FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KWAI FUN WONG; WU-WEI TIEN No. 10-36136
TAO ASSOCIATION,
Plaintiffs-Appellants, D.C. No.
3:01-cv-00718-
v. JO
DAVID V. BEEBE, a former
Immigration and Naturalization OPINION
Service (nka Department of
Homeland Security) Official;
UNITED STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, Senior District Judge, Presiding
Argued and Submitted En Banc
March 20, 2013—San Francisco, California
Filed October 9, 2013
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.
2 WONG V. BEEBE
Opinion by Judge Berzon;
Concurrence by Chief Judge Kozinski;
Dissent by Judge Tashima;
Dissent by Judge Bea
SUMMARY*
Federal Tort Claims Act
The en banc court reversed the district court’s dismissal
of a negligence claim brought against the United States and
remanded, holding that the six-month statute of limitations in
the Federal Tort Claims Act, 28 U.S.C. § 2401(b), may be
equitably tolled and that equitable tolling was available under
the circumstances presented in this case.
The court held that nothing in the text, context, or purpose
of § 2401(b) clearly indicated that the Federal Tort Claims
Act’s six-month limitations period implicated the district
courts’ adjudicatory authority. The court therefore held that
§ 2401(b) is a nonjurisdictional claim-processing rule subject
to the presumption in favor of equitable tolling set forth in
Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990).
The court overruled the contrary holding in Marley v. United
States, 567 F.3d 1030, 1038 (9th Cir. 2009). The court held
that the presumption in favor of equitable tolling was not
overcome in this case.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WONG V. BEEBE 3
The court held that plaintiff Kwai Fun Wong’s claim,
which was not filed within six months after the denial of her
administrative claim by the INS, was rendered untimely
because of external circumstances beyond her control. In
light of these circumstances, the court concluded that
equitable tolling properly applied to excuse Wong’s late-filed
amended complaint, and that her Federal Tort Claims Act
claim against the United States therefore could proceed.
Concurring in the judgment, Chief Judge Kozinski agreed
with the dissents that 28 U.S.C. § 2401(b) is jurisdictional,
but stated that he could not dissent in this case because Wong
had filed a reply memorandum reiterating her request for
leave to file a second amended complaint after the INS denied
her claim and before the six-month section 2401(b) window
slammed shut.
Dissenting, Judge Tashima, joined by Judge Bea, stated
he joined Judge Bea’s dissenting opinion in full, but wrote
separately to clarify that the Federal Tort Claims Act’s
legislative history dispelled any doubt that the Act’s
limitations provision was intended to be jurisdictional.
Dissenting, Judge Bea stated that he believed that
Congress clearly expressed its intent that 28 U.S.C. § 2401(b)
would limit the jurisdiction of federal courts by providing that
tort claims “shall be forever barred” unless action is begun
within the six-month period following denial of the
administrative claim by the concerned agency, with no
exceptions.
4 WONG V. BEEBE
COUNSEL
Thomas Martin Steenson (argued), Tom Steenson, Portland,
Oregon; Beth Creighton, Creighton & Rose, Portland,
Oregon, 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, Virginia, for
Defendants-Appellees.
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
WONG V. BEEBE 5
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 (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), No. 07-35426 (9th Cir. June 4, 2010) (per curiam).
The only remaining claim is one under the FTCA, alleging
6 WONG V. BEEBE
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. See 28 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 V. BEEBE 7
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
(1990), sets forth the “general rule . . . govern[ing] the
8 WONG V. BEEBE
applicability of equitable tolling in suits against the
Government.” Id. at 95. That case considered whether the
“rule of equitable tolling” applied to an untimely Title VII
claim brought against the government. Id. at 94–95. 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
(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 (2008).
“As convenient shorthand, the Court has sometimes referred
to the time limits in such statutes as ‘jurisdictional.’” Id. at
134 (citing Bowles v. Russell, 551 U.S. 205, 210 (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, 132 S. Ct. 641, 648 (2012) (quoting
Kontrick v. Ryan, 540 U.S. 443, 454–55 (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, nonjurisdictional claim-processing requirements
remain “subject to [Irwin’s] rebuttable presumption in favor
WONG V. BEEBE 9
of equitable tolling.” Holland v. Florida, 130 S. Ct. 2549,
2560 (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.”1 567 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,
1
Marley dismissed Alvarez-Machain I as having “no precedential value”
because the panel opinion in that case was vacated and the case was taken
en banc. See Marley, 567 F.3d at 1037–38 (citing Alvarez-Machain v.
United States (Alvarez-Machain III), 284 F.3d 1039 (9th Cir. 2002)). But
the opinion that was vacated by Alvarez-Machain III was not Alvarez-
Machain I. Rather, it was a different opinion in the same case: Alvarez-
Machain v. United States (Alvarez Machain II), 266 F.3d 1045 (9th Cir.
2001). Thus, Alvarez-Machain I was still good law when Marley was
decided. The result was an intracircuit conflict, which we can resolve
only through en banc proceedings. See Atonio v. Wards Cove Packing
Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc).
10 WONG V. BEEBE
194–98 (3d Cir. 2009); Perez v. United States, 167 F.3d 913,
916–17 (5th Cir. 1999).
2. Jurisdictional vs. Nonjurisdictional Claim-
Processing Rules
As a threshold matter, we must decide whether § 2401(b)
is a “jurisdictional” rule, to which equitable doctrines cannot
apply, or a nonjurisdictional “claim-processing rule” subject
to Irwin’s presumption in favor of equitable tolling. Both
Alvarez-Machain I and Marley were decided without the
benefit of the Supreme Court’s most recent decisions
clarifying the difference between these two categories.
Accordingly, before turning to § 2401(b) itself, we discuss
the Court’s efforts in recent years to “bring some discipline”
to the “jurisdictional” label. See Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1202–03 (2011); see
also Gonzalez, 132 S. Ct. at 648.
The consequences of labeling a particular statutory
requirement “jurisdictional” are “drastic.” Gonzalez,
132 S. Ct. at 648. A court’s “[s]ubject-matter jurisdiction can
never be waived or forfeited,” “objections [to the court’s
jurisdiction] may be resurrected at any point in the litigation,”
and courts are obligated to consider sua sponte requirements
that “go[] to subject-matter jurisdiction.” Id.; see also
Henderson, 131 S. Ct. at 1202; Proctor v. Vishay
Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir. 2009).
The Court has clarified in recent years that the term
“‘[j]urisdiction[al]’ refers to a court’s adjudicatory authority
. . . [and] properly applies only to prescriptions delineating
the classes of cases (subject-matter jurisdiction) and the
persons (personal jurisdiction) implicating that authority.”
WONG V. BEEBE 11
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61 (2010)
(emphasis added) (internal quotation marks and citation
omitted). Under this narrow interpretation, the term
“jurisdictional” “refers [only] to a tribunal’s power to hear a
case.” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs &
Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S.
67, 81 (2009) (internal quotation marks omitted). So-called
“claim-processing rules,” by contrast, “are rules that seek to
promote the orderly progress of litigation by requiring that
the parties take certain procedural steps at certain specified
times.” Henderson, 131 S. Ct. at 1203.
“To ward off profligate use of the term ‘jurisdiction,’ [the
Court has] adopted a ‘readily administrable bright line’ for
determining whether to classify a statutory limitation as
jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr.,
133 S. Ct. 817, 824 (2013) (quoting Arbaugh v. Y & H Corp.,
546 U.S. 500, 516 (2006)). Specifically, courts must now ask
“whether Congress has ‘clearly state[d]’ that the rule is
jurisdictional; absent such a clear statement . . . ‘courts should
treat the restriction as nonjurisdictional in character.’” Id.
(quoting Arbaugh, 546 U.S. at 515–16). Congress need not
“incant magic words in order to speak clearly.” Id. Rather,
courts are to review a statute’s language, “context, and
relevant historical treatment” to determine whether Congress
clearly intended a statutory restriction to be jurisdictional.
Reed Elsevier, Inc., 559 U.S. at 166.
Applying this bright-line rule in a spate of recent cases,
the Court has held nonjurisdictional various statutory
limitations on the substantive coverage of statutes or the
procedures for enforcing them. See, e.g., Union Pac. R.R.,
558 U.S. at 81–82 (holding not jurisdictional a Railway Labor
Act procedural rule requiring proof of a prearbitration
12 WONG V. BEEBE
settlement conference); Reed Elsevier, 559 U.S. at 164–66
(holding not jurisdictional the Copyright Act registration
requirement); Gonzalez, 132 S. Ct. at 648–52 (holding not
jurisdictional certain provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) requiring
issuance of a certificate of appealability indicating which
specific issues sufficiently implicate the denial of a
constitutional right); but see Bowles, 551 U.S. at 209–10
(holding jurisdictional a time limit for filing a notice of
appeal in a civil case under 28 U.S.C. § 2107(c)).
As the issue here pertains to a statute of limitations, the
Court’s recent decisions applying the “clear statement” rule
to statutory time limits are particularly instructive.
Henderson held that “a veteran’s failure to file a notice of
appeal within the 120-day period” required under 38 U.S.C.
§ 7266(a) “should [not] be regarded as having ‘jurisdictional’
consequences.” 131 S. Ct. at 1200. Canvassing the Court’s
recent case law discussing jurisdictional versus
nonjurisdictional rules, Henderson explained that “[f]iling
deadlines . . . are quintessential claim-processing rules.” Id.
at 1203 (emphasis added). “[E]ven if important and
mandatory,” such rules, “should not be given the
jurisdictional brand.” Id.
Turning to the text of § 7266, Henderson emphasized that
the relevant provision “‘does not speak in jurisdictional terms
or refer in any way to the jurisdiction of the [Veterans
Court].’” Id. at 1204 (quoting Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 394 (1982) (alteration in original)).
Although “§ 7266 is cast in mandatory language”—providing
that a claimant “shall file a notice of appeal . . . within 120
days”—Henderson “rejected the notion that ‘all mandatory
prescriptions, however emphatic, are . . . properly typed
WONG V. BEEBE 13
jurisdictional.’” Id. at 1204–05 (quoting Union Pac. R.R.,
558 U.S. at 81) (emphasis added). Indeed, as Henderson
noted, Congress placed § 7266 “in a subchapter entitled
‘Procedure,’” and not in the “Organization and Jurisdiction”
subchapter of the statute, which “suggests Congress regarded
the 120-day limit as a claim-processing rule.” Id. Henderson
therefore found no clear statement indicating that § 7266 was
“jurisdictional.” Id.; see also Holland, 130 S. Ct. at 2560
(holding not jurisdictional AEDPA’s statute of limitations in
28 U.S.C. § 2244(d)).
More recently, Auburn Regional Medical Center
considered whether the Medicare Act’s 180-day statutory
deadline for filing an administrative appeal challenging
Medicare reimbursements is jurisdictional. 133 S. Ct. at 821.
The Court held that it is not. “Key to our decision,” the Court
explained, is that “filing deadlines ordinarily are not
jurisdictional; indeed, we have described them as
‘quintessential claim-processing rules.’” Id. at 825 (quoting
Henderson, 131 S. Ct. at 1203).
Auburn Regional Medical Center went on to reject the
notion that the 180-day limit was “jurisdictional simply
because it is placed in a section of a statute that also contains
jurisdictional provisions.” Id. at 825. Nor was it significant
in Auburn Regional Medical Center that Congress “expressly
made . . . other time limits in the Medicare Act”
nonjurisdictional. Id. (emphasis added). Structural
considerations such as these did not provide a “clear
statement” that Congress intended the 180-day limit to be
jurisdictional. The limitations provision was therefore “most
sensibly characterized as a nonjurisdictional prescription.”
Id. at 826.
14 WONG V. BEEBE
Finally, we applied a similar analysis in a recent en banc
case addressing whether the exhaustion-of-remedies
requirement of the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1415(l), is jurisdictional. See
Payne v. Peninsula Sch. Dist., 653 F.3d 863 (2011) (en banc).
Based on the Supreme Court’s recent line of cases “clarifying
the difference between provisions limiting our subject matter
jurisdiction, which cannot be waived . . . , and ‘claims
processing provisions,’” we concluded that § 1415(l) is not
jurisdictional for three reasons. Id. at 867–69 (citing cases).
First, “we observe[d] that nothing in § 1415 mentions the
jurisdiction of the federal courts.” Id. at 869. “Second,
nothing in the relevant jurisdictional statutes requires
exhaustion under the IDEA.” Id. at 870. “Without clearer
instruction from Congress,” we declined to “infer” a
jurisdictional exhaustion-of-remedies requirement. Id.
“Finally, we [could] find no reason why § 1415(l) should be
read to make exhaustion a prerequisite to the exercise of
federal subject matter jurisdiction.” Id. To the contrary, we
suggested that there were “many good reasons why”
§ 1415(l) should not qualify as jurisdictional. Most notably,
determining whether a plaintiff had exhausted her remedies
is an “inexact science,” subject to various “fact-specific”
questions such as whether exhaustion would be futile. Id.
Thus, we summarized, § 1415(l) is not jurisdictional, as it “is
not clearly labeled jurisdictional, is not located in a
jurisdiction-granting provision, and admits of congressionally
authorized exceptions.” Id. at 870–71 (quoting Reed
Elsevier, 559 U.S. at 166); see also Leeson v. Transamerica
Disability Income Plan, 671 F.3d 969, 979 (9th Cir. 2012)
(holding that an employee’s status as a plan “participant” is
an element of his ERISA claim, not a jurisdictional
limitation).
WONG V. BEEBE 15
3. § 2401(b) Is Not Jurisdictional
Marley stated that “[r]esolution of the present case . . .
[first] depends on how to categorize the six-month filing
deadline of § 2401(b)”—as a “jurisdictional” requirement or
as a nonjurisdictional “claim-processing rule.” 567 F.3d at
1035. That is true, but only in the asymmetrical sense that if
the deadline is jurisdictional, it cannot be tolled; as will
appear, even if it is not jurisdictional, tolling may still be
precluded by a sufficiently clear congressional expression of
that restriction. We hold that § 2401(b) falls squarely in the
claim-processing category, and so overrule Marley’s contrary
conclusion.
Several factors underlie our conclusion that § 2401(b) is
nonjurisdictional.
a. Language
First, by its terms, § 2401(b) provides only that “[a] tort
claim against the United States shall be forever barred unless
. . . action is begun within six months” of mailing of notice of
the final agency denial. 28 U.S.C. § 2401(b). That statement
“does not speak in jurisdictional terms or refer in any way to
the jurisdiction of the [federal courts].” Henderson,
131 S. Ct. at 1204; see also Payne, 653 F.3d at 869–70.
Rather, § 2401(b) merely states what is ordinarily true of
statutory filing deadlines: once the limitations period ends,
whether extended by the application of tolling principles
or not, a plaintiff is “forever barred” from presenting his
claim to the relevant adjudicatory body. See Kubrick,
444 U.S. at 117.
16 WONG V. BEEBE
Notably, although the exact language differs, § 2401(b) is
the same in its lack of a reference to jurisdiction as the
general, non-tort statute of limitations contained in § 2401(a),
which establishes a six-year filing deadline for “every civil
action commenced against the United States.” 28 U.S.C.
§ 2401(a). And Cedars-Sinai Medical Center v. Shalala,
125 F.3d 765, 770 (9th Cir. 1997), held subsection (a)
nonjurisdictional, emphasizing that it “does not speak of
jurisdiction, but erects only a procedural bar.”2
Contrary to the government’s assertion, § 2401(b) does
not contain such unusually emphatic language that we may
infer congressional intent to limit the adjudicatory authority
of the federal courts from that language. We have held on
prior occasions that statutes of limitations containing the
phrase “forever barred” are subject to equitable tolling. For
example, the 1955 Clayton Act Amendments provided that
any action to enforce a right under §§ 15, 15a, and 15c of the
Act “shall be forever barred unless commenced within four
years after the cause of action accrued.” 15 U.S.C. § 15b
(emphasis added); see also Pub. L. No. 137, 69 Stat. 283
(1955). Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d
394, 396–407 (9th Cir. 1980), determined that § 15b could be
equitably tolled. See also Hexcel Corp. v. Ineos Polymers,
Inc., 681 F.3d 1055, 1060–61 (9th Cir. 2012) (discussing
tolling under § 15b); cf. Rotella v. Wood, 528 U.S. 549, 561
(2000) (indicating that equitable tolling may be available for
2
Aloe Vera of America, Inc. v. United States, 580 F.3d 867, 872 (9th
Cir. 2009), called into question Ceder Sinai’s continued vitality following
the Supreme Court’s decision in John R. Sand & Gravel Co., 552 U.S. 130
(2008). That statement was made without the benefit of the Supreme
Court’s most recent decisions clarifying the distinction between
jurisdictional and nonjurisdictional rules.
WONG V. BEEBE 17
civil claims brought under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), which applies the same
four-year statute of limitations in 15 U.S.C. § 15b).
Likewise, the 1947 amendments to the Fair Labor
Standards Act (“FLSA”)—which were enacted on the heels
of the FTCA—provided that every action under the FLSA
“shall be forever barred unless commenced within two years
after the cause of action accrued” 29 U.S.C. § 255(a)
(emphasis added); see also Pub. L. No. 40, § 6(b), 61 Stat. 84,
88 (1947). Partlow v. Jewish Orphans’ Home of Southern
California, 645 F.2d 757, 760–61 (9th Cir. 1981), abrogated
on other grounds by Hoffman-La Roche, Inc. v. Sperling,
493 U.S. 165 (1989), held that this statute of limitations could
be equitably tolled.
In various other statutes enacted in the mid-twentieth
century, Congress included limitations provisions “forever
barr[ing]” untimely claims. See, e.g., Automobile Dealer
Franchise Act of 1956, 84 Pub. L. No. 1026, § 3, 70 Stat.
1125 (1956), codified at 15 U.S.C. § 1223 (“Any action
brought pursuant to this Act shall be forever barred unless
commenced within three years after the cause of action shall
have accrued.”) (emphasis added); National Traffic and
Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563,
§ 111(b), 80 Stat. 718, 725 (1966), as amended by Pub. L.
No. 103-272, 108 Stat. 745 (1994) (“Any action brought
pursuant to this section shall be forever barred unless
commenced within three years after the cause of action shall
have accrued.”) (emphasis added); Agricultural Fair Practices
Act of 1967, Pub. L. No. 90-288, § 6(a), 82 Stat. 93, 95
(1967), codified at 7 U.S.C. § 2305(c) (same); National
Mobile Home Construction and Safety Standards Act of
1974, Pub. L. No. 93-383, § 613, 88 Stat. 633, 707 (1974),
18 WONG V. BEEBE
codified at 42 U.S.C. § 5412(b) (same). Viewed against this
backdrop, § 2401(b)’s “forever barred” language appears to
be more a vestige of mid-twentieth-century congressional
drafting conventions than a “clear statement” of Congress’s
intent to include a jurisdictional filing deadline in the FTCA.
