Perez v. U.S.

• Decision Date: 12 February 1999
• Docket Number: No. 98-20114,98-20114
• Citation: 167 F.3d 913
• Parties: Diane Krobusek PEREZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 913

167 F.3d 913

Diane Krobusek PEREZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 98-20114.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1999.

Neal H. Paster, Houston, TX, for Plaintiff-Appellant.

Michelle Zingaro, Janet Vallone Craig, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, DUHE and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The plaintiff in this appeal challenges the district court's conclusion that her action against the government was time-barred. The case requires us to decide whether equitable tolling is available in tort cases against the government and whether it is applicable on the facts presented. We find it both available and applicable, and thus REVERSE.

I

While performing with other members of her student belly-dancing troupe at the Brazos Festival in College Station, Texas, Diane Krobusek Perez stopped to pose for pictures in front of an Armored Personnel Carrier. The Texas National Guard had placed the APC on display to promote its recruitment efforts at the festival. According to Perez, the presence of the scantily clad dancers distracted the guardsmen in charge from their duties, and they did not stop a third party from entering the APC and disengaging the hand brake. The vehicle began to roll forward, and it struck camouflage netting poles that in turn knocked Perez unconscious. The date was September 29, 1990.

After the incident, Perez enlisted the aid of Matthew Nancarrow, a Texas A & M student services attorney, who wrote a letter to the Texas National Guard. The letter reported the charge that the guards' negligent supervision and lack of proper security proximately caused the injuries Perez had suffered. It further indicated that Perez was interested only "in pursuing indemnification for the actual damages sustained." Finally, the letter requested advice "as to whether your outfit is self-insured or maintains private liability insurance and who might handle my clients' [sic] claim."

Lt. Col. Donald R. Nichols later testified that he received the letter and tried to call Nancarrow. Because Nancarrow was out, Nichols left a message with his secretary. Specifically, he allegedly informed her that any claim Perez might pursue should be filed with the United States Army Claims Office, and he provided her the address of that office. A notation on Nancarrow's original letter, purportedly written immediately after the phone call, indicates that Nichols called Nancarrow's telephone number, that Nancarrow was out of town, that he left the message concerning the Claims Office, and that the date was October 11, 1990. Nancarrow later testified that he does not remember receiving Nichols's message.

On September 10, 1991, Perez filed suit in Texas state court against the State of Texas, the Texas National Guard, and Christopher Heck, who allegedly disengaged the hand brake. A year later, on September 18, 1992, she filed an amended petition. After another year and a half, on March 11, 1994, Texas National Guard Captain Foy Watson advised Perez's new attorney that the guardsmen had been acting as employees of the federal government while on duty at the festival. See 32 U.S.C. § 502 (providing a dual state-federal status for members of the National Guard). In accordance with this theory, Texas and the Texas National Guard sought summary judgment on the basis of state sovereign immunity on July 29, 1994. This motion was denied, but a subsequent motion to dismiss was granted on June 14, 1995.

On June 30, 1995, the plaintiff filed a claim with the U.S. Army, and the Army denied it four months later, citing the two-year statute of limitations of the Federal Tort Claims Act. See 28 U.S.C. § 2401(b) (providing that a claim "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 ... notice of final denial of the claim by the agency to which it was presented"). The following May, Perez filed this suit.

The district court dismissed the suit, concluding that notice to the appropriate federal agency is a jurisdictional prerequisite under the FTCA, citing Cook v. United States, 978 F.2d 164, 166 (5th Cir.1992), and refusing to follow Schmidt v. United States, 933 F.2d 639 (8th Cir.1991). The district court was persuaded that Perez had failed to investigate the nature of her claim diligently, and thus failed to recognize that the Texas National Guard has a dual nature, sometimes serving the federal government and sometimes serving the state. The court agreed that the National Guard had violated regulatory requirements by failing to provide Perez with an SF95 claim form. Nonetheless, emphasizing that Perez's decision to sue the Texas National Guard was not the product of affirmative misstatements by the Texas National Guard, the court refused to save her claim through application of equitable tolling.

