Kwai Fun Wong v. Beebe

• Citation: 732 F.3d 1030
• Decision Date: 09 October 2013
• Docket Number: No. 10–36136.,10–36136.
• Parties: KWAI FUN WONG; Wu–Wei Tien Tao Association, Plaintiffs–Appellants, v. David V. BEEBE, a former Immigration and Naturalization Service (nka Department of Homeland Security) Official; United States of America, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

732 F.3d 1030

KWAI FUN WONG; Wu–Wei Tien Tao Association, Plaintiffs–Appellants,

v.David V. BEEBE, a former Immigration and Naturalization Service (nka Department of Homeland Security) Official; United States of America, Defendants–Appellees.

No. 10–36136.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted En Banc March 20, 2013.

Filed Oct. 9, 2013.

Thomas Martin Steenson (argued), Tom Steenson, Portland, OR; Beth Creighton, Creighton & Rose, Portland, OR, for Plaintiffs–Appellants.

Anne Murphy (argued), James George Bartolotto, and Barbara L. Herwig, Attorneys, United States Department of Justice, Civil Division, Washington, D.C.; R. Joseph Sher, Assistant United States Attorney, Alexandria, VA, for Defendants–Appellees.

Appeal from the United States District Court for the District of Oregon, Robert E. Jones, Senior District Judge, Presiding. D.C. No. 3:01–cv–00718–JO.

Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, A. WALLACE TASHIMA, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, MARSHA S. BERZON, RICHARD R. CLIFTON, JAY S. BYBEE, CARLOS T. BEA, MILAN D. SMITH, JR., and MARY H. MURGUIA, Circuit Judges.

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

OPINION

BERZON, Circuit Judge:

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 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, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

Finally, § 2401(b) also establishes a second limitations period—that “[a] tort claim against the United States shall be forever barred ... unless action is begun within six months after the ... final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b).

With this statutory framework in mind, we turn to the procedural history of this case, the material facts of which are not in dispute.

B. Facts

More than a decade ago, Kwai Fun Wong (“Wong”) and Wu Wei Tien Tao Association (“the Association”), a religious organization, sued the United States and several Immigration and Naturalization Service (“INS”) officials for claims arising out of Wong's detention. See Wong v. INS (Wong I), 373 F.3d 952 (9th Cir.2004); Wong v. Beebe (Wong II), 381 Fed.Appx. 715 (9th Cir.2010) (per curiam). The only remaining claim is one under the FTCA, alleging negligence against the United States based on the conditions of her confinement.

Wong and the Association filed their original complaint in the district court on May 18, 2001. That same day, Wong filed her negligence claim with the INS pursuant to the FTCA's administrative exhaustion requirement, 28 U.S.C. § 2675(a). Under § 2675(a), Wong was required to wait six months—until November 19, 2001—or until the INS denied the claim, before filing her negligence claim in the district court. See28 U.S.C. §§ 1346(b)(1), 2675(a).

On November 14, 2001, Wong filed a motion in the district court seeking leave to file a Second Amended Complaint adding the negligence claim “on or after November 20, 2001”— i.e., after the six-month waiting period required under § 2675(a) had expired. The INS issued a written decision denying Wong's administrative claim on December 3, 2001.

At that point, Wong had until June 3, 2002, to file her negligence claim in the district court. Here is why: Pursuant to § 2675(a), Wong was prohibited from filing her claim in the district court until after she presented it to the INS and the INS “finally decided [the claim] ... in writing and sent [it] by certified or registered mail.” 28 U.S.C. § 2675(a). Alternatively, § 2675(a) gave Wong the option to treat the INS's “failure ... to make final disposition of [her] claim within six months after it [was] filed” as the “final denial of the claim.” Id. Wong attempted to exercise that option when she filed her motion in the district court seeking leave to file her amended complaint “on or after November 20, 2001”—six months after she filed her claim with the INS. Had her motion been granted, then, pursuant to § 2401(b), Wong would have had six months—until May 20, 2002—to file her amended complaint with the added FTCA claim in the district court. See id. § 2401(b). As noted, however, the INS denied Wong's claim on December 3, 2001, thereby starting anew the clock on the six-months limitations period in § 2401(b). Thus, the relevant deadline for filing Wong's claim in the district court was June 3, 2002. See Lehman v. United States, 154 F.3d 1010, 1015 (9th Cir.1998).

