PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1217

JOHN DAVID RAPLEE, JR.,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

------------------------------------

MARYLAND ASSOCIATION FOR JUSTICE,

Amicus Supporting Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-

cv-01318-PWG)

Argued: October 25, 2016 Decided: November 22, 2016 

Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by published opinion. Judge Motz wrote the opinion, in 

which Judge Niemeyer and Senior Judge Davis joined.

ARGUED: L. Palmer Foret, ASHCRAFT & GEREL, LLP, Rockville,

Maryland, for Appellant. Neil R. White, OFFICE OF THE UNITED 

STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:

Wayne Mansulla, Peter T. Anderson, ASHCRAFT & GEREL, LLP, 
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Rockville, Maryland, for Appellant. Rod J. Rosenstein, United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Baltimore, Maryland, for Appellee. Michael J. Winkelman, 

MCCARTHY & WINKELMAN LLP, Lanham, Maryland, for Amicus Curiae.
3

DIANA GRIBBON MOTZ, Circuit Judge:

John Raplee challenges the dismissal of his Federal Tort 

Claims Act (“FTCA”) complaint as untimely. In compliance with 

state law, Raplee initially filed a medical malpractice claim 

with Maryland’s alternative dispute resolution agency. Although 

he filed with the state agency within the FTCA’s limitations 

period, he did not file a complaint in federal court until well 

after that period had passed. Raplee contends that by filing a 

required state administrative claim, an “action is begun” for 

the purposes of the FTCA’s limitations period. 28 U.S.C. 

§ 2401(b) (2012). Alternatively, he asserts that equitable 

tolling principles excuse his failure to comply with the 

limitations period. Because an “action is begun” under the FTCA

only by filing a civil action in federal district court, 

Raplee’s claim was untimely. Further, he has not demonstrated 

any extraordinary circumstances warranting equitable tolling. 

Accordingly, we affirm the judgment of the district court.

I.

In September 2006, Raplee underwent surgery at the National 

Institutes of Health, an operating division of the United States 

Department of Health and Human Services (“HHS”). Raplee alleges 

that the surgeons “negligently position[ed]” him while he was 
4

under anesthesia, resulting in permanent damage to the muscles 

and nerves in his left foot.

The FTCA renders the United States liable for the torts of 

its employees, including the surgeons in this case, “in the same 

manner and to the same extent as a private individual under like 

circumstances.” 28 U.S.C. § 2674. The FTCA requires a 

plaintiff pursuing a tort claim to follow a multi-step process. 

First, a plaintiff must file his claim with the appropriate 

federal agency, which then has the power to settle or deny it. 

28 U.S.C. §§ 2401(b), 2675(a). The plaintiff may file a civil 

action against the United States only if the agency has denied 

the claim. 28 U.S.C. § 2675(a).

In November 2006, Raplee retained the law firm Ashcraft & 

Gerel, LLP to represent him in his medical malpractice claim 

against the United States. On September 16, 2008, Ashcraft & 

Gerel, through Martin Trpis, filed Raplee’s claim with HHS.

Trpis had left Ashcraft & Gerel by May 2010 while Raplee’s 

claim was still under administrative review at HHS. Although 

lawyers from the firm continued to represent Raplee, no one 

notified HHS of Trpis’s departure, and no other attorney from 

Ashcraft & Gerel filed an appearance with HHS.

On June 19, 2012, HHS mailed its notice of final denial by 

certified letter to Trpis at Ashcraft & Gerel. Section 2401(b) 

of the FTCA bars any tort claim against the United States unless 
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the “action is begun within six months” after the federal agency 

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

Therefore, Raplee had until December 19, 2012 to begin an action 

pursuant to the FTCA.

The letter HHS sent to Trpis at Ashcraft & Gerel was 

returned to HHS as undeliverable. The envelope containing the 

letter was stamped “Returned to Sender” with a handwritten note 

explaining that Trpis was “no longer at this company.” HHS

confirmed that it had sent the letter to the correct address, 

but it made no further attempt to send notice of its denial. 

