IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20114
DIANE KROBUSEK PEREZ,
Plaintiff-Appellant
versus
UNITED STATES OF AMERICA
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
February 12, 1999
Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The plaintiff in this appeal challenges the district court’s
conclusion that her action against the government was time-barred.
The case requires us to decide whether equitable tolling is
available in tort cases against the government and whether it is
applicable on the facts presented. We find it both available and
applicable, and thus REVERSE.
I
While performing with other members of her student belly-
dancing troupe at the Brazos Festival in College Station, Texas,
Diane Krobusek Perez stopped to pose for pictures in front of an
Armored Personnel Carrier. The Texas National Guard had placed the
APC on display to promote its recruitment efforts at the festival.
According to Perez, the presence of the scantily clad dancers
distracted the guardsmen in charge from their duties, and they did
not stop a third party from entering the APC and disengaging the
hand brake. The vehicle began to roll forward, and it struck
camouflage netting poles that in turn knocked Perez unconscious.
The date was September 29, 1990.
After the incident, Perez enlisted the aid of Matthew
Nancarrow, a Texas A&M student services attorney, who wrote a
letter to the Texas National Guard. The letter reported the charge
that the guards’ negligent supervision and lack of proper security
proximately caused the injuries Perez had suffered. It further
indicated that Perez was interested only “in pursuing
indemnification for the actual damages sustained.” Finally, the
letter requested advice “as to whether your outfit is self-insured
or maintains private liability insurance and who might handle my
clients’ [sic] claim.”
Lt. Col. Donald R. Nichols later testified that he received
the letter and tried to call Nancarrow. Because Nancarrow was out,
Nichols left a message with his secretary. Specifically, he
allegedly informed her that any claim Perez might pursue should be
filed with the United States Army Claims Office, and he provided
her the address of that office. A notation on Nancarrow’s original
letter, purportedly written immediately after the phone call,
indicates that Nichols called Nancarrow’s telephone number, that
Nancarrow was out of town, that he left the message concerning the
Claims Office, and that the date was October 11, 1990. Nancarrow
2
later testified that he does not remember receiving Nichols’s
message.
On September 10, 1991, Perez filed suit in Texas state court
against the State of Texas, the Texas National Guard, and
Christopher Heck, who allegedly disengaged the hand brake. A year
later, on September 18, 1992, she filed an amended petition. After
another year and a half, on March 11, 1994, Texas National Guard
Captain Foy Watson advised Perez’s new attorney that the guardsmen
had been acting as employees of the federal government while on
duty at the festival. See 32 U.S.C. § 502 (providing a dual state-
federal status for members of the National Guard). In accordance
with this theory, Texas and the Texas National Guard sought summary
judgment on the basis of state sovereign immunity on July 29, 1994.
This motion was denied, but a subsequent motion to dismiss was
granted on June 14, 1995.
On June 30, 1995, the plaintiff filed a claim with the U.S.
Army, and the Army denied it four months later, citing the two-year
statute of limitations of the Federal Tort Claims Act. See 28
U.S.C. § 2401(b) (providing that a claim “shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within six months after . . . notice of final denial of the claim
by the agency to which it was presented”). The following May,
Perez filed this suit.
The district court dismissed the suit, concluding that notice
to the appropriate federal agency is a jurisdictional prerequisite
3
under the FTCA, citing Cook v. United States, 978 F.2d 164, 166
(5th Cir. 1992), and refusing to follow Schmidt v. United States,
933 F.2d 639 (8th Cir. 1991). The district court was persuaded
that Perez had failed to investigate the nature of her claim
diligently, and thus failed to recognize that the Texas National
Guard has a dual nature, sometimes serving the federal government
and sometimes serving the state. The court agreed that the
National Guard had violated regulatory requirements by failing to
provide Perez with an SF95 claim form. Nonetheless, emphasizing
that Perez’s decision to sue the Texas National Guard was not the
product of affirmative misstatements by the Texas National Guard,
the court refused to save her claim through application of
equitable tolling.
