1346(b) and 2671–2680,” and seek judicial relief in a

federal district court. If Redlin took the latter course, he

5 Redlin claims that he provided details of his claim in a letter to the

VA dated November 26, 2014. Because the document was not part of the

record before the district court, and Redlin has made no motion to

supplement the record on appeal, we do not consider it. See Lowry v.

Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003).

REDLIN V. UNITED STATES 9

“must initiate suit within six months of the mailing of this

notice as shown by the date of this denial.”

Redlin did not file a suit in federal court or a request for

reconsideration with the VA by January 14, 2016, six months

after the VA’s final denial on July 14, 2015. Instead, on

January 13, 2016, Redlin mailed a second claim form to the

VA, referencing the same September 25, 2014 incident, along

with a letter from his counsel. The letter stated that Redlin

had previously submitted a claim that had been denied on

July 14, 2015, and described the new form as a

“Supplemental Administrative Claim” meant “to provide

additional information regarding [Redlin’s] negligence claim,

and to increase the amount he is demanding for damages” to

$2,000,000. The VA received this second claim on January

22, 2016, which was past the six-month statute of limitations

set out in 28 U.S.C. § 2401(b), and past the six-month

deadline to file a request for agency reconsideration set out in

28 C.F.R. § 14.9(b).

In a letter dated February 11, 2016, the VA informed

Redlin’s counsel that its July 14, 2015 denial letter

constituted the agency’s final action on Redlin’s claim.

Because the second claim was not received until January 22,

2016, the VA “could not consider it to be a timely request for

reconsideration” under 28 C.F.R. § 14.9(b). It concluded that

“[s]ince VA has already investigated and denied a claim

regarding Mr. Redlin’s allegations, [it] cannot consider the

supplemental claim.”

Six months after the VA’s letter regarding Redlin’s

second claim, on August 10, 2016, Redlin filed this suit

against the United States based on the September 25, 2014

incident. The United States moved to dismiss the action

REDLIN 10 V. UNITED STATES

under Rule 12(b)(6) of the Federal Rules of Civil Procedure

on the ground that it was barred by the applicable statute of

limitations, see 28 U.S.C. § 2401(b).

The district court granted the government’s motion to

dismiss. The court reasoned that because more than six

months had elapsed between the VA’s final denial of Redlin’s

claim on July 14, 2015, and the filing of Redlin’s lawsuit on

August 10, 2016, the suit was time-barred.

Redlin filed a timely notice of appeal. The district court

had jurisdiction over this action under 28 U.S.C.

§ 1346(b)(1). We have jurisdiction to review its final order

of dismissal under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal of a complaint for failure to state a

claim under Rule 12(b)(6). Gant v. County of Los Angeles,

772 F.3d 608, 614 (9th Cir. 2014). We take all allegations of

material fact as true and construe them in the light most

favorable to the nonmoving party. Id.

III

There is no dispute that the VA mailed a notice of final

denial on July 14, 2015, and Redlin did not file an action in

federal court until August 10, 2016, over a year later and well

past the six-month deadline for filing such claims under

28 U.S.C. § 2401(b). On appeal, Redlin advances several

arguments as to why the district court nonetheless erred in

dismissing his lawsuit as untimely. We consider each

argument in turn.

