Carter v. McHugh, EP–11–CV–456–KC.

• Decision Date: 23 April 2012
• Docket Number: No. EP–11–CV–456–KC.,EP–11–CV–456–KC.
• Citation: 869 F.Supp.2d 784
• Parties: Tracey CARTER, Plaintiff, v. John McHUGH, Secretary of the Army d/b/a Defense Commissary Agency, Defendant.
• Court: U.S. District Court — Western District of Texas

869 F.Supp.2d 784

Tracey CARTER, Plaintiff,

v.John McHUGH, Secretary of the Army d/b/a Defense Commissary Agency, Defendant.

No. EP–11–CV–456–KC.

United States District Court,

W.D. Texas,

El Paso Division.

April 23, 2012.

Raymond D. Martinez, Martinez & Martinez Law Firm PLLC, El Paso, TX, for Plaintiff.

Lisa Leontiev, U.S. Attorney's Office, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered “Defendant's Motion to Dismiss” (“Motion”), ECF No. 6. For the reasons stated below, the Court GRANTS Defendant's Motion.

I. BACKGROUND

In this case, Plaintiff brings a claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. See Pl.'s Original Complaint (“Complaint”) 3; Mot. 2. Plaintiff alleges that on July 26, 2009, she slipped and fell on “water that was negligently left on the floor” of the Army's Fort Bliss Commissary. See Compl. 2. According to Plaintiff, she suffered bodily injuries, pain and suffering, and mental pain and anguish due to the fall. Compl. 3–4.

On September 1, 2009, Plaintiff filed an administrative claim with the Army. Pl.'s Resp. to Def.'s Mot. to Dismiss (“Response”) ¶ 2, ECF No. 7. On March 8, 2011, Lieutenant Colonel Gregory Mathers wrote an offer letter to Plaintiff's attorney (“Offer Letter”). Mot. Ex. 2, ECF No. 6–2. In the Offer Letter, Mathers made a “final offer to settle ... [for] $5,000.” Mot. Ex. 2. Additionally, Mathers explained that “[i]f your client does not accept this offer within thirty (30) days ..., the offer is withdrawn.” Mot. Ex. 2. Finally, Mathers warned about the statute of limitations: “If the offer is not acceptable, you may file suit in an appropriate U.S. District Court no later than six months from the date of mailing of this notice. By law, failure to comply with this time limit forever bars your client from further suit.” Mot. Ex. 2.

Plaintiff received the Offer Letter on March 11, 2011. See Resp. ¶¶ 2–3. Plaintiff then filed her Complaint in this Court on November 9, 2011, nearly eight months after Mather's sent the Offer Letter. Resp. ¶ 3. Plaintiff's attorney explains that he failed to file the Complaint earlier “because of staff miscommunication.” Resp. ¶ 3. Plaintiff's attorney “believed the claim had been filed on an earlier date but discovered later that it had not been filed.” Resp. ¶ 3.

II. DISCUSSION

In his Motion, Defendant argues that the Court should dismiss Plaintiff's lawsuit under the FTCA for failure to timely file this lawsuit in accordance with the statute of limitations. Mot. 2. The FTCA waives the United State's sovereign immunity and allows a plaintiff to sue the federal government for certain torts committed by government officials acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); Smith v. United States, 507 U.S. 197, 201, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). Before filing an FTCA claim in federal court, the claimant must first present her claim to the administrative agency allegedly responsible for the wrongful act. 28 U.S.C. § 2675(a). If the agency fails to resolve the claim or denies the claim, the claimant can then sue in federal court. Id.; In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir.2011) (per curiam).

In addition to this process, the claimant must abide by the statute of limitations. 28 U.S.C. § 2401(b); In re FEMA, 646 F.3d at 189.Title 28 U.S.C. § 2401(b) requires:

A tort claim against the United States shall be forever barred unless it is presented in writing 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, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b).

Although phrased in the disjunctive, § 2401(b) requires the claimant to both file the administrative claim within two years and to file the lawsuit in court within six months of the denial. See In re FEMA, 646 F.3d at 189 (citing Ramming v. United States, 281 F.3d 158, 162 (5th Cir.2001)).

In this case, both parties agree Plaintiff filed her Complaint more than six months after the Army had denied her claim. See Mot. 1–2; Resp. ¶¶ 2–3. However, Plaintiff argues dismissal is inappropriate because she is entitled to equitable tolling, or alternatively that the final notice was defective. Resp. ¶ 4. The Court examines each of Plaintiff's arguments in turn.

A. Equitable Tolling

Plaintiff argues that the Court should equitably toll the statute of limitations because Defendant failed to notify Plaintiff of her right to request that the Army reconsider its final offer. Mot. ¶ 2. Defendant replies that equitable tolling is not available under the FTCA because the statute of limitations is jurisdictional. Def.'s Reply to Pl.'s Resp. to Mot. to Dismiss (“Reply”)2, ECF No. 8. In the alternative, Defendant argues that even if equitable tolling is available, this case does not warrant equitable tolling. Reply 2–4.

