Mercy N. SANTOS, a Minor by Jenny BEATO, her Parent and Natural Guardian, Appellant v. UNITED STATES of America, 559 F.3d 189

OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter comes on before this Court on an appeal by plaintiff Mercy Nicole Santos by Jenny Beato, her Parent and Natural Guardian, from an order of the District Court entered on November 30, 2007, granting

summary judgment to defendant United States of America in this medical malpractice case under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”). The District Court concluded that the FTCA’s two-year statute of limitations barred Santos’s claim, rejecting her contention that the running of the limitations period should be equitably tolled so that her action would be timely. Santos v. United States, 523 F.Supp.2d 435 (M.D.Pa.2007).

Because we conclude that the statute of limitations should be equitably tolled, we will reverse the order of November 30, 2007, and will remand this matter to the District Court for further proceedings. II. BACKGROUND Mercy Nicole Santos was six years old when on November 20, 2002, her mother, Jenny Beato, took her to York Health Corporation’s (‘Work Health”) pediatric clinic in York, Pennsylvania, because she had a swollen jaw and a fever. A clinic physician diagnosed Santos as having tooth decay, prescribed an antibiotic, and referred her to York Health’s dental clinic.

Nevertheless, the swelling continued and her condition worsened. Accordingly, Santos, on November 27, 2002, returned to the pediatric clinic, where the personnel again referred her to the dental clinic and again prescribed an antibiotic. Santos then sought care at the York Health dental clinic, where a dentist extracted a decaying tooth in the belief that it created a small mass on Santos’s lower jaw and was responsible for Santos’s continuing fever. Yet when Santos returned to the dental clinic two days later for a follow-up appointment, the swelling and fever had not abated.

A dentist examined her and told her to come back on December 2, 2002, which she did. Subsequently, on December 12 and December 18, 2002, she went to the pediatric clinic complaining of worsening neck pain and stiffness. The personnel there prescribed antibiotics and painkillers and again referred her to the dental clinic, where a dentist again observed her swelling and neck stiffness but made no further diagnosis.

On December 22, 2002, Santos’s mother took her to the emergency room at York Hospital, a regional facility distinct from York Health, because her neck pain, swelling, and fever all had grown more severe. Personnel at the hospital performed a Computed Tomography scan, or CT scan, that revealed a deep neck-space infection extending from below Santos’s jaw into her cervical spine. Santos had developed os-teomyelitis, an infection of the bone and bone marrow, that had destroyed parts of her top two cervical vertebrae.

After 19 days of surgery and other hospital treatments for the severe infection, and several months of wearing a cervical collar, Santos’s top two vertebrae grew back fully fused together on the right side. This vertebrae fusion permanently impairs her movement, as she cannot turn her head to look over her shoulder, and the fusion likely will cause Santos to suffer from an accelerated degenerative disc disease in the vertebrae below the fused vertebrae. Santos’s mother retained counsel for her daughter, who investigated Santos’s potential liability claim against York Health and its employees.

Santos’s counsel identified four persons he believed were the negligent healthcare workers who caused Santos’s injury, a doctor, two dentists, and a physician assistant, and also identified their employer, York Health, an apparently private corporation. Thereafter, Santos’s counsel performed a public records search on York Health, corresponded with York Health, obtained Santos’s medical records, visited the clinic, and reviewed pertinent records onsite.

To evaluate Santos’s potential liability claim, her counsel retained a family practice expert, a dental expert, a professor of pediatric otolaryn-gology, and a board-certified spinal surgeon, all of whom prepared expert reports. On May 25, 2005, about two years and five months after a physician at York Hospital diagnosed Santos with osteomyelitis, her counsel filed a malpractice action on her behalf in the Court of Common Pleas of York County, Pennsylvania, against the allegedly negligent parties, York Health and the four professional employees.

Santos’s counsel believed that notwithstanding Pennsylvania’s two-year statute of limitations on malpractice actions set forth in 42 Pa. Cons.Stat. Ann. § 5524 (West 2004), her filing was timely because a Pennsylvania statute, 42 Pa. Cons.Stat. § 5533(b)(l)(i)-(ii) (West 2004), tolls the statute of limitations in a civil action brought on behalf of a minor until she reaches her majority at the age of 18 years. Undoubtedly, if the tolling statute had been applicable, his belief would have been correct.

Santos’s investigations did not reveal, however, that for treatment purposes under the FTCA the allegedly negligent healthcare workers and their employer, York Health, all had been deemed employees of the United States pursuant to the Public Health Service Act, 42 U.S.C. § 201 et seq., as amended by the Federally Supported Health Centers Assistance Act of 1992, Pub.L. No. 102-501, 106 Stat. 3268 (1992). See Public Health Service Act, 42 U.S.C. § 233(g)-(n).

This investigative failure was understandable as publicly available information did not reveal their federal status for malpractice purposes, though there was public information explaining that York Health received aid from, among numerous benefactors, the federal government, and the clinic did not appear to be a federal facility.

The state-court defendants’ federal status was critical because the FTCA’s statute of limitations requires a malpractice claimant to bring an administrative claim with the applicable federal agency, here the Department of Health and Human Services, within two years after her cause of action accrues. Moreover, and as critical in this litigation, the FTCA does not include a tolling provision for minors comparable to that of Pennsylvania and many other states. 28 U.S.C. § 2401(b).

