567 F.3d 1030 (9th Cir. 2008), 06-36003, Marley v. United States

Docket Nº:06-36003.
Citation:567 F.3d 1030
Opinion Judge:GRABER, Circuit Judge:
Party Name:Michael Burnell MARLEY, individually, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Attorney:Michael B. King, Talmadge Law Group PLLC, Tukwila, WA; and Ann R. Deutscher, Wiener & Lambka, PS, Renton, WA, for the plaintiff-appellant. Brian C. Kipnis, Assistant United States Attorney, Seattle, WA; and Philip H. Lynch and Darwin Roberts, Assistant United States Attorneys, Tacoma, WA, for the...
Judge Panel:Before: SUSAN P. GRABER and JOHNNIE B. RAWLINSON, Circuit Judges, and OTIS D. WRIGHT II,[*] District Judge.
Case Date:December 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1030

567 F.3d 1030 (9th Cir. 2008)

Michael Burnell MARLEY, individually, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 06-36003.

United States Court of Appeals, Ninth Circuit.

December 8, 2008

Argued and Submitted May 8, 2008.

Amended June 1, 2009.

Page 1031

Michael B. King, Talmadge Law Group PLLC, Tukwila, WA; and Ann R. Deutscher, Wiener & Lambka, PS, Renton, WA, for the plaintiff-appellant.

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Brian C. Kipnis, Assistant United States Attorney, Seattle, WA; and Philip H. Lynch and Darwin Roberts, Assistant United States Attorneys, Tacoma, WA, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-06-00366-RSL.

Before: SUSAN P. GRABER and JOHNNIE B. RAWLINSON, Circuit Judges, and OTIS D. WRIGHT II,[*] District Judge.

ORDER AND AMENDED OPINION

ORDER

The opinion filed December 8, 2008, slip op. at 16067, 548 F.3d 1286, is replaced by the amended opinion filed concurrently with this order. With these amendments, Judges Graber and Rawlinson have voted to deny the petition for rehearing en banc, and Judge Wright has so recommended.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc will be entertained.

OPINION

GRABER, Circuit Judge:

We must decide whether the statute of limitations in § 2401(b) of the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 2401(b), is jurisdictional and, in turn, whether courts can employ the doctrines of equitable estoppel or equitable tolling to extend the limitations period. We hold that the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, that equitable doctrines that otherwise could excuse a claimant's untimely filing do not apply. Accordingly, we affirm the district court's judgment, which dismissed this action.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Michael Burnell Marley received treatment for prostate cancer at the Puget Sound Healthcare System Hospital. He alleges that he experienced complications resulting in physical injury. In February 2004, he filed an administrative tort claim with the Department of Veterans Affairs.

On October 22, 2004, the Department of Veterans Affairs sent Plaintiff a notice of final denial of his tort claim. The letter, addressed to Plaintiff's lawyer at the time, stated that Plaintiff could file suit against the United States under the FTCA. The notice informed Plaintiff's lawyer that any action " must be initiated within 6 months after the date of the mailing of this notice of final denial as shown by the date of this letter," that is, within six months of October 22, 2004.

In March 2005, within that six-month period, Plaintiff hired new lawyers and filed a timely complaint for damages against the United States. On December 16, 2005, Plaintiff's new lawyers moved for leave to withdraw from representing Plaintiff. The motion provided no reason for the request.1 The district court granted the motion on January 3, 2006, and gave

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Plaintiff " notice that he [was] responsible for pursuing [the] action in accordance with the Order Setting Trial Date and Related Dates."

On January 27, 2006, long after the six-month limitations period had passed, an Assistant United States Attorney (" AUSA" ) sent a letter to Plaintiff, stating in part:

I was told by the staff in our Tacoma office that you might be interested in dismissing your case. In case that's still true, I've taken the liberty of drafting a " Stipulation" (enclosed) that would do that. If you're not familiar with the legal terms involved, and in case you don't want to consult another lawyer (which is entirely your right), I'll briefly state my opinion as to what they mean.

... This stipulation provides that your case would be dismissed " without prejudice." That means you could (in theory) bring it again at a later date. The other option would be dismissing " with prejudice," which would mean you could not bring it again. But please be aware that even if you dismiss now " without prejudice," there may be other factors, such as statutes of limitations, that could limit or bar your ability to bring this case again.

Plaintiff did not respond to that letter. On February 14, 2006, the AUSA sent a follow-up letter to Plaintiff, stating in part:

I have not heard from you since I sent that letter. I'm writing again because there are deadlines approaching in your case. For example, expert reports are due to be disclosed by April 10, 2006. If you intend to keep litigating your case, I would appreciate it if you could please let me know, so that I can work on it and meet my side of the deadlines. But if you do want to dismiss it, please send me the stipulation and I will go ahead and file it for you.

Plaintiff then signed the stipulation and returned it in the self-addressed, stamped envelope that the AUSA had provided. On February 22, 2006, the Stipulation and a Proposed Order dismissing the action were filed with the court. On February 27, 2006, the court dismissed the action " without prejudice."

On March 15, 2006, sixteen days after dismissal of the first action, Plaintiff-once again represented by the lawyers who had filed the first complaint-filed a second action against the United States, which was essentially identical to the first one. The United States filed an answer and a motion to dismiss for failure to meet the six-month deadline prescribed by 28 U.S.C. § 2401(b).

In considering the government's motion, the district court examined documents outside the pleadings and, accordingly, construed the motion as one for summary judgment. According to the court, Plaintiff raised no factual disputes. Turning to the legal issues, the court ruled that Plaintiff could not establish equitable estoppel because he was not ignorant of the six-month time limit and because he could not demonstrate affirmative misconduct by the government. The court rejected Plaintiff's equitable tolling argument on the ground that he was not excusably ignorant of the six-month limitations period.

Plaintiff timely appealed from the resulting judgment...

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