Perez timely appeals, arguing that equitable tolling should
apply.
II
The district court’s citation to Cook notwithstanding, whether
the limitations provisions of the FTCA are jurisdictional--in which
case equitable tolling could not apply--remains an open question in
this circuit. The Cook court did state that “[f]urnishing notice
[within the specified time period] is a jurisdictional prerequisite
to filing suit under the FTCA.” 978 F.2d at 166. This statement,
however, was dicta, because nothing in the case turned on whether
the limitations provisions were jurisdictional. The Cook court did
not specifically mention equitable tolling, and nothing in its
4
presentation of the facts suggests that equitable tolling would
have been applicable had the court found it available.
Moreover, the case that Cook cited for the dictum was Transco
Leasing Corp. v. United States, 896 F.2d 1435, 1441 (5th Cir.),
amended on other grounds, 905 F.2d 61 (5th Cir. 1990). Transco is
clear enough, but it preceded the Supreme Court’s decision in Irwin
v. Department of Veterans Affairs, 498 U.S. 89, 94-96 (1990), by
several months. Irwin, a Title VII case, undid the old rule that
equitable tolling was never available against the government, and
thus placed the jurisdictional nature of the FTCA statute of
limitations into doubt. Cf. Houston v. United States Postal Serv.,
823 F.2d 896 (5th Cir. 1987) (applying the old rule to the FTCA).
It is thus to Irwin and its progeny that we must turn for guidance.
The Irwin Court reasoned that where Congress has decided to
waive its sovereign immunity, there should be no presumption that
it nevertheless intended that equitable tolling not apply. See id.
at 95 (“Once Congress has made such a waiver, we think that making
the rule of equitable tolling applicable to suits against the
Government, in the same way that it is applicable to private suits,
amounts to little, if any, broadening of the congressional
waiver.”). While the Court stressed that it sought to create a
single rule applicable to a wide variety of statutory
circumstances, see id. (arguing against a continuing effort to
decide such questions “on an ad hoc basis”), its reasoning accepts
that the availability of equitable tolling is a question of
congressional intent.
5
Accordingly, the Supreme Court in United States v. Brockamp,
519 U.S. 347 (1997), found that Congress had exempted the
government from equitable tolling in I.R.C. § 6511. The Brockamp
Court echoed Irwin in phrasing the question, “Is there good reason
to believe that Congress did not want the equitable tolling
doctrine to apply [against the government]?” Id. at 851. In
answering “yes,” for § 6511, the Court emphasized two factors.
First, § 6511's limitations period was set forth “in a highly
detailed technical manner that linguistically speaking, cannot
easily be read as containing implicit exceptions.” Id. at 851.
Second, given the large number of tax returns and refunds processed
by the IRS, “[t]he nature and potential magnitude of the
administrative problem suggest that Congress decided to pay the
price of occasional unfairness in individual cases (penalizing a
taxpayer whose claim is unavoidably delayed) in order to maintain
a more workable tax enforcement system.” Id. at 852.
Two circuits have addressed the equitable tolling issue under
the FTCA. In Schmidt, the district court decided a disputed fact
in dismissing a claim as time barred. The Schmidt court concluded,
without repair to the language or history of the FTCA, that Irwin
necessarily meant that the statute was not jurisdictional, hence
the district court lacked the authority to find jurisdictional
facts. See 933 F.2d at 640. Glarner v. United States, 30 F.3d 697
(6th Cir. 1994), followed Schmidt, allowing equitable tolling.
The Sixth and Eighth Circuits arrived at the same result that
we will reach, but their reasoning was flawed. Both were decided
6
after Irwin but before Brockamp. Both the Schmidt and Glarner
courts seemed to believe that the Irwin rule allowing equitable
tolling would apply in all suits against the government. Brockamp
proves this deduction incorrect, so the Eighth and Sixth Circuits
may reconsider Schmidt and Glarner. We therefore consider the FTCA
issue afresh, though this fresh look ultimately leads to the same
place.
