Crawford v. U.S.

Citation796 F.2d 924
Decision Date17 July 1986
Docket NumberNo. 85-3085,85-3085
PartiesBruce CRAWFORD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William O. Krohn, Robert J. Jenkins, Krohn & Najib, Chicago, Ill., for plaintiff-appellant.

Anton R. Valukas, U.S. Atty., James T. Hynes, Elizabeth Stein, Asst. U.S. Attys., Chicago, Ill., for defendant-appellee.

Before CUDAHY, POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The district court granted the government's motion to dismiss Bruce Crawford's suit under the Federal Tort Claims Act as untimely, see 28 U.S.C. Sec. 2401(b), and he appeals, presenting a question of some complexity concerning proof of timeliness in a suit under the Act.

In 1980 Crawford, who was then 19 years old and afflicted with Sturge-Weber Syndrome (as an alleged consequence of which he was mentally retarded and experienced seizures), was injured on a sidewalk in Illinois when he tripped over metal spikes that had been left in the ground when a U.S. mailbox had been removed. He was taken to a hospital and treated; his mother was with him at the hospital. The next day, accompanied by his stepfather, he visited his regular doctor. But he waited more than four years before filing a claim with the Postal Service; section 2401(b) gave him only two. He argues that he lacked the mental capacity to discover that the Postal Service had caused his injury, and concludes from this that the statute of limitations was tolled. He cites for this proposition Washington v. United States, 769 F.2d 1436, 1438-39 (9th Cir.1985); Clifford v. United States, 738 F.2d 977 (8th Cir.1984), and Zeidler v. United States, 601 F.2d 527, 531 (10th Cir.1979).

The statute of limitations in the Federal Tort Claims Act grants "any person under legal disability" at the time his claim accrues three years in which to file suit after the disability ends. 28 U.S.C. Sec. 2401(a). However, there is no reference to legal disability in section 2401(b), the administrative statute of limitations (that is, the deadline for filing a claim with the agency alleged to be responsible for the accident, here the Postal Service) that Crawford failed to comply with. This omission has led several courts to conclude that insanity does not toll the administrative statute of limitations. See Casias v. United States, 532 F.2d 1339, 1342 (10th Cir.1976), and cases cited there; cf. Swietlik v. United States, 779 F.2d 1306, 1311 (7th Cir.1985). Presumably these courts would treat mental retardation similarly. Cf. Jastremski v. United States, 737 F.2d 666, 669 (7th Cir.1984) (infancy); Leonhard v. United States, 633 F.2d 599, 624 (2d Cir.1980) (same); Robbins v. United States, 624 F.2d 971, 972 (10th Cir.1980) (same).

The difference in the treatment of mental incapacity under the two subsections, though supported by their different language (subsection (a) contains a tolling provision for legal disabilities, and (b) does not), seem tenuous. Since by definition a person under legal disability cannot sue unless he has a guardian or other representative, the tolling provision in (a) may simply have been included to avoid the absurdity of telling a person who as a matter of law cannot sue that he must sue or lose his rights. But as far as we know there is no such thing as being legally incapable of filing an administrative claim; so maybe the omission of any reference to legal disability in subsection (b) should not be taken to foreclose an appeal to some notion of or akin to equitable tolling. It is true, as the cases just cited emphasize, that equitable tolling is rarely (though not never--see Bowen v. City of New York, --- U.S. ----, 106 S.Ct. 2022, 2029-30, 90 L.Ed.2d 462 (1986)) allowed in suits against the federal government. But equitable tolling is based on concealment or other misconduct by the defendant; and thus when applied to statutes of limitations against the government it penalizes the taxpayer because of the unauthorized acts of his servant, the civil servant. A doctrine that tolls the statute of limitations because of some incapacity of the plaintiff, like a discovery rule (about which more momentarily), is not founded on misconduct by government agents.