On September 2, 2005, as the FTCA provides, the Attorney General’s designee certified that the state-court defendants were federal employees acting within the scope of their employment and removed the case to the District Court. 28 U.S.C. § 2679(d)(2). The Government then substituted the United States as the sole party defendant. Id. Santos and the Government thereafter stipulated to a voluntary dismissal of the removed action without prejudice so that Santos could bring an administrative claim as the FTCA requires. 28 U.S.C. § 2675(a).

Santos did not challenge the removal of her case to the District Court or the substitution of parties and, accordingly, she filed the contemplated administrative claim. The Department of Health and Human Services, however, failed to take action on her claim for six months, and its inaction was deemed a denial of her claim. She then filed this suit in the District Court. After answering the complaint, the Government moved for judgment on the pleadings, or, in the alternative, for

summary judgment, on the ground that the FTCA’s two-year statute of limitations barred Santos’s claim. On the proceedings on the motion, Santos acknowledged that she filed her claim in the state court more than two years after its accrual, but argued that the FTCA’s statute of limitations should be equitably tolled so that her claim would be timely because she did not know that the allegedly negligent healthcare providers had been deemed federal employees.

The District Court rejected Santos’s tolling argument and found that her claim was untimely because in its view she had not exercised due diligence in inquiring into the federal status of York Health and the individual providers. Thus, the Court granted

summary judgment to the United States. Santos, 523 F.Supp.2d at 436-37. Santos then filed a timely appeal. III. JURISDICTION AND STANDARD OF REVIEW The District Court had subject-matter jurisdiction under the FTCA, 28 U.S.C. § 1346(b), and we exercise jurisdiction under 28 U.S.C. § 1291. Our standard of review of the District Court’s order granting

summary judgment is plenary, see Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir.2007), as is our review of the District Court’s finding that Santos failed to file her action within the period the statute of limitations allowed. See KingVision Pay-Per-View, Corp. v. 898 Belmont, Inc., 366 F.3d 217, 220 (3d Cir.2004). IV. DISCUSSION A.

The Federal Tort Claims Act As she recognizes, Santos must seek her recovery by proceeding under the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq., a limited waiver of the sovereign immunity of the United States providing that: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. 28 U.S.C. § 2674.

To make a claim under the FTCA, a claimant first must file her claim with the administrative agency allegedly responsible for her injuries. 28 U.S.C. § 2675(a); see Reo v. United States Postal Serv., 98 F.3d 73, 75 (3d Cir.1996) (discussing the FTCA). If the agency denies the claim or fails to resolve it within six months, as happened here, she then may file an action on her claim in a district court. 28 U.S.C. §§ 2675(a), 2672. District courts have exclusive jurisdiction over suits against the United States brought under the FTCA. 28 U.S.C. § 1346(b).

Even though substantively the FTCA follows state liability law, it includes a two-year limitations provision stating that “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.... ” 28 U.S.C. § 2401(b). Moreover, federal law, not state law, governs the determination of the often decisive question to answer for statute of limitations purposes of when a claim has accrued under the FTCA. Miller v. Philadelphia Geriatric Ctr., 463 F.3d 266, 270 (3d Cir.2006); Zeleznik v.

United States, 770 F.2d 20, 22 (3d Cir.1985). Similarly, state-law tolling statutes do not apply to the FTCA’s limitations period, and thus the Pennsylvania tolling statute, the basis for Santos’s timing in bringing her state-court action, is inapplicable here. Id. at 22; Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir.1987) (citing Zeleznik); see also Phillips v. United States, 260 F.3d 1316, 1318-20 (11th Cir.2001). Obviously, under the FTCA as originally enacted, if a claimant pursued her claim in the wrong forum she might find the claim barred. Congress apparently regarded this result as harsh.

Consequently, in a 1988 amendment to the FTCA, the Westfall Act, 28 U.S.C. §§ 2671 et seq., Congress established a procedure for a claimant to follow if she initially files a FTCA claim in the wrong forum. The FTCA now provides that tort claims filed in state court against federal employees acting within the scope of their employment “shall be removed ... to the district court of the United States [where the claim is pending] ... and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2).

The amendment also includes a clause that saves from being barred by the statute of limitations certain timely claims filed in the wrong forum, such as in a state or a federal court rather than with the appropriate administrative agency. Pursuant to this savings clause an errant plaintiff whose suit is removed to a district court, and then dismissed because she failed to bring the timely required administrative claim, will be credited with the date that she filed her claim in the wrong forum for purposes of the FTCA’s statute of limitations. Such claims will be deemed timely under

section 2401(

b) if (

A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (

B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. 28 U.S.C. § 2679(d)(5). Unfortunately for Santos, the absence of a tolling provision in

section 2679(d)(5) meant that the claim she filed in the state court after the FTCA’s two-year statute of limitations period had expired was not statutorily saved, and she does not contend otherwise. It is undisputed that Santos’s claim accrued on December 22, 2002, when she was six years old, when her mother took her to the York Hospital emergency room and the physicians there correctly identified her osteomyelitis by use of a CT scan.

