Marley v. United States , 548 F.3d 1286 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL BURNELL MARLEY, 
individually, No. 06-36003
Plaintiff-Appellant,
v.  D.C. No.
CV-06-00366-RSL
UNITED STATES OF AMERICA, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
May 8, 2008—Seattle, Washington
Filed December 8, 2008
Before: Susan P. Graber and Johnnie B. Rawlinson,
Circuit Judges, and Otis D. Wright II,* District Judge.
Opinion by Judge Graber
*The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.
16067
MARLEY v. UNITED STATES 16069
COUNSEL
Michael B. King, Talmadge Law Group PLLC, Tukwila,
Washington; and Ann R. Deutscher, Wiener & Lambka, PS,
Renton, Washington, for the plaintiff-appellant.
16070 MARLEY v. UNITED STATES
Brian C. Kipnis, Assistant United States Attorney, Seattle,
Washington; and Philip H. Lynch and Darwin Roberts, Assis-
tant United States Attorneys, Tacoma, Washington, for the
defendant-appellee.
OPINION
GRABER, Circuit Judge:
We must decide whether the statute of limitations in
§ 2401(b) of the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2401(b), is jurisdictional and, in turn, whether courts
can employ the doctrines of equitable estoppel or equitable
tolling to extend the limitations period. We hold that the stat-
ute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and,
consequently, that equitable doctrines that otherwise could
excuse a claimant’s untimely filing do not apply. Accord-
ingly, we affirm the district court’s judgment, which dis-
missed this action.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Michael Burnell Marley received treatment for
prostate cancer at the Puget Sound Healthcare System Hospi-
tal. He alleges that he experienced complications resulting in
physical injury. In February 2004, he filed an administrative
tort claim with the Department of Veterans Affairs.
On October 22, 2004, the Department of Veterans Affairs
sent Plaintiff a notice of final denial of his tort claim. The let-
ter, addressed to Plaintiff’s lawyer at the time, stated that
Plaintiff could file suit against the United States under the
FTCA. The notice informed Plaintiff’s lawyer that any action
“must be initiated within 6 months after the date of the mail-
ing of this notice of final denial as shown by the date of this
letter,” that is, within six months of October 22, 2004.
MARLEY v. UNITED STATES 16071
In March 2005, within that six-month period, Plaintiff hired
new lawyers and filed a timely complaint for damages against
the United States. On December 16, 2005, Plaintiff’s new
lawyers moved for leave to withdraw from representing Plain-
tiff. The motion provided no reason for the request.1 The dis-
trict court granted the motion on January 3, 2006, and gave
Plaintiff “notice that he [was] responsible for pursuing [the]
action in accordance with the Order Setting Trial Date and
Related Dates.”
On January 27, 2006, long after the six-month limitations
period had passed, an Assistant United States Attorney
(“AUSA”) sent a letter to Plaintiff, stating in part:
I was told by the staff in our Tacoma office that
you might be interested in dismissing your case. In
case that’s still true, I’ve taken the liberty of drafting
a “Stipulation” (enclosed) that would do that. If
you’re not familiar with the legal terms involved,
and in case you don’t want to consult another lawyer
(which is entirely your right), I’ll briefly state my
opinion as to what they mean.
. . . This stipulation provides that your case would
be dismissed “without prejudice.” That means you
could (in theory) bring it again at a later date. The
other option would be dismissing “with prejudice,”
which would mean you could not bring it again. But
please be aware that even if you dismiss now “with-
out prejudice,” there may be other factors, such as
statutes of limitations, that could limit or bar your
ability to bring this case again.
Plaintiff did not respond to that letter. On February 14,
1
Plaintiff’s opening brief asserts that his lawyers withdrew “because
they had been unable to locate an expert witness.”
16072 MARLEY v. UNITED STATES
2006, the AUSA sent a follow-up letter to Plaintiff, stating in
part:
I have not heard from you since I sent that letter.