The record contains no evidence that Raplee, Trpis, or anyone 

else inquired as to the status of Raplee’s claim.

Because the FTCA merely waives sovereign immunity to make 

the United States amenable to a state tort suit, the substantive 

law of the state where the tort occurred determines the 

liability of the United States. 28 U.S.C. § 1346(b)(1); see, 

e.g., Levin v. United States, 133 S. Ct. 1224, 1228 (2013). 

Accordingly, as the parties agree, Maryland plaintiffs wishing

to bring medical malpractice claims against the United States 

under the FTCA must comply with Maryland’s pre-filing 

requirements.

On November 8, 2012, Raplee, represented by an Ashcraft & 

Gerel lawyer (but not Trpis), filed a claim with Maryland’s 

Health Care Alternative Dispute Resolution Office. Under 
6

Maryland law, a plaintiff must submit a medical malpractice 

claim to this state agency before filing the claim in court. 

Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a), -04(a)(1)(i) 

(West 2016). A plaintiff must then submit an expert report 

certifying that the claim is meritorious within ninety days. 

Id. § 3-2A-04(b)(1)(i)(1). Once a claimant has submitted an 

expert report, he may waive arbitration and proceed to court. 

Id. § 3-2A-06B(a).

Although Raplee filed his initial claim with the Maryland

agency in November 2012 -- approximately one month before the 

FTCA filing deadline in December 2012 -- he did not file his 

expert report until February 2013. And he did not waive 

arbitration until March 2013. Raplee finally filed a complaint 

with the federal district court on May 3, 2013 -- nearly five 

months after expiration of his time to begin an action under 

§ 2401(b).

The United States moved to dismiss Raplee’s claim for lack 

of subject matter jurisdiction. The district court granted the 

motion because, at the time, we considered the FTCA’s 

limitations period to be jurisdictional. See, e.g., Gould v. 

U.S. Dep’t. of Health & Human Servs., 905 F.2d 738, 741–42 (4th 

Cir. 1990) (en banc). On appeal, we held the case in abeyance 

while the Supreme Court resolved that very issue. In United 

States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015), the Court 
7

held that the FTCA’s limitations period is not a jurisdictional 

rule but a claims-processing rule that allows for equitable 

tolling. In light of this decision, we remanded Raplee’s case 

so that the district court could decide whether Raplee was 

entitled to equitable tolling. The district court concluded 

that he was not, reasoning that Raplee failed to show that

extraordinary circumstances had prevented him from filing in a 

timely manner.

On appeal, Raplee contends that his claim was timely 

because, by filing his claim with the state agency, an “action

[was] begun” under § 2401(b) of the FTCA. He also contends

that, even if his claim was untimely, he is entitled to 

equitable tolling. We consider these arguments in turn.

II.

In order to determine whether Raplee’s claim was timely, we 

must decide when an “action is begun” under § 2401(b). We 

review questions of statutory interpretation de novo. Stone v. 

Instrumentation Lab. Co., 591 F.3d 239, 242–43 (4th Cir. 2009).

When construing a statute, we start with its text. Lamie 

v. U.S. Tr., 540 U.S. 526, 534 (2004). If the meaning of the 

text is plain -- in other words, if it bears only one reasonable 

interpretation –- that meaning controls. Id. “The plainness or 

ambiguity of statutory language is determined by reference to 
8

the language itself, the specific context in which that language 

is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

The word “action” in § 2401(b) has only one reasonable 

meaning: it refers to a federal civil action. The language of 

the statute and the context in which it occurs confirm this.