Moreover, even if one does read the “forever barred”
language in § 2401(b) as an especially emphatic limitation on
FTCA claims, the Supreme Court’s recent line of cases
clarifying the jurisdictional/nonjurisdictional distinction make
plain that not all “‘mandatory prescriptions, however
emphatic, are . . . properly typed jurisdictional.’” Henderson,
131 S. Ct. at 1205 (quoting Union Pac. R.R., 558 U.S. at 81)
(emphasis added); see also Gonzalez, 132 S. Ct. at 651;
Kontrick, 540 U.S. at 454. And nothing in the text of
§ 2401(b) suggests that it is anything other than a
straightforward filing deadline—a “quintessential claim-
processing rule[].” Henderson, 131 S. Ct. at 1203.
Undeterred by the statute’s silence as to whether the
limitations period is jurisdictional (and by its placement in a
section not directed at jurisdiction), Judge Bea offers a grand
theory as to why § 2401(b) nonetheless clearly states a
jurisdictional rule, positing that there are two types of statutes
of limitations: “Plain Statutes of Limitations” and
“Consequence Statutes of Limitations.” Bea Dissent at 67,
71. The latter purportedly “provide mandatory consequences
for failures to act according to their prescriptions,” id. at 72,
and so “require the courts to respond in a certain way to a
party’s failure to timely act.” Id. Judge Bea’s dissent goes on
to maintain that whenever a limitations provision states that
a claim “shall be . . . barred,” or “forever barred,” “Congress
has spoken in jurisdictional terms” and the courts lack
authority to adjudicate the claim—even if there is no mention
WONG V. BEEBE 19
of jurisdiction or placement in a jurisdiction provision. Id. at
72–74.
Judge Bea’s consequential language approach is not one
that the Supreme Court has ever articulated or relied upon in
determining whether a particular limitations provision is
jurisdictional. Indeed, the Court criticized this approach in
Irwin, noting that, “[a]n argument can undoubtedly be made
that the . . . language is more stringent . . . , but we are not
persuaded that the difference . . . is enough to manifest a
different congressional intent with respect to the availability
of equitable tolling.” 498 U.S. at 95. While the Court has
held jurisdictional certain limitations provisions containing
the phrase “shall be . . . barred,” it has never relied on the
notion of “consequential” language to do so.3 Instead, the
Court has repeatedly eschewed a “magic words” approach to
determining whether procedural requirements are
jurisdictional, repeatedly taking a multifactor approach to the
inquiry. See Reed Elsevier, 559 U.S. at 165; Auburn Reg’l
Med. Ctr., 133 S. Ct. at 824.
Beyond that observation, we shall bypass ruling on
whether Judge Bea’s “consequential” language theory is a
helpful construct in some circumstances. As with most
3
Contrary to Judge Bea’s assertion, John R. Sand & Gravel did not hold
28 U.S.C. § 2501 “jurisdictional” based on the “consequential” language
of the statute. Rather, it held Irwin’s presumption of equitable tolling
rebutted based on the fact that “the Court had . . . previously provided a
definitive interpretation” of § 2501. 552 U.S. at 137. Nor did Bowles
hold that the limitations provision in 28 U.S.C. § 2107 was jurisdictional
solely based on its “consequential” language; like John R. Sand & Gravel,
Bowles rested largely on the “century’s worth of precedent and practice in
American courts” ranking “time limits for filing a notice of appeal”
jurisdictional. 551 U.S. at 209 n.2.
20 WONG V. BEEBE
attempts to create rigid dichotomous categories, the trick is
not in devising the categories but in placing various
circumstances into one or the other category. Although,
according to Judge Bea, a limitations provision containing
“shall . . . be barred” language “‘set[s] forth an inflexible rule
requiring dismissal,’” Bea Dissent at 75 (quoting Holland,
130 S. Ct. at 2560), the words relied upon simply do not have
that import.
First, as to the word “shall,” the Court consistently has
rejected arguments “seiz[ing] on the word ‘shall’” to suggest
that “‘all mandatory prescriptions, however emphatic, are . . .
properly typed jurisdictional.’” Gonzalez, 132 S. Ct. at 651
(quoting Henderson, 131 S. Ct. at 1205); see also Dolan v.
United States, 130 S. Ct. 2533, 2539 (2010) (holding that a
statute’s use of the word “shall” alone does not render
statutory deadline jurisdictional).
Second, § 2401(b) does not in terms order courts to do
anything, including dismiss any untimely claim. Like the
exhaustion-of-remedies requirement at issue in Payne,
“neither the word ‘courts’ nor the word ‘jurisdiction’ appears
in [§ 2401(b)].” Payne, 653 F.3d at 869. Instead, the phrase
“shall be . . . barred” is couched in the passive tense, and so
could as well be directed to the plaintiff, barring him from
filing the suit, as to the court, directing it to bar the filing.
The “shall be . . . barred” language of the six-month filing
deadline therefore does not express “an inflexible rule
requiring dismissal whenever its clock has run.” Holland,
130 S. Ct. at 2560 (internal quotation marks omitted).
Third, the word “forever” in § 2401(b) cannot supply the
missing link with regard to declaration of an inflexible rule.
See Bea Dissent at 76–77. The word “forever” is most
WONG V. BEEBE 21
commonly understood as one focusing on time, not on scope
or degree of flexibility in a static time frame. See Webster’s
New International Dictionary of the English Language 990
(2d ed. 1940) (defining “forever” to mean “[f]or a limitless
time or endless ages; everlastingly; eternally,” and “[a]t all
times; always; incessantly”); Oxford English Dictionary
(2013) (defining “forever” to mean “[a]lways, at all times; in
all cases . . . [t]hroughout all time, eternally; throughout all
past or all future time; perpetually”). As such, the term
“forever” is most naturally read to emphasize that an
untimely FTCA claim, once barred, is precluded permanently,
not temporarily or until some later event occurs. A claimant
therefore cannot refile the claim, nor may the time bar be
lifted once it is imposed. So understood, the term “forever”
does have a function in the statute, just not the one Judge Bea
posits.4 Thus, as the Fifth Circuit observed, “the use of the
words ‘forever barred’ [in § 2401(b)] is irrelevant to equitable
tolling, which properly conceived does not resuscitate stale
4
It is unclear how much weight the Bea dissent accords the term
“forever.” For the most part, the dissent categorizes statutes that simply
use “shall be barred” terminology as within its self-created “consequence”
category. See Bea Dissent at 72–75. But Judge Bea then devotes an entire
section to the word “forever,” and writes that “[i]t is especially telling”
that Congress included the term “forever barred” in § 2401(b), but did not
do so in § 2401(a), “the very section that precedes the one here in issue.”
Bea Dissent at 76-79.
In fact, as we have noted, § 2401(a) does provide that an FTCA claim
“shall be barred” unless it is filed within six years after the right of action
accrues. See 28 U.S.C. § 2401(a); see also Act of June 25, 1948, chap.
646, 62 Stat. 971 (1948). Thus, the dissent seems to rest, at least in part,
on the proposition that it is the word “forever” that transforms limitations
language into the “consequential” variety. For reasons discussed in the
text, the word “forever” cannot bear that weight.
22 WONG V. BEEBE
claims, but rather prevents them from becoming stale in the
first place.”5 Perez, 167 F.3d at 916.
In sum, nothing in the language of § 2401(b)—including
the term “shall . . . be barred,” and the word
“forever”—supplies a “clear statement” that Congress
intended the six-month filing deadline to be jurisdictional.6
5
Judge Bea also takes issue with Partlow and Mount Hood Stages,
supra, which, as discussed above, held statutes of limitation containing
language similar to § 2401(b) subject to equitable tolling. Judge Bea
questions the value of these precedents because they preceded the Court’s
more recent cases distinguishing between jurisdictional and
nonjurisdictional rules. Bea Dissent at 84–87. As noted, however, later
decisions by this Court and the Supreme Court affirm the availability of
equitable tolling under 15 U.S.C. § 15b, the statute at issue in Partlow.
See Hexcel Corp., 681 F.3d at 1060–61; Rotella, 528 U.S. at 561. More
fundamentally, these precedents undermine the notion that Congress
intended through the use of magic words in the Clayton Act Amendments
and FLSA limitations provisions to establish jurisdictional bars in statutes
allowing for civil suits against private parties.
6
Judge Bea’s reference to Kendall v. United States, 107 U.S. 123
(1883), as support for attributing jurisdictional meaning to the phrase
“forever barred,” Bea Dissent at 77–78, is misplaced. Though John R.
Sand & Gravel did rely on Kendall, it did so not because of Kendall’s
logic, but out of deference to “[b]asic principles of stare decisis,” John R.
Sand & Gravel, 552 U.S. at 139, as the statute in John R. Sand & Gravel
was the same court of claims statute that Kendall (and Finn v. United
States, 123 U.S. 227 (1887), and Soriano v. United States, 352 U.S. 270
(1957)) had already interpreted. Id. at 134–35. Indeed, John R. Sand &
Gravel recognized that the older cases on which it relied were out of step
with Irwin, but justified that reliance on “Justice Brandeis[’s] . . .
observ[ation] that ‘in most matters it is more important that the applicable
rule of law be settled than that it be settled right.’” Id. at 139 (quoting
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting
opinion)).
WONG V. BEEBE 23
b. Placement
The “context” surrounding § 2401(b) likewise does not
“clearly” indicate Congress’s intent to “rank” this provision
as jurisdictional. Auburn Reg’l Med. Ctr., 133 S. Ct. at 824.
The jurisdiction-granting provision of the FTCA is
located at 28 U.S.C. § 1346(b)(1) and provides that “[s]ubject
to the provisions of chapter 171 of this title, the district courts
. . . shall have exclusive jurisdiction of civil actions on claims
against the United States . . . under circumstances where the
United States, if a private person, would be liable to the
claimant.” Section 1346(b)(1) makes no mention of the six-
month filing deadline in § 2401(b). Furthermore, while
§ 1346(b)(1) does cross-reference “the provisions of chapter
171,” it does not cross-reference § 2401(b), which is located
in chapter 161, not chapter 171. Thus, the FTCA’s statute of
limitations “is located in a provision separate from [the
provision] granting federal courts subject-matter jurisdiction
over [FTCA] claims.” Reed Elsevier, 559 U.S. at 164
(internal quotation marks omitted); see also Henderson,
131 S. Ct. at 1205.
Further, even if § 1326(b) did mention the six-month
filing deadline in § 2401(b), the Court’s recent guidance on
this subject indicates that an otherwise nonjurisdictional
rule’s location within a statutory scheme does not
automatically transform the rule into a jurisdictional
prerequisite. Thus, a rule “does not become jurisdictional
simply because it is placed in a section of a statute that also
contains jurisdictional provisions.” Auburn Reg’l Med. Ctr.,
133 S. Ct. at 825; see also Gonzalez, 132 S. Ct. at 651.
24 WONG V. BEEBE
Not satisfied with the plain language of § 1346(b), the
government looks elsewhere for a “clear statement” of
§ 2401(b)’s jurisdictional import: the legislative history of the
FTCA. According to the government, “[t]he FTCA’s
limitations provision is found outside of chapter 171 only as
a happenstance of recodification.” In his dissent, Judge
Tashima likewise relies on the earlier version of the FTCA
to conclude that “Congress provided a clear statement [that
the FTCA’s limitations provision was jurisdictional] when
enacting the provision in 1946,” and that statement remains
clear today. Tashima Dissent at 59.
In the first place, and dispositively, it is improper to
consider legislative history in this instance. “[T]he
authoritative statement is the statutory text, not the legislative
history or any other extrinsic material.” Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).
Consequently, “when the statute’s language is plain, the sole
function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its
terms.” Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000) (quoting United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)) (internal
quotation marks omitted). The current statutory language of
§ 1326(b), the FTCA jurisdictional provision, cross-
references other provisions of the FTCA but not the chapter
containing the limitations provision, § 2401(b). There is no
ambiguity whatever in this regard; chapter 171 is not, and
does not include, chapter 161, period.7
7
The fact that this statute “produce[d] an intracircuit split, several en
banc dissents, and dozens of pages of analysis by the majority,” Tashima
Dissent at 56, does not mean that the cross reference to chapter 171is itself
ambiguous. While reasonable jurists may certainly debate the general
WONG V. BEEBE 25
Secondly, even if we were to consider the FTCA’s
legislative history, we could find no “clear statement” as to
jurisdiction. See Exxon Mobil, 545 U.S. at 568–69. Congress
first enacted the FTCA in 1946 as Title IV of the Legislative
Reorganization Act (“1946 Act”). See Pub. L. No. 79-601,
tit. IV, 60 Stat. 812, 842–47 (1946). The provisions of the
FTCA were codified in chapter 20 of Title 28 of the United
States Code. See 28 U.S.C. §§ 921–46 (1946).8 As originally
codified, the FTCA’s grant of jurisdiction read:
equitable tolling question this case presents, the cross reference to chapter
171, and not to chapter 161, is plain as day.
8
The original limitations provision in Section 420 of the Act provided:
Every claim against the United States cognizable under
this title shall be forever barred, unless within one year
after such claim accrued . . . it is presented in writing to
the Federal agency out of whose activities it arises, if
such claim is for a sum not exceeding $1,000; or unless
within one year after such claim accrued . . . an action
is begun pursuant to part 3 of this title. In the event that
a claim for a sum not exceeding $1,000 is presented to
a Federal agency as aforesaid, the time to institute a suit
pursuant to part 3 of this title shall be extended for a
period of six months from the date of mailing of notice
to the claimant by such Federal agency as to the final
disposition of the claim or from the date of withdrawal
of the claim from such Federal agency pursuant to
section 410 of this title, if it would otherwise expire
before the end of such period.
60 Stat. 812, 845. As originally enacted, the FTCA did not require
claimants to exhaust their administrative remedies. That requirement was
added in 1966. See 28 U.S.C. § 2401(b) (1994); H.R. Rep. No. 89-1532
at 6–7 (1966); S. Rep. No. 89-1327 at 2–3 (1966).
26 WONG V. BEEBE
Subject to the provisions of this chapter, the
United States district court for the district
court wherein the plaintiff is resident or
wherein the act or omission complained of
occurred . . . shall have exclusive jurisdiction
to hear, determine, and render judgment on
any claim against the United States, for
money only . . . on account of personal injury
or death caused by the negligent or wrongful
act or omission of any employee of the
Government while acting within the scope of
his office or employment, under
circumstances where the United States, if a
private person, would be liable to the claimant
for such damage, loss, injury, or death in
accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 931(a) (1946). Congress recodified and
reorganized all of Title 28 in 1948, and, in the course of doing
so, placed the FTCA’s limitations provision in its current
location in chapter 161, while placing most of the other
FTCA provisions formerly located in chapter 20 in chapter
171. Pub. L. No. 80-773 (“1948 Act”), 62 Stat. 869, 970–74
(1948); id. 62 Stat. 869, 982–85. The jurisdiction-granting
provision was relocated to chapter 85 and codified at
28 U.S.C. § 1346(b). Id. at 933. Because § 1346(b) was no
longer located in the same chapter as the other FTCA
provisions, the “subject to” phrase was changed to refer to
“the provisions of chapter 173 of this title.” Id.
As Judge Tashima points out, the reference in the 1948
version of § 1346(b) to chapter 173 was a scrivener’s error,
as there was no chapter 173 of Title 28. Tashima Dissent at
WONG V. BEEBE 27
53. A year later, Congress corrected the error, changing the
language of § 1346(b) to read: “[s]ubject to the provisions of
chapter 171.” See Pub. L. No. 81-55, 63 Stat. 62 (1949). But
that correction did nothing to erase the fact that the only
cross-reference in the jurisdictional provision, § 1346(b), is
to a chapter, chapter 171, which does not contain the FTCA
limitations provisions.
Nor does the directive of the 1948 Act that we are not to
“infer . . . a legislative construction from the chapter in which
a provision appears” override the plain terms of § 1346(b) as
revised. No inference is required to conclude that the FTCA
jurisdictional provision is no longer “subject to” the
limitations section. Instead, one need only read § 1346(b) to
determine that that is so; again, chapter 161 is not chapter
171, period. Thus, although the Court “does not presume that
the 1948 revision worked a change in the underlying
substantive law unless an intent to make such a change is
clearly expressed,” John R. Sand & Gravel Co., 552 U.S. at
136 (internal quotation marks omitted), that intent was clearly
expressed when the cross-reference to § 1346(b) was revised
to include many provisions of the FTCA but not the
applicable limitations period.
Under Judge Tashima’s “inference” approach to the clear
statutory language, it would not have mattered what Congress
wrote into the FTCA’s jurisdictional grant in 1948 (and later
corrected in 1949). Congress could have revised the statute
to read “Subject to the provisions of chapter 171” (as it
eventually did); “Subject to the provisions of chapter 171 and
161”; or “Subject to the provisions of chapter 161,” and
Judge Tashima’s interpretation would still be the
28 WONG V. BEEBE
same—“subject to any provision of the original FTCA as
codified in 1946.”9
We hold, instead, that § 1326(b) means what it says: that
the district courts “shall have exclusive jurisdiction of civil
actions on claims against the United States[] for money
damages,” “[s]ubject to the provisions of chapter 171.”
28 U.S.C. § 1326(b). The FTCA’s legislative history cannot
supply a “clear statement” to the contrary. Accordingly, there
is no contextual reason to think that the limitations period
provisions are jurisdictional.10
9
We note as well that the proposition that any requirement that the
FTCA’s jurisdictional grant is “subject to” is automatically a jurisdictional
prerequisite is a questionable one. The fact that § 1326(b) requires
plaintiffs to comply with certain requirements to file a claim against the
United States does not mean that each and every one of those
requirements concern “a tribunal’s power to hear a case.” Union Pac.
R.R., 558 U.S. at 81. Indeed, “subject to” originally encompassed section
411 of Title IV, which made the Federal Rules of Civil Procedure
applicable in FTCA cases; under Judge Tashima’s approach, compliance
with the Federal Rules would have thus been a jurisdictional requirement.
“Subject to” is more sensibly read to mean that litigants have to follow the
prescribed procedures, not that each and every one of those procedures, if
not followed, gives rise to the “drastic” consequences that follow from
lack of subject matter jurisdiction. See Gonzalez, 132 S. Ct. at 648. We
have never held otherwise. And where the Supreme Court has held a
specific provision in chapter 171 jurisdictional, it has not done so because
every rule in chapter 171 is a jurisdictional requirement. See McNeil v.
United States, 508 U.S. 106, 111–13 (1993); Smith v. United States,
507 U.S. 197, 199 (1993).
10
Aside from our holdings in Brady v. United States, 211 F.3d 499,
502–03 (9th Cir. 2000), and Lesoeur v. United States, 21 F.3d 965, 967
(9th Cir. 1994), which held, respectively, that the administrative
exhaustion requirement in § 2675(a) and discretionary function exception
in § 2680(a) are jurisdictional, we have not addressed whether any of the
other provisions in chapter 171 of the FTCA set forth jurisdictional
WONG V. BEEBE 29
c. Exceptions
In holding § 2401(b) “jurisdictional,” Marley found it
significant that Congress “explicitly included some
exceptions to the deadlines in § 2401(a), but included no such
exceptions in § 2401(b).” 567 F.3d at 1037. Section 2401(a)
provides, in relevant part, that an “action of any person under
legal disability or beyond the seas at the time the claim
accrues may be commenced within three years after the
disability ceases.” 28 U.S.C. § 2401(a). Marley reasoned
that “[b]ecause Congress chose to extend the time limit in
§ 2401(a) under certain circumstances, but did not include
any exceptions to the limitations period of § 2401(b), we
must conclude that Congress intended the deadlines of
§ 2401(b) to be adhered to strictly.” 567 F.3d at 1037
(emphasis omitted).