REDLIN V. UNITED STATES 11

A

First, Redlin argues that his second claim, which was

received by the VA on January 22, 2016, should be deemed

a timely amendment of his first claim, or a timely request for

reconsideration. We disagree. If his second claim is deemed

to be an amendment, it is not timely. The regulations allow

a claim to be amended “at any time prior to final agency

action” or, where there has been no final agency action within

six months of a claimant’s filing, prior to a claimant’s

exercise of the option to file suit in federal court under

28 U.S.C. § 2675(a). 28 C.F.R. § 14.2(c). Because Redlin’s

second claim was received by the VA after it mailed its final

denial, it was not timely. Similarly, if Redlin’s second claim

is deemed to be a request for reconsideration it is likewise not

timely: it was received by the VA on January 22, 2016, which

was more than six months after the VA mailed its notice of

final denial of his claim on July 14, 2015. See Gervais, 865

F.2d at 196–98; see also 28 C.F.R. § 14.9(b). Therefore, the

second claim did not toll the six-month time frame for filing

a lawsuit. See 28 U.S.C. § 2401(b).6

B

Second, Redlin raises a statutory argument. He argues

that he fully complied with 28 U.S.C. § 2401(b) because he

presented his administrative claim to the agency within two

6 To the extent Redlin argues that the VA’s denial of his claim on

July 14, 2015, should not count as a final denial because Redlin failed to

include key pieces of evidence in his initial claim, we reject that argument.

While Redlin had the option of providing such additional evidence in a

timely amendment or motion to reconsider, a claimant’s failure to include

evidence does not invalidate the agency’s denial.

REDLIN 12 V. UNITED STATES

years of the date the claim accrued, and he filed his district

court action within six months of the VA’s denial of his

second claim on February 11, 2016. According to Redlin, the

district court erred in applying 28 C.F.R. § 14.2(c) to hold

that the second claim was not a timely amendment. Redlin

reasons that because the statute permits a claimant to file a

claim with the agency at any time during the two-year period

after the claim accrues, the agency had no authority to

promulgate a regulation that would prevent the claimant from

amending that claim during this period. Such a regulation,

Redlin argues, impermissibly shortens the two-year statute of

limitations, and is thus an unreasonable interpretation of

28 U.S.C. § 2401(b).

Following this reasoning, Redlin asserts that if a claimant

chooses to present an amended claim to the agency after the

agency has mailed a final notice of denial for the initial claim,

but within two years of the claim’s accrual, the agency must

mail a new final denial as to the amended claim. The new

final denial, Redlin argues, would restart the six-month time

frame in which the claimant could file a legal action. In

Redlin’s view, a claimant could continue this process of

presenting amended claims and receiving new final denials

during the entire two-year period after the claim accrued.

We disagree. Section 2401(b) provides that an action

must be brought within six months “after the date of mailing”

of notice of final denial of the claim. 28 U.S.C. § 2401(b).

This language makes clear that the limitations period begins

running as soon as the agency mails its initial final notice, see

Parker v. United States, 935 F.2d 176, 177 (9th Cir. 1991);

nothing in the statute indicates that subsequent notices from

the agency could alter or extend the running of the six-month

period on the tort claim at issue. Indeed, if claimants could

REDLIN V. UNITED STATES 13

make successive filings regarding the same claim, and each

filing required the agency to make a successive denial that

restarted the statute of limitations on that claim, the sixmonth

limitations period would effectively be read out of the

statute. Because we must generally “give effect to every

word of a statute wherever possible,” Leocal v. Ashcroft,

543 U.S. 1, 12 (2004), we reject such a reading. See also

Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984)

(holding that § 2401(b) imposes both a two-year and sixmonth

limitations requirement, each of which must be

satisfied). We conclude that 28 C.F.R. § 14.2(c), which

requires that any amendment to a claim against the United

States must be made before the agency’s final denial, is a

permissible reading of the statute.7

Indeed, we reached a similar conclusion in Claremont

Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir. 1969).

In that case, a claimant filed a negligence claim against the

Air Force for damage to an airplane. Id. at 897. After an

investigation, the Air Force issued a final denial of the claim.

Id. A United States Senator (at the request of one of the

claimant’s stockholders) triggered a second investigation,

which resulted in a second letter from the agency

disapproving the claim. Id. A third inquiry by the claimant

resulted in a third letter from the agency “reiterating the

position that the Air Force had consistently taken.” Id. The

claimant filed a suit within two years from the date the claim

accrued, but more than six months after the Air Force’s

7 In rejecting Redlin’s argument that his amended claim restarted the

six-month statute of limitations, the district court erred in relying on

28 C.F.R. § 14.2(b)(4), which applies only to successive claims filed with

a different federal agency. Because we reject Redlin’s argument on

different grounds, the error was harmless.