Accordingly, when Santos commenced her action against York Health and four of its employees in the Court of Common Pleas of York County, Pennsylvania, on May 22, 2005, more than two years had elapsed after her claim accrued. It therefore follows that in the absence of equitable tolling extending the time for her to file her claim, 28 U.S.C. § 2401(

b) would bar her claim as untimely because even if Santos had filed her claim with the Department of Health and Human Services on May 22, 2005, it would have been untimely. Consequently, the FTCA’s savings clause does not apply to her claim, a point not in dispute.

Nevertheless, Santos argues that, in what she regards as the extraordinary circumstances of her ease (i.e., her reasonable diligence through her counsel in pursuing her claim), the difficulty in determining that York Health and its employees had been deemed federal employees, and the approximately 11-year difference between the state-law and FTCA limitations periods, the FTCA’s statute of limitations should be equitably tolled so that her claim is deemed to be timely. B. The Equitable Tolling Doctrine Applies to the FTCA’s Statute of Limitations.

The first disputed issue that we must address is whether in any circumstance there can be equitable tolling to relax the FTCA’s limitations period. At one time we held that the FTCA’s statute of limitations was jurisdictional. See, e.g., Bradley v. United States, 856 F.2d 575, 577-78 (3d Cir.1988), vacated on other grounds, 490 U.S. 1002, 109 S.Ct. 1634, 104 L.Ed.2d 150 (1989).

But the Supreme Court subsequently held that federal statutes of limitations are not jurisdictional and that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 93-96, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990).

The Court reasoned that “[o]nee Congress has made such a waiver [of its sovereign immunity], we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.” Id. at 95, 111 S.Ct. at 457. The Court observed that this general rule “is likely to be a realistic assessment of legislative intent as well as a practically useful principle of

interpretation.” Id. Applying Irwin, we have held that the FTCA’s statute of limitations is not jurisdictional, and thus in appropriate circumstances the equitable tolling doctrine can apply in actions under it. Hughes v. United States, 263 F.3d 272, 278 (3d Cir.2001); see Hedges v. United States, 404 F.3d 744, 748 (3d Cir.2005) (federal courts apply equitable tolling to wide range of cases against the Government, including FTCA claims). Other courts of appeals also have applied equitable tolling in suits against the United States. Hedges, 404 F.3d at 748 (citing other courts of appeals); T.L. ex rel. Ingram v.

United States, 443 F.3d 956, 961 (8th Cir.2006) (citing courts of appeals holding that FTCA’s limitations provision is jurisdictional but that equitable tolling nevertheless applies because Congress so intended). On the other hand, a court of appeals quite recently held that the FTCA’s statute of limitation is jurisdictional and thus if a case is brought beyond the limitations period the court does “not have jurisdiction and, therefore, cannot apply the doctrines of equitable estoppel or equitable tolling that might otherwise allow [the] Plaintiffs case to proceed.” Marley v.

United States, 548 F.3d 1286, 1289 (9th Cir.2008). The Government contends, however, that we should not equitably toll the statute of limitations in this case notwithstanding Santos’s asserted diligence in pursuing her action and in doing so attempting to identify the correct defendants. It predicates this argument on the FTCA’s savings clause, which deems timely claims brought erroneously in state court, rather than before the appropriate federal agency, within two years after they accrue. 28 U.S.C. § 2697(d)(5).

The Government contends that inasmuch as Congress explicitly provided a statutory exception to the FTCA’s limitations period, we should not recognize additional nonstatutory equitable exceptions to the statutory limitations period. In support of its position, the Government cites TRW v. Andrews, 534 U.S. 19, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001), a case under the Fair Credit Reporting Act (“FCRA”), which in certain circumstances confers a private right of action on consumers so that they may sue credit agencies.

The FCRA, as in effect at the time of TRW, contained a statute of limitations providing that actions to enforce liability under the FCRA must be brought “within two years from the date [liability accrues]” except in cases of willful misrepresentation by the defendant, in which case claims must be brought “within two years after [the plaintiffs] discovery .... of the misrepresentation.” TRW, 534 U.S. at 22, 122 S.Ct. at 444 (citing 15 U.S.C. § 1681p) (1994 ed.) (internal quotation marks omitted).

The issue presented in TRW was whether a general discovery rule, which delays the beginning of a limitations period until the plaintiff knew or should have known of her injury, applied in determining when a claim accrues under the FCRA. The Court held that a general discovery rule was not applicable in calculating the FCRA’s limitations period because the statute’s text and structure establishing the two-year limitation period and in the same sentence a specific and limited exception for cases of willful misrepresentation, evinced congressional intent to preclude judicial implication of a broader discovery rule.

The Court reasoned that a judicially recognized general discovery rule under the FCRA would render the narrower statutory misrepresentation rule “insignificant, if not wholly superfluous.” See id. at 31, 122 S.Ct. at 449. The Court explained that “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” Id. at 28, 122 S.Ct. at 447 (internal citations and quotation marks omitted).

