Todd Zappone v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0209p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TODD N. ZAPPONE; CARRIE M. ZAPPONE; DUSTIN A. ┐
ZAPPONE; SNZ; DNZ, │
Plaintiffs-Appellants, │
│
> No. 16-4111
v. │
│
│
│
UNITED STATES OF AMERICA, et al., │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:15-cv-02135—Jack Zouhary, District Judge.

Argued: July 27, 2017

Decided and Filed: September 7, 2017

Before: BATCHELDER, GIBBONS, and COOK, Circuit Judges.
_________________

COUNSEL

ARGUED: William T. Whitaker, WILLIAM T. WHITAKER CO. LPA, Akron, Ohio, for
Appellants. Sherra Wong, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: William T. Whitaker, WILLIAM T. WHITAKER CO. LPA,
Akron, Ohio, for Appellants. Bruce R. Ellisen, Robert J. Branman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

_________________

OPINION
_________________

COOK, Circuit Judge. Todd N. and Carrie M. Zappone (“Zappones”) sued the United
States and several IRS agents (“Defendants”), alleging state-law and constitutional torts
 No. 16-4111 Zappone, et al. v. United States, et al. Page 2

stemming from a search of the Zappones’ business and a seizure of cash from their company
safe. The district court granted summary judgment in favor of the Defendants, concluding that
the claims were time barred. We AFFIRM.

I.

The Zappones own Ohio Scrap Corporation (“OSC”), a scrap-metal recycling business in
Delta, Ohio. On November 8, 2012, IRS Special Agents executed search-and-seizure warrants
on OSC’s offices and the Zappones’ home in the course of investigating alleged tax evasion and
illegal restructuring. During the search, the Special Agents arrested the Zappones and seized
their computers, cell phones, business records, and a large quantity of cash from the company
safe. When the Special Agents took the money to The Brink’s Company after the search, the
security company “counted [it] and issued a receipt . . . in the amount of $1,264,000.” But the
Zappones maintain that the safe contained significantly more—$3,150,000 in total—and that the
Special Agents pocketed the excess cash.

In April 2013, the United States brought a civil-forfeiture proceeding against the
$1,264,000. See United States v. $1,264,000 in U.S. Currency, No. 3:13-cv-00905 (N.D. Ohio
Apr. 22, 2013). Shortly thereafter, the Zappones asserted claims against the currency for that
amount. In June, however, they filed amended claims alleging that the amount of the defendant
currency “is understated with the true value at approximately Three Million One Hundred Fifty
Thousand Dollars ($3,150,000).”

Alongside the civil-forfeiture case, the Zappones pursued other avenues for retrieving the
Special Agents’ purportedly ill-gotten gains. In July 2014, the Zappones and OSC submitted
administrative claims to the IRS seeking $1,886,000, the difference between the amount of
currency allegedly seized and the amount that was then the res of the civil-forfeiture action. The
claims arrived under a cover letter from attorney Michael T. Arnold, dated July 21, 2014. In
addition to the claims, the Zappones submitted executed power-of-attorney forms that identified
their counsel as Arnold, Robert J. Fedor, and Benjamin C. Heidinger and listed their counsel’s
address. The IRS received these materials in August 2014.
 No. 16-4111 Zappone, et al. v. United States, et al. Page 3

On February 11, 2015, the IRS mailed letters denying the claims via certified mail to
Fedor and Arnold. The letters advised the lawyers that their “client[s] may contest this
determination and bring suit against the United States in the appropriate United States district
court no later than six months after the date of the mailing of this notification.” The attorneys
received the denials two days later. By this time, however, the Zappones had switched counsel.
But they had not notified the IRS of Arnold and Fedor’s withdrawal of representation; nor is
there record of the denial letters being returned to the IRS as undeliverable.