That conclusion cannot be squared with Auburn Regional
Medical Center, which rejected the argument that a statutory
time limit “should be viewed as jurisdictional because
Congress could have expressly made the provision
nonjurisdictional, and indeed did so for other time limits in
the [statute].” 133 S. Ct. at 825. Although “Congress’s use
of certain language in one part of the statute and different
language in another can indicate that different meanings were
intended,” that interpretive principle cannot, without more,
provide the “clear statement” required to classify § 2401(b)
as “jurisdictional.” Id. at 825–26 (internal quotation marks
omitted); see also Santos, 559 F.3d at 195–96.
requirements. In holding § 2401(b) nonjurisdictional, we express no
views as to whether the other provisions located in chapter 171 are
jurisdictional.
30 WONG V. BEEBE
d. Earlier Cases
Finally, unlike in Bowles, 551 U.S. at 210–13, and John
R. Sand & Gravel, 552 U.S. at 137–39, there has not been a
venerable, consistent line of cases treating the FTCA
limitations period as jurisdictional counseling against
switching gears now. Although we have held that § 2401(b)
is jurisdictional, see Marley, 567 F.3d at 1035–36 (citing
Berti v. V.A. Hosp., 860 F.2d 338, 340 (9th Cir.1988);
Augustine v. United States, 704 F.2d 1074, 1077 (9th
Cir.1983); Blain v. United States, 552 F.2d 289, 291 (9th Cir.
1977) (per curiam); Mann v. United States, 399 F.2d 672, 673
(9th Cir. 1968)), unlike in Bowles and John R. Sand &
Gravel, there is no Supreme Court precedent on the question.
See Reed Elseveir, 559 U.S. at 173–74 (Ginsburg, J.
concurring) (rejecting citation to non-Supreme Court
precedent because Bowles and John R. Sand & Gravel “relied
on longstanding decisions of this Court typing the relevant
prescriptions ‘jurisdictional’”) (emphasis in original). And
we have also held otherwise in Alvarez-Machain I, 107 F.3d
696.
Further, the pre-Alvarez-Machain I cases cited in Marley
preceded both Irwin and the Supreme Court’s more recent
decisions clarifying the distinction between jurisdictional and
nonjurisdictional rules. Indeed, our pre-Alvarez-Machain I
decisions are emblematic of the “drive-by jurisdictional
rulings” to which the Supreme Court has cautioned against
giving “precedential effect” in its more recent cases. See
Arbaugh, 546 U.S. at 511. For example, Berti, a three-page
opinion, labels § 2401(b) “jurisdictional,” but provides no
WONG V. BEEBE 31
analysis as to the meaning or significance of that term.11 See
Berti, 860 F.2d at 340. Accordingly, this is certainly not the
“exceptional [case] in which a ‘century’s worth of precedent
and practice in American courts’ rank [the] time limit as
jurisdictional.” Auburn Reg’l Med. Ctr., 133 S. Ct. at 825
(quoting Bowles, 551 U.S. at 209 n.2).
e. Purpose
Finally, with regard to the particular role of the FTCA’s
six-month limitations period for filing suit we “find no reason
why [§ 2401(b)] should be read . . . [as] a prerequisite to the
exercise of federal subject matter jurisdiction.” Payne,
653 F.3d at 870.
First, the consideration that the FTCA authorizes suits
against the federal government does not, standing alone,
supply such a reason. In so concluding, “[w]e . . . have in
mind that the [FTCA] waives the immunity of the United
States and that in construing the statute of limitations, which
is a condition of that waiver, we should not take it upon
ourselves to extend the waiver beyond that which Congress
intended.” Kubrick, 444 U.S. at 117–18; see also Block v.
North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S.
273, 287 (1983). But the fact that the FTCA is predicated on
a sovereign immunity waiver does not make the six-month
filing deadline a jurisdictional prerequisite, not subject to
equitable tolling. Although waivers must be “strictly
construed,” Irwin explained that “[o]nce Congress has made
11
Blain, Mann, and Augustine, cited in Marley, addressed the two-year
administrative claim limitation period in § 2401(b), not the six-month
post-exhaustion period. See Blain, 552 F.2d at 291; Mann, 399 F.2d at
673; Augustine, 704 F.2d at 1077.
32 WONG V. BEEBE
such a waiver, . . . making the rule of equitable tolling
applicable to suits against the Government, in the same way
that is applicable to private suits, amounts to little, if any,
broadening of the congressional waiver.” Irwin, 498 U.S. at
94–95.
John R. Sand & Gravel, 552 U.S. 130, is not to the
contrary. That case did note that “[t]he Court has often read
the time limits of these [sovereign immunity waiver] statutes
as more absolute,” id. at 133–34, and “has sometimes referred
to the time limits in such statutes as ‘jurisdictional.’”12 Id. at
133–34 (citing Bowles, 551 U.S. at 210). But John R. Sand
& Gravel did not turn on any bright-line distinction between
statutes of limitation that “protect a defendant’s case-specific
interest in timeliness,” and those “limiting the scope of a
governmental waiver of sovereign immunity.” 552 U.S. at
133–34. Instead, John R. Sand & Gravel reiterated and
applied Irwin’s presumption that equitable tolling applies to
statutes of limitations in suits against the government,
distinguishing Irwin on the grounds that “Irwin dealt with a
different limitations statute [that] . . . , while similar to
[§ 2501] in language, is unlike [§ 2501] in the key respect
that the Court had not previously provided a definitive
interpretation.” Id. at 137.
Second, there is no reason to think § 2401(b) more
concerned with “achiev[ing] a broader system-related goal”
12
The Court’s other recent cases discussing the distinction between
jurisdictional and nonjurisdictional statutes, including Auburn Regional
Medical Center, 133 S. Ct. 817, Gonzalez, 132 S. Ct. 641, Henderson,
131 S. Ct. 1197, Holland, 130 S. Ct. 2549, and Bowles, 551 U.S. 205, also
involve lawsuits against governmental entities. But they were not lawsuits
in federal court against the federal government, and so may not raise
precisely parallel sovereign immunity concerns.
WONG V. BEEBE 33
than simply with protecting the government’s “case-specific
interest in timeliness.” Id. at 133. Holland is instructive in
this regard. As noted above, Holland held that AEDPA’s
statute of limitations in 28 U.S.C. § 2244(d) is not
jurisdictional, and therefore is “subject to a ‘rebuttable
presumption’ in favor ‘of equitable tolling.’” 130 S. Ct. at
2560 (quoting Irwin, 498 U.S. at 95–96). Doing so, Holland
rejected the argument “that equitable tolling undermines
AEDPA’s basic purposes.” Id. at 2562. While
acknowledging AEDPA’s systemic goal of “eliminat[ing]
delays in the federal habeas review process,” Holland
emphasized that AEDPA “[does] not seek to end every
possible delay at all costs.” Id. Holland therefore declined
to read § 2244(d) as indicating “congressional intent to close
courthouse doors that a strong equitable claim would
ordinarily keep open.” Id.
Section 2401(b) likewise does not evince congressional
intent to foreclose the application of equitable principles for
the sake of “broader system-related goals.” As Kubrick
explained, § 2401(b)’s “obvious purpose[] . . . is to encourage
the prompt presentation of claims.” 444 U.S. at 117. That is
consistent “with the general purpose of statutes of limitations:
‘to protect defendants against stale or unduly delayed
claims.’” Credit Suisse Sec. (USA) LLC v. Simmonds,
132 S. Ct. 1414, 1420 (2012) (quoting John R. Sand &
Gravel, 552 U.S. at 133).
McNeil v. United States, 508 U.S. 106 (1993), does not
detract from our conclusion. McNeil strictly construed the
administrative exhaustion requirement in 28 U.S.C.
§ 2675(a), holding that an FTCA action filed before
exhaustion had been completed could not proceed in the
district court even where the litigation had not substantially
34 WONG V. BEEBE
progressed. 508 U.S. at 111–13. The exhaustion
requirement, unlike the § 2401(b) limitations period, is tied
by explicit statutory language to jurisdiction, and was deemed
“jurisdictional” in Brady, 211 F.3d 499, 502 (9th Cir. 2000).
The “straightforward statutory command” in § 2675(a),
McNeil explained, served “[t]he interest in orderly
administration of this body of litigation.” Id. at 112.
Judge Bea maintains that McNeil’s concern about the
“orderly administration of [FTCA] litigation” with respect to
the exhaustion-of-remedies requirement in § 2675(a) compels
us also to treat § 2401(b)’s six-month filing deadline as
jurisdictional. We disagree. Strict enforcement of an
exhaustion requirement serves to assure a particular
administrative interest—namely, the interest in assuring that
agency officials have a full opportunity to investigate and
consult internally with regard to claims for compensation due
to negligence by agency employees. Further, that purpose
recognized by the Supreme Court in McNeil—reducing court
congestion by keeping claims out of court until an
administrative agency has had a chance to settle them—is not
implicated by § 2401(b)’s sixth-month post-exhaustion
limitations period. See id. at 111–12, 112 n.8. Where agency
exhaustion is required, there is notice of the claim and of the
need for information collection, as well as an opportunity to
settle the claim, well before suit is filed in court.
In short, nothing in the text, context, or purpose of
§ 2401(b) clearly indicates that the FTCA’s six-month
limitations period implicates the district courts’ adjudicatory
authority. We therefore hold that § 2401(b) is a
nonjurisdictional claim-processing rule subject to the
presumption in favor of equitable tolling, and so overrule
Marley’s contrary holding.
WONG V. BEEBE 35
4. The Irwin Presumption in Favor of Equitable
Tolling
Having concluded that § 2401(b) is a nonjurisdictional
statute of limitations subject to Irwin’s presumption in favor
of equitable tolling, we must next determine whether that
presumption has been overcome in this case. See Holland,
130 S. Ct. at 2560; Albillo-De Leon v. Gonzales, 410 F.3d
1090, 1098 (9th Cir. 2005). “It is hornbook law that
limitations periods are customarily subject to equitable
tolling, unless tolling would be inconsistent with the text of
the relevant statute. Congress must be presumed to draft
limitations periods in light of this background principle.”
Young v. United States, 535 U.S. 43, 49–50 (2002) (internal
quotation marks and citations omitted). We must therefore
ask whether “there [is] good reason to believe that Congress
did not want the equitable tolling doctrine to apply” to
§ 2401(b). United States v. Brockamp, 519 U.S. 347, 350
(1997). There is no such reason.
As an initial matter, we note that the Irwin presumption
regarding the tolling of limitations periods in suits against the
federal government is particularly strong in FTCA cases.
Various provisions of the FTCA confirm that suits against the
government are to be treated no differently than suits against
private defendants.
For example, § 2674, governing the “Liability of [the]
United States,” states that “[t]he United States shall be liable,
respecting the provisions of this title relating to tort claims, in
the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674
(emphasis added); see Arteaga, 711 F.3d at 833. Likewise,
§ 1346(b)(1) grants the district courts exclusive jurisdiction
36 WONG V. BEEBE
over civil actions against the government “under
circumstances where the United States, if a private person,
would be liable.” Id. § 1346(b)(1) (emphasis added). Thus,
as a general matter, the FTCA places suits against the United
States on equal footing with suits against private individuals.
The Irwin presumption is further strengthened by the
“discovery” rule applicable to § 2401(b): A plaintiff is
required to file her claim with the relevant federal agency
“within two years after such claim accrues,” id. § 2401(b).
Applying the common law discovery rule—which does not
appear in the statute—courts view a claim as “‘accru[ing]’
within the meaning of [§ 2401(b)] when the plaintiff knows
both the existence and the cause of his injury.” See Kubrick,
444 U.S. at 119–21 and n.7. As a practical matter, this
common law rule “extends the statute of limitations by
delaying the date on which it begins to run.” Arteaga,
711 F.3d at 833. Application of a common law discovery
rule not enunciated in the statute to aspects of § 2401(b)
reinforces the notion that the FTCA’s statutes of limitations
admit of common law exceptions.
Without the discovery rule, the deadlines contained in
§ 2401(b) would closely resemble a “statute of repose”: “a
fixed, statutory cutoff date, usually independent of any
variable, such as claimant’s awareness of a violation.”
Munoz v. Ashcroft, 339 F.3d 950, 957 (9th Cir. 2003).
“[L]ike a jurisdictional prerequisite,” a statute of repose is not
subject to equitable tolling. Albillo-De Leon, 410 F.3d at
1097 n.5; see also Lampf, Pleva, Lipkind, Prupis & Petigrow
v. Gilbertson, 501 U.S. 350, 363 (1991); Albano v. Shea
Homes Ltd. P’ship, 634 F.3d 524, 534–36 (9th Cir. 2011).
While a nonjurisdictional statute of limitations “bars
plaintiff[s] from bringing an already accrued claim after a
WONG V. BEEBE 37
specified period of time,” a statute of repose “terminates a
right of action after a specific time, even if the injury has not
yet occurred.” Fields v. Legacy Health Sys., 413 F.3d 943,
952 n.7 (9th Cir. 2005).13
Far from setting a fixed cutoff date, § 2401(b) “is in the
traditional form of a statute of limitations.” Johnson v.
Aljian, 490 F.3d 778, 781 n.12 (9th Cir. 2007). As such, just
as it is subject to the common law discovery rule, so the
presumption favoring equitable tolling applies.
That § 2401(b) acts as a condition on the FTCA’s waiver
of sovereign immunity does not alter our conclusion,
essentially for the same reasons discussed earlier with regard
to the jurisdictional question. With or without a waiver of
sovereign immunity, the key inquiry, following Irwin,
remains whether equitable tolling “is inconsistent with the
text of the relevant statute.”14 United States v. Beggerly,
13
In Munoz, for example, we held that section 203 of the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105–100, 111
Stat. 2160 (1997), was a statute of repose, because it contained “fixed,
statutory cutoff date[s]” requiring an alien to file an application for relief
by April 1, 1990 or December 31, 1991. The statute did “‘not await a
specific event to start the deadline clock,’” but “‘[r]ather . . . served as the
endpoint of the definite time period in which Congress would permit
[applicants] to file applications.’” 339 F.3d at 957 (quoting Iacono v.
Office of Pers. Mgmt., 974 F.2d 1326, 1328 (Fed. Cir. 1992) (emphasis
omitted)).
14
The Supreme Court has, at times, indicated that equitable
considerations are less likely to apply to limitations provisions limiting the
scope of a governmental waiver of sovereign immunity. See John R.
Gravel & Sand, 552 U.S. at 133–34; Soriano, 352 U.S. at 275–77. Most
notably, Soriano declined to equitably toll the statute of limitations for
filing a claim in the Court of Claims, 28 U.S.C. § 2501, explaining “that
38 WONG V. BEEBE
524 U.S. 38, 48 (1998); see also John R. Sand & Gravel,
552 U.S. at 139. For the reasons already discussed, nothing
in § 2401(b) suggests that it is inconsistent with equitable
tolling. To the contrary, the FTCA goes out of its way in its
efforts to treat the United States the same as private tort
defendants.
Neither Brockamp, 519 U.S. 347, nor Beggerly, 524 U.S.
38, two cases in which the Supreme Court held the Irwin
presumption rebutted, indicates that the same conclusion is
appropriate here. Brockamp held that a statute of limitations
for filing tax refund claims foreclosed application of
equitable tolling, citing as evidence of Congress’s intent the
statute’s “highly detailed,” “technical,” and “unusually
emphatic form.” 519 U.S. at 350. Brockamp further
emphasized that “tax law,” the subject matter of the statute of
limitations in that case, “is not normally characterized by
case-specific exceptions reflecting individual equities,” given
limitations and conditions upon which the Government consents to be
sued must be strictly observed and exceptions thereto are not to be
implied.” See 352 U.S. at 275–76.
Noting that the Court’s “previous cases dealing with the effect of time
limits in suits against the Government have not been entirely consistent,”
Irwin discussed the result in Soriano, and concluded that its holding did
not apply to the thirty-day time limit in Title VII of the Civil Rights Act,
42 U.S.C. § 2000e-16(c). Irwin, 498 U.S. at 94–95. Instead, Irwin
explained, “this case affords us an opportunity to adopt a more general
rule to govern the applicability of equitable tolling in suits against the
Government,” namely, the rebuttable presumption in favor of tolling. Id.
at 95–96. In announcing this “general prospective rule,” John R. Sand &
Gravel, 552 U.S. at 137, Irwin did not expressly overrule Soriano, but
made clear that Soriano is not to be read to proscribe the application of
equitable doctrines to limitations on waivers of sovereign immunity in
every case.
WONG V. BEEBE 39
the more than “200 million tax returns” and “more than 90
million refunds” processed each year. Id. at 352. Beggerly,
in turn, determined that an “unusually generous” twelve-year
statute of limitations was “incompatible” with equitable
tolling, in large part because the underlying subject matter
concerned “ownership of land,” and equitable tolling would
“throw a cloud of uncertainty over [property] rights.”
524 U.S. at 48–49.
For reasons similar to those relied upon in the Supreme
Court’s more recent Holland decision, the statute of
limitations here “differs significantly from the statutes at
issue in [Brockamp] and [Beggerly].” Holland, 130 S. Ct. at
2561. Holland held AEDPA’s one-year statute of limitations
in 28 U.S.C. § 2244(d) nonjurisdictional and “subject to a
‘rebuttable presumption’ in favor ‘of equitable tolling.’” Id.
at 2560 (quoting Irwin, 498 U.S. at 95–96) (emphasis
omitted)). Applying that presumption, Holland explained
that, unlike the statute of limitations at issue in Brockamp,
§ 2244(d) “does not contain language that is ‘unusually
emphatic,’ nor does it ‘re-iterat[e]’ its time limitation.” Id. at
2561. Moreover, “unlike the subject matters at issue in both
Brockamp and Beggerly—tax collection and land
claims—AEDPA’s subject matter, habeas corpus, pertains to
an area of the law where equity finds a comfortable home.”
Id. Accordingly, “neither AEDPA’s textual characteristics
nor the statute’s basic purposes ‘rebut’ the basic presumption
set forth in Irwin.” Id. at 2562.
The same conclusion applies to § 2401(b). As discussed
above, the FTCA’s limitations provision is not cast in
particularly emphatic language given its provenance; nor is it
unusually generous. See Part II.A.3. And, unlike the
limitations provision in Brockamp, § 2401(b) does not
40 WONG V. BEEBE
“reiterate[] its limitations several times in several different
ways.” Brockamp, 519 U.S. at 351. Instead, § 2401(b)
“reads like an ordinary, run-of-the-mill statute of limitations,”
reflecting its period of enactment. Holland, 130 S. Ct. at
2561.
