FILED
NOT FOR PUBLICATION
APR 3 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL WEST, No. 13-16909
Plaintiff - Appellant, D.C. No. 2:13-cv-00304-GMS
v.
MEMORANDUM*
UNITED STATES OF AMERICA; JOE
GORDWIN, an FBI agent,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted January 6, 2016
San Francisco, California
Before: KOZINSKI, O’SCANNLAIN and MCKEOWN,** Circuit Judges.
At the time West filed his complaint, he had not yet presented his FTCA
claims to the appropriate government agency. See 28 U.S.C. § 2675(a). The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Following argument in this case, Judge McKeown was drawn to replace
Judge Noonan.
page 2
district court thus found that it lacked jurisdiction over these claims. Concluding
that exhaustion of Counts 4, 7 and 10 would be futile because the two-year FTCA
filing deadline had passed, see 28 U.S.C. § 2401(b), the district court dismissed
those claims with prejudice. But, while West’s appeal was pending, the Supreme
Court confirmed that plaintiffs may seek equitable tolling of claims against the
United States under the FTCA. United States v. Wong, 135 S. Ct. 1625, 1638
(2015). At oral argument before us, West’s counsel represented that West has now
presented his claims to the appropriate agency.
The district court also found that Counts 7, 9 and 10 failed to state a claim
and thus dismissed Count 9 with prejudice as well. Because West had not yet
exhausted administrative remedies, the district court did not have jurisdiction to
resolve those claims on the merits. See Munns v. Kerry, 782 F.3d 402, 413 (9th
Cir. 2015). We therefore reverse the dismissal with prejudice of Counts 4, 7, 9 and
10 so that West may refile and seek equitable tolling of those claims. We address
the rest of West’s claims in a concurrently filed opinion.
REVERSED.