On October 14, 2015, the Zappones1 filed the complaint in this case against twelve IRS
employees and one IRS subcontractor, alleging both state-law torts (conversion, invasion of
privacy, intentional infliction of emotional distress, and civil conspiracy) and constitutional
claims (violation of their due process rights and unreasonable search and seizure). These claims
stemmed from the IRS Special Agents’ execution of the search-and-seizure warrants on the
Zappones’ property and the purported misappropriation of their cash. The district court later
substituted the United States for the individual defendants with respect to the state-law claims.

After a status conference, the district court directed the Defendants to file a motion on the
threshold issue of whether the applicable statutes of limitations barred the state-law and
constitutional claims. Thereafter, the Defendants moved to dismiss all claims, and the Zappones
opposed the motion. Recognizing that it would have to consider matters outside the complaint to
address the parties’ statute-of-limitations arguments, the district court treated the motion to
dismiss as one for summary judgment. The court decided in favor of the Defendants, concluding
that the Zappones had filed their state-law and constitutional claims outside the appropriate
limitations periods and rejecting their requests for equitable tolling. The Zappones appealed.

II.

We review de novo the district court’s determination that the applicable statutes of
limitations barred the Zappones’ state-law and constitutional claims. Banks v. City of Whitehall,
344 F.3d 550, 553 (6th Cir. 2003) (citing Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934, 938

1
The Zappones’ three children—Dustin A. Zappone, SNZ, and DNZ—also brought state-law claims in this
case. The United States moved to dismiss their claims, and the district court granted the motion. Neither the
Zappones nor their children have challenged that ruling on appeal.
 No. 16-4111 Zappone, et al. v. United States, et al. Page 4

(6th Cir. 1999)). We also review de novo the district court’s “decision on the application of
equitable tolling where the facts underlying the equitable tolling are undisputed.” Chavez v.
Carranza, 559 F.3d 486, 493 (6th Cir. 2009) (citation omitted). “When the facts are in dispute,
we apply an abuse of discretion standard.” Id. (citation omitted).

A.

We address the timeliness of the Zappones’ state-law claims against the United States
first. The district court concluded that the statute of limitations under the Federal Tort Claims
Act (“FTCA” or the “Act”) barred these allegations because the Zappones filed their complaint
over six months after the IRS mailed notices denying their administrative claims. The court also
rejected the Zappones’ argument for equitable tolling, concluding that their circumstances did
not entitle them to relief under the doctrine. We agree with the district court with respect to both
determinations.

Although sovereign immunity generally shields the government from suit, Dep’t of the
Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (citation omitted), the FTCA, 28 U.S.C.
§ 2671, et seq., waives that immunity for certain tort claims. Specifically, it allows a plaintiff to
sue the federal government for personal injury or property damage “caused by the negligent or
wrongful act or omission” of government employees acting within the scope of their
employment. Id. § 1346(b)(1); see also Chomic v. United States, 377 F.3d 607, 609 (6th Cir.
2004). But in order to benefit from the FTCA’s waiver, a plaintiff must comply with two
limitations periods. First, he must present an administrative claim “in writing to the appropriate
Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). Second, he
must bring the FTCA claim “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.”
Id. If he fails to meet either of these time constraints, his “tort claim against the United States
shall be forever barred.” Id.

No party disputes that the Zappones did not satisfy the second of the two FTCA
limitations periods. After the IRS mailed its denial notice for their administrative claims on
February 11, 2015, the Zappones had until August 11, 2015, to bring their state-law claims. See
 No. 16-4111 Zappone, et al. v. United States, et al. Page 5

id. The Zappones failed to sue, however, until October 14, 2015—as the district court summed
up, “two months too late.”

Hoping to save their claims, the Zappones point to United States v. Kwai Fun Wong, in
which the Supreme Court held that a court may equitably toll the time bar for FTCA claims filed
outside the Act’s two statute-of-limitations periods. 135 S. Ct. 1625, 1638 (2015). They contend
that the district court erred in declining to apply the equitable-tolling doctrine to their state-law
claims. We disagree.

