# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-40379

____________ Robbie Reynolds, Plaintiff—Appellant ,

versus United States of America, Defendant—Appellee

.

______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:22-CV-553

______________________________ Before Jones, Southwick, and Ho, Circuit Judges

. Per Curiam: * Plaintiff Robbie Reynolds appeals the district court’s grant of summary judgment to the United States on her Federal Tort Claims Act (“FTCA”) claims. Finding no error, we AFFIRM

. Reynolds claims that she was involved in a motor vehicle accident with a United States Postal Service (“USPS”) driver on September 19, 2020. In

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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not preceden t except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 8, 2024 Lyle W. Cayce Clerk Case: 23-40379 Document: 69-1 Page: 1 Date Filed: 03/08/2024No. 23-40379

2 November 2020, Reynolds submitted an administrative tort claim to the USPS, which the Postal Service deni ed on November 23, 2021. But Reynolds did not file her complaint for damages under the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680 et seq ., in federal court until September 13, 2022. After further filings, the district cour t considered all pleadings and granted the United States’s motion for summary judgment on May 25, 2023. Reynolds now appeals, claiming th at the district court erred in refusing to apply the equitable tolling doctrine to extend the statute of limitations on her FTCA claim. She also asserts that the district court violated her due process rights because she lacked sufficient notice of the United States’s motion for summary judgment to be able to adequately respond by the district court’ s extended deadline of March 9.
“This court reviews a district co urt's grant of summary judgment de novo, applying the same legal stan dards as the district court.” Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). “Summary judgment is appropriate when ‘the mova nt shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” United States v. Nature's Way Marine, L.L.C. , 904 F.3d 416, 419 (5th Cir. 2018) (quoting F ED

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. P. 56(a)). Where the application of equitable tolling turns on “fact-spec ific, discretionary matter[s], the appropriate standard of review is abuse of discretion.” Granger v. Aaron's, Inc. , 636 F.3d 708, 712 (5th Cir. 2011).
Under the FTCA: A tort claim against the United States shall be forever barred unless it is presented in writ ing 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 no tice of final denial of the claim by the agency to which it was presented. Case: 23-40379 Document: 69-1 Page: 2 Date Filed: 03/08/2024No. 23-40379

3 28 U.S.C. § 2401. “It is well-settled that these limitation periods are jurisdictional.” Flory v. United States , 138 F.3d 157, 159 (5th Cir. 1998). Here, Reynolds’s claims accrued on September 19, 2020—the date of the accident. Reynolds then timely presen ted and exhausted her administrative claims. But she failed to file her fede ral lawsuit by May 23, 2021—six months after she received her final denial from USPS on November 23, 2022. Thus, no federal court would have jurisdiction over Reynolds’s claims unless equitable tolling is applied. “Equitable tolling applies only in rare and exceptional circumstances.” Teemac v. Henderson , 298 F.3d 452, 457 (5th Cir. 2002) (quotation marks and citation omitted) . “Courts have typically extended equitable tolling where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.” Harris v. Boyd Tunica, Inc. , 628 F.3d 237, 239 (5th Cir. 2010) (quotati on marks and citation omitted). Our review of the pleadings and record confirms that the district court did not abuse its discretion in refusing to grant Reynolds the equitable tolling she claims to be entitled to because he r initial attorney left her law firm and Reynolds’s case then got lost in the ad ministrative chaos. Reynolds disputes that her case amounts to “a garden va riety claim of excusable neglect” in which courts are less likely to apply the principles of equitable tolling. Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 96, 111 S. Ct. 453, 458 (1990). We disagree and do not believe that the di strict court abused its discretion in coming to that conclusion. Reynol ds insists that she was subject to administrative turnover beyond he r control. But as we held in Harris , “negligence. . . on the part of [an] atto rney and his staff does not entitle [a litigant] to equitable tolling—a party is bound by the acts of her lawyer.” 628 F.3d at 240. Case: 23-40379 Document: 69-1 Page: 3 Date Filed: 03/08/2024No. 23-40379

4 Concurrently, we do not agree th at the district court violated Reynold’s due process rights by only granting her a one-week extension. Reynolds claims that lack of notice stemmed from her attorney e-filing the documents under a fellow attorney’s in formation because her attorney lacked the appropriate credentials to e-file in the Eastern District of Texas. Thus, she claims her attorney did not receiv e the proper notification when the United States filed its motion for su mmary judgment, and further that the United States did not make her attorn ey aware of its motion despite being aware of the situation described above. Reynolds claims that although the district was made aware of this at the status conf erence, she was still given only a six-day extension to file her response to the summary judgment motion. Although the parties dispute whether Reynolds preserved this issue by timely and properly objecting to the di strict court, it is irrelevant to the outcome. Because the electronic f iling system provided notice to the Reynolds’s attorney of record as listed on the docket sheet, the United States properly gave notice that was “r easonably calculated, under all the circumstances. Mullane v. Hannover Bank and Trust Co. , 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950); see also F ED

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. P. 5(b)(2)(E). In light of the above, we AFFIRM. Case: 23-40379 Document: 69-1 Page: 4 Date Filed: 03/08/2024