We believe that Congress, in adopting the statute of limitations in the FTCA, did not demonstrate that it intended to preclude equitable tolling as it did in the FCRA. We reach this conclusion because Congress structured the two statutes differently. Thus, while Congress placed the FCRA’s exception to the limitations provision within the same sentence as the general limitations provision connected by “except,” 15 U.S.C. § 1681p (1994 ed.), in contrast it placed the FTCA’s savings clause providing that certain claims filed within two years with the wrong agency are timely in a

section distinct from the limitations provision. 28 U.S.C. §§ 2679(d)(5); 2401(b). The placement of the separate statutory savings provision does not suggest that Congress intended it to preclude equitable tolling, which the Supreme Court has presumed and held to apply in actions against the United States, Irwin, 498 U.S. at 95-96, 111 S.Ct. at 458; see also Hughes, 263 F.3d at 278; Hedges, 404 F.3d at 748; Ingram, 443 F.3d at 960-61, particularly in an area of law where equitable concerns may be greater.

TRW, 534 U.S. at 27, 122 S.Ct. at 446-47 (distinguishing claim in that case, private action against a credit agency under FCRA, from medical malpractice claims). The Government also argues that equitably tolling the statute of limitations would render the FTCA’s savings clause “insignificant, if not wholly superfluous.” See id. at 31, 122 S.Ct. at 449. But we reject this argument because the savings clause is applicable in cases in which equitable tolling would not be.

For example, the FTCA’s savings clause lacks any due diligence requirement and thus encompasses a “garden-variety claim of excusable neglect,” a situation in which equitable tolling would not apply. See Irwin, 498 U.S. at 96, 111 S.Ct. at 458. At bottom, the Government’s argument seems to blur two issues: whether equitable tolling can apply to the FTCA’s limitations period in any circumstance and whether it should apply in this ease. We view the Government’s arguments supporting the first contention as a subtle invitation to overrule Hughes, but we cannot take that step as that case is binding on us.

Third Circuit IOP 9.1. Consequently, we will address the second issue and do so below. In reaching our result that equitable tolling is possible under the FTCA, we recognize that the reasoning in certain recent Supreme Court decisions might call into question whether equitable tolling is available in FTCA claims and thus raise doubt as to the continuing viability of our holding in Hughes. See John R. Sand & Gravel Co. v.

United States, 552 U.S. 130, 128 S.Ct. 750, 755-56, 169 L.Ed.2d 591 (2008) (distinguishing statutes of limitations protecting individual defendants, subject to waiver and equitable tolling, from those limiting the scope of governmental waiver of sovereign immunity, where equitable considerations are less likely to apply); United States v.

Beggerly, 524 U.S. 38, 48-49, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998) (equitable tolling not available in Quiet Title Act claims against United States, where limitations period was 12 years and limitations period already effectively allowed for equitable tolling); United States v. Brockamp, 519 U.S. 347, 350-54, 117 S.Ct. 849, 850-53, 136 L.Ed.2d 818 (1997) (equitable tolling not available to tax refund claims, where limitation provision was detailed and technical, and where applying equitable tolling could create an immense administrative burden); United States v.

Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979) (cautioning courts neither to extend nor to narrow the FTCA’s statute of limitations from what Congress intended, because assertion of a claim within the limitations period is a condition of FTCA’s waiver of sovereign immunity); see also Marley, 548 F.3d at 1289. Notwithstanding the foregoing cases, Irwin remains good law, for the Court in John R. applied but did not overrule Irwin in holding that its presumption that equitable tolling applied had been rebutted. John R., 128 S.Ct. at 755-56.

Consequently, these cases do not lead us to conclude that equitable tolling cannot apply under the FTCA. The FTCA waives the sovereign immunity of the United States to the extent that it is liable on tort claims “in the same manner and to the same extent as a private individual under like circumstances,” but includes a straightforward limitations provision separate from the waiver of immunity section. 28 U.S.C. §§ 2674, 2401(b).

Considering that the FTCA creates tort liability “in the same manner” as liability is imposed on private individuals, the limitation provision is non-technical with a period of only two years, the circumstances surrounding tort and medical malpractice claims reasonably may justify applying equitable tolling to such claims, and neither the text nor structure of the freestanding statutory tolling provision suggests that Congress intended to preclude equitable tolling, we think that our holding in Hughes that there can be equitable tolling in suits under the FTCA remains good law which survives the later Supreme Court decisions to which we have referred.

Hughes, 263 F.3d at 278; accord Ingram, 443 F.3d at 961-63 (equitable tolling applies even though limitation provision is jurisdictional); see Hedges, 404 F.3d at 748-51 (discussing factors to consider in determining whether Irwin presumption is rebutted); but see Marley, 548 F.3d at 1290.

Thus, though we agree with the Government that “the statute of limitations was not tolled due to [Santos’s] status as a minor,” appellee’s br. at 16, we conclude that we cannot in all circumstances preclude equitable tolling of the statute of limitations in FTCA actions because if we did so we unjustifiably would take upon ourselves the authority to narrow the congressional waiver of the sovereign immunity of the United States. See Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 357. C. Equitable Tolling Applies Here.