REDLIN 14 V. UNITED STATES

original denial. Id. We held that the claimant’s suit was

untimely, because an agency’s final denial cannot be

“erase[d]” or “vitiate[d]” by further correspondence between

claimant and agency on the same claim. Id. at 898. At least

two other circuits have reached the same conclusion. See

Román-Cancel v. United States, 613 F.3d 37, 42 (1st Cir.

2010) (holding that a duplicative claim “serve[s] no

legitimate purpose” and “it would be pointless for a court to

allow a claimant an opportunity to reopen the FTCA’s

limitations window by” simply refiling a claim); Willis v.

United States, 719 F.2d 608, 613 (2d Cir. 1983) (holding that

there is “little force in the contention that plaintiffs could

escape the consequences of their failure to bring suit within

six months of the denial of their claims by filing new claims

within the allowable two year period”). Applying that

reasoning here, Redlin’s pursuit of further review through

submission of an untimely amendment does not erase the

initial final denial by the agency.

C

Finally, we reject Redlin’s argument that he is entitled to

equitable tolling of the limitations periods in 28 U.S.C.

§ 2401(b).8 “Generally, a litigant seeking equitable tolling

bears the burden of establishing two elements: (1) that he has

been pursuing his rights diligently, and (2) that some

extraordinary circumstances stood in his way.” Credit Suisse

Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)

(emphasis omitted) (quoting Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)). “The doctrine is not available to avoid the

consequence of one’s own negligence and does not apply

8 The limitations periods in 28 U.S.C. § 2401(b) are subject to the

doctrine of equitable tolling. See Kwai Fun Wong, 135 S. Ct. at 1633.

REDLIN V. UNITED STATES 15

when a late filing is due to claimant’s failure to exercise due

diligence in preserving his legal rights.” Hensley v. United

States, 531 F.3d 1052, 1058 (9th Cir. 2008) (cleaned up).

The VA’s denial letter informed Redlin of his right to file a

motion for reconsideration or a lawsuit within six months,

and Redlin has alleged no extraordinary circumstances

excusing his failure to do either. As such, we affirm the

district court’s denial of equitable tolling in this case.9

Michael Redlin appeals the district court’s order

dismissing as untimely his negligence action brought under

the Federal Tort Claims Act (FTCA). Because Redlin failed

to file the action within six months after the Department of

Veteran Affairs (VA) mailed a notice of final denial of

Redlin’s initial claim, and the statute of limitations did not

restart when the VA declined to consider Redlin’s second

attempt to file the same claim, we affirm. See 28 U.S.C.

§ 2401(b).

I

We begin with an overview of the legal framework

governing FTCA claims. A tort action cannot be brought

against the United States “unless the claimant shall have first

presented the claim to the appropriate Federal agency and his

claim shall have been finally denied by the agency in writing

and sent by certified or registered mail.” 28 U.S.C.

§ 2675(a). Congress established a deadline for bringing such

actions:

A tort claim against the United States 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 after the date of

mailing, by certified or registered mail, of

notice of final denial of the claim by the

agency to which it was presented.

REDLIN V. UNITED STATES 5

Id. § 2401(b). Section 2401(b) has been interpreted as

including two separate timeliness requirements. A claim is

timely only if it has been: (1) submitted to the appropriate

federal agency within two years of accrual and (2) filed in

federal court within six months of the agency’s final denial.

See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629

(2015).

Under regulations promulgated by the Department of

Justice, a claim is “presented” to the agency for purposes of

§ 2401(b) when the agency receives the claim. See 28 C.F.R.

§ 14.2(a).1 A claimant can file an amendment to the claim at

any time before the agency has taken final action on the

claim. See id. § 14.2(c).2 An agency’s final denial of a claim

1 Section 14.2(a) states in full:

For purposes of the provisions of 28 U.S.C. 2401(b),

2672, and 2675, a claim shall be deemed to have been

presented when a Federal agency receives from a

claimant, his duly authorized agent or legal

representative, an executed Standard Form 95 or other

written notification of an incident, accompanied by a

claim for money damages in a sum certain for injury to

or loss of property, personal injury, or death alleged to

have occurred by reason of the incident; and the title or

legal capacity of the person signing, and is

accompanied by evidence of his authority to present a

claim on behalf of the claimant as agent, executor,

administrator, parent, guardian, or other representative.