Furthermore, like the statute of limitations at issue in
Holland, § 2401(b) “pertains to an area of the law where
equity finds a comfortable home.” Id. As Irwin noted,
“[t]ime requirements in lawsuits between private litigants are
customarily subject to ‘equitable tolling.’” 498 U.S. at 95.
And, as discussed above, the FTCA places tort suits against
the United States on equal footing with tort suits against
private individuals, exposing the government to liability “in
the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674.
That Congress saw fit to include a time limit on such claims
without any specific limitations on tolling indicates, if
anything, that it intended to allow the operation of normal
equitable tolling principles that would be applicable in
ordinary tort suits against private individuals, not that it
harbored an intention otherwise.
Rouse v. United States Department of State, 567 F.3d 408
(9th Cir. 2009) (analyzing the Privacy Act’s two-year statute
of limitations, 5 U.S.C. § 552a(g)(5)), reached a similar result
to the one we reach here. In that case, a U.S. citizen sued the
“U.S. Department of State under the Privacy Act for damages
arising from his imprisonment in a foreign country.”
567 F.3d at 412. Rouse held, first, that the citizen’s claims
were “sufficiently similar to traditional tort actions such as
misrepresentation and false light to warrant the application of
Irwin’s rebuttable presumption.” Id. at 416. Next, Rouse
distinguished § 552a(g)(5) from the limitations provisions at
WONG V. BEEBE 41
issue in Brockamp and Beggerly, noting that § 552a(g)(5)
lacked “detail[ed], . . . technical language” and did not
concern an “area[] of law where the running of a defined
statute of limitations is of special importance.’” Id. at 417
(first alteration in original) (internal quotation marks
omitted). Rouse therefore concluded that the Irwin
presumption had not been rebutted in that case.
Finally, for the reasons similar to those we surveyed in
declining to infer § 2401(b)’s “jurisdictional” status from
other FTCA provisions and subsection (a) of § 2401, see
supra Part II.A.3, Congress’s decision to include explicit
exceptions in other FTCA limitations provisions does not
rebut the Irwin presumption.15 As Holland explained, the fact
that a statute “is silent as to equitable tolling while containing
one provision that expressly refers to a different kind of
tolling” does not foreclose the application of equitable tolling.
130 S. Ct. at 2561–62; see also Young, 535 U.S. at 53
(rejecting the argument that an “express tolling provision,
appearing in the same subsection as the [limitations] period,
demonstrates a statutory intent not to toll the [limitations]
period”).
In short, the Irwin presumption is not overcome. Nothing
in § 2401(b)’s text or context indicates that Congress
intended to preclude courts from ever applying equitable
15
For example, the revisions of the Federal Employees Liability Reform
and Tort Compensation Act of 1988 (the “Westfall Act”), Pub. L. No.
100-964, §§ 5-6, 102 Stat. 4563, 4564-65 (1988), to 28 U.S.C.
§ 2679(d)(5), provide that an action dismissed under the exhaustion
requirement in 28 U.S.C. § 2675(a) is considered timely under 28 U.S.C.
§ 2401(b) if the administrative claim would have been timely had the
claim been filed on the date of commencement of the civil action. See
28 U.S.C. § 2679(d)(5).
42 WONG V. BEEBE
tolling to claims filed outside of the six-month limitations
period.
B. Wong Is Entitled to Equitable Tolling
Concluding, as we do, that equitable adjustment of the
limitations period in § 2401(b) is not prohibited, does not
decide under what circumstances equitable tolling may be
appropriate. Whether a particular untimely claim may be
excused for a particular reason varies with the reason. We
decide only that under the circumstances presented here, the
usual principles governing equitable tolling apply and we can
find no “good reason to believe that Congress did not want
the equitable tolling doctrine to apply.” Brockamp, 519 U.S.
at 350.
We assume for present purposes, without deciding, that
Wong’s FTCA claim was filed in the district court too late.
In doing so, we pause to note that whether this is so depends
on: (1) whether the claim could be considered filed in the
district court at a point earlier than the amendment actually
adding the FTCA claim was filed; and (2) whether, if so, the
relevant filing date was (a) November 14, 2001, the date
Wong’s formal motion to file the amended complaint was
filed; (b) November 20, 2001, the date as of which the motion
to file the amended complaint requested that the complaint be
amended; or (c) December 10, 2001, the date Wong’s Reply
Memorandum on the motion to amend, which reiterated the
request to amend, was filed. Adopting the first of these
possible dates would create its own timeliness
problem—whether the court claim was filed too early—under
WONG V. BEEBE 43
McNeil, 508 U.S. at 111–13; adopting the second might also
raise a McNeil problem.16
Although there may be a defensible road through this
thicket yielding the result that the FTCA claim was timely
filed, at least constructively, cf. Fed. R. Civ. P. 15(c),
reaching that result would entail one or more novel rulings
concerning when FTCA claims added by amendment are
considered filed. Moreover, and notably, any such ruling
would in all likelihood itself rest on an equitable adjustment
of the usual application of limitations periods, because some
form of constructive filing date, different from the date the
amended complaint was actually filed in the district court,
would be required. In the end, then, there is little difference
in the underlying justification between applying traditional
equitable tolling principles and devising a novel equitable
solution to the filing date problem in this case. We therefore
proceed along the established, traditional route.
In applying equitable tolling, courts “follow[] a tradition
in which courts of equity have sought to ‘relieve hardships
which, from time to time, arise from a hard and fast
adherence’ to more absolute legal rules, which, if strictly
applied, threaten the ‘evils of archaic rigidity.’” Holland,
130 S. Ct. at 2563 (quoting Hazel–Atlas Glass Co. v.
Hartford–Empire Co., 322 U.S. 238, 248 (1944)). Thus, the
equitable tolling doctrine “enables courts to meet new
situations [that] demand equitable intervention, and to accord
16
As noted, Wong’s initial motion seeking leave to amend sought to
treat the INS’s inactivity regarding her claim as the agency’s final decision
under § 2675(a), but preceded the INS’s denial of her claim on December
3, 2001. See supra part I.B.
44 WONG V. BEEBE
all the relief necessary to correct . . . particular injustices.”
Id. (internal quotation marks omitted) (alterations in original).
“[L]ong-settled equitable-tolling principles” instruct that
“‘[g]enerally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.’” Credit Suisse, 132 S. Ct.
at 1419 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005) (emphasis omitted); see also Ramirez v. Yates,
571 F.3d 993, 997 (9th Cir. 2009). As to the first element,
“[t]he standard for reasonable diligence does not require an
overzealous or extreme pursuit of any and every avenue of
relief. It requires the effort that a reasonable person might be
expected to deliver under his or her particular circumstances.”
Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). Central
to the analysis is whether the plaintiff was “without any fault”
in pursuing his claim. Fed. Election Comm’n v. Williams,
104 F.3d 237, 240 (9th Cir. 1996).
With regard to the second showing, “a garden variety
claim of excusable neglect, such as a simple miscalculation
that leads a lawyer to miss a filing deadline, does not warrant
equitable tolling.” Holland, 130 S. Ct. at 2564 (internal
quotation marks and citations omitted). Instead, a litigant
must show that “extraordinary circumstances were the cause
of his untimeliness and . . . ma[de] it impossible to file [the
document] on time.” Ramirez, 571 F.3d at 997 (internal
quotation marks and citations omitted) (second alteration in
original). Accordingly, “[e]quitable tolling is typically
granted when litigants are unable to file timely [documents]
as a result of external circumstances beyond their direct
control.” Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir.
2008).
WONG V. BEEBE 45
Applying these longstanding principles in this case, we
conclude that whatever may be the case regarding other bases
for tolling, Wong’s circumstances easily justify equitable
tolling. As noted, Wong’s claim was untimely because it was
not filed within the six-month window running from
December 3, 2001—the date on which the INS denied
Wong’s administrative claim—to June 3, 2002. That result
was not the consequence of any fault or lack of due diligence
on Wong’s part. If anything, Wong took special care in
exercising due diligence: Wong first sought leave to file her
amended complaint “on or after November 20, 2001,” which
was, at the time that request was filed, the first day following
exhaustion of her administrative remedies on which Wong
would have been permitted to file her claim in the district
court. And, even after the INS denied her claim, thereby
starting anew the six-month deadline under § 2401(b), see
Lehman, 154 F.3d at 1014–15, Wong filed a Reply
Memorandum reiterating her request to file an amended
complaint including the FTCA claim. As the Magistrate
Judge noted, it was “due solely to the delay inherent in the
Magistrate Judge system” that no action was taken with
respect to those requests until the six-month limitations
period had already run. Moreover, by informing the parties
and the court of her desire to file an FTCA claim well before
the filing deadline and requesting leave to do so, Wong
fulfilled the notice concern that partially underlies limitations
statutes. See Crown, Cork & Seal Co., Inc. v. Parker,
462 U.S. 345, 352 (1983); Am. Pipe & Constr. Co. v. Utah,
414 U.S. 538, 554 (1974).
We are not persuaded by the government’s assertion that
Wong was dilatory in seeking to file her claim because she
did not expressly request a timely ruling from the district
court. Nor are we persuaded that Wong should have filed an
46 WONG V. BEEBE
entirely new complaint alleging the FTCA claim rather than
waiting for a ruling on the motion to amend. Wong was
entitled to expect a timely ruling on her request to amend,
which was made with a great deal of time to spare. And
filing a new suit on the same facts as one pending would have
been inefficient for all concerned—which is why
amendments alleging new causes of action on the same
factual allegations are permitted. See Fed. R. Civ. P. 15.
Thus, Wong put forth the “effort that a reasonable person
might be expected to deliver under . . . her particular
circumstances.” Busby, 661 F.3d at 1015.
In short, Wong’s claim was rendered untimely because of
external circumstances beyond her control. In light of these
circumstances, we conclude that equitable tolling properly
applies to excuse Wong’s late-filed amended complaint, and
that her FTCA claim against the United States therefore may
proceed.
REVERSED and REMANDED.
Chief Judge KOZINSKI, concurring in the judgment:
I agree with Judges Tashima and Bea that 28 U.S.C.
§ 2401(b) is jurisdictional, but can’t dissent because a
plaintiff like Wong who begins her FTCA action too early
can cure the defect by filing a motion to amend the premature
complaint. See Valadez-Lopez v. Chertoff, 656 F.3d 851,
855–58 (9th Cir. 2011). Wong filed such a motion before she
had finally exhausted her administrative remedies, which was
too soon. See 28 U.S.C. § 2675(a); McNeil v. United States,
508 U.S. 106, 112–13 (1993). But, on December 10, 2001,
WONG V. BEEBE 47
after the INS denied her claim and before the six-month
section 2401(b) window slammed shut, Wong filed a reply
memorandum reiterating her request for leave to file a second
amended complaint.
While we don’t typically treat a reply as a motion, there’s
nothing to preclude us from doing so. In this case, Wong’s
request had all the physical attributes of a motion: It was
made in writing, filed with the court, served on the other side,
prayed for relief and “state[d] with particularity” why she was
entitled to it. See Fed. R. Civ. P. 7(b). She pointed out that
“the court currently has jurisdiction over plaintiffs’ FTCA
claims and plaintiffs should be allowed to amend the
complaint to add those claims.” In her conclusion, she again
prayed for this relief: “[P]laintiffs should be granted leave to
file their Second Amended Complaint.”
The government concedes that if Wong moved for leave
to amend her complaint during the six months following the
INS’s denial of her claim, she’s entitled to maintain her
lawsuit. Cf. McNeil, 508 U.S. at 107–10 & n.5; Valadez-
Lopez, 656 F.3d at 855–58. Wong did file such a motion,
albeit within a document captioned “Reply Memorandum.”
The majority claims that construing Wong’s reply as a
motion would be “novel,” maj. op. 43, but we regularly treat
non-motion filings as motions when equity calls for it. See,
e.g., United States v. Rewald, 835 F.2d 215, 216 (9th Cir.
1987) (construing notice of appeal as motion for remand);
United States v. Aguirre-Pineda, 349 Fed. App’x. 212, 2009
WL 3368445, at *1 (9th Cir. 2009) (construing letter as
motion for appointment of counsel); Rapanan v. Nikkei
Manor/Nikkei Concerns, 42 Fed. App’x. 976, 2002 WL
1891677 (9th Cir. 2002) (construing letter as motion for
48 WONG V. BEEBE
extension of time to request oral argument). And there’s
certainly nothing novel about finding a motion nested within
a document that serves another purpose. See, e.g., United
States v. Harvey, 55 Fed. App’x. 445, 446 (9th Cir. 2003)
(construing opening brief as motion to withdraw as counsel
of record). Sometimes, we’re even required to do so. See,
e.g., Ninth Circuit Rule 22-1(e) (“Uncertified issues raised
and designated in [an appellant’s opening brief] will be
construed as a motion to expand the COA. . . .”). But even if
it were novel, so what? Novelty is not an enemy of justice;
we’re judges, not plumbers.
We owe Wong the benefit of our compassion and
creativity. After all, had the district court acted on her motion
within the section 2401(b) six-month period, she wouldn’t be
in this fix. But the court took more than seven months to act
on this routine motion—a delay Wong didn’t cause and
couldn’t have foreseen. The government suggests that,
instead of waiting for the district court to act on her motion,
Wong should have refiled it. Yeah, right. How many
litigants have the nerve to vex a federal judge with a clone
motion while the original is still pending? Bad things can
happen to those who twist the tiger’s tail. See, e.g., Nugget
Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429,
439 (9th Cir. 1992) (affirming imposition of sanctions for
filing duplicative motions). Instead, Wong used her reply
sensibly: She reiterated her request to amend, advanced new
arguments in support of that request and pointed out that the
court had acquired jurisdiction to grant it. To treat Wong’s
document as a legal nullity because she called it a reply rather
than a motion is inequitable and nonsensical. I thought we
had abandoned such pedantry in 1938. See 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1196 (3d ed. 2004) (“Fortunately, under federal practice the
WONG V. BEEBE 49
technical name attached to a motion or pleading is not as
important as its substance.”); see also Jack B. Weinstein, The
Ghost of Process Past: The Fiftieth Anniversary of the
Federal Rules of Civil Procedure and Erie, 54 Brook. L. Rev.
1, 2–3 (1988) (“When the Rules were first adopted, they were
optimistically intended to clear the procedural clouds so that
the sunlight of substance might shine through.”).
The majority claims that construing Wong’s reply as
satisfying section 2401(b) would itself be “an equitable
adjustment of the usual application of limitations periods.”
Maj. op. 43. If we’re willing to do that, my colleagues argue,
we should avoid this procedural “thicket” and just equitably
toll the statute of limitations. Id. “In the end,” the majority
concludes, “there is little difference in the underlying
justification between” its approach and mine. Id. But the
FTCA’s text, context and relevant historical treatment
prohibit equitable tolling of the statutory deadline, not
equitable construction of court filings. The majority and I
may emerge on the same side—but I take the road our law
provides. And that makes all the difference.
McNeil v. United States, 508 U.S. 106 (1993), confirms
this. McNeil dealt with section 2675(a), a different timing
provision of the FTCA, which bars instituting an action in
federal court before the administrative claim is “finally
denied by the agency.” 508 U.S. at 111 (quoting 28 U.S.C.
§ 2675(a)). The Court held in no uncertain terms that this
exhaustion requirement is jurisdictional. McNeil, 508 U.S. at
113; see also Bea Dissent at 90. But it also left open the
possibility that a plaintiff who had filed a complaint
prematurely might, after agency denial, file something else
that “constitute[s] the commencement of a new action.”
McNeil, 508 U.S. at 110–11. The Court explained: “As the
50 WONG V. BEEBE
case comes to us, we assume that the Court of Appeals
correctly held that nothing done by petitioner after the denial
of his administrative claim on July 21, 1989, constituted the
commencement of a new action.” Id. at 110. The Court
reiterated this later in the opinion: “Again, the question
whether the Court of Appeals should have liberally construed
petitioner’s letter [requesting counsel] as instituting a new
action is not before us.” Id. at 113 n.9. Thus, while finding
a similar FTCA timing requirement to be jurisdictional, the
Court made clear that the statute didn’t impair our traditional
power to liberally construe court filings—even mere
letters—when equity calls for us to do so. If a letter asking
for counsel can be “liberally construed . . . as instituting a
new action,” why not a reply? The Court saw no
contradiction between construing the statute strictly and
construing a pleading liberally. That’s plenty good enough
for me.
The federal judiciary caused Wong’s problem, and in
good conscience we should use such powers as we have to
make it up to her. Had she filed nothing within the relevant
time-frame, there would be nothing for us to construe and
she’d be barred by the statute. See Bea Dissent; Tashima
Dissent. But Wong did file, and that document contains a
crystal clear motion to amend the complaint. We owe it to
Wong to recognize this. I therefore concur in the judgment
of the majority but in the reasoning of the dissents (as far as
they go).
TASHIMA, Circuit Judge, joined by BEA, Circuit Judge,
dissenting:
WONG V. BEEBE 51
I join Judge Bea’s dissenting opinion in full. I write
separately to clarify the Federal Tort Claims Act’s
(“FTCA’s”) legislative history. This history, once understood
in full context, dispels any doubt that the FTCA’s limitations
provision was intended to be jurisdictional.
I.
Two provisions of the FTCA are central for present
purposes – the limitations provision, currently codified at
28 U.S.C. § 2401(b), and the jurisdiction-granting provision,
currently codified at 28 U.S.C. § 1346(b). I begin with a brief
history of these two provisions.
The FTCA was originally enacted in 1946 as Title IV of
the Legislative Reorganization Act. See Pub. L. No. 79-601
(“1946 Act”), tit. IV, 60 Stat. 812, 842–47 (1946). Pursuant
to the 1946 Act, the provisions of the FTCA were codified in
Chapter 20 of Title 28. See 28 U.S.C. §§ 921–946 (1946).
Among these provisions was the jurisdiction-granting
provision, which read, in pertinent part:
Subject to the provisions of this chapter, the
United States district court for the district
wherein the plaintiff is resident or wherein the
act or omission complained of occurred,
including the United States district courts for
the Territories and possessions of the United
States, sitting without a jury, shall have
exclusive jurisdiction to hear, determine, and
render judgment on any claim against the
United States, for money only, accruing on
and after January 1, 1945, on account of
damage to or loss of property or on account of
52 WONG V. BEEBE
personal injury or death caused by the
negligent or wrongful act or omission of any
employee of the Government while acting
within the scope of his office or employment,
under circumstances where the United States,
if a private person, would be liable to the
claimant for such damage, loss, injury, or
death in accordance with the law of the place
where the act or omission occurred.
Id. § 931(a) (emphasis added). The FTCA thus conferred
exclusive federal jurisdiction over tort actions against the
United States, but “[s]ubject to the provisions of” Chapter 20.
Included within Chapter 20 was the FTCA’s limitations
provision, then-codified at 28 U.S.C. § 942. See id. § 942.
Accordingly, as originally enacted in the 1946 Act, the
FTCA’s grant of jurisdiction was “[s]ubject to” the
limitations provision.
Congress recodified and reorganized Title 28 in 1948.