Inasmuch as equitable tolling can apply in cases under the FTCA, we turn to the question whether we should equitably toll the FTCA’s statute of limitations in this case. Equitable tolling, if available, can rescue a claim otherwise barred as untimely by a statute of limitations when a plaintiff has “been prevented from filing in a timely manner due to sufficiently inequitable circumstances.” Seitzinger v. Reading Hosp. & Med.

Ctr., 165 F.3d 236, 240 (3d Cir.1999). “This occurs (1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Hedges, 404 F.3d at 751 (internal citations omitted); School Dist. v. Marshall, 657 F.2d 16, 19-20 (3d Cir.1981) (internal citations omitted).

But a plaintiff will not receive the benefit of equitable tolling unless she exercised due diligence in pursuing and preserving her claim. Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58. The principles of equitable tolling thus do not extend to “garden-variety claims of excusable neglect.” Id. at 96, 111 S.Ct. at 458. The remedy' of equitable tolling is extraordinary, and we extend it “only sparingly.” Id. at 96, 111 S.Ct. at 457; Hedges, 404 F.3d at 751.

It is especially appropriate to be restrictive with respect to extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States.

The Supreme Court made that point clear when it indicated that inasmuch as the FTCA “waives the immunity of the United States, ... in construing the [FTCA’s] statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended,” and the Court should not “assume the authority to narrow the waiver that Congress intended.” Kubrick, 444 U.S. at 117-19, 100 S.Ct. at 357. 1. Santos Otherwise Diligently Pursued Her Claim.

It is clear that even though Santos did not determine before she brought her state court action that York Health and its employees had been deemed to be federal employees for FTCA purposes in malpractice actions, she diligently and vigorously pursued her claim.

In this regard, after her claim accrued on December 22, 2002, she retained diligent counsel, who requested and reviewed her medical records, visited, corresponded with, and performed a public records search on York Health, and retained a family practice expert, a dental expert, a professor of pediatric otolaryn-gology, and a board-certified spinal surgeon, all of whom prepared expert reports.

We have brought considerable experience to the federal bench which we are confident allows us to identify a diligent counsel, and based on that experience and our examination of the record in this case we believe that no reasonable person can doubt that Santos’s counsel was diligent. Yet we do not suggest that Santos’s mere compliance with the statutorily tolled state statute of limitations and her counsel’s thorough preparation of her case entitles her to equitable tolling under the FTCA. See Norman v. United States, 467 F.3d 773, 776 (D.C.Cir.2006).

On the other hand, Santos’s compliance with state law and preparation of her case do evidence her general diligence and thus are significant, even though her diligence in itself could not overcome her failure to identify York Health and its personnel as federal employees. 2. Santos Diligently Inquired into the Employment Status of York Health and its Personnel. The Government argues, however, that even if Santos generally was diligent, she did not exercise due diligence in inquiring into the employment status of York Health and its healthcare providers with respect to malpractice claims.

Consequently, it contends that equitable tolling should not apply, even if Santos had been diligent with respect to the other aspects of her case. In support of its contention, the Government cites our decision in Zeleznik v. United States, 770 F.2d 20. Zeleznik was an action against the Immigration and Naturalization Service (“INS”) for the wrongful death of the plaintiffs’ son.

The plaintiffs sued the INS when they discovered, more than two years after their son’s death, that the INS had released their son’s killer just days before the murder even though the killer had confessed to the INS that he did not have an authorized status in the United States, was in fraudulent possession of a United States passport, and had been involved in illegal drug sales. Id. at 20-22. We held in Zeleznik that the FTCA’s two-year statute of limitations barred the plaintiffs’ claim because it had accrued when they learned of their son’s death and its immediate cause.

Thus, they were put on notice of the need to investigate their claim even though at the time of his death they had not learned of the INS’s involvement. We explained, following the Supreme Court’s decision in Kubrick, that “the accrual date is not postponed until the injured party knows every fact necessary to bring his action.” Id. at 23.

Because the plaintiffs knew of their son’s death and its immediate cause, even though they did not know of the INS’s involvement, they possessed sufficient critical facts to investigate their claim, and inasmuch as the INS did not actively conceal its involvement in the case, the accrual of the claim was not postponed by reason of the plaintiffs’ lack of actual notice of that involvement. Id. at 24. But the issue here is not when Santos’s claim accrued, as that date is undisputed. It therefore follows that Zeleznik is not directly on point.

In this regard, we emphasize that the discovery rule, which governs a claim’s accrual date for statute of limitations purposes, is distinct from equitable tolling, which applies where circumstances unfairly prevent a plaintiff from asserting her claim. See Hedges, 404 F.3d at 750-51 (distinguishing between an equitable discovery rule governing when a claim accrues and equitable tolling); see also Valdez v.

United States, 518 F.3d 173, 182 (2d Cir.2008) (“Equitable tolling is frequently confused both with fraudulent concealment on the one hand and with the discovery rule — governing ... accrual — on the other.”) (internal citations and quotation marks omitted); Norman, 467 F.3d at 774-78 (addressing equitable estoppel issue where date that claim accrued was undisputed). The issue here is whether the limitations period should be tolled because the circumstances of this particular case unfairly precluded Santos from timely filing her claim.