28 C.F.R. § 14.2(a).

2 Section 14.2(c) states in full:

A claim presented in compliance with paragraph (a) of

this section may be amended by the claimant at any

REDLIN 6 V. UNITED STATES

must be in writing, and must “include a statement that, if the

claimant is dissatisfied with the agency action, he may file

suit in an appropriate U.S. District Court not later than

6 months after the date of mailing of the notification.” Id.

§ 14.9(a).3

A claimant has six months after the date the agency mails

the notice of final denial to file a legal action in federal court.

See 28 U.S.C. § 2401(b). The regulations provide another

option: within that same six-month period, a claimant may

file a request for reconsideration with the agency. See

time prior to final agency action or prior to the exercise

of the claimant’s option under 28 U.S.C. 2675(a).

Amendments shall be submitted in writing and signed

by the claimant or his duly authorized agent or legal

representative. Upon the timely filing of an amendment

to a pending claim, the agency shall have six months in

which to make a final disposition of the claim as

amended and the claimant’s option under 28 U.S.C.

2675(a) shall not accrue until six months after the filing

of an amendment.

28 C.F.R. § 14.2(c).

3 Section 14.9(a) states in full:

Final denial of an administrative claim shall be in

writing and sent to the claimant, his attorney, or legal

representative by certified or registered mail. The

notification of final denial may include a statement of

the reasons for the denial and shall include a statement

that, if the claimant is dissatisfied with the agency

action, he may file suit in an appropriate U.S. District

Court not later than 6 months after the date of mailing

of the notification.

28 C.F.R. § 14.9(a).

REDLIN V. UNITED STATES 7

28 C.F.R. § 14.9(b).4 Like the original claim, a request for

reconsideration is deemed filed when it is received by the

agency. See Gervais v. United States, 865 F.2d 196, 197–98

(9th Cir. 1988). A timely request for reconsideration tolls the

six-month statute of limitations for bringing an action in

district court. See id. at 196–97; see also 28 C.F.R. § 14.9(b).

The agency has six months from the date of filing of a request

for reconsideration in which to make a final disposition of the

claim, and the claimant then has six months from the date of

mailing of that final disposition to file a legal action. See

Gervais, 865 F.2d at 196–97; see also 28 C.F.R. § 14.9(b).

II

We now turn to the facts of this case. According to his

complaint, Michael Redlin was treated at a VA facility in

Tucson, Arizona. Beginning on or about September 25, 2014,

4 Section 14.9(b) states in full:

Prior to the commencement of suit and prior to the

expiration of the 6-month period provided in 28 U.S.C.

2401(b), a claimant, his duly authorized agent, or legal

representative, may file a written request with the

agency for reconsideration of a final denial of a claim

under paragraph (a) of this section. Upon the timely

filing of a request for reconsideration the agency shall

have 6 months from the date of filing in which to make

a final disposition of the claim and the claimant’s

option under 28 U.S.C. 2675(a) shall not accrue until

6 months after the filing of a request for

reconsideration. Final agency action on a request for

reconsideration shall be effected in accordance with the

provisions of paragraph (a) of this section.

28 C.F.R. § 14.9(b).

REDLIN 8 V. UNITED STATES

the VA “failed to promptly diagnose and discontinue

treatment of a chest tube placed within the plaintiff’s lung

parenchyma [internal lung structures and tissues] which

resulted in permanent damage and loss of pulmonary

function.”