The only commentator addressing the question concludes that
the doctrine of equitable tolling should not apply to the FTCA.
See Richard Parker, Is the Doctrine of Equitable Tolling Applicable
to the Limitations Periods in the Federal Tort Claims Act?, 135
MIL. L. REV. 1 (1992). Arguing from the text of the statute, Parker
argues that the language “forever barred” in § 2401 suggests an
intent to treat late claims harshly. Parker’s primary legislative
history argument is that Congress did not pass the FTCA “in a
vacuum,” but “acted against a background of extant federal
legislation--including other waivers of sovereign immunity, some of
which contained tolling provisions.” Id. at 10. He also argues
that Congress’s failure to amend the statute by adding tolling
provisions, despite other amendments in 1948 and 1949, and despite
adding a tolling provision for claims brought by the government in
1966, indicates a desire not to allow tolling in FTCA cases.
These signals are ultimately equivocal at best. First, the
use of the words “forever barred” is irrelevant to equitable
tolling, which properly conceived does not resuscitate stale
claims, but rather prevents them from becoming stale in the first
7
place. Second, the Congress that drafted Title VII presumably
wrote against a similar background of limitations provisions, yet
this did not lead the Irwin Court to conclude that Congress assumed
a default rule barring equitable tolling. Third, deductions from
congressional inaction are notoriously unreliable. See, e.g.,
Lindahl v. Office of Personnel Management, 470 U.S. 768, 803 n.3
(1985) (White, J., dissenting); cf. United States v. Price, 361
U.S. 304, 313 (1960) (“[T]he views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one.").
Perhaps these pieces of evidence are the best that can be
collected from a legislative record that does not directly address
the issue, but they are insufficient to overcome the presumption of
Irwin that the government is subject to equitable tolling.
Moreover, neither of the factors identified in Brockamp as
supporting a conclusion that the provision was jurisdictional
applies.
First, Section 2401 is a garden variety limitations provision,
without the attention to detail in § 6511 that suggested preemption
of equitable remedies. The latter section includes four different
sets of rules that the Supreme Court quoted. The first and most
complicated states that a “[c]laim for . . . refund . . . of any
tax . . . 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, or if no return
was filed . . . within 2 years from the time the tax was paid.”
I.R.C. § 6511(a). By comparison, § 2401 makes just one
8
distinction, between the time period generally applicable and that
applicable if an agency issues a final denial of the claim.
Second, allowing equitable tolling would not create an
administrative nightmare for the FTCA regime, which encompasses far
fewer claims than might be filed against the Internal Revenue
Service. Thus, where the principles of equitable tolling would
ordinarily apply, such tolling should be allowed in an FTCA case.
III
A useful summary of equitable tolling is offered in Irwin
itself:
We have allowed equitable tolling in situations where the
claimant has actively pursued his judicial remedies by
filing a defective pleading during the statutory period,
or where the complainant has been induced or tricked by
his adversary’s misconduct into allowing the filing
deadline to pass. We have generally been much less
forgiving in receiving late filings where the claimant
failed to exercise due diligence in preserving his legal
rights. . . . But the principles of equitable tolling
described above do not extend to what is at best a garden
variety claim of excusable neglect.
498 U.S. at 96 (footnotes omitted). Despite its generality, this
passage indicates that equitable tolling is available where a
plaintiff has actively pursued judicial remedies but filed a
defective pleading, as long as the plaintiff has exercised due
diligence.
The Supreme Court supported its discussion of equitable
tolling, citing Burnett v. New York Central R.R. Co., 380 U.S. 424
(1965), as a case in which a plaintiff benefitted from equitable
9
tolling despite having filed originally in the wrong court.1 Otto
Burnett had filed his Federal Employers’ Liability Act claim in the
wrong county, because he was apparently unaware of a special Ohio
rule specifying venue in actions against railroads. See id. at
425. The Supreme Court analyzed the text of the relevant
limitations provision, which stated that “no action shall be
maintained . . . unless commenced within three years . . . .”