I’m writing again because there are deadlines
approaching in your case. For example, expert
reports are due to be disclosed by April 10, 2006. If
you intend to keep litigating your case, I would
appreciate it if you could please let me know, so that
I can work on it and meet my side of the deadlines.
But if you do want to dismiss it, please send me the
stipulation and I will go ahead and file it for you.
Plaintiff then signed the stipulation and returned it in the
self-addressed, stamped envelope that the AUSA had pro-
vided. On February 22, 2006, the Stipulation and a Proposed
Order dismissing the action were filed with the court. On Feb-
ruary 27, 2006, the court dismissed the action “without preju-
dice.”
On March 15, 2006, sixteen days after dismissal of the first
action, Plaintiff—once again represented by the lawyers who
had filed the first complaint—filed a second action against the
United States, which was essentially identical to the first one.
The United States filed an answer and a motion to dismiss for
failure to meet the six-month deadline prescribed by 28
U.S.C. § 2401(b).
In considering the government’s motion, the district court
examined documents outside the pleadings and, accordingly,
construed the motion as one for summary judgment. Accord-
ing to the court, Plaintiff raised no factual disputes. Turning
to the legal issues, the court ruled that Plaintiff could not
establish equitable estoppel because he was not ignorant of
the six-month time limit and because he could not demon-
strate affirmative misconduct by the government. The court
rejected Plaintiff’s equitable tolling argument on the ground
MARLEY v. UNITED STATES 16073
that he was not excusably ignorant of the six-month limita-
tions period.
Plaintiff timely appealed from the resulting judgment,
which dismissed the second action as untimely.
DISCUSSION2
The FTCA provides that
every civil action commenced against the United
States shall be barred unless the complaint is filed
within six years after the right of action first accrues.
The action of any person under legal disability or
beyond the seas at the time the claim accrues may be
commenced within three years after the disability
ceases.
28 U.S.C. § 2401(a). The statute goes on to state, as relevant
here:
A tort claim against the United States shall be for-
ever 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 the date of mailing . . . of notice of
final denial of the claim by the agency to which it
was presented.
Id. § 2401(b).
Plaintiff filed his first action within six months of the mail-
ing date on the notice of final denial from the Department of
Veterans Affairs. But Plaintiff voluntarily dismissed that
action. Plaintiff recognizes that, by the time he filed the sec-
2
We review de novo a grant of summary judgment. Huseman v. Icicle
Seafoods, Inc., 471 F.3d 1116, 1120 (9th Cir. 2006).
16074 MARLEY v. UNITED STATES
ond action, the six-month period had run. He argues, though,
that the January 27, 2006, letter misled him into thinking that
he would be able to file suit on the same claim if the action
were dismissed “without prejudice.” Thus, he maintains,
either equitable estoppel or equitable tolling should save his
suit from dismissal.
As a threshold matter, we must decide whether we have
jurisdiction over a claim that does not meet the deadlines con-
tained in § 2401(b). See Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 127 S. Ct. 1184, 1191 (2007) (stating that a
federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction). We con-
clude that we do not have jurisdiction and, therefore, cannot
apply the doctrines of equitable estoppel or equitable tolling
that might otherwise allow Plaintiff’s case to proceed.
Unless Congress enacts legislation that subjects the federal
government to tort liability, the United States, as sovereign,
cannot be sued. United States v. Dalm, 494 U.S. 596, 610
(1990); Minnesota v. United States, 305 U.S. 382, 388 (1939).
The FTCA is a limited waiver of the federal government’s
historical immunity from tort liability. Molzof v. United
States, 502 U.S. 301, 305 (1992); United States v. Orleans,
425 U.S. 807, 813 (1976).
[1] The FTCA’s statute of limitations is a condition of the
federal government’s waiver of sovereign immunity. See
United States v. Kubrick, 444 U.S. 111, 117-18 (1979)
(“[T]he [FTCA] waives the immunity of the United States and
. . . in construing the statute of limitations, which is a condi-
tion of that waiver, we should not take it upon ourselves to
extend the waiver beyond that which Congress intended.”).