The Government cites cases from other courts of appeals holding that equitable tolling did not apply in those cases to the FTCA’s statute of limitations because the plaintiffs bringing state-law suits failed to perform reasonable investigations that would have demonstrated that the defendants had been deemed federal employees covered by the FTCA. Norman, 467 F.3d at 777-78; Ingram, 443 F.3d at 964; Gonzalez v. United States, 284 F.3d 281, 291-92 (1st Cir.2002).

In Norman, the plaintiff who was struck by an automobile brought an untimely suit against the driver, a federal agency employee covered by the FTCA, without investigating either the driver or his employer. Norman, 467 F.3d at 774-76. The Court of Appeals for the District of Columbia Circuit concluded that equitable tolling did not apply because “at no time during the FTCA’s two-year statute of limitations did [the plaintiff] make any effort — diligent or otherwise — to identify [the defendant’s] employer.” Id. at 778.

Norman is instructive because it contrasts with this case, in which Santos correctly identified the entity that was the employer of the four individual state-court defendants for all purposes other than under the FTCA. In Gonzalez, a medical malpractice case, there was no evidence that the plaintiff made “any inquiry whatsoever” into the employment of the defendants, who were federal employees covered by the FTCA. Gonzalez, 284 F.3d at 291.

The Court of Appeals for the First Circuit held that the FTCA’s limitations period was not equitably tolled because “[although the plaintiff did not know the federal status of the defendants at the time of her treatment, she and her attorneys had two years to ascertain the legal status of the doctors and could easily have learned it.” Id. at 291.

Similarly, the Court of Appeals for the Eighth Circuit in Ingram, also a medical malpractice case, declined to toll the FTCA’s statute of limitations where the plaintiff was unaware of, but the Government did not hide, the fact that the allegedly negligent doctor was a federal employee subject to the FTCA. Ingram, 443 F.3d at 963-65 (citing Garza v. United States Bureau of Prisons, 284 F.3d 930, 935 (8th Cir.2002)). In both Norman and Gonzalez, a simple investigation could have revealed the critical information, i.e., the federal or non-federal employment status of the defendants.

Norman, 467 F.3d at 776-78; Gonzalez, 284 F.3d at 291. But see Ingram, 443 F.3d at 963-64; cf. Gould v. United States, 905 F.2d 738, 745 (4th Cir.1990) (en banc) (where issue was accrual of claim under FTCA, plaintiff could have ascertained that defendant, a commissioned officer of United States Public Health Service, was a federal employee simply by contacting Department of Health and Human Services).

In this case, the District Court noted that it was not clear whether Santos knew or should have known that York Health received federal funds, but nevertheless found that Santos “failed to exercise due diligence by attempting to ascertain the federal status of her health care providers.” Santos, 523 F.Supp.2d at 443. The District Court reached its conclusion because of Santos’s admission that she did not confirm her belief based on correspondence with and inquiries into York Health and its employees that the allegedly negligent healthcare workers and their employer were subject to claims under Pennsylvania law.

Yet Santos’s belief was far from a baseless assumption. See Gonzalez, 284 F.3d at 292 (plaintiff who “failed to make any inquiries whatsoever” into employment status of allegedly negligent healthcare providers not duly diligent). To start with, York Health apparently looked like a private clinic, and except for FTCA purposes the clinic and its employees were private actors, rather than federal employees. As the District Court explained, the “[hjealth care workers at private clinics, even ones receiving some federal aid, are not federal employees in the usual sense.

After all, they do not perform a traditional government function or work in a government building, and they are not on the federal payroll.” Santos, 523 F.Supp.2d at 442. Moreover, Santos based her implicit conclusion that York Health and its employees could be liable under state law on inquiries, reviews of records, and other contacts with York Health. Santos’s counsel identified the individuals whose alleged negligence injured her, and further identified their employer, York Health, an apparently private corporation that he investigated by performing a public records search. Cf.

Norman, 467 F.3d at 776 (plaintiff suing individual defendant without determining individual defendant’s employer was not duly diligent). In addition, we reiterate that Santos’s counsel corresponded with York Health, obtained Santos’s medical records, visited its facility, and retained several expert witnesses. None of these inquiries, records, visits, or correspondence gave him a clue that the healthcare providers or York Health had been deemed federal employees or that Santos should contact the Department of Health and Human Services for more information about them.

Indeed, the District Court acknowledged that Santos’s “assumption that her doctors were private actors subject to state law ... was not at all unreasonable.” 523 F.Supp.2d at 442. The Government nonetheless claims that Santos could have ascertained that the FTCA protected York Health and its healthcare providers, and undoubtedly if she had been alerted to the need to explore their federal employment status then the Government’s contention would be correct.

Specifically, according to the Government, “[sjources of information, including the very webpage cited in the affidavit of Plaintiffs counsel [as not revealing that York Health had been deemed a federal employee], were available, from which the status of York Health could be ascertained.” Appellee’s br. at 24.

This website’s main page stated that York Health receives funding from various federal, state, local, and charitable sources: The York Health Corporation receives grant support from the United States Department of Health and Human Services, the United Way of York County, the Family Health Council of Central Pennsylvania, the York County Community Development Department, the York City Bureau of Health, and the Pennsylvania Commission on Crime and Delinquency. Id. at 10 (citing archived website).