See Pub. L. 80-773 (“1948 Act”), § 1, 62 Stat. 869 (1948).
As part of the recodification, most of the provisions formerly
grouped under Chapter 20 were regrouped under Chapter 171.
See id. at 982–85. The limitations provision, however, was
removed from this grouping and placed in its current location
in Chapter 161, at 28 U.S.C. § 2401(b). See id. at 970–71.
There, it was situated alongside 28 U.S.C. § 2401(a), which
provides for a six-year statute of limitations in other types of
civil actions against the United States. See id. at 971.
Also removed from the former Chapter 20 grouping was
the jurisdiction-granting provision, which was recodified in
Chapter 85, at 28 U.S.C. § 1346(b). See id. at 930, 933.
Similarly to the limitations provision, this move consolidated
WONG V. BEEBE 53
the jurisdiction-granting provision with the other provisions
of Title 28 granting jurisdiction in civil actions against the
United States. See id. at 933. Because the reference to “this
chapter” in the opening clause of § 1346(b) was now stale –
given that § 1346(b) was no longer in the same chapter as the
other FTCA provisions – the clause was changed to read,
“Subject to the provisions of chapter 173 of this title.” Id.
However, there was no Chapter 173 of Title 28. Rather,
this was a scrivener’s error that should have read Chapter
171. Throughout the drafting history of the 1948 Act, the
chapter that would become Chapter 171 – titled “Tort Claims
Procedure” – had been designated Chapter 173, with the
cross-reference in § 1346(b) corresponding to this
designation. See, e.g., H.R. 2055, 80th Cong., chs. 85, 173
(1947). When the chapter was renumbered to 171 via a late
Senate amendment, see S. Rep. No. 80-1559, at 8 (1948), the
drafters simply failed to update the cross-reference in
§ 1346(b). It is thus evident that, as of the 1948 Act, the
opening clause of § 1346(b) should have read, “Subject to the
provisions of chapter 171 of this title.” Indeed, a year later,
Congress amended § 1346(b) to correct this error and change
the cross-reference to Chapter 171. See Pub. L. 81-55, 63
Stat. 62 (1949); see also S. Rep. No. 81-135, at 1–2 (1949).
II.
The history of the limitations and jurisdiction-granting
provisions, as recounted above, taken in conjunction with the
considerations discussed below, offer “a clear indication that
Congress wanted the [limitations] rule to be jurisdictional.”
Henderson ex. rel. Henderson v. Shinseki, 131 S. Ct. 1197,
1203 (2011) (internal quotation marks omitted). First, and
most importantly, it is plain that the limitations provision was
54 WONG V. BEEBE
jurisdictional as of the original 1946 Act, for the grant of
jurisdiction was expressly “[s]ubject to” – that is, “contingent
or conditional upon” – compliance with that provision. See
Webster’s New World Dictionary 1333 (3d Coll. ed. 1994);
see also Webster’s New International Dictionary 2509 (2d ed.
1940) (defining “subject to” as “[b]eing under the
contingency of; dependent upon or exposed to (some
contingent action)”). It is difficult to imagine a more “clear
statement” as to Congress’ intent.1 See Sebelius v. Auburn
Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013).
If one accepts this proposition – which the majority only
obliquely disputes2 – then, in order to find § 2401(b) non-
jurisdictional, one must conclude that Congress intended to
1
Of course, this logic dictates that the requirements of Chapter 171 are
also jurisdictional. At least two Circuit Courts have so held in accord with
this reasoning. See Mader v. United States, 654 F.3d 794, 807 (8th Cir.
2011) (en banc) (relying on the “[s]ubject to” language of § 1346(b) in
finding the presentment requirements of 28 U.S.C. § 2675(a)
jurisdictional); White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457–58
(3d Cir. 2010) (relying on the same in finding the sum certain requirement
of 28 U.S.C. § 2675(b) jurisdictional). But see Parrott v. United States,
536 F.3d 629, 634–35 (7th Cir. 2008) (holding that the statutory
exceptions of 28 U.S.C. § 2680 are not jurisdictional, notwithstanding the
language of § 1346(b)).
2
In a footnote, the majority suggests that the phrase “‘[s]ubject to’ is
more sensibly read to mean that litigants have to follow the prescribed
procedures, not that each and every one of those procedures, if not
followed, gives rise to the ‘drastic’ consequences that follow from lack of
subject matter jurisdiction.” Maj. Op. at 28 n.9. This interpretation not
only ignores the ordinary meaning of “subject to,” but it would render the
opening clause of § 1346(b) surplusage. The very existence of the
“prescribed procedures,” as standalone statutory provisions, “means that
litigants have to follow [them].” Thus, the “[s]ubject to” clause of
§ 1346(b) would have no substantive import under the majority’s reading.
WONG V. BEEBE 55
strip the limitations provision of its jurisdictional status only
two years later, through the 1948 Act. Under long-
established Supreme Court precedent, however, we are not to
“presume that the 1948 revision worked a change in the
underlying substantive law unless an intent to make such a
change is clearly expressed.” John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 136 (2008) (internal quotation
marks omitted); see also Keene Corp. v. United States,
508 U.S. 200, 209 (1993) (citing cases applying this rule).
Here, not only is such “clearly expressed” intent lacking, but
there is an abundance of evidence to the contrary – that
Congress had no desire to alter the jurisdictional status of the
limitations provision.
In the Reviser’s Notes to the 1948 Act,3 Congress
explained that § 2401 “consolidates” the FTCA’s limitations
provision with the six-year limitations period of 28 U.S.C.
§ 2401(a), which, like §2401(b), had formerly been codified
elsewhere in Title 28. See H.R. Rep. 80-308, at A185 (1947);
see also 28 U.S.C. § 41(20) (1946) (former section of six-
year limitations period). This purely organizational function
– to consolidate the provisions of Title 28 setting forth
limitations periods in actions against the government – is the
obvious reason that Congress separated § 2401(b) from the
other FTCA provisions and placed it in chapter 161.4 If there
3
The Supreme Court has repeatedly relied on the Reviser’s Notes in
determining whether a substantive change was intended through the 1948
Act. See, e.g., John R. Sand & Gravel, 552 U.S. at 136; Newman-Green,
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989).
4
The same purpose was carried out with respect to the jurisdiction-
granting provision, which was consolidated in § 1346 with the other
provisions of Title 28 granting jurisdiction in civil actions against the
government. See 1948 Act, § 1, 62 Stat. at 933; see also William W.
56 WONG V. BEEBE
were any doubt as to whether a substantive purpose was
intended, the Reviser’s Notes then added, “Subsection (b) of
the revised section [2401] simplifies and restates [former
28 U.S.C. § 942], without change of substance.” H.R. Rep.
80-308, at A185 (emphasis added).
Congress provided equally definitive guidance in the
actual text of the 1948 Act. In an uncodified provision,
Congress instructed, “No inference of a legislative
construction is to be drawn by reason of the chapter in Title
28 . . . in which any [] section is placed.” 1948 Act, § 33,
62 Stat. at 991 (emphasis added). Of course, precisely such
an inference is required to find § 2401(b) non-jurisdictional,
because one must assume that Congress intended to alter the
jurisdictional status of the limitations provision by removing
it from the FTCA Chapter and placing it in Chapter 161.
In short, there is no indication – let alone a “clearly
expressed” indication – that Congress intended to alter the
jurisdictional status of the limitations provision through the
1948 Act.
III.
The majority offers several responses to this historical
evidence, none of which is persuasive. First, the majority
contends that “it is improper to consider legislative history”
because the statutory text is “plain.” Maj. Op. at 24. It is a
curious statute that is unambiguous but manages to produce
Barron, The Judicial Code: 1948 Revision, 8 F.R.D. 439, 445 (1949)
(“The statutes conferring jurisdiction . . . are consolidated into a single
section. The revised section consolidates and clarifies three widely
separated provisions of the former code.”).
WONG V. BEEBE 57
an intracircuit split, several en banc dissents, and dozens of
pages of analysis by the majority to justify its conclusion.
These considerations aside, the fact is that the goal of the
jurisdictional inquiry is “to ascertain Congress’ intent.”
Henderson, 131 S. Ct. at 1204. The majority recognizes that
we must look to factors such as “context” and “relevant
historical treatment” to discern this intent, Maj. Op. at 11
(quoting Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,
1246 (2010)), but it provides no reason why legislative
history may not similarly be considered.5 The majority, in
effect, invokes the requirement that there be evidence of clear
congressional intent, and it then seeks to shut the door on the
very evidence that could support this showing.
Perhaps recognizing that its “plain text” argument sits on
shaky ground, next, the majority implicitly acknowledges that
the limitations provision was jurisdictional under the original
1946 Act, but it contends that the 1948 revision undid this
status. Maj. Op. at 25–28. In this regard, the majority does
at least make a passing reference to the rule that we are not to
presume the 1948 Act effected substantive change unless
“clearly expressed.” Maj. Op. at 27. According to the
majority, though, such clear expression can be found in
Congress’ amending the cross-reference in § 1346(b) to
Chapter 171, which did not include the limitations provision.
Maj. Op. at 27.
5
As described below, the legislative history is particularly probative of
congressional intent in the instant case given that the focus is on the
statutory scheme as enacted by Congress, and given that this enactment
occurred only two years prior to the adoption of the current statutory
language.
58 WONG V. BEEBE
This argument quickly falls apart upon considering the
history of the two key provisions. As explained, the removal
of the limitations provision from the FTCA Chapter was
solely for organizational purposes, to consolidate the
provisions of Title 28 setting forth limitations periods in
actions against the government. Likewise, the redesignation
of the cross-reference in § 1346(b), to Chapter 171, was
merely an artifact of reorganization. The jurisdiction-
granting provision previously referenced “this chapter” –
referring to the FTCA Chapter of Title 28 – but this reference
became outdated once the jurisdiction-granting provision was
stripped out of the FTCA Chapter. Congress simply updated
the cross-reference, inserting the new number of the FTCA
Chapter, Chapter 171. In the end, therefore, the majority’s
argument is entirely circular. The majority relies on the
reorganization, and nothing else, as a clear expression that the
reorganization effected substantive change.6
Finally, the majority falls back on the notion that the
FTCA’s “drafting history” cannot supply a clear statement of
Congress’ intent. Maj. Op. at 27–28. The 1946 Act,
however, does not reflect “drafting history.” It is the
6
The majority contends that, under my treatment of the legislative
history, the limitations period would remain jurisdictional regardless of
“what Congress wrote into the FTCA’s jurisdictional grant in 1948.” Maj.
Op. at 27. Hardly the case. If Congress truly intended to alter the
provision’s jurisdictional status, it could have provided an affirmative
statement to this effect in the text of the 1948 Act, in the Reviser’s Notes,
or elsewhere in the legislative history. See Barron, supra, at 446
(“Congress . . . includ[ed] in its reports the complete Reviser’s Notes to
each section in which are noted all instances where change is intended and
the reasons therefor.”). The requirement that Congress affirmatively
express such an intent is not one I have created, but one that is mandated
as a matter of Supreme Court doctrine. See Keene Corp., 508 U.S. at 209.
WONG V. BEEBE 59
statutory scheme as enacted by Congress. And it is the
scheme put into place only two years prior to the revisions
that produced the current statutory language, revisions that
we are to presume did not effect any substantive change.
Under these circumstances, it is entirely reasonable to rely on
the 1946 Act as providing a “clear indication” of Congress’
intent. Henderson, 131 S. Ct. at 1205.
IV.
Given the legislative history recited above, I have little
difficulty concluding that the FTCA’s limitations provision
was intended to be jurisdictional. Congress provided a clear
statement to this effect when enacting the provision in 1946.
When reorganizing Title 28 only two years later, Congress
did not “clearly express[],” or provide any indication at all,
that it intended to disturb this status. For these reasons, as
well as the reasons outlined in Judge Bea’s dissenting
opinion, I respectfully dissent.
BEA, Circuit Judge, with whom TASHIMA, Circuit Judge,
joins, dissenting:
The majority opinion permits courts, for equitable
reasons, to extend the time in which a tort action can be
begun against the Government, after the obligatory
administrative claim has been filed and denied. Because I
believe Congress clearly expressed its intent that 28 U.S.C.
§ 2401(b) would limit the jurisdiction of federal courts by
providing that tort claims “shall be forever barred” unless
action is begun within the six-month period following denial
60 WONG V. BEEBE
of the administrative claim by the concerned agency, with no
exceptions, I respectfully dissent.
I. The “Jurisdictional” vs. “Claim-Processing”
Distinction and Our Inquiry
The majority is correct, of course, in noting that the
Supreme Court has created a rebuttable presumption that
equitable tolling applies to suits against the United States.
See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96
(1990).1 But that presumption is not universally applicable.
As the majority admits, it has no application to certain kinds
of “more absolute” statutes of limitations. See John R. Sand
1
In Irwin, the petitioner was fired from his job by the Veterans’
Administration (“VA”). See id. at 90. He filed a complaint with the VA,
alleging that it had unlawfully discharged him on the basis of race and
physical disability. See id. at 91. The VA dismissed the complaint, and
the Equal Employment Opportunity Commission (“EEOC”) affirmed that
decision. See id. The petitioner had the right to file a civil action in
district court but was required to do so within 30 days of the EEOC’s
affirmance. See id. (citing 42 U.S.C. § 2000e-16(c)). The petitioner filed
a complaint in district court 44 days after his attorney’s office received the
EEOC’s notice, which was only 29 days after the date on which he
claimed to have received the notice. See id. The district court held that
the limitations period began when the attorney’s office received the notice
and granted the VA’s motion to dismiss for lack of jurisdiction. See id.
The Fifth Circuit affirmed and held that compliance with § 2000e-16(c)’s
time limit was a jurisdictional requirement. See id. The Supreme Court
held that § 2000e-16(c)’s time limit was not jurisdictional; instead, the
Court 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. Because the principles of
equitable tolling did “not extend to what is at best a garden variety claim
of excusable neglect,” however, the Court affirmed the dismissal. See id.
at 96.
WONG V. BEEBE 61
& Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008).2
These “more absolute” statutes “seek not so much to protect
a defendant’s case-specific interest in timeliness as to achieve
a broader system-related goal, such as facilitating the
administration of claims, limiting the scope of a
governmental waiver of sovereign immunity, or promoting
judicial efficiency.” Id. at 133. The Court has described the
time limits in such statutes of limitations as “jurisdictional.”
See id. at 134.
The majority believes the distinction between these “more
absolute” or “jurisdictional” statutes, to which courts cannot
create exceptions based on equitable considerations, and mere
“claim-processing rules,” to which Irwin’s rebuttable
presumption applies, is “critical for present purposes.” See
Op. at 8–9. The majority calls § 2401(b) a “quintessential
claim-processing rule,” see Op. at 18, but calling something
2
In John R. Sand & Gravel, the petitioner filed an action in the Court of
Federal Claims, asserting that various Environmental Protection Agency
activities on land it leased for mining purposes amounted to an
unconstitutional taking of its leasehold rights. See id. at 132. The
Government initially asserted that the claims were untimely under
28 U.S.C. § 2501, which provides that “[e]very claim of which the United
States Court of Federal Claims has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim first accrues.”
See id. (quoting 28 U.S.C. § 2501). The Government later conceded that
certain claims were timely, and subsequently won on the merits. See id.
On appeal, the Court of Appeals for the Federal Circuit held that the
action was untimely filed and should have been dismissed for that reason.
See id. at 133. The Supreme Court affirmed and held that compliance
with § 2501’s time limit is a jurisdictional requirement. See id. at 138–39.
As noted below, the Court also explained the difference between
jurisdictional statutes of limitations and those to which Irwin’s
presumption can be applied. See id. at 133–34.
62 WONG V. BEEBE
a name does not change its nature.3 And the critical question
is not whether we characterize § 2401(b) as a “quintessential
claim-processing rule,” see Op. at 18, but whether Congress
mandated that its prescribed time limit be jurisdictional, see
Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011) (noting
that “Congress is free to attach the conditions that go with the
jurisdictional label to a rule that [courts] would prefer to call
a claim-processing rule.”).4 To make this determination, the
court must “look to see if there is any clear indication that
Congress wanted the rule to be jurisdictional.” Id. (internal
quotation marks and citation omitted). And, to find such a
“clear indication,” we must examine the statute’s “text,
3
The majority ignores the simple truth contained in the aphorism
ascribed, perhaps apocryphally, to Abraham Lincoln: “If you call a tail a
leg, how many legs has a dog? Five? No, calling a tail a leg don’t make
it a leg.”
4
In Henderson, the petitioner, a veteran of the Korean War who had
been given a 100-percent disability rating for paranoid shizophrenia, filed
a claim with the Department of Veterans Affairs (“VA”) for supplemental
benefits based on his need for in-home care. See id. at 1201. The VA
regional office and Board of Veterans’ Appeals denied the petitioner’s
claim. See id. The petitioner filed a notice of appeal with the Veterans
Court, but he missed the 120-day filing deadline by 15 days. See id.
(citing 38 U.S.C. § 7266(a)). The Veterans Court dismissed the appeal for
lack of jurisdiction, treating compliance with the 120-day deadline as a
jurisdictional requirement. See id. at 1202. The Federal Circuit affirmed.
See id. Because § 7266(a) “provide[d] no clear indication that Congress
wanted the provision to be treated as having jurisdictional attributes,” the
Supreme Court reversed and held that the 120-day limitation period was
not jurisdictional. Id. at 1205–06.
WONG V. BEEBE 63
context and relevant historical treatment.” Reed Elsevier, Inc.
v. Muchnick, 559 U.S. 154, 166 (2010).5
II. The Statute’s Text
Section 2401(b) provides, in relevant part, that “[a] tort
claim against the United States shall be forever barred unless
. . . action is begun within six months after the date of
mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented.”
28 U.S.C. § 2401(b).
A. Reading § 2401(b) with § 2675.
Perhaps where the majority goes wrong is in considering
§ 2401(b) as a stand-alone statute of limitations, rather than
considering it in conjunction with the complementary
administrative exhaustion requirement of 28 U.S.C. § 2675.
The Court has instructed against such a restrictive view of
5
In Reed Elsevier, authors, some of whom had registered copyrights for
their works and others who had not, sued publishers and electronic
databases for copyright infringement. See id. at 158. The parties settled
and filed a motion in federal district court to certify a class for settlement
and approve the settlement agreement. See id. at 159. Ten freelance
authors (“the Muchnick respondents”) objected. See id. The district court
overruled those objections, certified a settlement class of freelance
authors, approved the settlement, and entered final judgment. See id. The
Muchnick respondents appealed, and the Second Circuit held that the
district court lacked jurisdiction to certify a class of claims arising from
the infringement of unregistered works. See id. at 159–60 (citing
17 U.S.C. § 411(a), which provides, in relevant part, that “no civil action
for infringement of the copyright in any United States work shall be
instituted until preregistration or registration of the copyright claim has
been made”). The Supreme Court reversed and held that § 411(a)
imposed a non-jurisdictional precondition to suit. See id. at 166.
64 WONG V. BEEBE
statutory conditions for bringing suit. See United States v.