“[W]hen Congress attaches conditions to legislation waiving
sovereign immunity of the United States, those conditions
must be ‘strictly observed.’ ” Block v. North Dakota ex rel.
Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Meet-
MARLEY v. UNITED STATES 16075
ing the statutory deadlines, then, is generally a condition upon
which the ability to sue the federal government is predicated.
[2] In certain circumstances, however, a late filing may not
be fatal, as a court may employ equitable doctrines to excuse
a claimant’s tardiness. The Supreme Court recognized in John
R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 753
(2008), that equitable doctrines are available to extend stat-
utes of limitations in many cases. “Most statutes of limita-
tions,” the Court explained, “seek primarily to protect
defendants against stale or unduly delayed claims.” Id. When
considering that kind of statute, courts have flexibility to toll
the limitations period “in light of special equitable consider-
ations.” Id.[3] In other cases, time limits are “more absolute.” Id. If a
statute of limitations aims “not so much to protect a defen-
dant’s case-specific interest in timeliness as to achieve a
broader system-related goal, such as facilitating the adminis-
tration of claims, limiting the scope of a governmental waiver
of sovereign immunity, or promoting judicial efficiency,” a
court’s flexibility in using equitable doctrines to extend dead-
lines is limited. Id. (citations omitted). When construing a
statute containing a strict limitations period, the Court has
“often read the time limits . . . as more absolute, say as . . .
forbidding a court to consider whether certain equitable con-
siderations warrant extending a limitations period.” Id. These
statutes of limitations have been referred to, in “shorthand,”
as “jurisdictional.” Id.Resolution of the present case, then, depends on how to cat-
egorize the six-month filing deadline of § 2401(b). If the time
limit is “jurisdictional,” we can apply neither equitable estop-
pel nor equitable tolling to save Plaintiff’s case. Id. If the time
limit is instead intended to be only a procedural bar, equitable
doctrines may apply. Id.
16076 MARLEY v. UNITED STATES
John R. Sand & Gravel itself is instructive. In that case, the
Supreme Court was considering the statute of limitations in
28 U.S.C. § 2501, which states:
Every claim of which the United States Court of
Federal Claims has jurisdiction shall be barred
unless the petition thereon is filed within six years
after such claim first accrues.
....
A petition on the claim of a person under legal
disability or beyond the seas at the time the claim
accrues may be filed within three years after the dis-
ability ceases.
The Court held that § 2501 is jurisdictional and therefore
absolute in nature. 128 S. Ct. at 754. Using the principle of
stare decisis, the Court relied on past cases in which it had
held that the statute was not one that could be equitably tolled.
Id. The Court rejected the plaintiff’s assertion that Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990),
which established a rebuttable presumption that equitable toll-
ing is available in suits against the government, applied when
the Court’s past cases already had established a rule dealing
with the particular statute at hand. John R. Sand & Gravel,
128 S. Ct. at 755-56.
[4] We, too, can find the answer in our own precedent. We
have long held that § 2401(b) is jurisdictional.3 See, e.g., Berti
v. V.A. Hospital, 860 F.2d 338, 340 (9th Cir. 1988). There, we
held that the timing requirement contained in § 2401(b) is
3
We recognize that Cedars-Sinai Medical Center v. Shalala, 125 F.3d
765, 770 (9th Cir. 1997), held that the six-year statute of limitations in
§ 2401(a) is not “jurisdictional,” but instead sets up a waivable procedural
bar. Section 2401(a) is not before us, so we need not decide here whether
Cedars-Sinai can survive after John R. Sand & Gravel.
MARLEY v. UNITED STATES 16077
jurisdictional and is “subject neither to estoppel principles nor
to equitable considerations.” Id. We rejected the plaintiff’s
claim as untimely, and because neither estoppel nor equitable
tolling could extend the limitations period, the plaintiff’s
claim could not succeed. Id.; see also Mann v. United States,
399 F.2d 672, 673 (9th Cir. 1968) (holding that the statute of
limitations in § 2401(b) is jurisdictional and that the time lim-
itation was not tolled while the claimant was a minor).