Redlin presented a claim based on this September 25,

2014 incident to the VA on a standard government claim

form.5 The claim, which requested damages of $200,000,

was received by the agency on January 7, 2015. The VA

issued a final denial of Redlin’s claim in a letter dated July

14, 2015, and sent to Redlin by certified mail. The VA’s

denial letter stated that, after conducting an investigation, the

VA had determined that “there was no negligent or wrongful

act on the part of an employee of the [VA] acting within the

scope of employment that caused [Redlin] compensable

harm.”

As required by the regulations, 28 C.F.R. § 14.9(a), the

denial letter set out the steps Redlin could take if he was

“dissatisfied with this decision.” First, Redlin could file a

request for reconsideration with the VA General Counsel.

“To be timely, VA must receive this request within six

months of the mailing of this final denial.” Alternatively,

Redlin “may file suit directly under the FTCA, 28 U.S.C.

§§ 1346(b) and 2671–2680,” and seek judicial relief in a

federal district court. If Redlin took the latter course, he

5 Redlin claims that he provided details of his claim in a letter to the

VA dated November 26, 2014. Because the document was not part of the

record before the district court, and Redlin has made no motion to

supplement the record on appeal, we do not consider it. See Lowry v.

Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003).

REDLIN V. UNITED STATES 9

“must initiate suit within six months of the mailing of this

notice as shown by the date of this denial.”

Redlin did not file a suit in federal court or a request for

reconsideration with the VA by January 14, 2016, six months

after the VA’s final denial on July 14, 2015. Instead, on

January 13, 2016, Redlin mailed a second claim form to the

VA, referencing the same September 25, 2014 incident, along

with a letter from his counsel. The letter stated that Redlin

had previously submitted a claim that had been denied on

July 14, 2015, and described the new form as a

“Supplemental Administrative Claim” meant “to provide

additional information regarding [Redlin’s] negligence claim,

and to increase the amount he is demanding for damages” to

$2,000,000. The VA received this second claim on January

22, 2016, which was past the six-month statute of limitations

set out in 28 U.S.C. § 2401(b), and past the six-month

deadline to file a request for agency reconsideration set out in

28 C.F.R. § 14.9(b).

In a letter dated February 11, 2016, the VA informed

Redlin’s counsel that its July 14, 2015 denial letter

constituted the agency’s final action on Redlin’s claim.

Because the second claim was not received until January 22,

2016, the VA “could not consider it to be a timely request for

reconsideration” under 28 C.F.R. § 14.9(b). It concluded that

“[s]ince VA has already investigated and denied a claim

regarding Mr. Redlin’s allegations, [it] cannot consider the

supplemental claim.”

Six months after the VA’s letter regarding Redlin’s

second claim, on August 10, 2016, Redlin filed this suit

against the United States based on the September 25, 2014

incident. The United States moved to dismiss the action

REDLIN 10 V. UNITED STATES

under Rule 12(b)(6) of the Federal Rules of Civil Procedure

on the ground that it was barred by the applicable statute of

limitations, see 28 U.S.C. § 2401(b).

The district court granted the government’s motion to

dismiss. The court reasoned that because more than six

months had elapsed between the VA’s final denial of Redlin’s

claim on July 14, 2015, and the filing of Redlin’s lawsuit on

August 10, 2016, the suit was time-barred.

Redlin filed a timely notice of appeal. The district court

had jurisdiction over this action under 28 U.S.C.

§ 1346(b)(1). We have jurisdiction to review its final order

of dismissal under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal of a complaint for failure to state a

claim under Rule 12(b)(6). Gant v. County of Los Angeles,

772 F.3d 608, 614 (9th Cir. 2014). We take all allegations of

material fact as true and construe them in the light most

favorable to the nonmoving party. Id.

III

There is no dispute that the VA mailed a notice of final

denial on July 14, 2015, and Redlin did not file an action in

federal court until August 10, 2016, over a year later and well

past the six-month deadline for filing such claims under

28 U.S.C. § 2401(b). On appeal, Redlin advances several

arguments as to why the district court nonetheless erred in

dismissing his lawsuit as untimely. We consider each

argument in turn.

