Under John R. Sand & Gravel Co., May Lower Courts Apply Their Own Precedent in Determining Whether a Statute Waiving Sovereign Immunity Is Jurisdictional?

• Publication year: 2010

Georgia State University Law Review

Volume 29 j 7

Issue 2 Winter 2013

4-3-2013

Under John R. Sand & Gravel Co., May Lower Courts Apply Their Own Precedent in Determining Whether a Statute Waiving Sovereign Immunity Is Jurisdictional?

Max Compton

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Recommended Citation

Compton, Max (2013) "Under John R. Sand & Gravel Co., May Lower Courts Apply Their Own Precedent in Determining Whether a Statute Waiving Sovereign Immunity Is Jurisdictional?," Georgia State University Law Review: Vol. 29: Iss. 2, Article 7. Available at: http://digitalarchive.gsu.edu/gsulr/vol29/iss2/7

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UNDER JOHNR. SAND & GRAVEL CO., MAY LOWER COURTS APPLY THEIR OWN PRECEDENT IN DETERMINING WHETHER A STATUTE WAIVING SOVEREIGN IMMUNITY IS JURISDICTIONAL?

Max Compton*

Introduction

On the morning of August 29, 2005, Hurricane Katrina made landfall on the southeastern tip of Louisiana. By the end of its wave of destruction, more than 1,800 people were dead and an untold number of homes, well into the thousands, were destroyed.¹ The federal government, through its Federal Emergency Management Agency (FEMA), offered relief by providing $2.7 billion worth of emergency housing units (EHus or trailers) to those in need of shelter,² including New orleans resident Alana Alexander and her son Christopher Cooper.³ In May of 2006, Alexander and Cooper moved into a FEMA trailer.⁴ Upon moving into the EHU, Alexander noticed a "chemical smell" and "experienced eye and throat irritation."⁵ At the time, an unidentified FEMA representative or contractor told Alexander that there was "nothing to worry about."⁶ Relying on this statement, Alexander took no action regarding her concerns over the trailer's safety until December 2007 when she

* J.D. Candidate, 2013, Georgia State University College of Law.

1. Richard D. Knabb, Jamie R. Rhome & Daniel P. Brown, Nat'l Hurricane Ctr., Tropical Cyclone Report Hurricane Katrina: 23-30 August 2005 11-12 (2011) ("The extent, magnitude, and impacts of the damage caused by Katrina are staggering . . . .").

2. Bruce Watson, The Awful Odyssey of FEMA 's Hurricane Katrina Trailers, Daily Fin. (Sept. 28, 2010, 10:15 AM), http://www.dailyfinance.com/2010/08/28/the-awful-odyssey-of-femas-hurricane-katrina-trailers.

3. In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 646 F.3d 185, 188 (5th Cir. 2011) (per curiam).

4. Id.

5. Original Brief for Appellant at 4 FEMA Trailer Litig., 646 F.3d 185 (No. 10-30451), 2010 WL 7540365 at *4.

6. Id. at 4-5. But see Brief for Appellee at 37 FEMA Trailer Litig., 646 F.3d 185 (No. 10-30451), 2010 WL 4619550 at *37 (challenging the assertion that the unidentified individual actually worked for

the united States).

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learned, via news reports, of the link between FEMA trailers and formaldehyde contamination.⁷ Alexander, on behalf of Cooper, subsequently filed an administrative claim with FEMA as required under the Federal Tort Claims Act (FTCA).⁸ After waiting seven months and receiving no response to her administrative claim, she filed an action against the United States in the District Court for the Eastern District of Louisiana.⁹

The district court dismissed Alexander's claim for lack of subject-matter jurisdiction, holding that Alexander failed to file her administrative claim with FEMA within the two-year statute of limitations prescribed by the FTCA.¹⁰ On appeal Alexander argued, inter alia, that the statute of limitations should be equitably tolled because of the false information given to her by the "government representative."¹¹ The Fifth Circuit denied Alexander's equitable

7. Original Brief for Appellant, supra note 5 at 4. For articles revealing the possible contamination of FEMA trailers around December 2007, see David Hammer, FEMA Trailers to be Tested for Formaldehyde, New Orleans Times-Picayune, Dec. 13, 2007, http://www.nola.com/news/index.ssf/ 2007/12/fema_trailers_to_be_tested_for.html; Michael Kunzelman, Amid Health Concerns, FEMA Bars Workers From Stored Trailers, Southeast Missourian, Nov. 9, 2007, http://www.semissourian.com/story/1289822.html.