Berti in turn cited Burns v. United States, 764 F.2d 722,
724 (9th Cir. 1985), which held that another FTCA statute of
limitations, 28 U.S.C. § 2675(a), was jurisdictional. There, the
plaintiff had filed an untimely action, but he argued that the
United States should be estopped from asserting the insuffi-
ciency of his administrative claim and that principles of
equity should toll the statute of limitations. Burns, 764 F.2d
at 724. We held that § 2675(a) is jurisdictional and that the
government could not be barred, through the operation of
equitable doctrines, from asserting that jurisdictional require-
ments must be met. Id.; see also William G. Tadlock Constr.
v. U.S. Dep’t of Defense, 91 F.3d 1335, 1340 (9th Cir. 1996)
(recognizing that, if a filing period is jurisdictional, equitable
doctrines are inapplicable because their use would create
jurisdiction in the federal courts where Congress has not done
so).
Our more recent cases also reflect the view that the timing
requirements of § 2401(b) are jurisdictional. See, e.g., Good-
man v. United States, 298 F.3d 1048, 1053 (9th Cir. 2002)
(“A district court does not have jurisdiction to hear a tort
claim against the United States unless the claimant files a
complaint in federal court within six months after final
agency decision.”); McGraw v. United States, 281 F.3d 997,
1001 (9th Cir.) (holding that the two-year limitation in
§ 2401(b) is a “threshold jurisdictional requirement”),
amended on denial of reh’g, 298 F.3d 754 (9th Cir. 2002).
Just as the Supreme Court in John R. Sand & Gravel relied
on its past cases to conclude that the statute of limitations at
16078 MARLEY v. UNITED STATES
issue there was jurisdictional and not subject to equitable
extensions so, too, we are bound by our own precedents to
hold that the limitations period in § 2401(b) is jurisdictional.
[5] Even in the absence of those Ninth Circuit precedents,
we would reach the same conclusion. The purpose of
§ 2401(b)’s six-month filing deadline fits squarely into John
R. Sand & Gravel’s second category of statutes of limitations:
Its purpose is “not so much to protect [the government’s]
case-specific interest in timeliness as to achieve a broader
system-related goal, such as facilitating the administration of
claims.” John R. Sand & Gravel, 128 S. Ct. at 753. The FTCA
includes a detailed administrative process for handling tort
claims against agencies. The statutory filing deadline is a key
part of that process and plainly “facilitat[es] the administra-
tion of claims.” When the six-month deadline to file an action
in federal court was added to the FTCA in 1966, the Senate
Judiciary Committee concluded that the deadline would
ease court congestion and avoid unnecessary litiga-
tion, while making it possible for the Government to
expedite the fair settlement of tort claims asserted
against the United States. . . . The committee
observes that the improvements contemplated by the
bill would not only benefit private litigants, but
would also be beneficial to the courts, the agencies,
and the Department of Justice itself.
S. Rep. No. 89-1327 (1966), reprinted in 1966 U.S.C.C.A.N.
2515, 2516. Those remarks bolster our conclusion that the
purpose of the six-month limitation was, indeed, to facilitate
the administration of claims. Additionally, the legislative his-
tory of § 2401(b) of the FTCA suggests that Congress did not
intend for equitable tolling to apply. See generally Ugo
Colella & Adam Bain, Revisiting Equitable Tolling and the
Federal Tort Claims Act: Putting the Legislative History in
Proper Perspective, 31 Seton Hall L. Rev. 174 (2000) (engag-
MARLEY v. UNITED STATES 16079
ing in a detailed discussion of the legislative history of
§ 2401).
[6] A final reason to conclude that equitable exceptions do
not apply to § 2401(b) is found in its context. Congress
explicitly included some exceptions to the deadlines in
§ 2401(a), but included no such exceptions in § 2401(b). Sec-
tion 2401(a) of the statute reads in part: “The action of any
person under legal disability or beyond the seas at the time the
claim accrues may be commenced within three years after the
disability ceases.” Section 2401(b) contains no exceptions to
its six-month statute of limitations. Where Congress “includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 464 U.S.
