Ninth Circuit Extends Equitable Tolling to Entire FTCA Statute of Limitations Provision | Practical Law

Ninth Circuit Extends Equitable Tolling to Entire FTCA Statute of Limitations Provision | Practical Law

In Gallardo v. United States, the US Court of Appeals for the Ninth Circuit clarified that the entire statute of limitations provision of the Federal Tort Claims Act, 28 USC § 2401(b), is non-jurisdictional and subject to equitable tolling.

Ninth Circuit Extends Equitable Tolling to Entire FTCA Statute of Limitations Provision

by Practical Law Litigation
Published on 17 Apr 2014 • USA (National/Federal)
In Gallardo v. United States, the US Court of Appeals for the Ninth Circuit clarified that the entire statute of limitations provision of the Federal Tort Claims Act, 28 USC § 2401(b), is non-jurisdictional and subject to equitable tolling.
In an April 15, 2014 opinion, Gallardo v. United States, the US Court of Appeals for the Ninth Circuit held that the entire statute of limitations provision of the Federal Tort Claims Act (FTCA) is non-jurisdictional and subject to equitable tolling (No. 12-55255, (9th Cir. Apr. 15, 2014)). The court remanded the matter for further consideration consistent with its opinion.
In May 2006 the plaintiff, a middle school student at the time, met US Marine Sgt. Ross Curtis, who subsequently sexually assaulted her. In 2008, while investigating other allegations against Curtis, detectives came across evidence that he had assaulted the plaintiff. The detectives contacted the plaintiff, who was subpoenaed to testify at a criminal trial. At the trial, the plaintiff and her mother learned that prior to Curtis' assault of the plaintiff, he had been court-martialed for sexually assaulting three female Corps members. As a result of his court martial, Curtis was reassigned to recruitment detail and discharged in June 2006, as scheduled.
In May 2010, the plaintiff filed an administrative claim with the Marine Corps and the Department of Defense, alleging that the assault occurred due to the Corps' negligence in assigning a known sex offender to work with middle school students. The administrative claim was denied, and the plaintiff filed suit in federal court. The government moved to dismiss, asserting that the plaintiff's claim was untimely under 28 USC § 2401(b), which requires that a plaintiff bringing an FTCA claim against the US file an administrative claim with the appropriate agency within two years of the claim's accrual. The district court agreed with the government and dismissed the matter. The plaintiff appealed.
While the appeal was pending, the Ninth Circuit decided Wong v. Beebe, which involved § 2401(b)'s six-month time limit for filing suit after an agency's denial of a claim (732 F.3d 1030 (9th Cir. 2014)). In Wong, the court held that § 2401(b)'s statute of limitations was subject to equitable tolling .
On appeal, the plaintiff argued that:
  • Her claim did not accrue until the criminal trial, when she learned of the Corps' negligence in permitting someone with Curtis' history to work with students.
  • Even if her claim was untimely, under the Wong decision the statute of limitations should be subject to equitable tolling.
The appellate court:
  • Dismissed the first argument, holding that under the Supreme Court's decision US v. Kubrick, the plaintiff's claim accrued at the time the assault occurred in 2006, when she was aware of her injury and its immediate cause (444 U.S. 111 (1979)).
  • Agreed that the Wong decision allowed for equitable tolling of the entire statute of limitations in FTCA actions.
The government argued that Wong applied only to the six-month time limit for filing suit after agency denial of a claim, but the court clarified that Wong applied to the entirety of § 2401(b) and remanded to the district court to consider the plaintiff's equitable tolling argument.
Practitioners should be aware that the FTCA's statute of limitations at § 2401(b) will be regarded as non-jurisdictional and subject to equitable tolling in the Ninth Circuit.