1. The Equitable-Tolling Standard.

In general, equitable tolling is available “when a litigant’s failure to meet a legally-
mandated deadline unavoidably arose from circumstances beyond that litigant’s control.”
Jackson v. United States, 751 F.3d 712, 718 (6th Cir. 2014) (quoting Robertson v. Simpson,
624 F.3d 781, 783 (6th Cir. 2010)). Although “equitable tolling may be applied in suits against
the government, courts will only do so sparingly, and not when there has only been a garden
variety claim of excusable neglect.” Id. (quoting Chomic, 377 F.3d at 615). A litigant “carr[ies]
the burden of establishing [his] entitlement to equitable tolling.” Id. at 718–19 (citation omitted).

Historically, this court has considered five factors in evaluating whether to apply
equitable tolling to a late claim. See, e.g., Jackson, 751 F.3d at 719; Chomic, 377 F.3d at 609.
These factors are: “(1) the plaintiff’s lack of notice of the filing requirement; (2) the plaintiff’s
lack of constructive knowledge of the filing requirement; (3) the plaintiff’s diligence in pursuing
her rights; (4) an absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in
remaining ignorant of the particular legal requirement.” Jackson, 751 F.3d at 719 (citing Truitt
v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)).

But this court has also recognized limitations to this approach, casting doubt on the need
for strict adherence to it. In Graham-Humphreys v. Memphis Brooks Museum of Art, for
example, we observed that the five factors are neither comprehensive nor material in all cases.
209 F.3d 552, 560–61 (6th Cir. 2000) (citing Truitt, 148 F.3d at 648); see also Cook v. Stegall,
295 F.3d 517, 521 (6th Cir. 2002). And “a litigant’s failure to meet a legally-mandated deadline”
due to “unavoidab[le] . . . circumstances beyond that litigant’s control” is often the most
 No. 16-4111 Zappone, et al. v. United States, et al. Page 6

significant consideration in courts’ analyses, rather than any particular factor of the five-part
standard. Graham-Humphreys, 209 F.3d at 560–61 (citations omitted).

Notably, the Supreme Court has articulated a more streamlined, two-factor test for
analyzing equitable-tolling requests in the habeas context. In Holland v. Florida, the Court held
that a prisoner requesting equitable tolling must demonstrate both “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)). Later, the Court applied this test to determine the timeliness of a claim under the
Contract Disputes Act, although noting that it “had no occasion to decide whether an even
stricter test” or “a more generous test than Holland’s should apply” to that matter and other non-
habeas cases. Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755–56 & 756
n.2 (2016); see also Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231–32 (2014). And, in dicta
in Wong, the same case in which it held that equitable tolling applied to FTCA suits, the Court
alluded to the two-factor Holland test. See 135 S. Ct. at 1633.

The government urges us to adopt the two-part Holland test to assess the timeliness of the
Zappones’ state-law claims, asserting that it is more streamlined and avoids the drawbacks of the
five-factor approach this court has identified in previous cases. Although these observations are
persuasive, our hands are mostly tied. Because the Supreme Court has never expressly adopted
the Holland test outside of the habeas context, see Menominee Indian Tribe, 136 S. Ct. at 756
n.2, and because this court has previously applied the five-factor approach in FTCA suits, see
Jackson, 751 F.3d at 719, the law-of-the-circuit doctrine precludes us from supplanting that
approach to embrace a new equitable-tolling standard for FTCA cases (or, potentially, for other
types of non-habeas civil cases). See Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir.
2004) (“Under the law-of-the-circuit doctrine, only the Court sitting en banc may overrule
published circuit precedent, absent an intervening Supreme Court decision or a change in the
applicable law.”). But since the “propriety of equitable tolling must necessarily be determined
on a case-by-case basis,” Truitt, 148 F.3d at 648 (citation omitted), both standards can inform
our evaluation of the Zappones’ circumstances here. This is particularly so because the two
approaches are quite compatible and may often lead to the same result. And we conclude that,
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under either approach, the Zappones fail to meet the requisite burden to excuse the untimeliness
of their state-law claims.