16, 23 (1983) (internal quotation marks omitted). Because
Congress chose to extend the time limit in § 2401(a) under
certain circumstances, but did not include any exceptions to
the limitations period of § 2401(b), we must conclude that
Congress intended the deadlines of § 2401(b) to be adhered to
strictly. If Congress had intended to grant exceptions to the
§ 2401(b) limitations period, it would have done so expressly,
as it did in § 2401(a). United States v. Fiorillo, 186 F.3d
1136, 1153 (9th Cir. 1999) (per curiam).
[7] To summarize, because § 2401(b) is jurisdictional, we
must refrain from using equitable estoppel or equitable tolling
to excuse Plaintiff’s untimeliness. Tadlock, 91 F.3d at 1340.
To save Plaintiff’s suit using an equitable doctrine would
impinge on Congress’ role as regulator of the jurisdiction of
the federal courts. Id.[8] We are mindful that one Ninth Circuit case held that
§ 2401(b) is not jurisdictional, but we must overrule it, in
light of our prior contrary precedents and the Supreme
Court’s subsequent holding in John R. Sand & Gravel. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
16080 MARLEY v. UNITED STATES
banc) (holding that when the Supreme Court has “undercut
the theory or reasoning underlying the prior circuit precedent
in such a way that the cases are clearly irreconcilable,” a
three-judge panel of this court should consider itself bound by
the intervening higher authority and reject the prior opinion of
the court as having been effectively overruled). In Alvarez-
Machain v. United States, we held, with respect to § 2401(b):
“Equitable tolling is available in suits against the United
States absent evidence that Congress intended the contrary.
Nothing in the FTCA indicates that Congress intended for
equitable tolling not to apply. Hence, equitable tolling is
available for FTCA claims in the appropriate circumstances
. . . .” 107 F.3d 696, 701 (9th Cir. 1996) (citations omitted).
Alvarez-Machain’s cursory analysis contains two errors that
lead us to overrule it.4
First, the principle of stare decisis required Alvarez-
Machain to follow our earlier decisions in Berti and Mann,
which held that § 2401(b) is jurisdictional and equitable doc-
trines do not apply. The three-judge panel in Alvarez-Machain
was not free to overrule those cases. See Bowe v. INS, 597
F.2d 1158, 1159 n.1 (9th Cir. 1979) (noting that a three-judge
panel is “obligated to follow the prior holdings of this court
and is not free to overrule earlier holdings even if [it] con-
sider[s] them ill-advised”).
Second, and perhaps more important, Alvarez-Machain,
107 F.3d at 701, relied on the Irwin analysis that the Supreme
Court rejected in John R. Sand & Gravel. John R. Sand &
Gravel states that the rebuttable presumption of Irwin is not
the correct rule when, as here, past precedents analyzing the
specific statute at issue are available. See John R. Sand &
4
We also disagree with the conclusion in Alvarez-Machain that nothing
in the legislative history of § 2401(b) suggests that equitable tolling should
not apply because, as the discussion above demonstrates, it appears that
Congress in fact did not intend for equitable tolling to apply to this sec-
tion.
MARLEY v. UNITED STATES 16081
Gravel, 128 S. Ct. at 755-56 (noting that Irwin, which
announced a “general prospective rule,” did not control when
the Court had “previously provided a definitive interpreta-
tion” of the statute at issue). Alvarez-Machain, which is an
aberration in our jurisprudence on the § 2401(b) statute of
limitations, is “clearly irreconcilable” with John R. Sand &
Gravel, because it relied on Irwin when our prior cases
already had determined that § 2401(b) is jurisdictional.
Because the Supreme Court has undercut the theory and rea-
soning underlying Alvarez-Machain, we must view it as hav-
ing been effectively overruled by John R. Sand & Gravel.
Miller, 355 F.3d at 900.
[9] In conclusion, we must dismiss Plaintiff’s claim for lack
of subject matter jurisdiction. The doctrines of equitable
estoppel and equitable tolling do not apply.
AFFIRMED.