8. The statute of limitations for the FTCA requires claimants to first present the claim to the "appropriate Federal agency." 28 U.S.C. § 2675(a) (2006). After denial of the claim by the administrative agency, the claimant has six months in which to present a claim to the appropriate court. Id. § 2401(b). If the administrative agency fails to make a decision within six months of the filing by the claimant, the claimant may treat the failure to act as a denial for purposes of filing a claim in the courts. Id. § 2675(a). For a case involving the failure to meet the six-month, post-denial deadline see Hammond v. United States, 613 F. Supp. 358 (W.D. Pa. 1985).

9. Alexander's complaint alleged that the government acted with gross negligence and deliberate indifference to the health of her son by failing to disclose that the trailer they provided exposed him to high levels of toxic materials. FEMA TrailerLitig., 646 F.3d at 188.

10. 28 U.S.C. § 2401(b) ("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."). A claim arising under the FTCA accrues "when the plaintiff knows or has reason to know of the injury which is the basis of" his claim. Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001) (quoting Brown v. Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999)). The district court held that Alexander's claim accrued in May 2006 when she moved into the EHU, thus filing her administrative claim in July 2008 was untimely. In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. MDL 071873, 2009 WL 2599195, at *3 (E.D. La. Aug. 21, 2009), aff'd 646 F.3d 185 (5th Cir. 2011).

11. FEMA Trailer Litig., 646 F.3d at 190; see sources cited supra note 6. Equitable tolling is a doctrine that allows a court to hear a plaintiff's claim even after the passing of the statute of limitations. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) ("[Statutes of limitation] typically permit courts to toll the limitations period in light of special equitable considerations." (citing Rotella v. Wood, 528 U.S. 549, 560-61 (2000); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-53 (7th Cir. 1990))); Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 223 (2d Cir. 2002) ("Equitable tolling is a doctrine that permits courts

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tolling argument on the grounds that statutes waiving sovereign immunity, such as the FTCA, are to be strictly construed and a court sitting in equity cannot "extend the waiver beyond that which Congress intended."¹² Unfortunately, if an opportunity existed for Alexander to bring her claim in another circuit, it is possible that, applying the same federal law¹³—the FTCA statute of limitations— that court would have adopted her equitable tolling argument and reached the merits of her case.¹⁴

Among the circuits that have considered equitably tolling the statute of limitations under the FTCA, the Third and Eighth Circuits have allowed the statute to be tolled, whereas the Ninth and Fifth Circuits have not.¹⁵ This split stems from the Supreme Court's inconsistent application of equitable tolling to waivers of sovereign immunity generally.¹⁶ This Note focuses on equitable tolling of the FTCA statute of limitations specifically, while acknowledging that the doctrine applies to all waivers of sovereign immunity alike. Part I discusses a line of Supreme Court cases addressing tolling statutes of limitations for various causes of action against the government.¹⁷ As

to extend a statute of limitations on a case-by-case basis to prevent inequity." (quoting Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000))); see also Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998) (defining equitable tolling as a "doctrine under which plaintiffs may sue after the statutory time period has expired if they have been prevented from doing so due to inequitable circumstances").

12. FEMA TrailerLitig., 646 F.3d at 190 (quoting Ramming, 281 F.3d at 165).

13. Gould v. U.S. Dep't. of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) ("Although FTCA liability is determined 'in accordance with the law of the place where the act or omission occurred,' 28 U.S.C. § 1346(b), federal law determines when a claim accrues." (emphasis added) (quoting Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir. 1980))).

14. See Santos ex rel. Beato v. United States, 559 F.3d 189, 196 (3d Cir. 2009) ("[E]quitable tolling is possible under the FTCA . . . ."); see also T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961 (8th Cir. 2006) ("[E]quitable tolling applies in FTCA cases only because Congress intended it to apply." (citing United States v. Brockamp, 519 U.S. 347, 353-54 (1997))).

15. Compare Santos, 559 F.3d at 194-97, and Ingram, 443 F.3d at 963, with Marley v. United States, 548 F.3d 1286, 1288-93 (9th Cir. 2008), and Ramming, 281 F.3d at 163-66.

16. Compare Irwin v. Dep't. of Veterans Affairs, 498 U.S. 89, 95-96 (1990) ("[T]he same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States."), with Sand & Gravel, 552 U.S. at 137 (holding that when the Court has already prescribed a definitive interpretation of a certain statute of limitations, that...