2. The Sixth Circuit’s Five-Factor Approach.

We address the Zappones’ arguments with respect to each factor.

a. Factors 1, 2, and 5: Lack of Actual Knowledge of the Filing Requirement,
Lack of Constructive Knowledge of the Filing Requirement, and
Reasonableness in Remaining Ignorant of the Particular Legal Requirement.

The Zappones say they had no actual or constructive knowledge of the FTCA’s six-
month filing deadline. They also posit that this ignorance was reasonable by contending that
they did not learn of the denial letter’s mailing in time to meet the appropriate deadline. In
support, they aver that: (i) they did not learn of the notice of denial mailed to attorneys Fedor and
Arnold because they had switched attorneys prior to the denial; (ii) the IRS knew before mailing
the denials that Fedor and Arnold no longer represented them; and (iii) the IRS should have sent
the denials to their home address as shown on the administrative claims instead of to their
attorneys’ address. Each of these assertions fails to persuade us that these three factors weigh in
the Zappones’ favor.

That the Zappones did not learn of the IRS’s claim denials from their old (or new)
attorneys fails to advance their cause because a lawyer’s mistake normally does not warrant
equitable tolling. Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003) (citation omitted); see also
Choice Hotels Int’l, Inc. v. Grover, 792 F.3d 753, 754 (7th Cir. 2015). This is especially true
where, as here, the attorneys’ missteps amount to “a garden variety claim of excusable neglect.”
Jackson, 751 F.3d at 718 (quoting Chomic, 377 F.3d at 615).

The Zappones’ contention that the IRS knew of their change in counsel lacks support in
the record. The Zappones point to minutes of a telephonic status conference in the civil-
forfeiture proceeding in which attorneys Fedor, Arnold, and Heidinger moved to withdraw their
representation. But that withdrawal was limited to the forfeiture case and therefore did not
constitute a withdrawal from their pending administrative claim for damages. The IRS thus had
no reason to know that the Zappones’ counsel had changed.
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And finally, the Zappones’ assertion that the IRS should have mailed the claim denials to
their home address ignores what the federal regulations require. The pertinent provisions simply
obligate the IRS to send a written denial “to the claimant, his attorney, or legal representative by
certified or registered mail.” 28 C.F.R. § 14.9(a) (emphasis added). The regulations do not
require the IRS to send notice to the claimant’s attorney and the claimant. See id.

Ultimately, the Zappones’ failure to learn of the IRS’s denial notice was a problem of
their own making: they never informed the IRS of their change in counsel, their prior attorneys
neglected to inform them of the denial, and their new attorney fell short of retrieving the denial
letter in time. Plus, the Zappones pinpoint no pertinent case law2 to shore up their theory that a
failure to receive IRS denial notices entitles them to de facto equitable tolling. Accord Jackson,
751 F.3d at 720 (“Although [the plaintiff] argues that a situation in which a denial letter was
never delivered mandates application of equitable tolling, she cites no authority to support her
claim.”).

b. Factor 3: Diligence in Pursuit of Their Claims.

The Zappones next argue that they diligently pursued their claims by pointing to the
efforts of their new lawyer. They contend that, upon “releasing” their prior counsel and “hiring
their subsequent counsel, [they] were aware that [their new counsel] made many attempts to
retrieve” the case file—which included, presumably, the IRS’s denial letter. The Zappones say
that “[t]here [was] little more [they] could have done but make sure their new attorney demanded
the full and complete file.” But this argument holds no water. There was much more the
Zappones could have done: notify the IRS that their counsel had changed, revoke the power-of-
attorney documents previously filed, or submit new power-of-attorney forms, as the regulations
prescribe. See 26 C.F.R. § 601.505.

c. Factor 4: Prejudice to the Government.