Perez timely appeals, arguing that equitable tolling should apply.

II

The district court's citation to Cook notwithstanding, whether the limitations provisions of the FTCA are jurisdictional--in which case equitable tolling could not apply--remains an open question in this circuit. The Cook court did state that "[f]urnishing notice [within the specified time period] is a jurisdictional prerequisite to filing suit under the FTCA." 978 F.2d at 166. This statement, however, was dicta, because nothing in the case turned on whether the limitations provisions were jurisdictional. The Cook court did not specifically mention equitable tolling, and nothing in its presentation of the facts suggests that equitable tolling would have been applicable had the court found it available.

Moreover, the case that Cook cited for the dictum was Transco Leasing Corp. v. United States, 896 F.2d 1435, 1441 (5th Cir.), amended on other grounds, 905 F.2d 61 (5th Cir.1990). Transco is clear enough, but it preceded the Supreme Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), by several months. Irwin, a Title VII case, undid the old rule that equitable tolling was never available against the government, and thus placed the jurisdictional nature of the FTCA statute of limitations into doubt. Cf. Houston v. United States Postal Serv., 823 F.2d 896 (5th Cir.1987) (applying the old rule to the FTCA). It is thus to Irwin and its progeny that we must turn for guidance.

The Irwin Court reasoned that where Congress has decided to waive its sovereign immunity, there should be no presumption that it nevertheless intended that equitable tolling not apply. See id. at 95, 111 S.Ct. 453 ("Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver."). While the Court stressed that it sought to create a single rule applicable to a wide variety of statutory circumstances, see id. (arguing against a continuing effort to decide such questions "on an ad hoc basis"), its reasoning accepts that the availability of equitable tolling is a question of congressional intent.

Accordingly, the Supreme Court in United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), found that Congress had exempted the government from equitable tolling in I.R.C. § 6511. The Brockamp Court echoed Irwin in phrasing the question, "Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply [against the government]?" Id. at 851. In answering "yes," for § 6511, the Court emphasized two factors. First, § 6511's limitations period was set forth "in a highly detailed technical manner that linguistically speaking, cannot easily be read as containing implicit exceptions." Id. at 851. Second, given the large number of tax returns and refunds processed by the IRS, "[t]he nature and potential magnitude of the administrative problem suggest that Congress decided to pay the price of occasional unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system." Id. at 852.

Two circuits have addressed the equitable tolling issue under the FTCA. In Schmidt, the district court decided a disputed fact in dismissing a claim as time barred. The Schmidt court concluded, without repair to the language or history of the FTCA, that Irwin necessarily meant that the statute was not jurisdictional, hence the district court lacked the authority to find jurisdictional facts. See 933 F.2d at 640. Glarner v. United States, 30 F.3d 697 (6th Cir.1994), followed Schmidt, allowing equitable tolling.

The Sixth and Eighth Circuits arrived at the same result that we will reach, but their reasoning was flawed. Both were decided after Irwin but before Brockamp. Both the Schmidt and Glarner courts seemed to believe that the Irwin rule allowing equitable tolling would apply in all suits against the government. Brockamp proves this deduction incorrect, so the Eighth and Sixth Circuits may reconsider Schmidt and Glarner. We therefore consider the FTCA issue afresh, though this fresh look ultimately leads to the same place.

The only commentator addressing the question concludes that the doctrine of equitable tolling should not apply to the FTCA. See Richard Parker, Is the Doctrine of Equitable Tolling Applicable to the Limitations Periods in the Federal Tort Claims Act?, 135 MIL. L. REV . 1 (1992). Arguing from the text of the statute, Parker argues that the language "forever barred" in § 2401 suggests an intent to treat late claims harshly. Parker's primary legislative history argument is that Congress did not pass...