Quoted in id. at 426. Noting that “the basic inquiry is whether
congressional purpose is effectuated by tolling the statute of
limitations in given circumstances,” id. at 427, the Court
“examine[d] the purposes and policies underlying the limitations
provision,” id. It then emphasized that the “[p]etitioner here did
not sleep on his rights but brought an action within the statutory
period . . .” Id. at 429. Finally, the Court concluded that “the
limitation provision is tolled until the state court order
dismissing the state action becomes final.” Id. at 435.
Perez’s error in this case, misunderstanding the dual nature
of the Texas National Guard, is of the same magnitude as the error
in Burnett. Both errors would have been uncovered through more
careful legal research. Thus, if Burnett does not count as a
“garden variety claim of excusable neglect,” this case cannot
either. What distinguishes Burnett and this case from such a
1
Burnett itself never explicitly mentioned “equitable
tolling,” and narrowly read it is an interpretation of a legal
tolling provision. Arguably, the Irwin citation folds the
principle of Burnett into the doctrine of equitable tolling.
Regardless of how Burnett is characterized, it remains relevant for
the statutory construction it undertakes.
10
“garden variety” claim is that the plaintiff took some step
recognized as important by the statute before the end of the
limitations period. The Burnett action counted as “commenced”
because suit was filed, even though it was the wrong action. Here
too, suit was timely filed, albeit it confused the hat the National
Guard was wearing at the time of the accident.
The FTCA limitations period requires only that the claim be
“presented in writing to the appropriate Federal agency” before the
end of the limitations period. The filing of the claim against
the Texas National Guard meets this requirement. The Guard acts in
different capacities, but it is one entity. The appropriate agency
thus received the claim. The requirement that the claim be
“presented in writing” is textually weaker than a requirement that
the claim be “filed.”2 There need not be a formal legal claim filed
against a properly named defendant. Indeed, the letter that
Nancarrow sent would qualify as a sufficient presentment in writing
within the limitations period even if the subsequent filing of a
formal claim against the Texas National Guard would not.
IV
Nancarrow’s letter also provides an alternative justification
for equitable tolling that would suffice even if Perez’s attorneys
had not followed up on the letter at all. One thread of equitable
tolling doctrine has recognized the appropriateness of suspending
2
The inference that there is a distinction between “presented
in writing” and “filed” is strengthened by analysis of the
immediately preceding provision, § 2401(a), which uses the “filed”
language. Presumably, if both § 2401(a) and § 2401(b) meant
“filed,” they both would have used the same language.
11
the statute of limitations when there has been fraudulent
concealment of information that the plaintiff would need to file
correctly. See generally Lyman Johnson, Securities Fraud and the
Mirage of Repose, 1992 Wis. L. Rev. 607, 634-42 (discussing this
strand along with another not relevant here).
While Perez cannot show intentional fraud, she can establish
that the National Guard violated a duty to her. Specifically, 32
C.F.R. § 536 et seq. placed a duty on the National Guard to forward
a claims form to Nancarrow or Perez after receiving his letter.
Section 536.2 states, “Any person who indicates a desire to file a
claim against the United States will be instructed concerning the
procedure to follow. He will be furnished claim forms, and, when
necessary, will be assisted in completing the forms and assembling
evidence.” Section 536.50(k)(2)(ii) states that claims “arising out
of tortious conduct by ARNG [Army National Guard] personnel”
received by the states “will be expeditiously forwarded through the
State adjutant general to the appropriate U.S. Army area claims
office in whose geographic area the incident occurred.” Finally, §
536.50(k)(6)(iv) provides that “[w]hen a claim is improperly
presented, is incomplete or otherwise does not meet the
requirements . . . the claimant or his or her representative will
be promptly informed in writing of the deficiencies and advised
that a proper claim must be filed within the 2 year statute of
limitations” (emphasis added).