REDLIN V. UNITED STATES 11

A

First, Redlin argues that his second claim, which was

received by the VA on January 22, 2016, should be deemed

a timely amendment of his first claim, or a timely request for

reconsideration. We disagree. If his second claim is deemed

to be an amendment, it is not timely. The regulations allow

a claim to be amended “at any time prior to final agency

action” or, where there has been no final agency action within

six months of a claimant’s filing, prior to a claimant’s

exercise of the option to file suit in federal court under

28 U.S.C. § 2675(a). 28 C.F.R. § 14.2(c). Because Redlin’s

second claim was received by the VA after it mailed its final

denial, it was not timely. Similarly, if Redlin’s second claim

is deemed to be a request for reconsideration it is likewise not

timely: it was received by the VA on January 22, 2016, which

was more than six months after the VA mailed its notice of

final denial of his claim on July 14, 2015. See Gervais, 865

F.2d at 196–98; see also 28 C.F.R. § 14.9(b). Therefore, the

second claim did not toll the six-month time frame for filing

a lawsuit. See 28 U.S.C. § 2401(b).6

B

Second, Redlin raises a statutory argument. He argues

that he fully complied with 28 U.S.C. § 2401(b) because he

presented his administrative claim to the agency within two

6 To the extent Redlin argues that the VA’s denial of his claim on

July 14, 2015, should not count as a final denial because Redlin failed to

include key pieces of evidence in his initial claim, we reject that argument.

While Redlin had the option of providing such additional evidence in a

timely amendment or motion to reconsider, a claimant’s failure to include

evidence does not invalidate the agency’s denial.

REDLIN 12 V. UNITED STATES

years of the date the claim accrued, and he filed his district

court action within six months of the VA’s denial of his

second claim on February 11, 2016. According to Redlin, the

district court erred in applying 28 C.F.R. § 14.2(c) to hold

that the second claim was not a timely amendment. Redlin

reasons that because the statute permits a claimant to file a

claim with the agency at any time during the two-year period

after the claim accrues, the agency had no authority to

promulgate a regulation that would prevent the claimant from

amending that claim during this period. Such a regulation,

Redlin argues, impermissibly shortens the two-year statute of

limitations, and is thus an unreasonable interpretation of

28 U.S.C. § 2401(b).

Following this reasoning, Redlin asserts that if a claimant

chooses to present an amended claim to the agency after the

agency has mailed a final notice of denial for the initial claim,

but within two years of the claim’s accrual, the agency must

mail a new final denial as to the amended claim. The new

final denial, Redlin argues, would restart the six-month time

frame in which the claimant could file a legal action. In

Redlin’s view, a claimant could continue this process of

presenting amended claims and receiving new final denials

during the entire two-year period after the claim accrued.

We disagree. Section 2401(b) provides that an action

must be brought within six months “after the date of mailing”

of notice of final denial of the claim. 28 U.S.C. § 2401(b).

This language makes clear that the limitations period begins

running as soon as the agency mails its initial final notice, see

Parker v. United States, 935 F.2d 176, 177 (9th Cir. 1991);

nothing in the statute indicates that subsequent notices from

the agency could alter or extend the running of the six-month

period on the tort claim at issue. Indeed, if claimants could

REDLIN V. UNITED STATES 13

make successive filings regarding the same claim, and each

filing required the agency to make a successive denial that

restarted the statute of limitations on that claim, the sixmonth

limitations period would effectively be read out of the

statute. Because we must generally “give effect to every

word of a statute wherever possible,” Leocal v. Ashcroft,

543 U.S. 1, 12 (2004), we reject such a reading. See also

Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984)

(holding that § 2401(b) imposes both a two-year and sixmonth

limitations requirement, each of which must be

satisfied). We conclude that 28 C.F.R. § 14.2(c), which

requires that any amendment to a claim against the United

States must be made before the agency’s final denial, is a

permissible reading of the statute.7

Indeed, we reached a similar conclusion in Claremont

Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir. 1969).