Dalm, 494 U.S. 596, 601 (1990).6 Instead, courts should read
together “provisions which qualify an [individual]’s right to
bring . . . suit upon compliance with certain conditions.” Id.7
6
In Dalm, the respondent had been appointed administratrix of her
employer’s estate. See id. at 598. In return for her services, she received
fees from the estate and two payments from the employer’s surviving
brother. See id. at 599. The respondent reported the latter payments as
gifts and paid the appropriate gift tax. See id. The Internal Revenue
Service (“IRS”) audited the respondent’s income tax returns and
determined that the payments should have been reported as income. See
id. The respondent petitioned the Tax Court for a redetermination but
subsequently settled the case. See id. After she agreed to the settlement,
the respondent immediately filed an administrative claim for return of the
gift tax she had paid. See id. When the IRS failed to act on her claim
within six months, she filed suit in district court, seeking a refund of
“overpaid gift tax.” Id. at 600. The district court granted the
Government’s motion to dismiss the suit for lack of jurisdiction, because
the respondent’s suit was untimely under the applicable statute of
limitations: 26 U.S.C. § 6511(a). See id. The Sixth Circuit reversed and
held that the doctrine of equitable recoupment should be applied to permit
the respondent’s suit to proceed. See id. The Supreme Court reversed and
held that the district court did not have jurisdiction to entertain the
untimely action. See id. at 610.
7
In Dalm, there were two such provisions. See id. at 601–02 (stating
that 26 U.S.C. § 7422, which provides that “[n]o suit or proceeding shall
be maintained in any court for the recovery of any internal revenue tax
alleged to have been erroneously or illegally assessed or collected . . . until
a claim for refund or credit has been duly filed with the Secretary,” and
26 U.S.C. § 6511(a), which provides that, if a taxpayer is required to file
a return with respect to a tax, the “[c]laim for refund or credit . . . shall be
filed by the taxpayer within 3 years from the time the return was filed or
2 years from the time the tax was paid, whichever of such periods expires
the later,” were both relevant qualifications on a taxpayer’s right to bring
a refund suit). Because both provisions established conditions on a
taxpayer’s right to bring suit, the Court read them together. See id. at 602
(“Read together, the import of these sections is clear: unless a claim for
WONG V. BEEBE 65
Here, two statutory provisions qualify an individual’s right to
file suit for tort against the United States. See 28 U.S.C.
§ 2675(a); 28 U.S.C. § 2401(b). First, § 2675 provides that
“[a]n action shall not be instituted upon a claim against the
United States for money damages . . . , 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 in writing and sent by certified or registered mail.”
28 U.S.C. § 2675(a). This section requires that an
administrative claim be made to the responsible agency, and
it disallows suit until the denial of such claim is final. See id.
No such administrative claims filing is needed to commence
an action against a private person under applicable state law.
Irwin, 498 U.S. at 96 (reasoning that principles “applicable to
suits against private defendants should also apply to suits
against the United States”).
Section 2401(b) is § 2675(a)’s logical complement. It
provides that:
[a] tort claim against the United States shall
be forever barred unless it is presented in
writing to the appropriate Federal agency
within two years after such claim accrues or
action is begun within six months after the
date of mailing, by certified or registered
refund of a tax has been filed within the time limits imposed by § 6511(a),
a suit for refund . . . may not be maintained in any court.” (citations
omitted)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012) (“Perhaps no interpretive fault is
more common than the failure to follow the whole-text canon, which calls
on the judicial interpreter to consider the entire text, in view of its
structure and of the physical and logical relation of its many parts.”).
66 WONG V. BEEBE
mail, of notice of final denial of the claim by
the agency to which it was presented.
28 U.S.C. § 2401(b). This provision establishes the time
limits applicable to presenting an administrative claim and
beginning a civil action. As in Dalm, the import of these two
sections is clear when they are read together: Unless an
administrative claim is presented to the responsible agency
before action is begun, and unless both the claim and the
action are begun within the time limits imposed by § 2401(b),
the tort claim against the United States “shall be forever
barred.”
B. Section 2401(b) Refers to Courts’ Jurisdiction.
The majority holds, in a rather conclusory fashion, that
§ 2401(b) “does not speak in jurisdictional terms or refer in
any way to the jurisdiction of the federal courts.” Op. at 15
(internal quotations and citations omitted). I disagree. While
it is true that § 2401(b) does not mention the term
“jurisdiction,” the same is true of several statutes of
limitations the Court has found to be jurisdictional. See John
R. Sand & Gravel, 552 U.S. at 134 (holding 28 U.S.C. § 2501
jurisdictional, despite the absence of the term “jurisdiction”);
Bowles v. Russell, 551 U.S. 205, 213 (2007) (same with
respect to 28 U.S.C. § 2107(a) and (c))8; Dalm, 494 U.S. at
8
In Bowles, an Ohio jury convicted the petitioner of murder and
sentenced him to 15-years-to-life imprisonment. See id. at 207. The
petitioner unsuccessfully challenged his conviction and sentence on direct
appeal, and then filed a federal habeas corpus petition. See id. The
district court denied habeas relief. See id. After the entry of final
judgment, the petitioner had 30 days to file a notice of appeal. See id.
(citing 28 U.S.C. § 2107(a)). He failed to do so. See id. Instead, he later
filed a motion to reopen the period in which to file a notice of appeal
WONG V. BEEBE 67
609 (same with respect to 26 U.S.C. § 7422(a) and 26 U.S.C.
§ 6511(a)).9 The majority fails to appreciate a crucial
difference between the statutes of limitations the Court has
deemed jurisdictional and those to which the Court has
applied equitable tolling: whether the statute expressly
mandates a consequence for the failure timely to file.
1. Plain Statutes of Limitations: No Consequences
Mandated for Failure Timely to File
Some statutes of limitations require that certain actions be
performed within a specified period of time without
specifying consequences to be applied where the actions are
not performed as prescribed. See, e.g., 17 U.S.C. § 411(a)
(“[Subject to certain exceptions], no civil action for
infringement of the copyright in any United States work shall
be instituted until preregistration or registration of the
copyright claim has been made in accordance with this
title.”); 28 U.S.C. § 2244(d)(1) (“A 1-year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
under 28 U.S.C. § 2107(c), which allows district courts to extend the filing
period for 14 days. See id. The district court granted the motion to
reopen, but “inexplicably gave [the petitioner] 17 days,” instead of the 14
days permitted by statute. See id. The petitioner filed his notice of appeal
after the 14-day period allowed by statute but within the 17 days allowed
by the district court. See id. The Sixth Circuit held that it lacked
jurisdiction to entertain the appeal, because the notice of appeal was
untimely filed. See id. The Supreme Court affirmed and held that “the
timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.” Id. at 214.
9
Unfortunately, the Court has not yet analyzed whether § 2401(b) is or
is not jurisdictional. We must therefore use what tools the Court has given
us in its discussions of similar statutory provisions and reason by analogy.
68 WONG V. BEEBE
State court.”); 38 U.S.C. § 7266(a) (“In order to obtain review
by the Court of Appeals for Veterans Claims of a final
decision of the Board of Veterans’ Appeals, a person
adversely affected by such decision shall file a notice of
appeal with the Court within 120 days after the date on which
notice of the decision is mailed . . . .”); F. R. Bankr. P.
4004(a) (“[A] complaint . . . objecting to the debtor’s
discharge shall be filed no later than 60 days after the first
date set for the meeting of creditors under §341(a).”). These
statutes, as evidenced by the quotations above, are often
written in mandatory terms. Significantly, while they make
parties’ actions mandatory, they do not contain mandatory
consequences for noncompliance.
The Court has instructed that “if a statute does not specify
a consequence for noncompliance with statutory timing
provisions, the federal courts will not in the ordinary course
impose their own coercive sanction.” Barnhart v. Peabody
Coal Co., 537 U.S. 149, 159 (2003).10 It makes good sense,
10
In Barnhart, the Court addressed 26 U.S.C. § 9706(a)’s requirement
that the Commissioner of Social Security assign, before October 1, 1993,
each coal industry retiree eligible for benefits to an operating company or
related entity, which would then be responsible for funding the assigned
beneficiary’s benefits. See id. at 152–53. The Commissioner did not
complete all the assignments by the statutory date, and several coal
companies challenged the Commissioner’s by then tardy assignments. See
id. at 156. The companies obtained summary judgments in each case, and
the Sixth Circuit affirmed. See id. at 157. The Supreme Court held that
it was “unrealistic to think that Congress understood unassigned status as
an enduring ‘consequence’ of uncompleted work, for nothing indicates
that Congress even foresaw that some beneficiaries matchable with
operators still in business might not be assigned before October 1, 1993.”
Id. at 164–65. Thus, it read the statutory deadline as “a spur to prompt
action, not as a bar to tardy completion of the business of ensuring that
benefits are funded . . . by those identified by Congress as principally
WONG V. BEEBE 69
then, that the Court has regularly held that statutes of
limitations lacking provisions specifying consequences do
not speak in jurisdictional terms or refer to the courts’
jurisdiction. See, e.g., Henderson, 131 S. Ct. at 1204
(holding that the terms of 38 U.S.C. § 7266(a) “do not
suggest, let alone provide clear evidence, that the provision
was meant to carry jurisdictional consequences”); Holland v.
Florida, 130 S. Ct. 2549, 2560 (2010) (holding that
28 U.S.C. § 2244(d)(1) “does not set forth an inflexible rule
requiring dismissal whenever its clock has run” (internal
quotation marks and citations omitted))11; Reed Elsevier,
responsible.” Id. at 172.
11
In Holland, the petitioner was convicted of first-degree murder and
sentenced to death. See id. at 2555. The Florida Supreme Court affirmed
that judgment, and, on October 1, 2001, the Supreme Court denied the
petition for certiorari. See id. On that date, 28 U.S.C. § 2244(d)’s one-
year statute of limitations for filing a habeas petition began to run. See id.
On September 19, 2002 (i.e. 12 days before the one-year limitations period
expired), a state-appointed attorney filed a motion for post-conviction
relief in the state court, which automatically stopped the running of the
limitations period. See id. In May 2003, the state trial court denied relief.
See id. By February 2005, when the Florida Supreme Court heard oral
argument in the case, the petitioner and his appointed attorney rarely
communicated. See id. Indeed, the petitioner asked the Florida Supreme
Court to remove the attorney from his case because of a “complete
breakdown in communication,” including a failure to keep him informed
of the case’s status. See id. The Florida Supreme Court denied the
petitioner’s request. See id. at 2556. The petitioner subsequently wrote
the attorney several times and emphasized the importance of filing a
timely petition for habeas corpus in federal court once the Florida
Supreme Court ruled against him. See id. In November 2005, the Florida
Supreme Court affirmed the denial of post-conviction relief. See id. On
December 1, 2005, it issued its mandate, and the federal habeas clock
began again to tick. See id. Twelve days later, the one-year limitations
period expired, with the petitioner never having been informed that the
Florida Supreme Court had made a ruling. See id. at 2556–57. When the
70 WONG V. BEEBE
559 U.S. at 165 (holding that 17 U.S.C. § 411(a) “does not
speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts” (citation omitted)); Kontrick
v. Ryan, 540 U.S. 443, 454 (2004) (holding that “the filing
deadline[] prescribed in Bankruptcy Rule[] 4004 . . . do[es]
not delineate what cases bankruptcy courts are competent to
adjudicate”).12 These cases stand for the general proposition
identified above: If the statutory text does not mandate
dismissal as the consequence for noncompliance, the courts
should not read the statute as having jurisdictional
consequences (i.e. mandatory dismissal without exception).
petitioner learned of the adverse ruling on January 18, 2006, he
immediately wrote a pro se habeas petition and mailed it to the district
court. See id. at 2557. The district court held that equitable tolling was
unwarranted because the petitioner did not seek help from the court
system to determine when the mandate issued. See id. The Eleventh
Circuit affirmed and held that the attorney’s negligence could never
constitute an “extraordinary circumstance” sufficient to toll the limitations
period. See id. The Supreme Court rejected the district court’s erroneous
determination that the petitioner had not been diligent and the Eleventh
Circuit’s rigid, categorical approach. See id. at 2565. It then held that
§ 2244(d)’s time limit was subject to equitable tolling and remanded for
further proceedings. See id. at 2565.
12
In Kontrick, a creditor objected to a debtor’s discharge in a liquidation
proceeding. See id. at 446. The applicable rule provided that such an
objection had to be made within “60 days after the first date set for the
meeting of creditors.” Id. (quoting Fed. R. Bkrtcy. P. 4004(a)). The
creditor’s objection was untimely under this rule. See id. The debtor did
not file a motion to dismiss the objection as untimely, however, until after
the Bankruptcy Court decided that the discharge should be refused. See
id. The Bankruptcy Court held that the time limit was not jurisdictional,
and the Seventh Circuit affirmed. See id. at 447. The Supreme Court
affirmed and held that Rule 4004(a) was not jurisdictional, so that “a
debtor forfeits the right to rely on Rule 4004 if the debtor does not raise
the Rule’s time limitation before the bankruptcy court reaches the merits
of the creditor’s objection to discharge.” Id.
WONG V. BEEBE 71
Instead, per Irwin’s instruction, the courts should presume
equitable tolling may be applied to the statute in question, and
then proceed to determine whether that presumption has been
rebutted and, if not, whether the running of the timing
provision should be tolled for equitable reasons. See Irwin,
498 U.S. at 95–97.13
2. Consequence Statutes of Limitations: Mandatory
Consequences for a Failure Timely to File
In contrast, however, are statutes of limitations that
specify the consequences of a party’s failure to adhere to a
prescribed time limit. See, e.g., 26 U.S.C. § 7422(a) (“No
suit or proceeding shall be maintained in any court for the
recovery of any internal revenue tax . . . until a claim for
refund or credit has been duly filed with the Secretary . . . .”);
28 U.S.C. § 2501 (“Every claim of which the United States
Court of Federal Claims has jurisdiction shall be barred
unless the petition thereon is filed within six years after such
claim first accrues.”); 28 U.S.C. § 2107(a) (“Except as
otherwise provided in this section, no appeal shall bring any
judgment, order or decree in an action, suit or proceeding of
a civil nature before a court of appeals for review unless
notice of appeal is filed, within thirty days after the entry of
such judgment, order or decree.”); 28 U.S.C. § 2409a(g)
(“Any civil action under this section, except for an action
brought by a State, shall be barred unless it is commenced
13
Of course, if the court finds that the presumption has been rebutted or
that no equitable considerations justify tolling the statute, it should dismiss
the complaint for failure to comply with the statute of limitations. The key
consideration here is that, when a statute does not specify mandatory
consequences for failure timely to act, the court is permitted to rely on
Irwin’s presumption that equitable tolling applies. Nothing in the text of
that statute suggests that the presumption should not apply.
72 WONG V. BEEBE
within twelve years of the date upon which it accrued.”).
Like the first category of statutes discussed supra, these
statutes speak in mandatory terms. They do not, however,
merely require that parties take actions at specified times.
Instead, these statutes require the courts to respond in a
certain way to a party’s failure to timely act by making the
consequences of noncompliance, rather than just the acts,
mandatory.
It is clear, then, that there are two different kinds of
mandatory provisions: (1) those that make certain actions
mandatory on the parties but do not specify the consequences
of noncompliance, and (2) those that also provide mandatory
consequences for failures to act according to their
prescriptions. The Court has mentioned the importance of
this distinction in the past. See Henderson, 131 S. Ct. at 1204
(holding a statute nonjurisdictional in part because its
language did “not suggest, let alone provide clear evidence,
that the provision was meant to carry jurisdictional
consequences”); Holland, 130 S. Ct. at 2560 (noting that the
nonjurisdictional statute did “not set forth an inflexible rule
requiring dismissal whenever its clock has run” (internal
quotation marks and citations omitted)). I agree with the
majority that not all mandatory prescriptions are properly
categorized as jurisdictional. See Op. at 18. But I also
believe that, to determine which mandatory prescriptions are
jurisdictional, we must pay close attention to precisely what
Congress has made mandatory (i.e. a party’s action or the
consequences for a party’s failure timely to act). Thus, when
Congress has mandated that a particular consequence will
accompany a party’s noncompliance with statutory timing
provisions, courts are not free to impose other consequences
or, as the majority does in this case, to fail to impose any
consequence at all.
WONG V. BEEBE 73
The reason is simple: When Congress mandates that a
particular consequence be imposed, it limits the court’s power
to act. When the consequence is that the claim “shall be
barred” or the case “shall not be maintained,” Congress has
spoken in jurisdictional terms.14 Cf. John R. Sand & Gravel,
552 U.S. at 134 (holding that 28 U.S.C. § 2501, which
includes “shall be barred” language, is jurisdictional); Dalm,
494 U.S. at 609 (holding that 26 U.S.C. § 6511(a), which,
when read with 26 U.S.C. § 7422(a), includes “may not be
maintained” language, is jurisdictional). The majority holds
that John R. Sand & Gravel and Bowles “did not hold [the
statutes at issue] jurisdictional based on the consequential
language of the statute” but because of “a century’s worth of
precedent and practice in American courts.” Op. at 19, n.3.
But what was that “century’s worth of precedent” based on?
The Court’s ancient recognition that some statutes of
limitations have consequences. Kendall v. United States,
107 U.S. 123, 125 (1883) (statute of limitation “forever
barred” “every claim”); Finn v. United States, 123 U.S. 227,
332 (1887) (holding that the express words of the act of
1863—stating claims were “forever barred”—was a condition
to the right to a judgment against the United States and the
court must dismiss the petition if the condition was not
satisfied). Such consequences speak to “the courts’ statutory
14
I acknowledge that such a holding may conflict with Cedars-Sinai
Medical Center v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997), but, for
reasons discussed infra at 79–83, I believe that case is inconsistent with
subsequent Supreme Court cases and is no longer good law.
Further, by giving examples of when Congress has spoken in
jurisdictional terms I am not relying on “magic words” that must be
included. Op. at 19. These phrases are merely examples of terms which
mandate that a particular consequence must be imposed, and that
consequence is what makes the statute jurisdictional.
74 WONG V. BEEBE
. . . power to adjudicate the case.” Steel Co. v. Citizens for
Better Env’t, 523 U.S. 83, 89 (1998). To illustrate this point,
one asks: What statutory power does a court have to
adjudicate a claim which, according to congressional
mandate, “shall be barred” or “shall not be maintained?” The
answer is simple: None.15 It seems natural, then, to conclude
that when a statute includes such language, it speaks in
jurisdictional terms. See Landgraf v. USI Film Prods.,
511 U.S. 244, 274 (1994) (“[J]urisdictional statutes speak to
the power of the court rather than to the rights of obligations
of the parties.” (citation omitted)).16
15
This fact separates the two kinds of statutes of limitations. When a
statute does not specify a mandatory consequence, the operation of Irwin’s
presumption makes sense (i.e. courts can generally assume Congress
intended equitable tolling to apply unless something suggests otherwise).
When Congress specifies a mandatory consequence, however, courts
should assume Congress meant what it said (i.e. that the consequence is
mandatory and applicable in every case).