“Action” has a settled technical meaning in the law:

“action” means a lawsuit. See Black’s Law Dictionary 49 (4th 

ed. 1951) (“The legal and formal demand of one’s right . . . in 

a court of justice.”). This meaning of “action” has an ancient 

lineage. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 112-13

(1866) (“In any legal sense, action, suit, and cause, are 

convertible terms” and “[i]n law language a suit is the 

prosecution of some demand in a court of justice.” (quoting 

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 407 (1821))).

Moreover, the Supreme Court settled any question about the 

term’s current meaning when the Court promulgated the Federal 

Rules of Civil Procedure in 1938. The Federal Rules famously 

abolished distinctions between various types of judicial 

proceedings -- like the distinction between “actions at law” and 

“suits in equity” -- by announcing that “[t]here shall be one 

form of action to be known as ‘civil action.’” Fed. R. Civ. P. 

2 (1938). The Advisory Committee made clear that this 

innovation in terminology sought to bring uniformity both to 
9

federal civil procedure and the United States Code. Id.

advisory committee’s note to 1937 adoption (“Reference to 

actions at law or suits in equity in all statutes should now be 

treated as referring to the civil action prescribed in these 

rules.”).

Congress adopted the language of § 2401(b) against this 

backdrop, and the statutory context supports the conclusion that 

all references to “action” in the FTCA refer to a judicial civil 

lawsuit. For example, § 2401(a) -- the text immediately 

preceding § 2401(b) -- provides that “every civil action

commenced against the United States shall be barred unless the 

complaint is filed within six years.” 28 U.S.C. § 2401(a) 

(emphases added). The next sentence provides an exception: 

“The action of any person under legal disability or beyond the 

seas at the time the claim accrues may be commenced within three 

years after the disability ceases.” Id. (emphasis added). As 

another example, § 2402 provides that “any action against the 

United States under section 1346 shall be tried by the court

without a jury.” Id. § 2402 (emphases added).

Thus, both the text and statutory context indicate that the 

word “action” in § 2401(b) refers only to a civil action filed 

in court. Common sense recommends this understanding all the 

more strongly when considering a statute of limitations, the 
10

very purpose of which is to identify the deadline for filing a 

lawsuit in court.

The references to § 1346 in the FTCA confirm that the only 

type of civil action contemplated by § 2401(b) is a federal

civil action. See 28 U.S.C. § 1346(b)(1). There can be no 

doubt that a plaintiff begins an action under the FTCA by 

bringing “[a] tort claim against the United States.” 28 U.S.C. 

§ 2401(b). But the federal district courts have exclusive

jurisdiction over these claims. 28 U.S.C. § 1346(b)(1). Thus, 

a plaintiff cannot satisfy the FTCA’s limitations period by 

filing an action with a state agency that lacks jurisdiction 

over such an action.

Raplee seeks to ignore all of this statutory language. He

proposes that an “action is begun” under the FTCA as soon as a 

plaintiff takes some required step toward pursuing a tort claim 

against the United States. But that would mean Congress enacted

a statute of limitations that says nothing specific about what a 

plaintiff must do to satisfy the limitations period and nothing 

at all about when a plaintiff’s time to file a complaint in 

federal court elapses. This would make no sense.

In sum, § 2401(b) requires a plaintiff to bring a federal 

civil action within six months after a federal agency mails its 

notice of final denial of his claim. Of course, the only way to 

begin a federal civil action is by filing a complaint with a 
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federal district court. Fed. R. Civ. P. 3. Raplee did not file 

his complaint with the district court within the six-month 

limitations period, and therefore his complaint was untimely.

III.

Even so, Raplee contends that the district court erred in 

refusing to consider his case by tolling the limitations period. 

In a non-habeas context like this, we generally review denials 

of equitable tolling for abuse of discretion. Rouse v. Lee, 339 

F.3d 238, 247 n.6 (4th Cir. 2003) (en banc). But see Cruz v. 

Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (noting that in some 

circumstances review is de novo).

Plaintiffs are entitled to equitable tolling only if they 

show that they have pursued their rights diligently and

extraordinary circumstances prevented them from filing on time. 