On April 5, 2002, more than five months after Wong filed her motion seeking leave to amend, the magistrate judge issued Findings and Recommendations (“F & R”) recommending that Wong be permitted to file an amended complaint adding her FTCA claim. The district court did not issue an order adopting the F & R until June 25, 2002, three weeks after the six-month filing deadline had expired.

Wong did file an amended complaint on August 13, 2002, which included the FTCA claim. The district court, relying on Marley v. United States, 567 F.3d 1030, 1038 (9th Cir.2009), held that § 2401(b) was “jurisdictional,” and that equitable tolling was therefore not available to excuse Wong's untimely filing of her claim. The district court dismissed Wong's FTCA claim for lack of jurisdiction. This appeal followed.

II. DISCUSSION

A. Applicability of Equitable Tolling to FTCA Claims

1. General Background

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), sets forth the “general rule ... govern[ing] the applicability of equitable tolling in suits against the Government.” Id. at 95, 111 S.Ct. 453. That case considered whether the “rule of equitable tolling” applied to an untimely Title VII claim brought against the government. Id. at 94–95, 111 S.Ct. 453. Noting that “[t]ime requirements in lawsuits between private litigants are customarily subject to equitable tolling,” Irwin held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. at 95–96, 111 S.Ct. 453 (internal quotation marks omitted).

Irwin's “general rule” is not without exception. Some statutes of limitation are “more absolute,” and do not permit “court[s] to consider whether certain equitable considerations warrant extending a limitations period.” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). “As convenient shorthand, the Court has sometimes referred to the time limits in such statutes as ‘jurisdictional.’ ” Id. at 134, 128 S.Ct. 750 (citing Bowles v. Russell, 551 U.S. 205, 210, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)).

The “jurisdiction” terminology used in the government-defendant equitable tolling context can, however, be misleading. In a series of recent cases, the Supreme Court has “pressed a stricter distinction between truly jurisdictional rules, which govern ‘a court's adjudicatory authority,’ and nonjurisdictional ‘claim-processing rules,’ which do not.” Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (quoting Kontrick v. Ryan, 540 U.S. 443, 454–55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (emphasis added)). This distinction is critical for present purposes, because, while courts “[have] no authority to create equitable exceptions to jurisdictional requirements,” Bowles, 551 U.S. at 214, 127 S.Ct. 2360, nonjurisdictional claim-processing requirements remain “subject to [Irwin's ] rebuttable presumption in favor of equitable tolling.” Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted).

Applying these principles to the particular statute of limitations here, our case law has come to contradictory results. Alvarez–Machain v. United States (Alvarez–Machain I), 107 F.3d 696, 701 (9th Cir.1996), held that “[e]quitable tolling is available for FTCA claims in the appropriate circumstances.” Twelve years later, Marley held precisely the opposite, stating “that the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, equitable doctrines that otherwise could excuse a claimant's untimely filing do not apply.” ¹567 F.3d at 1032;see also Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011) (applying Marley ).

We agreed to hear this case to resolve the conflict between Alvarez–Machain I and Marley. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir.1987) (en banc). Doing so, we join with several other circuits in concluding that § 2401(b) is subject to equitable tolling. See Arteaga v. United States, 711 F.3d 828, 832–33 (7th Cir.2013); Santos ex rel. Beato v. United States, 559 F.3d 189, 194–98 (3d Cir.2009); Perez v. United States, 167 F.3d 913, 916–17 (5th Cir.1999).

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