Washington and the other cases cited earlier make an exception to the rule against tolling if the government's alleged negligence on which the suit is based is also the cause of the plaintiff's mental incapacity, and the incapacity prevents him from discovering the injury or its cause; in two of the cases the alleged negligence had sent the plaintiff into a coma. The exception might or might not reach the present case, depending on the precise form of the exception; the complaint alleges that the accident aggravated, though it did not cause, Crawford's mental incapacity. But in any event this circuit has never decided whether there should be such an exception. The cases that recognize the exception appeal to the "discovery rule," whereby a cause of action does not accrue until the plaintiff did or should have discovered the cause of his injury. The rule is applied in suits under the Federal Tort Claims Act, see, e.g., Drazan v. United States, 762 F.2d 56, 58-59 (7th Cir.1985), but it focuses on the nature of the injury rather than on the idiosyncracies of the plaintiff. This is apparent from United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). (This is the case usually though imprecisely taken to have established the existence of the discovery rule in cases under the Tort Claims Act; actually the Court merely assumed the applicability of the rule to such cases, see id. at 120-21, 100 S.Ct. at 358-59. The assumption has, however, more than the usual significance, since it was based on a concession by the Solicitor General that the discovery rule is proper in cases under the Tort Claims Act.) The Court indicated that the statute of limitations would not have been suspended even if Kubrick had been advised that he had no cause of action. See id. at 124, 100 S.Ct. at 360; see also Nemmers v. United States, 795 F.2d 628, 631, 632 (7th Cir.1986). If the running of the statute of limitations depended on what the particular plaintiff actually knew given his mental or other incapacities, the discovery rule would swallow most of the provisions related to tolling, at least for disabilities that affected cognition and were in existence at the time of the accident.

Fortunately we shall not have to decide in this case when if ever mental incapacity tolls the administrative statute of limitations, because even if it can toll it Crawford must lose. We mention the issue only to make clear that we regard it as open. As a final prefatory point we note that if Crawford had been a minor when the accident occurred (but he was not--the age of majority in Illinois is 18), his lack of mental capacity would be irrelevant. The cases that hold that infancy does not toll the administrative statute of limitations imply that a parent is an adequate surrogate; and Fernandez v. United States, 673 F.2d 269, 271 (9th Cir.1982), so holds. By similar reasoning, the statute would not be tolled if Crawford had had a guardian or conservator. See, e.g., Washington v. United States, supra, 769 F.2d at 1439. But he did not have one.

The government filed a motion to dismiss under Fed.R.Civ.P. 12(b) supported by an affidavit and other documents; but the motion did not reveal which subsection of Rule 12(b) it was being filed under. The district judge did not indicate whether he was treating the motion as one for summary judgment or, if not, on what other basis he thought he was proceeding when he granted it. All that is clear is that Crawford wanted a more extensive evidentiary hearing on the issue of his mental capacity.

If a defendant moves to dismiss the complaint under Rule 12(b)(6) (failure to state a claim) and attaches evidentiary materials, the motion is treated as a motion for summary judgment (see last sentence of Rule 12(b)), so that the question for the judge is whether the defendant has shown that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no similar conversion feature when the motion is made under Rule 12(b)(1) (lack of subject-matter jurisdiction). Malak v. Associated Physicians, Inc., 784 F.2d 277, 279 (7th Cir.1986). Although as we said the government did not trouble itself to indicate which subsection of Rule 12(b) it was moving to dismiss Crawford's complaint under (an unaccountable omission), probably it was Rule 12(b)(1), since statutes of limitations in most suits against the federal government, including suits under the Tort Claims Act, are held to be jurisdictional. See, e.g. Charlton v. United States, 743 F.2d 557, 558 (7th Cir.1984) (per curiam); Burns v. United States, 764 F.2d 722, 724 (9th Cir.1985); In re Swine Flu Products Liability Litigation, 764 F.2d 637, 638 (9th Cir.1985). "In any suit against the United States, the statute of limitations is an integral part of the government's consent to suit, and as such is an issue of subject matter jurisdiction that cannot be waived." Walters v. Secretary of Defense, 725 F.2d 107, 112 n. 12 (D.C.Cir.1983); cf. Johnson v. Heckler, 776 F.2d 166, 168 (7th Cir.1985) (opinion dissenting from denial of rehearing en banc), citing cases. Like almost every legal generalization, this one has exceptions, a notable example being claims for benefits under the social security act. See Bowen v. City of New York, supra, 106 S.Ct. at 2029, and n. 10. But the cases cited above indicate that claims under the Tort Claims Act are not among them; nor shall we attempt to reassess the authority of these cases in light of the Supreme Court's recent but very brief discussion in Bowen of the 60-day statute of limitations in social...

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