2
To support their argument, the Zappones rely on McCaffrey v. Nylon, Inc., No. CIV.A. 95-3787, 1996 WL
122710, at *2 (E.D. Pa. Mar. 13, 1996), in which the court tolled the limitations period for a plaintiff suing the
government when the IRS sent its notice of denial to the claimant directly, but the notice was never received. The
facts of that case are distinguishable from the Zappones’ circumstances because: (i) the McCaffrey plaintiff was able
to show correspondence with the IRS requesting that it communicate with his counsel rather than him, and (ii) the
plaintiff presented evidence that he received no actual notice of the denial of the administrative claim. Id. at *1–2.
 No. 16-4111 Zappone, et al. v. United States, et al. Page 9

Finally, the Zappones assert that a mere two-month delay in filing their claims cannot
possibly have prejudiced the government. The government, for its part, concedes that the
prejudice factor does not weigh in its favor. The absence of prejudice, however, cannot serve as
an independent basis for equitably tolling a limitations period, especially where, as here, the
plaintiffs fail to demonstrate that any other factor supports tolling. Graham-Humphreys,
209 F.3d at 562 n.12; see also Menominee Indian Tribe, 136 S. Ct. at 757 n.5.

In sum, the five-factor approach counsels against applying equitable tolling here.

3. The Supreme Court’s Two-Part Holland Test.

When we examine this case through the lens of the two-part Holland test—which
requires (1) the plaintiff to have pursued his rights diligently, and (2) that some extraordinary
circumstance stood in his way to prevent timely filing, 560 U.S. at 649—our conclusion remains
the same.

a. Diligence in Pursuit of Their Rights.

As discussed, the Zappones could have taken the appropriate steps to notify the IRS of
their change in attorney, see 26 C.F.R. § 601.505, but they failed to do so. “Ignorance of the
legal process alone will not provide the basis for an equitable tolling claim.” Jones v. Gen.
Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991) (citing Campbell v. Upjohn Co., 676 F.2d 1122,
1127 (6th Cir. 1982)). The Zappones therefore fall short of establishing diligent pursuit of their
rights.
 No. 16-4111 Zappone, et al. v. United States, et al. Page 10

b. Extraordinary Circumstances Standing in the Way of Timely Filing.

As noted, none of the Zappones’ attorneys informed their clients of the receipt of the
claim-denial notice. Nor did they notify the IRS of a change in representation before the IRS
sent its denial letter. If they had done so, “the denial letter presumably would have been
delivered” to the appropriate party. Jackson, 751 F.3d at 720. Again, “a garden variety claim”
involving an attorney’s “excusable neglect” does not amount to an extraordinary circumstance
warranting equitable tolling. Holland, 560 U.S. at 651–52.

For these reasons, we uphold the district court’s determination that the Zappones
untimely filed their state-law claims and that their circumstances do not merit equitable tolling.

B.

We turn next to the Zappones’ constitutional claims against the individual IRS agents for
violating their due process and Fourth Amendment rights. After noting that these Bivens claims
are “governed by the same statute of limitations as [] claim[s] under 42 U.S.C. § 1983,” and that
“the statute of limitations for [§ 1983 claims] arising in Ohio” is two years, the district court
dismissed them as untimely. It also rejected the Zappones’ alternative argument for equitable
tolling. The district court reached the right result on both counts.

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), the Supreme Court “recognized a cause of action against federal officials for certain
constitutional violations when no alternative processes exist to protect the plaintiff’s interests and
no special factors counsel against recognizing the cause of action.” Zundel v. Holder, 687 F.3d
271, 279 (6th Cir. 2012) (citations omitted). Bivens claims, like § 1983 claims, ordinarily
borrow the personal-injury statute of limitations from the state in which the claim arose. See
Hardin v. Straub, 490 U.S. 536, 540 (1989); Zundel, 687 F.3d at 281; McSurely v. Hutchison,
823 F.2d 1002, 1004–06 (6th Cir. 1987).