In addition, the webpage indicated that York Health was a “federally-qualified health center.” The foregoing statements indicated that York Health received partial federal financial support from the Government. But they would not reveal to a reasonably diligent plaintiff that its doctors and clinics had been deemed federal employees under the Public Health Service Act, 42 U.S.C. § 233(g)-(n), and thus were subject to the FTCA inasmuch as the Government gives financial aid to many entities, public and private, but their employees are not thereby federalized.

In this regard, we point out York Health and its employees did not become employees of the other entities supporting them. With respect to the significance or not of federal aid, we cannot conceive that anyone would contend that on the basis of the common law application of the doctrine of respondeat superior the entities contributing to York Health’s funding, including the United States itself, would be liable for York Health’s employees’ malpractice.

After all, if making a contribution to an entity could have such a consequence, contributions to many charities, service and community organizations, foundations, and other nonprofit organizations would cease. Surely potential donors to such entities would not run the risk that by making their contributions they would become liable for a future plaintiffs injuries attributable to such an entity’s torts. Furthermore, if York Health was a federal employee it would not be expected that charitable organizations and state and local governmental agencies would be giving it aid.

The Government asserts that in addition to the website, which did not indicate that York Health and its employees had been deemed federal employees, other “sources of information ... were available” from which Santos could have learned this critical fact. Appellee’s br at 24.

At oral argument, when we asked what publicly available information would have alerted Santos that the allegedly negligent healthcare providers and York Health had been deemed federal employees, the Government stated that the Department of Health and Human Services maintains a database of clinics that receive funding and are deemed federal employees. Yet the Government did not indicate that the database was publicly available, or how it would be accessed, and the record does not specify where there is a public source setting forth the information. The absence of such a source is not surprising.

As the District Court noted, the FTCA does not include a “requirement that deemed facilities publicize their status as federal entities, nor does [the Department of Health and Human Services] publish this information.” Santos, 523 F.Supp.2d at 442. The Government also asserts that “[a] simple inquiry directed at the health center would have been sufficient in and of itself.” Appellee’s br. at 30.

While the record does not indicate whether this assertion is true, clearly it presents an odd scenario in which Santos, a potential claimant, should have relied on her adversary to inform her of the applicability of the FTCA and its two-year statute of limitations. In any case, the Government does not contend that the healthcare providers or York Health would have been obligated legally to reveal their federal status.

Moreover, while we do not doubt that the management of York Health understood its FTCA liability status, we are by no means certain that this knowledge extended to its employees, and the record is silent on this point. Overall, it seems to us, as far as we can see from the record, that Santos and her counsel had no reason to inquire as to the possible federal status of York Health and its employees. 3. Santos Was Precluded from Discovering That York Health and the Defendant Caregivers Were Federal Employees.

So where should Santos have looked to determine that the caregivers and York Health had been deemed federal employees, and what information could have alerted her of the need to do so? As a practical matter, York Health’s federal status, if not covert, was at least oblique. Of course, Santos faces her statute of limitations barrier because of the Government’s failure to disclose that physicians ... who provide services in private voluntary hospitals and in what appear to be private clinics, are de jure federal employees.

Patients receiving such treatment are not aware, because they are never told or put on any notice, that the clinics they attend are government— funded or that doctors treating them are government employees. Such an omission does not rise to the level of fraud. Nevertheless, by not formulating a regulation that would require notice to a patient that the doctor rendering service to him is an employee of the United States, the Department of Health & Human Services has created a potential statute of limitations trap in states [that] may provide a longer period of time than the FTCA to file a complaint.

The number of cases in which the United States has sought to take advantage of this trap suggests that it is aware of the consequences of its failure to disclose the material facts of federal employment by doctors who might reasonably be viewed as private practitioners. This conduct, if anything, is more problematic than the non-disclosure that justified invoking the doctrine of equitable tolling in [an earlier case]. Valdez, 518 F.3d at 183 (internal citations omitted); see Albright v.

Keystone Rural Health Center, 320 F.Supp.2d 286 (M.D.Pa.2004) (equitably tolling FTCA’s statute of limitations in medical malpractice case where combination of Pennsylvania’s minors’ tolling statute and difficulty of ascertaining federal status of defendants resulted in extraordinary circumstances precluding plaintiff from timely filing her claim). Here, though York Health’s website indicated that it received federal, state, local, and charitable funding, it did not provide notice to Santos that York Health and its employees were federal employees covered by the FTCA.

And the Government has not identified, at least to us, any publicly available sources of information from which Santos could have learned this critical fact or, even if the information had been available, what circumstances should have led her to inquire into York Health’s federal status for purposes of the FTCA. We reiterate that Santos correctly identified the allegedly negligent healthcare providers, determined that they were employees of York Health, and performed a public-records search on York Health.

Santos’s counsel also visited the clinic’s facilities, corresponded with the clinic, and reviewed her medical records. But these inquiries did not reveal that the apparently private York Health and its employees had been deemed to be federal employees subject to the FTCA. And while Santos conceded that “the clinic did nothing to affirmatively mislead her as to its federal status,” Santos, 523 F.Supp.2d at 443, such affirmative misconduct is not required to find that she exercised due diligence sufficient for equitable tolling to apply. See, e.g., Valdez, 518 F.3d at 183.