In that case, a claimant filed a negligence claim against the

Air Force for damage to an airplane. Id. at 897. After an

investigation, the Air Force issued a final denial of the claim.

Id. A United States Senator (at the request of one of the

claimant’s stockholders) triggered a second investigation,

which resulted in a second letter from the agency

disapproving the claim. Id. A third inquiry by the claimant

resulted in a third letter from the agency “reiterating the

position that the Air Force had consistently taken.” Id. The

claimant filed a suit within two years from the date the claim

accrued, but more than six months after the Air Force’s

7 In rejecting Redlin’s argument that his amended claim restarted the

six-month statute of limitations, the district court erred in relying on

28 C.F.R. § 14.2(b)(4), which applies only to successive claims filed with

a different federal agency. Because we reject Redlin’s argument on

different grounds, the error was harmless.

REDLIN 14 V. UNITED STATES

original denial. Id. We held that the claimant’s suit was

untimely, because an agency’s final denial cannot be

“erase[d]” or “vitiate[d]” by further correspondence between

claimant and agency on the same claim. Id. at 898. At least

two other circuits have reached the same conclusion. See

Román-Cancel v. United States, 613 F.3d 37, 42 (1st Cir.

2010) (holding that a duplicative claim “serve[s] no

legitimate purpose” and “it would be pointless for a court to

allow a claimant an opportunity to reopen the FTCA’s

limitations window by” simply refiling a claim); Willis v.

United States, 719 F.2d 608, 613 (2d Cir. 1983) (holding that

there is “little force in the contention that plaintiffs could

escape the consequences of their failure to bring suit within

six months of the denial of their claims by filing new claims

within the allowable two year period”). Applying that

reasoning here, Redlin’s pursuit of further review through

submission of an untimely amendment does not erase the

initial final denial by the agency.

C

Finally, we reject Redlin’s argument that he is entitled to

equitable tolling of the limitations periods in 28 U.S.C.

§ 2401(b).8 “Generally, a litigant seeking equitable tolling

bears the burden of establishing two elements: (1) that he has

been pursuing his rights diligently, and (2) that some

extraordinary circumstances stood in his way.” Credit Suisse

Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)

(emphasis omitted) (quoting Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)). “The doctrine is not available to avoid the

consequence of one’s own negligence and does not apply

8 The limitations periods in 28 U.S.C. § 2401(b) are subject to the

doctrine of equitable tolling. See Kwai Fun Wong, 135 S. Ct. at 1633.

REDLIN V. UNITED STATES 15

when a late filing is due to claimant’s failure to exercise due

diligence in preserving his legal rights.” Hensley v. United

States, 531 F.3d 1052, 1058 (9th Cir. 2008) (cleaned up).

The VA’s denial letter informed Redlin of his right to file a

motion for reconsideration or a lawsuit within six months,

and Redlin has alleged no extraordinary circumstances

excusing his failure to do either. As such, we affirm the

district court’s denial of equitable tolling in this case.9





9 We also reject Redlin’s argument that his noncompliance with the

statute of limitations should be excused because he was not represented

when he filed his initial claim or when the agency mailed the final denial.

While the precise date that Redlin obtained representation is unclear from

the record, there can be no dispute that Redlin was represented when he

mailed his second claim form—a day before the deadline for filing suit or

requesting reconsideration—because the claim form was accompanied by

a letter from Redlin’s counsel. Therefore, Redlin’s failure to timely file

a suit or a request for reconsideration cannot be excused on the ground

that he acted pro se.

9 We also reject Redlin’s argument that his noncompliance with the

statute of limitations should be excused because he was not represented

when he filed his initial claim or when the agency mailed the final denial.

While the precise date that Redlin obtained representation is unclear from

the record, there can be no dispute that Redlin was represented when he

mailed his second claim form—a day before the deadline for filing suit or

requesting reconsideration—because the claim form was accompanied by

a letter from Redlin’s counsel. Therefore, Redlin’s failure to timely file

a suit or a request for reconsideration cannot be excused on the ground

that he acted pro se.

AFFIRMED.