When a state, such as Ohio, has multiple personal-injury statutes with different
limitations periods, courts use the statute of limitations applicable to residual or general personal
injuries, not that for a particular specific intentional tort. See Owens v. Okure, 488 U.S. 235,
 No. 16-4111 Zappone, et al. v. United States, et al. Page 11

249–50 (1989); Browning v. Pendleton, 869 F.2d 989, 990–91 (6th Cir. 1989) (en banc). That
means that Ohio Rev. Code § 2305.10, which governs the timeliness of general personal injury
claims, applies to Bivens claims arising in Ohio. See Browning, 869 F.2d at 992. And that
statute provides for a two-year limitations period, with the cause of action accruing at the time of
injury. Ohio Rev. Code § 2305.10.

No party disputes that the Zappones’ Bivens claims accrued on the day of the allegedly
unlawful search—November 8, 2012. As the district court summarized, “[t]he Zappones were at
[OSC]’s office during the search [when] the money [was] placed in the custody of the IRS, and
thus knew of their alleged injury that day.” Applying Ohio Rev. Code § 2305.10, the Zappones
thus had until November 8, 2014, to sue the IRS agents. But they failed to bring their claims
until October 14, 2015—over eleven months past the statutory deadline.

Nevertheless, the Zappones advance two arguments in a bid to revive their claims.

First, they contend that the district court applied the wrong statute of limitations. They
reason that because their claims chiefly arise out of an alleged unlawful appropriation of money,
Ohio’s four-year statute of limitations governing the tort of conversion should apply, see Ohio
Rev. Code § 2305.09(B), as it is the “most analogous statute of limitations” with respect to their
claims. In support, they rely on Baker v. Mukasey, in which a panel of this court stated, with
respect to Bivens claims, that it “appl[ies] the most analogous statute of limitations from the state
where the events giving rise to the claim occurred.” 287 F. App’x 422, 424 (6th Cir. 2008).

Notwithstanding this language from Baker, binding authority forecloses the Zappones’
argument. In Owens, the Supreme Court rejected the petitioners’ attempts to analogize their
§ 1983 claims to particular state-law intentional torts and borrow those torts’ statutes of
limitations. 488 U.S. at 249–50. The Court recognized that such an approach carries “enormous
practical disadvantages,” including inconsistent application. Id. 242–48. And it also reasoned
that, “[g]iven that so many claims brought under § 1983 have no precise state-law analog,
applying the statute of limitations for the limited category of intentional torts would be
inconsistent with § 1983’s broad scope.” Id. at 249. The Court thus concluded that “where state
law provides multiple statutes of limitations for personal injury actions, courts considering
 No. 16-4111 Zappone, et al. v. United States, et al. Page 12

§ 1983 claims should borrow the general or residual statute for personal injury actions.” Id. at
249–50. That same logic applies to locating the appropriate statute of limitations for Bivens
claims. See Hardin, 490 U.S. at 540; Zundel, 687 F.3d at 281; McSurely, 823 F.2d at 1004–06.
And as noted, Ohio Rev. Code § 2305.10 delineates the residual or general statute of limitations
for personal-injury torts. See Browning, 869 F.2d at 992.

Baker, an unpublished decision, does not compel a different result. That panel resolved a
prisoner’s Bivens claims against prison officials without the benefit of briefing from the
defendants. See 287 F. App’x at 424. Although the court voiced a rule seemingly in harmony
with the Zappones’ position—that a court should apply “the most analogous statute of limitations
from the state where the events giving rise to the claim occurred”—it did not then analyze the
prisoner’s constitutional claims and try to locate the most analogous civil claims in the
jurisdiction. See id. Instead, that statement was merely prefatory to the court’s determination
that, since the prisoner’s claims arose in Kentucky, the court should use Kentucky’s one-year
time limit applicable to personal-injury claims rather than any other state’s longer statute of
limitations for personal-injury claims. See id. Baker’s reasoning thus does not stand for the
proposition the Zappones would assign to it. And to the extent that Baker suggests a departure
from the well-established rule that § 1983 and Bivens claims borrow the general or residual
statute of limitations for personal injury claims, we reject that reasoning here.

