FILED

NOT FOR PUBLICATION

MAY 24 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOFIA JOHNSON, No. 23-55210

Plaintiff-Appellant, D.C. No. 5:21-cv-01878-JGB-KK v.

UNITED STATES OF AMERICA, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted May 17, 2024 Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and HINDERAKER,** District Judge.

Sofia Johnson appeals the district court’s order dismissing her claims under

the Federal Tort Claims Act (FTCA) as time barred. We have jurisdiction under

28 U.S.C. § 1291, and we vacate and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation. The FTCA’s statute of limitations provides that “[a] tort claim against the

United States shall be forever barred unless it is presented . . . 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 . . . of notice of final denial of the claim

by the agency to which it was presented.” 28 U.S.C. § 2401(b). That two-year

statute of limitations, however, is “nonjurisdictional and subject to equitable

tolling.” United States v. Wong, 575 U.S. 402, 420 (2015). “[G]enerally, a litigant

seeking equitable tolling bears the burden of establishing two elements: (1) that he

has been pursuing his rights diligently, and (2) that some extraordinary

circumstances stood in his way.” Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir.

2013) (en banc) (quoting Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S.

221, 227 (2012)).

Here, the district court appears to have determined that Johnson satisfied the

two elements for equitable tolling, which “pauses the running of” the statute of

limitations. Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). However, the

district court’s order does not clearly specify the time period subject to equitable

tolling, inhibiting our ability to determine whether the district court erred in

dismissing Johnson’s claims as time barred. Moreover, the district court’s order

states that “equitable tolling does not apply” to Johnson’s claims, contradicting its

2 apparent determination that Johnson met the two elements for equitable tolling.

Because we cannot discern the district court’s reasoning and conclusions with

respect to whether and for what duration Johnson was entitled to equitable tolling,

we remand so that the district court can clarify its decision.1

VACATED and REMANDED. Each party shall bear their own costs on

appeal.

1 We decline to reach the government’s alternative argument that we should affirm based on the FTCA’s discretionary function exception, because the district court never passed on that issue. See Golden Gate Hotel Ass’n v. City & Cnty. of S.F., 18 F.3d 1482, 1487 (9th Cir. 1994) (“As a general rule, ‘a federal appellate court does not consider an issue not passed upon below.’” (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976))). 3