Bette Bennett v. United States ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BETTE BENNETT, No. 21-35941
Plaintiff-Appellee,
D.C. No.
v. 3:20-cv-05382-
BHS
UNITED STATES OF AMERICA,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted July 7, 2022
Seattle, Washington
Filed August 11, 2022
Before: Richard R. Clifton and Patrick J. Bumatay, Circuit
Judges, and Richard Seeborg, * District Judge.
Opinion by Judge Seeborg
*
The Honorable Richard Seeborg, Chief United States District
Judge for the Northern District of California, sitting by designation.
2 BENNETT V. UNITED STATES
SUMMARY **
Federal Tort Claims Act / Statute of Repose
The panel reversed the district court’s order holding that
plaintiff Bette Bennett’s Federal Tort Claims Act (“FTCA”)
action was not subject to dismissal for having been filed
outside the applicable state statute of repose; and remanded
for further proceedings to determine the constitutionality of
the statute of repose under Washington’s state constitution.
Bennett brought suit alleging medical malpractice by
government physicians at Naval Hospital Bremerton in the
state of Washington. Bennett first submitted a timely
administrative claim to the Navy under the FTCA, which
was denied. She filed her complaint in the Western District
of Washington within six months thereafter, as required by
the FTCA. The Government sought dismissal on grounds
that Bennett’s claim had been extinguished by a Washington
statute of repose, Wash. Rev. Code § 4.16.350, which
prohibits the filing of professional negligence claims against
health care providers more than eight years after the act or
omission that allegedly caused injury. Because Bennett’s
alleged injury from a 2009 medical procedure was not
diagnosed until 2017, both her tort claim filed in 2018, and
this action filed in 2020, were outside the eight-year period
of the statute of repose, even though the claim was timely
under the FTCA’s requirement that tort claims be filed
within two years of “accrual.” The district court held that
applying the statute of repose here would conflict with
federal law, and therefore, the FTCA statute of limitations
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BENNETT V. UNITED STATES 3
preempted Section 4.16.350. The district court concluded
that Bennett’s suit was timely filed and denied the
Government’s motion to dismiss.
The panel held that the only question at issue was
whether the FTCA’s statute of limitations supplanted the
eight-year statute of repose embodied in the latter clause of
Section 4.16.350. The U.S. Supreme Court addressed a
similar question in a parallel context in CTS Corp. v.
Waldburger, 573 U.S. 1, 3-4 (2014). CTS explained the
consequences of the distinction between a statute of
limitation and a statute of repose. A statute of repose “is not
related to the accrual of any cause of action,” but instead
“mandates that there shall be no cause of action beyond a
certain point, even if no cause of action has yet accrued.” Id.
at 16. Here, Bennett concedes that the eight-year limit in
Section 4.16.350 is a statute of repose, and that it represents
substantive law of the state of Washington. The panel held
that because there was no contradictory statute of repose in
the FTCA, and the FTCA generally applied the substantive
law “of the place where the omission occurred,” it followed
that Section 4.16.350 applied to Bennett’s claims and
precluded them. The acts and/or omissions forming the basis
of Bennett’s claims occurred in February 2009, and the
effect of the statute of repose arose eight years later in
February 2017. At that point, even though Bennett’s claim
had not yet accrued, she had no cause of action. In addition,
under the FTCA, there was no waiver of sovereign immunity
because there were no “circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1).
The panel rejected Bennett’s contention that state
statutes of repose do not apply to claims under the FTCA.
4 BENNETT V. UNITED STATES
The panel also rejected Bennett’s argument that the FTCA
preempted state statutes of repose that were supposedly
“inconsistent” with the timing provisions in the FTCA,
where, as here, they preclude a claim that the FTCA would
not. The panel held that there was no impermissible
inconsistency where statutes of limitation and statutes of
repose serve overlapping, but ultimately different purposes.
COUNSEL
Daniel Tenny (argued) and Mark B. Stern, Appellate Staff;
Nicholas W. Brown, United States Attorney; Brian M.
Boynton, Acting Assistant Attorney General; Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendant-Appellant.
Darrin E. Bailey (argued), Bailey Onsager PC. Seattle,
Washington, for Plaintiff-Appellee.
