This week, the United States Supreme Court agreed to hear an FTCA case that concerns whether there can be equitable tolling of the six-month time bar for filing suit under the FTCA.
Under the FTCA, claimants must present an administrative claim within 2 years of the date of negligence to the appropriate federal agency before filing suit. 28 U.S.C. §2675 (2006); 28 USC §2401(b). The government agency must be given at least six months to conduct an investigation before suit can be filed in federal court, unless the claim is denied, in which case, a lawsuit in federal court must be filed within six months of the date of denial. Id.
In the case before the US Supreme Court, Wong, a citizen of Hong Kong, was held in federal immigration detention in Portland, Oregon for five days while awaiting expedited removal. On June 22, 1999, she was removed from the United States. On May 18, 2001, Wong filed an action in federal court seeking damages based on her removal and the conditions of her confinement prior to removal. The complaint asserted various constitutional claims against officials in Portland in the Immigration and Naturalization Service (INS) in their individual capacities under Bivens. At the same time, she also presented an FTCA claim administratively to the INS under the FTCA, alleging negligence based on the conditions of her confinement.
The federal court case proceeded. In October 2001, she filed a first amended complaint adding the United States as a defendant and asserting additional claims under the Religious Freedom Restoration Act of 1993. On November 9 and 14, 2001, she sought leave to file a second amended complaint that would add an FTCA claim against the United States. At this time, INS has not issued a denial of the claim, nor had six month expired since the date she first presented it. The US opposed the motion for leave to amend and argued she should have to file a new civil action after her administrative remedies were fully exhausted.
On December 3, 2001, INS denied Wong’s FTCA claim. Under the FTCA, she then had 6 months (until June 3, 2002) to bring an action in federal court under the FTCA. On April 5, 2002, the magistrate judge recommended that Wong be granted leave to file a second amended complaint. On June 25, 2002, three weeks after the six-month deadline had passed, the district court adopted the magistrate judge’s findings and recommendation. Seven weeks later, on August 13, 2002, Wong filed a second amended complaint adding a negligence claim against the United States under the FTCA.
The United States moved for summary judgment, arguing that the FTCA claim was not timely filed. The magistrate, and subsequently the district court, ruled against the United States. The court agreed to equitably toll the six-month time period for 81 days (between the date the magistrate judge recommended that respondent be granted leave to amend and the date the district court actually granted such leave), and declined to dismiss the FTCA claim on timeliness grounds.
Several years later, while the case was still pending in district court, the Ninth Circuit decided Marley v. United States, 567 F.3d 1030, cert. denied, 558 U.S. 1076 (2009). In Marley, the Ninth Circuit held that the six-month time limit for filing suit under the FTCA cannot be equitably tolled because the statutory deadlines for FTCA claims against the United States are jurisdictional.
Relying on Marley, the United States moved for reconsideration. The district court granted the motion, held that it lacked jurisdiction over Wong’s FTCA claim, and entered final judgment in favor of the United States.
Wong appealed. After oral argument, the Ninth Circuit Court of Appeals ordered the case to be heard en banc. A divided en banc panel reversed in four separate opinions, and overruled Marley inKwai Fun Wong v. Beebe, 732 F.3d 1030, 1038 (9th Cir. 2013). Judge Berzon, writing for an eight-judge majority held that the FTCA’s six-month time bar is not jurisdictional. The court also relied on the absence of precedent from the Supreme Court describing the time limit as jurisdictional.
The Ninth Circuit applied a strong presumption in favor of equitable tolling. Id. at 1048. The court found such a “strong” presumption warranted because, in its view, Congress intended “suits against the government” under the FTCA to be “treated no differently than suits against private defendants,” and because courts have applied a “discovery” rule to determine when a claim “accrues” for purposes of the two-year deadline for presenting a claim to the responsible agency. Id., 1048-1049. The Ninth Circuit also held that Wong was entitled to equitable tolling because her failure to file an FTCA complaint within six months of denial was not due to any fault or lack of due diligence on her part, but a result of the delay inherent in the magistrate judge system. Id. at 1052-1053.
The United States filed a petition for certiorari to the United States Supreme Court on the question “Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.”
On June 30, 2014, the Supreme Court granted the petition, which does not bode well for Wong or other plaintiffs in FTCA cases. Will the Supreme Court reverse the Ninth Circuit, eliminating the possibility of equitable tolling for filing suit in FTCA cases past the 6-month deadline? Stay tuned.