Kwai Wong v. David Beebe

*1033 Opinion by Judge BERZON; Concurrence by Chief Judge KOZINSKI; Dissent by Judge TASHIMA; Dissent by Judge BEA.

OPINION

We agreed to hear this case en banc to clarify whether the statute of limitations in 28 U.S.C. § 2401 (b) of the Federal Tort Claims Act (“FTCA”) may be equitably tolled. We hold that § 2401(b) is not “jurisdictional,” and that equitable tolling is available under the circumstances presented in this case.

I. BACKGROUND

A. Statutory Background

The FTCA contains three timing rules that govern when a plaintiff may file a claim against the United States in the district court: First, 28 U.S.C. § 2675 (a) establishes an administrative exhaustion requirement, which states that “[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.” Section 2675 further provides that “[t]he failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim.” Id.

Second, one statute of…

I. BACKGROUND

A. Statutory Background

The FTCA contains three timing rules that govern when a plaintiff may file a claim against the United States in the district court: First, 28 U.S.C. § 2675(a) establishes an administrative exhaustion requirement, which states that “[a]n action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the

WONG V. BEEBE

claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.” Section 2675 further provides that “[t]he failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim.” Id.

Second, one statute of limitations in § 2401(b) sets a two- year deadline within which a claimant must present his claim “to the appropriate Federal agency . . . after such claim accrues.” Id. § 2401(b); see United States v. Kubrick, 444 U.S. 111, 119–21 (1979).

Finally, § 2401(b) also establishes a second limitations period—that “[a] tort claim against the United States shall be forever barred . . . unless…

concurring in the judgment:

I agree with Judges Tashima and Bea that 28 U.S.C. § 2401 (b) is jurisdictional, but can’t dissent because a plaintiff like Wong who begins her FTCA action too early can cure the defect by filing a motion to amend the premature complaint. See Valadez-Lopez v. Chertoff, 656 F.3d 851, 855-58 (9th Cir.2011). Wong filed such a motion before she had finally exhausted her administrative remedies, which was too soon. See 28 U.S.C. § 2675 (a); McNeil v. United States, 508 U.S. 106, 112-13 , 113 S.Ct. 1980 , 124 L.Ed.2d 21 (1993). But, on December 10, 2001, after the INS denied her claim and before the six-month section 2401(b) window slammed shut, Wong filed a reply memorandum reiterating her request for leave to file a second amended complaint.

While we don’t typically treat a reply as a motion, there’s nothing to preclude us from doing so. In this case, Wong’s request had all the physical attributes of a motion: It was made in writing, filed with the court, served on the other side, prayed for relief and “state[d] with particularity” why she was entitled to it. See Fed. R.Civ.P. 7(b). She pointed out that “the court currently has jurisdiction over…

dissenting:

I join Judge Bea’s dissenting opinion in full. I write separately to clarify the Federal Tort Claims Act’s (“FTCA’s”) legislative history. This history, once understood in full context, dispels any doubt that the FTCA’s limitations provision was intended to be jurisdictional.

I.

Two provisions of the FTCA are central for present purposes — the limitations provision, currently codified at 28 U.S.C. § 2401 (b), and the jurisdiction-granting provision, currently codified at 28 U.S.C. § 1346 (b). I begin with a brief history of these two provisions.

The FTCA was originally enacted in 1946 as Title IV of the Legislative Reorganization Act. See Pub.L. No. 79-601 (“1946 Act”), tit. IV, 60 Stat. 812 , 842-47 (1946). Pursuant to the 1946 Act, the provisions of the FTCA were codified in Chapter 20 of Title 28. See 28 U.S.C. §§ 921-946 (1946). Among these provisions was the jurisdiction-granting provision, which read, in pertinent part:

Id. § 931(a) (emphasis added). The FTCA thus conferred exclusive federal jurisdiction over tort actions against the United States, but “[sjubject to the provisions of’ Chapter 20. Included within Chapter 20 was the FTCA’s limitations…