Whether a court can equitably toll the § 2401(b) statute of limitations has confounded courts and litigants for decades.¹See Santos ex rel. Beato v. United States, 559 F.3d 189, 194–97 (3d Cir.2009) (holding equitable tolling is available under the FTCA); Marley v. United States, 567 F.3d 1030, 1034–38 (9th Cir.2009) (holding equitable tolling is unavailable); Perez v. United States, 167 F.3d 913, 915–17 (5th Cir.1999) (holding equitable tolling is available); Houston v. U.S. Postal Serv., 823 F.2d 896, 902 (5th Cir.1987) (holding equitable tolling is not available). The Supreme Court of the United States has never decided the issue.² And although the Court of Appeals for the Fifth Circuit has addressed the issue several times, the law is still unsettled. Compare In re FEMA, 646 F.3d at 189with Perez, 167 F.3d at 915–17.

Before 1990, the Fifth Circuit consistently held that courts could not equitably toll the § 2401(b) statute of limitations. See Perez, 167 F.3d at 915–16 (examining the Fifth Circuit precedent). The general view was “that equitable tolling was never available against the government.” Id. at 915–16. The rationale was that the statute of limitations was a condition upon which the United States waived its sovereign immunity. See Houston, 823 F.2d at 902; Gregory C. Sisk, The Continuing Drift of Federal Sovereign Immunity Jurisprudence, 50 Wm. & Mary L.Rev. 517, 544–55 (2008). In other words, Congress did not waive its sovereign immunity to stale claims, and thus the courts had no jurisdiction over stale claims asserted against the government. See Houston, 823 F.2d at 902.

But the legal landscape shifted in 1990 when the Supreme Court in Irwin v. Department of Veterans Affairs held that equitable tolling was allowed in a Title VII claim against the United States. 498 U.S. 89, 95–96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). The Supreme Court held that there should be no presumption against equitable tolling because once Congress has waived it sovereign immunity, equitable tolling “amounts to little, if any, broadening of the congressional waiver.” Id. at 95, 111 S.Ct. 453. In other words, the Supreme Court directed that courts should not presume that Congress intended to withhold jurisdiction from the courts to adjudicate stale claims, but rather Congress simply wanted stale claims to lose in court. See id. at 94–95, 111 S.Ct. 453. Indeed, this is how courts generally treat statute of limitations in suits not involving the government as a defendant—the statute of limitations is a defense, not a jurisdictional pre-requisite. SeeFed.R.Civ.P. 8(c)(1) (characterizing statute of limitations as an affirmative defense); Citigroup Inc. v. Federal Ins. Co., 649 F.3d 367, 371, 373–74 (5th Cir.2011) (treating the statute of limitations as an affirmative defense). Unless there is evidence that Congress intended to withhold power from the courts, the Supreme Court held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Irwin, 498 U.S. at 95–96, 111 S.Ct. 453.

The Irwin decision led to a shift in the Fifth Circuit. In Perez v. United States, the Fifth Circuit reasoned that Irwin called into question the Fifth Circuit's previous holdings that § 2401(b) was jurisdictional. Perez, 167 F.3d at 915–16 (5th Cir.1999). Accordingly, the Fifth Circuit re-examined the text and history of § 2401(b), and concluded that neither suggested that Congress intended § 2401(b) to be jurisdictional. See id. at 916–17. Thus, the court held that § 2401(b) was not jurisdictional, and courts could equitably toll the § 2401(b) statute of limitations. See id. at 915, 917.

Although the Perez decision appeared to settle the issue, the Fifth Circuit has continued to cite and quote the older cases that held § 2401(b) was jurisdictional without mentioning Perez. See, e.g., Ramming v. United States, 281 F.3d 158, 165 (5th Cir.2001) (citing Houston, 823 F.2d at 898, 902);Waggoner v. United States, 95 Fed.Appx. 69, 71 & n. 5 (5th Cir.2004) (quoting Flory v. United States, 138 F.3d 157, 159 (5th Cir.1998)). Most recently, the Fifth Circuit in In re FEMA stated that § 2401(b) was jurisdictional and rejected the plaintiff's argument for equitable tolling. 646 F.3d at 189 (5th Cir.2011) (citing Flory, 138 F.3d at 159). Similarly, two other courts of appeals have recently examined the issue in depth, and come to opposite conclusions. See Santos, 559 F.3d at 194–97 (3d Cir.2009) (holding § 2401(b) was not jurisdictional and equitable tolling was available); Marley, 567 F.3d at 1034–38 (9th Cir.2009) (holding § 2401(b) was jurisdictional and equitable tolling was unavailable).

In the meantime, the Supreme Court issued several opinions addressing the use of the term jurisdictional. See Henderson ex rel. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 1202–03, 179 L.Ed.2d 159 (2011); Reed Elsevier,...