Second, the Zappones argue that, even if a two-year statute of limitations governed their
claims, the district court should have equitably tolled the period. In support, they say that they
erroneously pursued their claims in the wrong forum, pointing to their filing of the amended
claims in the civil-forfeiture action, which alleged that the IRS agents actually seized $3,150,000
from their safe. United States v. $1,264,000 in U.S. Currency, No. 3:13-cv-0095 (N.D. Ohio
Apr. 22, 2013). They reason that their pleadings in the forfeiture action reflect diligent pursuit of
their claims. And their “good faith error,” they argue, entitles them to equitable tolling.

The Zappones buttress their argument by citing Burnett v. New York Central Railroad
Co., 380 U.S. 424 (1965). In that case, the plaintiff sued his employer, a railroad, in Ohio state
court, alleging a violation of the Federal Employer’s Liability Act (FELA). Id. at 424. FELA
provided for concurrent jurisdiction in state courts and U.S. district courts. 45 U.S.C. § 56. The
 No. 16-4111 Zappone, et al. v. United States, et al. Page 13

Ohio court had jurisdiction and the plaintiff had properly served the defendant with process.
Burnett, 380 U.S. at 424–25. But because venue was not proper in the Ohio court and Ohio law
barred transfer to another court where venue was proper, the Ohio court dismissed the action. Id.
at 425. Eight days after the Ohio court’s dismissal of his claims, the plaintiff filed an identical
suit in federal court, but by this point, his claim was untimely under FELA’s three-year statute of
limitations. Id. The Supreme Court concluded that equitable tolling warranted permitting the
plaintiff’s claims to proceed because “when process has been adequate to bring in the parties and
to start the case on a course of judicial handling which may lead to final judgment without
issuance of new initial process, it is enough to commence the action within the federal statute.”
Id. at 426 (quoting Herb v. Pitcairn, 325 U.S. 77, 79 (1945)).

Burnett’s rationale offers no refuge for the Zappones’ untimely claims. The Zappones
did not merely assert their entitlement to relief in the wrong forum—they did so in the wrong
type of action. As the district court correctly noted, “the Zappones could not have pursued,
diligently or otherwise, their Bivens claims” in the civil-forfeiture proceeding. A forfeiture
action is a suit in rem against the res, or the seized property, the purpose of which is to determine
“ownership and control” over that property. United States v. James Daniel Good Real Prop.,
510 U.S. 43, 52 (1993). In other words, a claim in a civil-forfeiture action is “brought against
property, not people.” United States v. All Funds in Account Nos. 747.034/278, 747.009/278,
& 747.714/278 Banco Espanol de Credito Spain, 295 F.3d 23, 25 (D.C. Cir. 2002). And while
the purported owner of the property may intervene in the action, he may not assert counterclaims
against the United States. United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30, 34
(1st Cir. 1991). The Zappones therefore could not have diligently pursued damages against a
federal agent in the civil-forfeiture action—they could not, in other words, “start the case on a
course of judicial handling which may lead to final judgment without issuance of new initial
process.” See Burnett, 380 U.S. at 426.

Another significant fact distances this case from Burnett. In filing their amended claims
in the civil-forfeiture proceeding, the Zappones never served process or other notice on the
individual IRS agents. The amended claims, filed through the court’s ECF system, would have
been delivered electronically only to the attorneys who had appeared on behalf of the United
 No. 16-4111 Zappone, et al. v. United States, et al. Page 14

States or on behalf of other claimants. Because the Zappones have shown no proof that they
served the amended civil-forfeiture claims on any of the individual defendants named in the
present case, process was far from “adequate” to “bring in the parties” subject to their Bivens
claims. See id. at 426.

In a last-ditch effort to salvage their constitutional claims, the Zappones contend that the
district court should have left the question of equitable tolling for the jury. Not so. The decision
to invoke equitable tolling is a question of law for a court to answer. Chavez, 559 F.3d at 494
(citing Rose v. Dole, 945 F.2d 1331, 1334 (6th Cir. 1991)). And the district court did so
correctly.

III.

We AFFIRM.