16
Unfortunately, while the Court has stated, on several occasions, that
a particular statute does not speak in jurisdictional terms, see ante at 68,
it has not clarified exactly when a statute does speak in jurisdictional
terms. Still, the Court has held that the statutes in the second category
above are jurisdictional. See John R. Sand & Gravel, 552 U.S. at 134
(holding that 28 U.S.C. § 2501, which provides that “[e]very claim of
which the United States Court of Federal Claims has jurisdiction shall be
barred unless the petition is filed within six years after such claim first
accrued,” is jurisdictional); Bowles, 551 U.S. at 213 (holding that
28 U.S.C. § 2107(a) and (c), which provide that “no appeal shall bring any
judgment, order or decree in an action, suit or proceeding of a civil nature
before a court of appeals for review unless notice of appeal is filed, within
thirty days after entry of such judgment, order or decree,” except that a
court may “extend the time for appeal upon a showing of excusable
neglect or good cause,” is jurisdictional); Dalm, 494 U.S. at 609 (holding
that 26 U.S.C. § 6511(a), which, when read with 26 U.S.C. § 7422(a),
provides that “unless a claim for refund of a tax has been filed within the
time limits . . . , a suit for refund . . . may not be maintained in any court,”
WONG V. BEEBE 75
Section 2401(b) falls into the second category identified
above. It does not merely specify what a party must do; it
specifies the consequences of a failure to act according to its
time limit. If action is not begun within six months after the
agency mailed its final denial of the claim, such claim “shall
be forever barred.” See 28 U.S.C. § 2401(b). Because the
court has no statutory power to adjudicate such a claim, I
would hold that, unlike the statute considered in Holland,
§ 2401(b) “set[s] forth an inflexible rule requiring dismissal
whenever its clock has run.” Holland, 130 S. Ct. at 2560. In
that manner, and unlike the statute considered in Henderson,
the language of § 2401(b) “provide[s] clear evidence[] that
the provision was meant to carry jurisdictional
consequences.” Henderson, 131 S. Ct. at 1204. Thus, its
pronouncement “speak[s] in jurisdictional terms” or, at the
very least, “refer[s] in any way to the jurisdiction of the
district courts.” Reed Elsevier, 559 U.S. at 165.17
is jurisdictional). It has also mentioned the kind of language that would
speak in jurisdictional terms. See Henderson, 131 S. Ct. at 1204
(implying that jurisdictional language would include a suggestion “that the
provision was meant to carry jurisdictional consequences”); Holland,
130 S. Ct. at 2560 (implying that a statute would speak in jurisdictional
language if it “set forth an inflexible rule requiring dismissal whenever its
clock has run” (internal quotation marks and citations omitted)). In any
event, as the majority acknowledges, the Court has instructed that
Congress “need not incant magic words . . . to speak clearly.” Op. at 11
(quoting Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013)).
Thus, Congress need not explicitly state that a time limit is jurisdictional;
it is free to specify consequences that relate to a court’s power to
adjudicate cases and trust that the court will understand what those
consequences mean.
17
While a statute that specifies mandatory consequences is
jurisdictional, the reverse is not necessarily true. See, e.g., McNeil,
508 U.S. at 111–12 (holding 28 U.S.C. § 2675, which does not specify
mandatory consequences for noncompliance, jurisdictional). This dissent
76 WONG V. BEEBE
The majority calls my delineation of statutes of
limitations a “grand theory”. Op. at 18. I appreciate their
praise, but I humbly submit there is nothing “grand” about
following the “clear evidence” provided by Congress and the
Supreme Court.
C. The Importance of the Term “Forever.”
The majority escapes this rather straightforward
conclusion with the assertion that Ҥ 2401(b) merely states
what is always true of statutory filing deadlines: once the
limitations period ends, whether extended by the application
of tolling principles or not, a plaintiff is ‘forever barred’ from
presenting his claim to the relevant adjudicatory body.” Op.
at 15 (citing Kubrick, 444 U.S. at 117).18 The majority has
does not imply that the specification of mandatory consequences is the
only way for Congress to express its intent that a statute be jurisdictional.
Congress may express its intent that a statute be jurisdictional in other
ways (i.e. it need not incant magic words), and, indeed, a statute may be
jurisdictional for reasons other than the text. See Reed Elsevier, 559 U.S.
at 166 (2010) (instructing courts, in determining whether a statute is
jurisdictional, to look to the statute’s “text, context and relevant historical
treatment” (emphasis added)).
18
I must confess that I have struggled to find which portion of the
Court’s opinion in Kubrick supports the majority’s position about what is
“ordinarily true of statutory filing deadlines.” Op. at 15. Surely it is not
this portion: “Section 2401(b), the limitations provision involved here, is
the balance struck by Congress in the context of tort claims against the
Government; and we are not free to construe it so as to defeat its obvious
purpose, which is to encourage the prompt presentation of claims.”
Kubrick, 444 U.S. at 117. And surely it is not this portion: “We should
also have in mind that the Act waives the immunity of the United States
and that in construing the statute of limitations, which is a condition of
that waiver, we should not take it upon ourselves to extend the waiver
beyond that which Congress intended.” Id. at 117–18. I simply see no
WONG V. BEEBE 77
simply written the term “forever” out of the statute, ascribing
it no meaning nor importance at all. It is a mere “vestige of
mid-twentieth-century congressional drafting conventions,”19
Op. at 18, and adds nothing that the statute would not say
without it, because all statutes of limitations, if applicable,
bar claims “forever,” see Op. at 15–17.
But the majority fails to consider the standard canon of
statutory construction that requires courts to give meaning, if
possible, to each of a statute’s terms. See Lowe v. SEC.,
472 U.S. 181, 208 n.53 (1985) (“[W]e must give effect to
every word that Congress used in the statute.”); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 174 (2012) (explaining that
“[t]he surplusage canon holds that it is no more the court’s
function to revise by subtraction than by addition.”). To the
majority, the term “forever” is tautological; it has no meaning
whatsoever. But that is not the view of well-established
dictionaries at the time the statute was drafted. See, e.g.,
Webster’s New International Dictionary 990 (2d ed. 1943)
(defining the adverb “forever” as “1. For a limitless time or
endless ages; everlastingly; eternally,” and “2. At all times;
always; incessantly,” and identifying “invariably” and
“unchangeably” as synonyms).
Usage of the term “forever,” as in “forever barred,”
connotes something that obtains under any and all
circumstances, something that is invariably so. But this is
support for the majority’s position in Kubrick.
19
The majority’s deprecatory labelling is off by about 100 years. In U.S.
v. Kendall, 107 U.S. at 124, the term “forever barred” in the act of March
3, 1863, was definitively interpreted.
78 WONG V. BEEBE
nothing new. In Kendall v. United States, the Supreme Court
interpreted a statute of limitations which included the phrase
“forever barred” and stated: “What claims are thus barred?
The express words of the statute leave no room for
contention. Every claim-except those specially enumerated-is
forever barred unless asserted within six years from the time
it first accrued.” 107 U.S. at 125 (emphasis added). Forever,
as in “forever barred”, has an inclusionary meaning—“every
claim”—as well as a temporal meaning—for all time.
Kendall has continued to be cited approvingly in Soriano v.
United States, 352 U.S. at 273,20 and John R. Sand & Gravel,
552 U.S. at 134, on the way to holding statutes of limitations
“jurisdictional.”
As used in § 2401(b), then, the term “forever” means that
an FTCA claim is invariably barred unless a civil action is
commenced within the six-month period following final
denial of the administrative claim. Moreover, according to
the majority’s theory, the fact that Congress included “forever
barred” language in “various other statutes enacted in the
mid-twentieth century,” see Op. at 17, must mean that
Congress merely plugged boilerplate language into these
provisions, without thinking or assigning any special meaning
to the words it chose to employ. But the fact that Congress
included the term in various limitations periods, and not all
limitations periods, suggests the exact opposite is true: On the
occasions when Congress used the term “forever barred,” it
did so intentionally and for a reason. It is especially telling
that Congress did not adhere to the majority’s claimed
“drafting convention” when, in 1948, it drafted § 2401(a), the
very section that precedes the one here in issue. See Act of
20
John R. Sand & Gravel held that Soriano is still good law. 552 U.S.
at 137.
WONG V. BEEBE 79
June 25, 1948, chap. 646, 62 Stat. 971 (June 25, 1948)
(“Every civil action commenced against the United States
shall be barred unless the complaint is filed within six years
after the right of action first accrues.”); see also Russello v.
United States, 464 U.S. 16, 23 (1983) (“[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion” (citations omitted)).
The majority finally holds that if “forever” does mean
anything, it merely focuses on time and emphasizes that
“once barred, [a FTCA claim] is precluded permanently, not
temporarily or until some later event occurs” and that “the
word ‘forever’ cannot bear [the] weight” that I give it. Op. at
21, n.4. However, our canons of construction cannot bear the
lack of weight the majority gives it, see Lowe, 472 U.S. 181
at n.53, and neither can our history. See Kendall, 107 U.S. at
125.
I do not subscribe to the facile construct that we can read
“forever barred” to mean nothing more than “barred.” Nor do
I believe “forever” is a non-cipher. “We are not free to
rewrite the statutory text.” McNeil, 508 U.S. at 111. By
providing that claims not presented within the time prescribed
“shall be forever barred,” Congress clearly expressed its
intention that “every claim” (Kendall, 107 U.S. at 125) would
be invariably barred, not sometimes barred so that equitable
considerations might be held to extend the time in which to
begin actions on such claims.
80 WONG V. BEEBE
D. Ninth Circuit Precedent
The majority relies on three of this court’s previous
opinions to support its conclusion that § 2401(b)’s “shall be
forever barred” language does not mean that the statute’s time
limit is jurisdictional.21 See Op. at 16–17. It first relies on
Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 770
(9th Cir. 1997), which held that § 2401(a) is not
jurisdictional. In fairness, the majority notes that this
opinion’s continued vitality was called into question by Aloe
Vera of America, Inc. v. United States, 580 F.3d 867, 872 (9th
Cir. 2009) (“To the extent that Cedars-Sinai is still valid after
John R. Sand, the holding in Cedars-Sinai does not dictate the
jurisdictional nature of section 7431(d).” (citation omitted)).
It dismisses that statement, however, because it “was made
21
The majority also cites out of circuit authority—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)—for the proposition that
§ 2401(b) is subject to tolling. However, these cases are not persuasive.
Arteaga holds that because 28 U.S.C. § 2674 meant to hold the
government liable in the same way as a private individual, and equitable
tolling is available to private individuals, equitable tolling is available
under the FTCA. Arteaga, 711 F.3d at 833. However, the Arteaga court
ignores the plain language of § 2401(b) which states “to the agency to
which it was presented.” A private individual may not be held liable for
an agency claim. Further, Santos ignores Congress’ clear intent when it
concludes that “the placement of the separate statutory savings provision
does not suggest that Congress intended it to preclude equitable tolling.”
Santos, 559 F.3d at 196. See Pub. L. No. 773, 62 Stat. 869, 991 (1948)
(“No inference of a legislative construction is to be drawn by reason of the
chapter in Title 28, Judiciary and Judicial Procedure, . . . in which any
section is placed.”). Finally, Perez discussed the use of the phrase
“forever barred” and found it was irrelevant, but failed to consider and
attempt to distinguish prior cases interpreting the term, such as Kendall v.
U.S. 167 F.3d at 915–918, and Finn v. U.S., 123 U.S. at 332.
WONG V. BEEBE 81
without the benefit of the Supreme Court’s most recent
decisions clarifying the distinction between jurisdictional and
nonjurisdictional rules.” Op. at 16 n.2. Of course, this claim
gets us nowhere, because Cedars-Sinai was also decided
without the benefit of those decisions. Thus, we cannot
blindly rely on Cedars-Sinai; instead, we must examine
whether it accords with the Supreme Court’s most recent
guidance.22
Cedars-Sinai’s analysis of the jurisdictional question is
simple and brief. See Cedars-Sinai, 125 F.3d at 770. The
court held: “Because the statute of limitations codified at
28 U.S.C. § 2401(a) makes no mention of jurisdiction but
erects only a procedural bar, . . . we hold that § 2401(a)’s
six-year statute of limitations is not jurisdictional, but is
subject to waiver.” Id. (citations omitted). Two problems
with Cedars-Sinai’s analysis lead me to conclude that it is no
longer good law.
First, Cedars-Sinai appears to erect an absolute rule that
a statute of limitations is jurisdictional only when it
specifically mentions the term “jurisdiction.” See Cedars-
Sinai, 125 F.3d at 770. Since Cedars-Sinai was decided,
however, the Supreme Court has advised that Congress “need
not incant magic words . . . to speak clearly [about
22
The Court’s “recent guidance” includes John R. Sand & Gravel Co.
v. United States, 552 U.S. 130 (2008), Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010), Holland v. Florida, 130 S. Ct. 2549 (2010),
Henderson v. Shinseki, 131 S. Ct. 1197 (2011), and Auburn Regional
Medical Center, 133 S. Ct. 817.
82 WONG V. BEEBE
jurisdiction].” Sebelius, 133 S. Ct. at 824.23 A requirement
that Congress use the term “jurisdiction” runs afoul of this
instruction. Moreover, the Court has clarified that a statute of
limitations may be jurisdictional when it “speak[s] in
jurisdictional terms or refer[s] in any way to the jurisdiction
of the district courts.” Reed Elsevier, 559 U.S. at 165
(emphasis added). As previously discussed, one way to refer
to the courts’ jurisdiction is to “suggest . . . that the provision
was meant to carry jurisdictional consequences.” Henderson,
131 S. Ct. at 1204. Cedars-Sinai failed to appreciate that, by
providing that any claim not filed within the time specified
“shall be barred,” § 2401(a) limited the courts’ power to act
and, thus, referred to the courts’ jurisdiction.
Second, Cedars-Sinai relied heavily on Irwin’s quotation
of 28 U.S.C. § 2501, which the Court had deemed
jurisdictional in Soriano v. United States, 352 U.S. 270
(1957).24 After Irwin, there was initially good reason to
23
In Sebelius, the governing statute allowed health care providers to file,
within 180 days, an administrative appeal to the Provider Reimbursement
Review Board from an initial determination of the reimbursement owed
for inpatient services rendered to Medicare beneficiaries. See id. at 821
(citing 42 U.S.C. § 1395oo(a)(3)). The Secretary of the Department of
Health and Human Services, by regulation, authorized the Board to extend
the 180-day limitation, for good cause, up to three years. See id. The
Court held that the 180-day limitation period was not jurisdictional and
that the regulation permitting a three-year extension was a permissible
construction of the statute. See id. at 821–22. It further held that equitable
tolling “does not apply to administrative appeals of the kind here at issue.”
Id. at 822.
24
In Soriano, the petitioner, a resident of the Philippines, filed suit in the
Court of Claims to recover “just compensation for the requisitioning by
Philippine guerilla forces of certain foodstuffs, supplies, equipment, and
merchandise during the Japanese occupation of the Philippine Islands.”
WONG V. BEEBE 83
believe Soriano had been overruled. See Irwin, 498 U.S. at
98 (White, J., concurring in part and concurring in the
judgment) (“Not only is the Court’s holding inconsistent with
our traditional approach to cases involving sovereign
immunity, it directly overrules a prior decision by this Court,
Soriano v. United States.” (citation omitted)). Because it
seemed Irwin had overruled Soriano, it also seemed the terms
“shall be barred” were insufficient to make a statute
jurisdictional. If that had been true, Cedars-Sinai may have
been correct. But the Court has since clarified Irwin and
reaffirmed Soriano’s vitality. See John R. Sand & Gravel,
552 U.S. at 137 (“[T]he Court [in Irwin], while mentioning a
case that reflects the particular interpretive history of the
court of claims statute, namely Soriano, says nothing at all
about overturning that or any other case in that line. Courts do
not normally overturn a long line of earlier cases without
mentioning the matter.” (citations omitted)). Given this
clarification, and Cedars-Sinai’s tension with intervening
Supreme Court decisions, I would hold that it was incorrectly
decided and is of no precedential value on this issue. See
Oregon Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d
778, 782–83 (9th Cir. 2008) (explaining that circuit precedent
is “effectively overruled” when its “reasoning or theory . . .
is clearly irreconcilable with the reasoning or theory of
Id. at 270–71. The relevant statute of limitations provided that “[e]very
claim of which the Court of Claims has jurisdiction shall be barred unless
the petition thereon is filed . . . within six years after such claim first
accrues.” Id. at 271 n.1 (quoting 28 U.S.C. § 2501). The petitioner filed
suit more than six years after the alleged requisition claiming his delay
was caused by World War II conditions in the Philippines. See id. at 271.
The Court of Claims dismissed the suit without reaching the limitation
question. See id. at 272. The Supreme Court affirmed and held that, by
the time the petitioner filed suit, “his claim . . . was barred by statute.” Id.
at 277.
84 WONG V. BEEBE
intervening higher authority.” (internal quotation marks and
citations omitted)).
The majority then cites Partlow v. Jewish Orphans’ Home
of Southern California, 645 F.2d 757, 760–61 (9th Cir. 1981),
abrogated on other grounds by Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165 (1989), and Mt. Hood Stages, Inc. v.
Greyhound Corp., 616 F.2d 394, 396–407 (9th Cir. 1980), as
instances where this court has held that the language “shall be
forever barred” did not render a statute jurisdictional. See
Op. at 17. Of course, these cases pre-date all of the Supreme
Court’s recent guidance as well. For that reason, we should
once again take a critical look at their reasoning before
relying on them.
The Partlow court held that equitable tolling could be
applied to 29 U.S.C. § 255, the statute of limitations
applicable to actions brought under the Fair Labor Standards
Act. See Partlow, 645 F.2d at 760–61. Interestingly, the
court did not conduct any in-depth analysis of the statute’s
text, context, or historical treatment. Indeed, the Partlow
opinion does not once quote the statute’s text or even mention
the phrase “shall be forever barred.” See id. at 757–61.
Instead, the court relied on opinions from two of our sister
circuits, each of which held that § 255 could be equitably
tolled. See id. at 760 (citing Ott v. Midland Ross, 523 F.2d
1367, 1370 (6th Cir. 1975), and Hodgson v. Humphries,
454 F.2d 1279, 1283–84 (10th Cir. 1972)). It then noted that
“courts have often stated that equitable tolling is read into
every federal statute of limitations.” Id. (citation omitted)
(emphasis added). It then concluded that the statute should
be tolled in the circumstances of that case. See id. at 760–61.
WONG V. BEEBE 85
If it were unclear at the time Partlow was decided, it has
since become abundantly clear that equitable tolling is not to
be read into every federal statute of limitations. See John R.
Sand & Gravel, 552 U.S. at 133–34 (explaining that some
federal statutes of limitations—such as 28 U.S.C. § 2501, for
instance—must be treated as jurisdictional, so that courts are
forbidden to “consider whether certain equitable
considerations warrant extending [the] limitations period[s]”
they contain). Moreover, Partlow fails to conduct the kind of
analysis required by the Court’s more recent decisions. See
Reed Elsevier, 559 U.S. at 166 (providing that “the
jurisdictional analysis must focus on the ‘legal character’ of
the requirement, which we discern[] by looking to the
condition’s text, context, and relevant historical treatment”
(citations omitted)). For these reasons, I would hold that
Partlow is today flat wrong, and of no precedential value on
the question presently before the court.