See Holland v. Florida, 560 U.S. 631, 649 (2010). We have

explained that equitable tolling is reserved for “those rare 

instances where -- due to circumstances external to the party’s 

own conduct -- it would be unconscionable to enforce the 

limitation period against the party and gross injustice would 

result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 

2000). The district court concluded that Raplee failed to 

demonstrate that extraordinary circumstances prevented him from 
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filing on time. Raplee asserts that the court erred for two 

reasons.

A.

First, Raplee maintains that HHS wrongfully deprived him of 

notice that his claim had been denied by failing to send him a 

second notice. This, he argues, constitutes an extraordinary 

circumstance.

Wrongful conduct by an opposing party can trigger equitable 

tolling. Id. However, HHS did nothing wrong in this case. It 

mailed notice to Raplee’s counsel of record at the address 

counsel had provided -- the offices of Ashcraft & Gerel. When 

the notice was returned undelivered, HHS took the extra step of 

confirming that it had been sent to the correct address, a step 

the statute does not require. Raplee does not dispute that HHS 

sent the notice to the correct address, and the unrebutted 

record evidence shows that it arrived there. We know of no 

statute or regulation that requires anything more of HHS, and 

Raplee has pointed to none.

Furthermore, the failure to receive the notice is largely 

attributable to action or inaction by past and present lawyers 

at Ashcraft & Gerel. Those lawyers took no steps to ensure that 

Raplee’s case would be handled seamlessly after Trpis left the 

firm. They never notified HHS about the departure of one lawyer 

or the substitution of another. When the certified letter from
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HHS arrived at Ashcraft & Gerel’s office, the letter was simply 

rejected without being opened.

Nothing extraordinary occurred here. This is just the type 

of thing that can happen when busy lawyers inadvertently fail to 

handle personnel changes and office mail carefully. Such 

conduct is unfortunately understandable; it hardly qualifies as 

an extraordinary circumstance. Cf. Irwin v. Dep’t of Veterans 

Affairs, 498 U.S. 89, 96 (1990) (holding that equitable tolling 

did not apply to an untimely action under the Civil Rights Act 

where the attorney was out of the country when notice arrived at 

his office); Rouse, 339 F.3d at 251, 253 (holding that equitable 

tolling did not apply to a death-row inmate’s habeas petition 

where inmate’s attorney filed one day late); Harris, 209 F.3d at 

331 (holding that an attorney’s misinterpretation of AEDPA’s 

limitations period did not warrant tolling).

B.

Raplee also contends that Trpis, his original Ashcraft & 

Gerel attorney, abandoned him and that this constitutes an 

extraordinary circumstance under the Supreme Court’s decision in 

Maples v. Thomas, 132 S. Ct. 912 (2012). This argument also 

fails.

In Maples, a state prisoner on death row procedurally 

defaulted on his habeas claim because, unbeknownst to him, his 

attorneys left the firm handling the case and no other attorneys 
14

took over for them. The Supreme Court held that the prisoner 

had demonstrated cause that excused his procedural default

because his “attorney abandon[ed] his client without notice, and 

thereby occasion[ed] the default.” Id. at 922.

In a habeas case, like Maples, the injustice of holding a

petitioner responsible for his attorneys’ abandonment is 

obvious. There is no redemption for habeas petitioners whose 

attorneys abandon them in this way. A malpractice suit cannot 

compensate them for the loss of freedom -- or life itself. For 

that reason, habeas cases are precisely the type of circumstance 

where abandonment calls for a remedy like equitable tolling.

In contrast, in a civil suit for damages, if a plaintiff 

misses a deadline because his attorney abandoned him, he can 

recover those damages from the attorney. For this reason, the 

Maples rule may not apply in civil actions seeking damages. See

Choice Hotels Int’l, Inc. v. Grover, 792 F.3d 753, 755–56 (7th 

Cir. 2015), cert. denied, 136 S. Ct. 691 (2015) (suggesting as 

much and declining to apply Maples in a breach of contract 

case). But see Sneed v. Shinseki, 737 F.3d 719, 728 (Fed. Cir. 

