Is it too late to file your lawsuit against the Government? Equitable Tolling & the FTCA

The United States Supreme Court heard arguments on December 10, 2014: United States v. June and United States v. Wong. In order to file suit against a military hospital, you must comply with the terms of the FTCA, or the Federal Tort Claims Act. The FTCA sets forth administrative filing requirements before you can file suit in a federal district court. Once you comply with those requirements, you can file suit in a federal district court either where the negligence occurred or where the plaintiff resides.

28 U.S.C. § 2401(b) states that a claim shall be forever barred if not filed administratively within two years of accrual or if an action in federal district court is not filed within six months of the agency’s denial or failure to act on that claim.

In June, plaintiffs alleged that they failed to file administratively within two years of accrual because the Government concealed facts that would have prevented them from knowing that they needed to file a federal claim. Specifically, June arose from a death caused by the Federal Highway Administration permitting a defective cable median barrier to be installed in Arizona’s Interstate 10. At the time, the cable barrier had not passed the Highway Administration’s crashworthiness test. A third party lost control of her car and because the cable median barrier was not functioning, collided into the plaintiff’s car, killing the plaintiff. Later that year, the Highway Administration released a public memorandum saying that the cable median had been approved as crashworthy. Plaintiff filed suit in state court and sought to depose the Highway Administration’s personnel but the Government refused to make them available. For 3 years, the Government refused to make personnel available for deposition. When they were finally made available for deposition, Plaintiffs learned that the median had not survived crashworthiness testing. By this time, the two-year time limit to file your FTCA claim had expired and Plaintiffs had to rely on equitable tolling.

Facts of Wong: This case involved delays in filing that were the result of the court system, and the Ninth Circuit held that the Plaintiffs in that case were entitled to equitable tolling allowing them to file after the 6 month time period in § 2401(b). In 1982, Wong entered the United States on a visitor visa and worked as a religious minister. She did that until 1999, when a religious ceremony following a death required her to travel back to Hong Kong. After the completion of a religious ceremony, she presented to INS, who paroled her into the United States. Afterward, she filed a petition to become a permanent resident of the United States. Subsequently in June of 1999, the INS determined that Wong’s reentry into the United States was unlawful and issued an arrest warrant. Wong was arrested and subjected to multiple strip searches.  A timeline of the subsequent events:

  • May 20, 2001: Wong timely filed an FTCA administrative claim with the INS. She also filed a federal court action against various federal officials on other grounds, seeking damages. Under the FTCA, Wong would have to wait until November 20, 2001 to file her FTCA suit in federal court.
  • Nov 2001: Shortly before that November time limit, she filed a motion seeking a court order to add the United States as a party to her lawsuit on or after November 20th.
  • December 3, 2001: the INS finally denies Wong’s claim, meaning that under the FTCA, Wong must file on or before June 3, 2002.
  • April 5, 2002: the magistrate judge recommends that Wong’s motion to add the United States be granted.
  • June 25, 2002: The District Court adopts the magistrate judge’s recommendation, but the United States argues that Wong’s suit is filed 22 days after the six-month time limit.

The Government is arguing before the Supreme Court that both the 2-year limit to file administratively and the 6-month limit to file in federal court are “jurisdictional,” and are not subject to equitable tolling.

The outcome of this case can have a significant effect on veterans and military medical malpractice and other tort cases against the Government. As such, many groups have come out in support of the plaintiffs. They include the Paralyzed Veterans Of America, Military Order Of The Purple Heart, Jewish War Veterans Of The United States, Inc., National Veterans Legal Services Program, National Defense Committee, National Coalition For Homeless Veterans, The Clinic For Legal Assistance To Servicemembers And Veterans, The Southeastern Legal Foundation, American Association for Justice, The National Center For Law And Economic Justice, and The Sargent Shriver National Center On Poverty Law. All of these groups recognize the importance of allowing time for individuals like veterans and servicemembers to file their lawsuit against the Government.

2017-09-05T10:15:35+00:00