In Mt. Hood Stages, this court held that equitable tolling
could be applied to 15 U.S.C. § 15b. See Mt. Hood Stages,
616 F.2d at 396. It is once again telling that the court did not
conduct any in-depth analysis of the statute’s text or even
mention the statute’s phrase “shall be forever barred.” See id.
at 396–406. It is clear, then, that the decision was not based
on a determination that the statute did not refer in any way to
the courts’ jurisdiction. In a word, Mt. Hood Stages skipped
the first, Court-required step of textual analysis for a
consideration of the statute’s purpose in a regulatory scheme.
See Reed Elsevier, 559 at 166.25 Instead, the decision was
based on the court’s conclusion that “tolling the running of
limitations serves the important federal interest in
accommodating enforcement of the Sherman Act with
25
This dissent analyzes § 2401(b)’s purposes in Part III, infra.
86 WONG V. BEEBE
enforcement of the Interstate Commerce Act, and is not
inconsistent with the purposes of the Clayton Act’s limitation
period.” Id. at 396.
In particular, the Mt. Hood Stages court found that tolling
would “contribute[] to a reasonable accommodation of the
[Interstate Commerce Commission]’s responsibility for
furthering the national transportation policy with the
responsibility of the courts to effectuate the national antitrust
policy.” Id. at 397. Because the case “involved subject
matter Congress ha[d] given the Commission jurisdiction to
regulate,” it “created a dispute only the Commission could
resolve.” Id. (emphasis added). The court noted that, “[i]f
Mt. Hood had filed [its] antitrust suit . . . prior to the
Commission determination [of a particular factual issue],”
accommodation of the Clayton and Interstate Commerce Acts
would have compelled “the court . . . to dismiss or stay the
suit pending the necessary administrative determination.” Id.
at 399. Thus, “[c]ongressional purposes under the two
statutory regimes would be served by tolling the statute of
limitations during the Commission proceeding.” Id. at 400.
For that reason, the court held that the statute of limitations
could be “tolled pending resort to an administrative agency
for a preliminary determination of issues within its primary
jurisdiction.” Id. at 405; see also Pace Indus., Inc. v. Three
Phoenix Co., 813 F.2d 234, 241 (9th Cir. 1987) (“[O]ur
decision [in Mt. Hood Stages] rested on considerations of
federal policy and primary jurisdiction which are not present
here.”).
Contrary to the majority’s implication, see Op. at 16, Mt.
Hood Stages does not stand for the proposition that “shall be
forever barred” does not refer to the courts’ jurisdiction.
Indeed, a statute may refer to the courts’ jurisdiction and yet
WONG V. BEEBE 87
not be jurisdictional, much like a statute which does not speak
in jurisdictional terms may still be jurisdictional. See United
States v. Brockamp, 519 U.S. 347, 352 (1997) (holding that
the timing requirements of 26 U.S.C. § 6511 are
jurisdictional, even though the statute does not refer to the
courts’ jurisdiction, because of the provision’s “detail, its
technical language, the iteration of the limitations in both
procedural and substantive forms, and the explicit listing of
exceptions”). In short, even a statute that refers in some way
to the courts’ jurisdiction may not be jurisdictional when, for
example, Congress has created dual statutory regimes, such
as those involved in Mt. Hood Stages, that essentially require
tolling for their accommodation. Of course, there are no such
dual regimes at issue in this case, nor does this case involve
the sort of federal policy and primary jurisdiction
considerations that animated the court’s opinion in Mt. Hood
Stages. Thus, I would hold that Mt. Hood Stages offers no
useful guidance on the question whether § 2401(b)’s language
refers to the courts’ jurisdiction.
In defense of Partlow and Mount Hood Stages, the
majority states that these cases still “undermine the notion
that Congress intended through the use of magic words . . . to
establish jurisdictional bars in statutes allowing for civil suits
against private parties.” Op. at 22, n.5. Of course, this
argument is merely a straw man; we all agree that Congress
never uses “magic words” to establish jurisdiction. See
supra, Bea Dissent at 75, n.17.
III. The Statute’s Purpose
As earlier noted, in John R. Sand & Gravel, the Court
identified the kinds of goals that make statutes of limitations
jurisdictional: “[Jurisdictional] statutes of limitations . . . seek
88 WONG V. BEEBE
not so much to protect a defendant’s case-specific interest in
timeliness as to achieve a broader system-related goal, such
as facilitating the administration of claims, limiting the scope
of a governmental waiver of sovereign immunity, or
promoting judicial efficiency.” 552 U.S. at 133.
Consideration of each of the goals outlined in John R. Sand
& Gravel illustrates that § 2401(b)’s broad, system-related
purposes require us to find that its timing provisions are
indeed jurisdictional.
A. Section 2401(b) Facilitates the Administration of
Claims
The Court has held that § 2401(b)’s “obvious purpose” is
to “encourage the prompt presentation of claims.” See United
States v. Kubrick, 444 U.S. 111, 117 (1979).26 The
requirement that a civil action be filed within six months of
26
In Kubrick, the respondent, a veteran, was admitted to a VA hospital
for treatment of an infected femur in April 1968. See id. at 113. Medical
personnel irrigated the infected area with neomycin, an antibiotic, until the
infection cleared. See id. Six weeks later, the respondent noticed some
hearing loss. See id. at 114. In January 1969, doctors informed the
respondent that it was “highly possible” that the neomycin treatment
caused his hearing loss. See id. In 1972, the respondent filed suit under
the FTCA, alleging he had been injured by negligent treatment at a VA
hospital. See id. at 115. The VA denied the respondent’s administrative
claim, which he presented after he filed suit, in April 1973. See id. at 116
n.4. The Government then filed a motion to dismiss the suit as time-
barred under 28 U.S.C. § 2401(b)’s two-year statute of limitations, on the
theory that the respondent’s claim accrued in January 1969, when doctors
told the respondent that his hearing loss was likely caused by the
neomycin treatment. See id. at 115. The district court rejected this
defense and rendered judgment for the respondent. See id. The Third
Circuit affirmed. See id. at 116. The Supreme Court reversed and held
that claims accrue when the individual “knows both the existence and the
cause of his injury.” See id. at 113, 124–25.
WONG V. BEEBE 89
a denial of an administrative claim guarantees that the civil
action will commence while the denial of the claim is
relatively fresh. For actions filed within that time period, the
Department of Justice, which will defend the cases, will be
able to access the relatively fresh memories of the
administrators who denied the claim. It is also more likely
that those administrators will be on the job six months after
the denial of the claim than would be the case if the denial
had taken place years before.
B. Section 2401(b) Limits a Waiver of Sovereign
Immunity
The Court has held that § 2401(b) limits the waiver of
sovereign immunity expressed in the FTCA. See Kubrick,
444 U.S. at 117–18. In particular, the Court has stated:
“We should . . . have in mind that the [FTCA]
waives the immunity of the United States and
that in construing the statute of limitations
[expressed in § 2401(b)], which is a condition
of that waiver, we should not take it upon
ourselves to extend the waiver beyond that
which Congress intended.”
Id. (emphasis added). This passage clearly identifies
§ 2401(b) as a provision “limiting the scope of a
governmental waiver of sovereign immunity,” which is
exactly the kind of broader, system-related goal that makes a
statute’s time limit “more absolute.” See John R. Sand &
Gravel, 552 U.S. at 133; Op. at 31.
The majority agrees that the FTCA “is predicated on a
sovereign immunity waiver.” Op. at 31. Further, the
90 WONG V. BEEBE
majority admits that many of the cases upon which they
rely—Auburn Regional Medical Center, Gonzalez,
Henderson, Holland, and Bowles—do not involve issues of
government immunity and therefore “may not raise precisely
parallel sovereign immunity concerns” as are now before us.
See Op. at 32 n.12. The majority is unable to deny that (1)
the FTCA limits waiver of sovereign immunity and therefore
meets a goal that makes statutes of limitations jurisdictional
under John R. Sand & Gravel, or (2) this difference
distinguishes the FTCA and § 2401(b) from other cases on
which the majority tries to rely.
C. Section 2401(b) Promotes Judicial Efficiency
First, like all statutes of limitations, § 2401(b) “protect[s]
. . . the courts from having to deal with cases in which the
search for truth may be seriously impaired by the loss of
evidence, whether by death or disappearance of witnesses,
fading memories, disappearance of documents, or otherwise.”
See Kubrick, 444 U.S. at 117. By promoting the prompt
presentation of claims, § 2401(b) seeks to limit the amount of
evidence lost to time and ensure that courts will adjudicate
cases with complete records. See id.
Second, when read together with § 2675, it is clear that
§ 2401(b) was intended to protect against the burdens of
claims filed outside of its time prescriptions. In McNeil v.
United States, the Court held that § 2675’s administrative
exhaustion requirement was jurisdictional. 508 U.S. 106,
111–12 (1993). There, the petitioner filed a complaint in
federal district court alleging that the United States Public
Health Service had injured him while conducting
experimentation on prisoners in the custody of the Illinois
Department of Corrections. See id. at 108. Four months
WONG V. BEEBE 91
later, he submitted a claim for damages to the Department of
Health and Human Services. See id. at 109. After the
Department denied the claim, the petitioner sent the district
court a letter and asked that it permit him to commence his
legal action. See id. The court held that it lacked jurisdiction
to entertain an action commenced before satisfaction of
§ 2675’s administrative exhaustion requirement. See id. The
Seventh Circuit affirmed and held that the petitioner had filed
his action too early. See id.
The Supreme Court affirmed and held that § 2675’s
administrative exhaustion requirement was a jurisdictional
prerequisite to filing suit under the FTCA. See id. at 112–13.
As relevant here, it noted that “every premature filing of an
action under the FTCA imposes some burden on the judicial
system . . . .” Id. at 112. Similar burdens are imposed on the
judicial system when actions are filed late, accompanied by
claims that the court should toll the running of the statute of
limitations for equitable reasons which may or may not
justify the plaintiff’s tardiness. As was the case for premature
filings in McNeil, “the burden may be slight in the individual
case.” Id. But § 2401(b) “governs the processing of a vast
multitude of claims.” Id. For that reason, “adherence to the
straightforward statutory command” is the best way to
promote “[t]he interest in orderly administration of this body
of litigation.” Id.
Because § 2401(b) serves each of the three system-related
purposes identified in John R. Sand & Gravel as making
statutory time limits “more absolute,” equitable tolling should
not be applied here. Instead, we should hold that § 2401’s
time limits are jurisdictional in nature.
92 WONG V. BEEBE
IV. The Statute’s Context
Section 2401(b)’s context includes its placement in the
larger statutory scheme, as well as any relevant exceptions
Congress may have legislated. It also includes the Supreme
Court’s “interpretation of similar provisions in many years
past.” Reed Elsevier, 559 U.S. at 168.
A. The Supreme Court’s Interpretation of Similar
Provisions
The majority correctly notes that “there has not been . . .
a venerable, consistent line of [Supreme Court] cases treating
the FTCA limitations period as jurisdictional” and, indeed,
that “there is no Supreme Court precedent on the question.”27
Op. at 30. Still, the Supreme Court has examined similar
provisions and offered guidance useful here. As previously
stated, Kubrick and John R. Sand & Gravel, taken together,
strongly suggest that § 2401(b)’s time limits are
jurisdictional.
The Court’s analysis in McNeil only bolsters this
conclusion. There, the Court held that 28 U.S.C. § 2675(a)
“bars claimants from bringing suit in federal court [under the
27
The majority’s focus is—jurisprudentially speaking—far too narrow.
See Reed Elsevier, 559 U.S. at 168 (“[T]he relevant question here is not
. . . whether [the statute] itself has long been labeled jurisdictional, but
whether the type of limitation that [the statute] imposes is one that is
properly ranked as jurisdictional absent an express designation.”). Section
2401(b) expresses the same “type of limitation” the Court held
jurisdictional in Soriano and John R. Sand & Gravel. See 28 U.S.C.
§ 2501 (“Every claim of which the United States Court of Federal Claims
has jurisdiction shall be barred unless the petition thereon is filed within
six years after such claim first accrues.”).
WONG V. BEEBE 93
FTCA] until they have exhausted their administrative
remedies.” McNeil, 508 U.S. at 113. This requirement is
jurisdictional. Courts cannot entertain a suit brought before
exhaustion of administrative remedies, even if the claimant
exhausts those remedies before “substantial progress [is]
made in the litigation,” because such a suit was filed too
early. Id. at 110–11. Here, there is no dispute that, like the
petitioner in McNeil, Wong filed her action before denial of
her administrative claim and was similarly premature.
The majority emphasizes that § 2675(a) is located in
chapter 171 and that Congress expressly conditioned the
district courts’ jurisdiction upon plaintiffs’ compliance with
the provisions of that chapter. See Op. at 23. In McNeil,
however, the Court did not even mention this fact. Instead,
it based its decision on two considerations: (1) the statutory
text is unambiguous and expresses Congress’s intent to
require complete exhaustion of administrative remedies, and
(2) “[e]very premature filing of an action under the FTCA
imposes some burden on the judicial system and on the
Department of Justice which must assume the defense of such
actions.” McNeil, 508 U.S. at 111–12. With respect to the
premature filing, the Court noted that, “[a]lthough the burden
may be slight in an individual case, the statute governs the
processing of a vast multitude of claims,” such that “[t]he
interest in orderly administration of this body of litigation is
best served by adherence to the straightforward statutory
command.” Id.
The Court’s language suggests once again that the
FTCA’s timing requirements fit into the jurisdictional
category. See John R. Sand & Gravel, 552 U.S. at 133
(identifying “facilitating the administration of claims” as one
of the broader, system-related goals that makes a statutory
94 WONG V. BEEBE
time limit “more absolute”). In McNeil, the Court took a
systemic view of its decision; it was concerned with the
“orderly administration of this body of litigation” precisely
because § 2675(a) “governs the processing of a vast multitude
of claims.” McNeil, 508 U.S. at 112. Because the same is
true of § 2401(b), our analysis should feature the same
concern. And, when one takes this more systemic view of
§ 2401(b), one will surely find that every premature—or
late—filing imposes a burden on the judicial system and on
the Department of Justice and agree with the Court that “strict
adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration
of the law.” Id. at 113.28
B. Placement
Seeking another interpretive tool to support its position,
the majority emphasizes the fact that § 2401(b) is located in
28
The majority notes that § 2675 is silent as to the deadline for filing a
properly exhausted claim in the district court and concludes that “there is
no contextual reason to think that the limitations period provisions are also
jurisdictional.” Op. at 28. But § 2675 does not require only that
individuals exhaust their administrative remedies; instead, it specifies that
individuals must exhaust their administrative remedies first (i.e. before
they file complaints in federal court). See 28 U.S.C. § 2675(a). Thus, the
statute requires a particular timing of administrative exhaustion, and the
McNeil Court found this timing requirement significant. See McNeil,
508 U.S. at 111 (noting that the “petitioner’s complaint was filed too
early”); id. at 112 (addressing the burdens premature filings impose on the
judicial system and the Department of Justice). Just as in McNeil,
appellant Wong’s complaint was filed “too early” and imposed a burden
on the judicial system and Department of Justice. Because late filings
impose similar burdens on the courts and the Department of Justice, there
is good reason to believe that the limitations period expressed in § 2401(b)
is also jurisdictional.
WONG V. BEEBE 95
a provision separate from the FTCA’s jurisdiction-granting
provision. See Op. at 23. With respect, this fact is irrelevant.
As the Court has explained, “some time limits are
jurisdictional even though expressed in a separate statutory
section from jurisdictional grants, while others are not, even
when incorporated into the jurisdictional provisions.”
Barnhart, 537 U.S. at 159 n.6 (citations omitted).
“Formalistic rules do not account for the difference, which is
explained by contextual and historical indications of what
Congress meant to accomplish.” Id.
Even more problematic to the majority’s analysis of the
FTCA’s reorganization in 1948, see Op. at 26, is the
inconvenient enactment of a law rejecting placement in the
Act as a valid interpretive tool. The majority acknowledges
that, before 1948, Congress had expressly conditioned the
grant of jurisdiction over tort claims against the United States
upon plaintiffs’ compliance with, among other things, the
FTCA’s original limitations provision. See Op. at 26. In
1948, however, Congress reorganized the FTCA and placed
the limitations provision in chapter 161 and other provisions,
such as § 2675, in chapter 171. See Op. at 26. It appears the
majority would conclude from this fact that Congress
intended to separate jurisdictional requirements (§ 2675) from
non-jurisdictional ones (§ 2401). Congress, however,
expressly rejected this possible reading of its reorganization
efforts by an enactment of law. See Pub. L. No. 773, 62 Stat.
869, 991 (1948) (“No inference of a legislative construction
is to be drawn by reason of the chapter in Title 28, Judiciary
and Judicial Procedure, . . . in which any section is placed.”).
The majority simply ignores this Act of Congress, perhaps
because it cuts directly against the majority’s desired result:
interpretive value based on the statute’s placement.
96 WONG V. BEEBE
Congress clearly stated that the placement of § 2401 in
chapter 161 was not intended to change the way it should be
interpreted. If Congress intended to condition the grant of
jurisdiction over tort claims against the United States on
compliance with the limitations period, the recodification in
1948 should not be read to alter that intent. That Congress
later amended the jurisdiction-granting provision to provide
that the district courts would have exclusive jurisdiction over
FTCA actions “[s]ubject to the provisions of chapter 171 of
this title,” 28 U.S.C. § 1346(b)(1), says nothing about the
jurisdictional status of a provision located in chapter 161.
C. The Significance of § 2401(a)’s Exceptions
“[A]s a general rule, . . . Congress’s use of certain
language in one part of [a] statute and different language in
another can indicate that different meanings were intended.”
Sebelius, 133 S. Ct. at 825. As relevant here, § 2401(b)
enumerates no exceptions, while § 2401(a) provides that
“action of any person under legal disability or beyond the
seas at the time the claim accrues may be commenced within
three years after the disability ceases.” 28 U.S.C. § 2401(a).
The relevant meaning to be inferred from Sibelius’
interpretive canon quoted above is that Congress did not
intend for any exceptions to be applied to § 2401(b). The
majority is correct that this canon, standing alone, does not
constitute a “clear statement” by Congress. See Op. at 28.
The canon can, however, “tip the scales when a statute could
be read in multiple ways.” Sebelius, 133 S. Ct. at 826. I
would not hold that consideration of this canon alone dictates
a conclusion that § 2401(b)’s time limit is jurisdictional, but
it reinforces that conclusion when considered with the
statute’s text and context.
WONG V. BEEBE 97
V. Conclusion
Congress clearly expressed its intent that § 2401(b) would
have “jurisdictional” consequences. Jurisdictional treatment
accords with the statute’s text and the Supreme Court’s
analysis of similar provisions. For these reasons, equitable
tolling should not be applied to the time limits contained in
§ 2401(b). I respectfully dissent.