Is the Doctrine of Equitable Tolling Applicable to the Limitations Periods in the Federal Tort Claims Act?

AuthorRichard Parker

I. Introduction

For many years, and with few exceptions, the Circuit Courts of Appeal have adhered to a strict, jurisdictional view of the limitations periods contained in the Federal Tort Claims Act (FTCA) ' Specifically, the courts have heid that these iimitations periods are conditions upon the waiver of sovereign immunity contained in the ActZ They define the scope of a federal court's subject matter jurisdiction in a tort action brought against the United States Because the limitations periods are jurisdictional in nature, they must be observed strictly by plaintiffs and construed narrowly by the courts. Moreover, their jurisdictional nature renders them unsuitable to equitable toiling. It follows, therefore, that untimely administrative

'CBDIBIO Judge Advocate General I Corps (MdARNG), Deputy Staff Judge Advo. caw 20th Inimfry Diviilon (Light) Asrlriant United States Arforney. Eastern DliLilel of Blrginna, J 0, St John's Knlveralfy School of Law. 1982, BS. mmm own laude, Solre Dame College of St John's Uo~vormy, 1579 The \,Iewa expressed In Lhli Bnleli all rhe author's and are not neeeiaarily thole held or advocated by rho Onlred Slates Depanmenl of JYPOCe or the exeeudve agenclei of the Unrred Sfafea The author wishes to PXP~DII h1.i ~ ~ ~ i e c 1 ~ l l o n to Larry L Grega, Eaq and Ms Carol Shea for their conrrlbuflons to this anklea 28 ti S C I2401Cb)?See, B O , Gould v United Stales Dew of Health and Human Serncea, 803 B 26 735 (4th Clr 18001, eerl denied, 111 S CI 673 (statute8 of Ilmrtanon In fait ~efioni againif the federal goremment under the FTW are Jurlrdlcrmnal and nonwalvsble). Howton \, Cnlled States Postal Serv , 523 F 26 886 (5th Car 1987) (FTCA lhmifaflom periods are Junrdlchonal, 50 that equitable conilderafloni that ma) waive ei roll limi. Lallonli periods In Pulls between private lhtlgantl are Inapphcable)

claims may not be adjudicated by the executive agencies, and untimely lawsuits may not be heard by federal district courts, because both are without jurisdiction to entertain these dila-tory submissions

Recently. in Iru,in F. Veterans' Admin~tration,~the Supreme Court held that, as a general proposition, the doctrine of equitable tolling is applicable to statutes of limitation in lawsuits brought against the United States.' The Court reasoned that the doctrine is presumptively applicable to statutes of hmitation in suits involving private litigants. In many mstances. the United States has opted to waive its sovereign immunity and to be treated as a private litigant. The Court held that in these situations the doctrine is equally applicable to lawsuits involving the federal sovereign.6 One of the questions left unanswered by the Irwin Court is the applicability of its broad holding to the limitations periods contained in the FTCA

This issue recently was addressed by the United States Court of Appeals for the Eighth Circuit in the case of Schmidt u. Cizited States.6 In 11s initial decision in Schmidt, the circuit court affirmed the district court's dismissal of an untimely FTCA suit. holding that the initiation of an action against the United States within the statutory six-month period is a jurisdictional requirement ' The Supreme Court granted Schmidts' petition for a writ of certiorari, vacated the judgment below, and remanded the case to the Eighth Circuit for further consideration in light of its decision in Irwin.8 On remand, the circuit court held that the FTC4's limitations periods are not jurisdictional, and strict compl~ance wlth them is not a jurisdictional oreremisite to a suit aeainst the mrernment. Moreover. the FTCAS limitations periods may be equitably toiled over the government's objection e

This article argues for the proposition that the Eighth Circuit's decision inSchmidt is erroneous, and the general rule set forth in Irwin "govern[ing] the applicabiiity of equitable toil. mg to suits against the Government"'o should not be applied to

the limitations periods contained in the FTCA Application of the doctrine of equitable tolling to the FTCA's limitations periods is inconsistent with clearly discernible congressional intent and well-established canons of statutory interpretation. Moreover, the general rule set forth in Irwin is inimical to the operation of the remedial scheme established by the Act, and unnecessary to secure equitable treatment for time-barred claims

11. Irwin v Veterans' Administration

Shirley W. Irwin, an employee of the Veterans' Administration (VA) Medical Center in Waco, Texas, was discharged from his position on April 17, 1986.IL He contacted an agency equal employment (EEO) counsellor on June 12, 1986-twenty-five days after his termination from federal employment.1z He alleged, inter alia, that he was fired unlawfully on the basis of his race.13 The VA rejected his claim because it was untimely." Irwin appealed the VA's rejection of his claim to the Equal Employment Opportunity Commission (EEOC). The Commission affirmed the VA's decision and notified both Irwin and his attorney of its decision by mail.

On March 27, 1987, the EEOC's decision arrived at the office of Irwin's attorney. The attorney, however, was in South Korea with his United States Army Reserve unit.'6 Accordingly an employee signed a receipt for the decision.le Irwin later claimed to have received it on April 7, 1987; his attorney claimed to have actually become aware of the decision on April 10, 1987.17 Irwin filed suit in the United States District Court for the Western District of Texas on May 6, 1987-twenty-nine days after he claimed to have received the EEOC's decision on his appeal, but forty days after it was received in ha attorney's office.'B

The district court determined that it lacked jurisdiction over Irwin's Titie VI1 suit because it was filed in an untimely manner. Specifically, the court determined that the thirty-day pe- Irwin v Velerana' Admm, 874 F 2d 1082 (8th Clr 1988). W d , 111 S Cf 453(1980)

'*id at 1083

"Imin, 874 F 26 at 1083Is Id.

Is Id)-id."id

l"lruin,llls cr at156

nod within which Irwin was required to file suit began to run on the day that the EEOC's decision was received in his attorney's office-not when Irwin received it.le Consequently, the court dismissed Irwin's suit

The Court of Appeals for the Fifth Circuit affirmed the district court's opinion ? @ It determined that the district court properly applied the "constructive notice" doctrine to the attorney's receipt of the EEOC's decision. It further held that the thirty-day period within which to file a lawsuit is a condition on the waiver of sovereign immunity contained in Title VI1 It operates as a jurisdictional bar to judicial consideration of untimely suits, and is not subject to equitable Consequently, Irwin's suit was untimely, and the district court lacked jurisdiction ob-er it 23

The Supreme Court granted certiorari and affirmed the Fifth Circuit's decision 24 In doing so, however. it completely eviscerated the jurisdictional rationale employed by the court of appeals. The Supreme Court adopted "a . general rule to govern the applicability of equitable tolling in suits against the government."z6 In this regard, the Court held,

A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed " 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 n-ay that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation. We therefore hold that the same rebuttable presumption of equitable tolling appiicable to suits against private defendants should also apply to suits against the United States. Congress, of course. may provide otherwise if It wishes to do so.26

Relying on precedent, however, the Court limited to two the circumstances in w,hich equitable toiling may save an otherwise untimely lawsuit

We have allowed equitable tolling in situations where the claimant has actively pursued his judicial...

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