2013) (applying Maples, over a dissent, to a veterans’ benefits 

case because of “[t]he special treatment Congress reserved for 

veterans”).

We need not -- and do not -- here resolve the reach of

Maples because, even if Maples applies in civil cases, like the 
15

case at hand, it does not help Raplee here. Although the facts 

of this case bear some similarity to those in Maples, they 

differ in a crucial respect: abandonment by his attorneys did 

not cause Raplee to miss the filing deadline. Raplee’s original 

Ashcraft & Gerel attorney left the firm in 2010, but the record 

offers no evidence that Ashcraft & Gerel lawyers abandoned him. 

On the contrary, the record clearly establishes other Ashcraft & 

Gerel attorneys took over Raplee’s case almost two years before 

the Act’s deadline passed in December 2012. For example, a 

lawyer from the firm procured the required expert report as 

early as January 2011. A lawyer from the firm continued to 

represent Raplee before the state agency and the district court, 

and a lawyer from Ashcraft & Gerel continues to represent Raplee

in this appeal. Accordingly, whatever abandonment may have 

occurred in this case had nothing to do with the untimely 

filing.

IV.

We recognize that, in some cases, state requirements like 

Maryland’s may place unusually high burdens on FTCA plaintiffs. 

It takes time and effort to develop a case and secure credible 

expert testimony. Moreover, there is no guarantee that a state 

agency will process claims swiftly enough to allow a plaintiff

to file within the FTCA’s limitations period.
16

There are, however, procedural devices available to 

mitigate the burdens of state law filing requirements. A

district court has broad power to issue stays to control its 

docket, and it can use that power to craft a solution to such 

problems. For example, in a recent case where the plaintiff 

filed a timely federal FTCA complaint before satisfying 

Maryland’s pre-filing requirements, Chief Judge Catherine Blake 

stayed the federal proceedings rather than dismiss the case.

Anderson v. United States, Civ. No. CCB–08–3, 2008 WL 3307137,

at *4 (D. Md. Aug. 8, 2008). This gave the plaintiff an 

opportunity to satisfy the state requirements without risking an 

untimely federal filing. (Of course, that solution was 

unavailable here because Raplee filed an untimely federal

complaint.)

We recognize that deciding whether to stay proceedings, as 

Judge Blake did, “calls for the exercise of judgment, which must 

weigh competing interests and maintain an even balance.” Landis 

v. N. Am. Co., 299 U.S. 248, 254–55 (1936). But in a typical 

case, allowing plaintiffs to file their federal complaints under 

the FTCA before completing state law requirements would seem to 

promote both the objectives of § 2401(b) and the FTCA’s overall

purpose of affording private citizens relief for injuries they 

suffer as a result of the federal government tortfeasors.
17

This is particularly true given that the FTCA’s limitations 

period is not a jurisdictional rule but a claims-processing one. 

Kwai Fun Wong, 135 S. Ct. at 1638. Like other claims-processing 

rules, § 2401(b) “seek[s] to promote the orderly progress of 

litigation by requiring that the parties take certain procedural 

steps at certain specified times.” Henderson ex rel. Henderson 

v. Shinseki, 562 U.S. 428, 435 (2011). Plaintiffs cannot avoid 

this rule absent extraordinary circumstances. However, Congress 

did not design § 2401(b) as a gauntlet for plaintiffs to run. 

The statute does not require a plaintiff to complete all state 

law requirements before filing a complaint with the district 

court. Rather, a plaintiff fully satisfies the claimsprocessing objective by filing a complaint with the federal

district court within the limitations period while 

simultaneously working to satisfy state law requirements.

V.

For the foregoing reasons, the judgment of the district 

court is

AFFIRMED.