Never too late?

In 1996, a doctor was sued for medical malpractice.  Six years later, he notified the U.S. Department of Health and Human Services of the suit and asked that he be certified as a United States employee, on grounds that the hospital where he worked and the alleged malpractice occurred received federal funds.  DHHS decided that the doctor was entitled to certification and referred the case to the U.S. attorney.  In February 2003, the U.S. attorney certified the doctor as a U.S. employee, removed the case to federal court, and moved to substitute the U.S. as defendant under 29 U.S.C. § 2679(d)(2).  Plaintiff moved to remand, and the U.S. moved to dismiss without prejudice on grounds that the plaintiff failed to exhaust administrative remedies.  The district court denied plaintiff's motion, granted the U.S.'s motion, and dismissed.  The Fifth Circuit affirmed, rejecting plaintiff's argument that the U.S. waived removal because the doctor delayed 6 years before notifying the U.S. of the suit.  McLaurin v. United States, 04-60163 (5th Cir. Dec. 2, 2004).