The appellee argues that § 536.50 applies only to the United
States Army, but not to the National Guard. This is wrong.
12
Section 536.50(k)(2) specifically refers to that set of claims
“arising out of tortious conduct by ARNG personnel as defined in
paragraph (d)(1)(iii) of this section,” which refers directly to
the relevant National Guard statutes. In addition, § 536.1(b)(iv)
specifies the scope of § 536.50 as entailing “the administrative
settlement of claims under the Federal Tort Claims Act . . . for
personal injury, death or property damage caused by the negligent
act or omissions of members or employees of the DA while acting
within the scope of their employment.” The “DA” is the Department
of the Army, and § 536.50(d)(1)(iii) makes clear that “[m]embers of
the ARNG while engaged in training or duty” are the responsibility
of the DA.
Even if Nichols returned Nancarrow’s phone call, the National
Guard unquestionably failed to follow these regulations. The Sixth
Circuit in Glarner found that the Department of Veterans Affairs
had failed to comply with 38 C.F.R. § 14.604(a), which similarly
requires furnishing a copy of a claim form. The court allowed
equitable tolling, because “the VA failed in a legal duty to
Glarner,” 30 F.3d at 701.
The district court distinguished Glarner by noting that “the
plaintiff in the instant case has been represented by ‘able,’
‘skilled’ attorneys who are presumably familiar with the FTCA’s
statutory requirements.” This is off the mark, because nothing in
the regulations limits the National Guard’s responsibility to cases
in which the plaintiff is unrepresented. Perez clearly did not
13
sleep on her rights, and her attorneys, skilled or not, made an
error.
Tolling is the only remedy for the regulatory violation, and
it is a remedy that fits. Just as the negligence per se doctrine
borrows statutory law in deference to the decisions of legislatures
and administrative agencies, so too must equitable tolling doctrine
incorporate democratically promulgated rules defining the
government’s obligation to prospective litigants. In this case,
there is a clear causal connection between the government’s failure
to follow its regulations and the plaintiff’s filing of an improper
complaint. If there had been no causation--for example, if Perez’s
lawyers knew of the relevant legal rules but filed against the
Texas National Guard because they thought a jury would be more
sympathetic to the federal defendant--then the per se doctrine
would not apply.
Fano v. O’Neill, 806 F.2d 1262 (5th Cir. 1987), does not
require us to deviate from the Sixth Circuit’s path. In that case,
we found that the INS’s failure to follow an internal agency
guideline did not trigger the doctrine of equitable estoppel. Fano
reminds us of the sound principle that the government cannot be
estopped on the same terms as others. See id. at 1256. As we have
seen, with the doctrine of equitable tolling, the presumption runs
the other way. Absent evidence to the contrary, equitable tolling
can be applied against the government. Moreover, Fano emphasized
the distinction between internal agency guidelines and regulations
passed according to notice-and-comment. See id. at 1264. When, as
14
here, we confront an exercise of legislative power, raw or
delegated, our obligation to ensure that Congress’s intent is
fulfilled looms larger. See generally Robert A. Anthony,
“Interpretive” Rules, “Legislative” Rules and “Spurious” Rules:
Lifting the Smog, 8 Admin. L.J. Am. U. 1 (1994) (discussing the
different legal effect of different types of rules promulgated by
administrative agencies).
V
Though judges historically applied equitable tolling in their
role as chancellors of equity, the doctrine is not one that trial
courts have discretion to use whenever they please. Statutes of
limitations serve a vital role in blocking stale claims. As the
Supreme Court has made clear, some such statutes allow for
equitable tolling in limited circumstances to prevent a plaintiff
from unjustly losing a claim vigorously pursued. Only because the
facts of this case fall within the doctrine’s ambit, indeed do so
in two different ways, do we find the limitations period tolled
here.
REVERSED AND REMANDED.
15