IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20595

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

May 9, 2018

Lyle W. Cayce

Clerk

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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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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., 764 F.3d 445, 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, 281 F.3d 158, 162 (5th Cir. 2001) (quoting Hous. v. U.S. Postal Serv., 

823 F.2d 896, 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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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, 135 S.Ct. 1625, 1638

(2015). Nonetheless, we apply that doctrine “sparingly,” and Appellant “has 

the burden to provide justification” for doing so. Granger v. Aaron’s, Inc., 636 

F.3d 708, 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. Id. This is 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).

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