In considering all of the circumstances of this case, we have concluded that it satisfies the second of the three possible bases for concluding that there should be equitable tolling that we have set forth, for Santos “in some extraordinary way has been prevented from asserting ... her rights.” Hedges, 404 F.3d at 751.

We reach our conclusion applying equitable tolling with great caution, keeping in mind that we neither should expand nor contract the United States’ waiver of its sovereign immunity, Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 357, and that equitable tolling is an extraordinary remedy that we rarely apply. Hedges, 404 F.3d at 751. Here, however, inasmuch as the United States partially has waived its sovereign immunity under the FTCA, it would be inequitable to allow it to avoid potential liability by reason of a limitations provision whose applicability a reasonably diligent claimant did not discover. V.

CONCLUSION We make one final observation about the inequity of the Government’s position that should be apparent to all. The only reason that Santos has been barred from bringing her action is that at the time of her injury she was a minor, so her counsel understandably believed that the Pennsylvania statutory tolling rule protecting minors applied in her case. Moreover, though there can be tolling under state law for reasons other than a plaintiffs minority, it is nevertheless likely that a plaintiff invoking such statutory tolling will be a minor relying on her minority.

Thus, the Government is contending for a result likely to prejudice the weakest and most vulnerable members of our society who surely are compelled to rely on others for the assertion of their rights, particularly when she is of tender years as was Santos when her cause of action accrued. There is no escape from the reality that the statute of limitations trap to which the court referred in Valdez is a perfect vehicle to ensnare children.

In this regard we pose the following rhetorical question: can any rational person believe that Santos, who was six years old when her claim accrued at that time had any personal knowledge of malpractice actions and the FTCA? Furthermore, we have no doubt at all that if Santos had been 18 years old on December 22, 2002, when her cause of action accrued she would have brought her claim in the state court within two years of that date so that the Westfall Act would have saved it.

We believe that in reaching our conclusion we are acting consistently with congressional intent, as we do not think that Congress in the circumstances here would want to bar Santos from an opportunity to prove her claim. Because of the extraordinary facts in this case centering on Santos’s reasonable diligence and the federal involvement that was oblique at best, we conclude that the equitable tolling doctrine applies here to toll the FTCA’s statute of limitations until Santos learned after filing her claim in state court that the state-court defendants had been deemed federal employees.

Santos’s claim is thus timely under 28 U.S.C. § 2401(b). We accordingly will reverse the order of the District Court entered November 30, 2007, granting

summary judgment to the United States, and will remand the case to the District Court for further proceedings consistent with this opinion. . York Health later changed its name to Family First Health. . It should be understood that we are stating the facts as they appeared on the Government's motion for

summary judgment most favorably to Santos, and thus our recitation of the facts will not bind the parties in the further proceedings that will ensue on the remand we are directing. Obviously, we are not making findings of fact with respect to the Government's possible liability for the alleged malpractice because on this appeal we are concerned only with the statute of limitations and tolling issues. We do observe, however, as did the District Court, that the historical facts in this case essentially are not disputed.

See Santos, 523 F.Supp.2d at 437. . 42 U.S.C. § 233(g)(1) deems even a corporate entity entitled to the benefit of the tort protection of the Public Health Service Act and the FTCA to be an “employee of the Public Health Service.” . In this stipulation, the Government waived the right to file a motion to dismiss based on the FTCA's statute of limitations but reserved the right to plead as an affirmative defense “any statute of limitations issues” and the right to file a motion to dismiss on other grounds. App. at 102-03. .

At oral argument, the Government stated that Zeleznik is our most directly applicable precedent governing in this case. . At oral argument before us the Government also discussed Whittlesey v. Cole, 142 F.3d 340, 343 (6th Cir.1998). In that case, the Court of Appeals for the Sixth Circuit considered whether the equitable discovery rule (governing claim accrual) and a state-law statutory tolling provision applied to the Tennessee statute of limitations where the defendant was not a federal employee subject to the FTCA.

Neither the discovery rule nor Tennessee law is at issue here, and thus Whittlesey is not helpful to us. . Our quotation is from the archived website. See http://web.archive.org/web/200405050508 05/http://www.yorkhealthcorp.com/index. html. .

This phrase at most indicates that federal law could be applicable to specific situations such as determining eligibility for a provider to participate in Medicare and reimbursement rates under that program. .Lest it be thought that the Government was compelled as a matter of law to treat Santos as it did, we point out that in the somewhat comparable litigation involving the timeliness of a claim under the FTCA in Bradley v.

United States, 856 F.2d 575, vacated and remanded, 490 U.S. 1002, 109 S.Ct. 1634, 104 L.Ed.2d 150, on remand, 875 F.2d 65 (3d Cir.1989) (per curiam), it took a very different approach than it does here. . While we reach the same result as the court in Albright, on which Santos heavily relies, we do so for somewhat different reasons as discussed here. . In posing this question we are aware that we have indicated that "we impute to their parents or guardian the knowledge of their injury." Miller, 463 F.3d at 274.