BENNETT V. UNITED STATES 5
OPINION
SEEBORG, District Judge:
This interlocutory appeal presents the question of
whether the claims presentation timing requirements of the
Federal Tort Claims Act (FTCA) override a state statute of
repose. While there is no dispute that the FTCA’s timing
provisions act as a statute of limitations that supersedes any
state statute of limitations, courts have not uniformly agreed
on whether those provisions also override state statutes of
repose. Because the better reading of the FTCA is that it
incorporates and applies state laws that serve as statutes of
repose rather than overriding them, we reverse the trial
court’s determination that this action was not subject to
dismissal for having been filed outside the applicable statute
of repose. We remand for further proceedings to determine
the constitutionality of the statute under Washington’s state
constitution.
I.
Plaintiff Bette Bennett brought suit alleging medical
malpractice by government physicians at Naval Hospital
Bremerton, in the state of Washington. Bennett had first
submitted a timely administrative claim to the Navy under
the FTCA, which was denied. She filed her complaint in the
Western District of Washington within six months
thereafter, as required by the FTCA. See 28 U.S.C.
§ 2401(b).
The Government sought dismissal on grounds that
Bennett’s claim nevertheless had been extinguished by a
Washington statute of repose, Wash. Rev. Code § 4.16.350(Section 4.16.350), which prohibits the filing of professional
negligence claims against health care providers more than
6 BENNETT V. UNITED STATES
eight years after the act or omission that allegedly caused
injury. Because Bennett’s alleged injury from a 2009
medical procedure was not diagnosed until 2017, both her
tort claim filed in 2018 and this action filed in 2020 were
well outside the eight-year period of the statute of repose,
even though, under the FTCA’s requirement that tort claims
be filed within two years of “accrual,” the claim was timely.
The Government contends that because the Washington
statute of repose applies, and the FTCA waives sovereign
immunity only “under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred,” 28 U.S.C. § 1346(b)(1), the district
court lacked subject matter jurisdiction and should have
granted the motion to dismiss. Bennett insists the FTCA
preempts or otherwise overrides the Washington statute of
repose, but does not contest that if it does apply, the FTCA’s
waiver of sovereign immunity would be ineffective in this
case, and dismissal for lack of jurisdiction would be
appropriate, unless she prevails on her alternate contention
that the statute of repose in Section 4.16.350 is
unconstitutional under the Washington state constitution. 1
The complaint alleges Bennett is the civilian wife of a
Navy service member. In May of 2009, Bennett underwent
sinus surgery at Naval Hospital Bremerton to treat her
chronic sinusitis. A week later, Bennett experienced
significant bleeding from her nose and was taken to the naval
hospital emergency room by ambulance. The on-call ENT
physician placed nasal packing into Bennett’s nasal cavity.
When the doctor inserted the packing, Bennett heard a noise
1
That question is not presented by this appeal. Its status is discussed
further below.
BENNETT V. UNITED STATES 7
that sounded like cracking, felt acute pain, and passed out.
Bennett was then rushed to the operating room to control her
ongoing nosebleed under anesthesia. Bennett was
discharged soon thereafter, but returned to the hospital a few
days later to have the nasal packing removed.
Bennett subsequently developed a complex constellation
of symptoms including migraines, malaise, light sensitivity,
memory loss, and other neurocognitive impairments. She
saw a series of neurologists and other specialists who were
unable to diagnose the cause of her symptoms.
In August of 2017, Bennett was treated by a
neuropsychologist who found that she suffered deficits
consistent with a traumatic brain injury. Bennett was then
referred to the University of Washington Medical Center to
see a specialist in brain injuries. In December of 2017, the
specialist diagnosed Bennett as suffering from a traumatic
brain injury to her prefrontal cortex, caused by the nasal pack
insertion in 2009.
In August of 2018, Bennett filed her administrative claim
with the Navy, as required by the FTCA. See 28 U.S.C.
§ 2675(a). The Navy denied the claim in October of 2019,
finding that the Navy health care providers had met the
applicable standard of care and that the alleged damages did
not result from the act or omission of any United States
employee. Bennett filed this action within the six-month
deadline of the FTCA.
The Government moved to dismiss for lack of subject
matter jurisdiction, arguing that Washington’s statute of
repose applicable to professional negligence claims against
health care providers, Section 4.16.350, barred Bennett’s
claims. The court initially deferred ruling on the merits of
the motion, instead certifying to the Washington Supreme
8 BENNETT V. UNITED STATES
Court two questions related to whether Section 4.16.350 is
constitutional under the state constitution.
Because the district court had not yet ruled on whether
the FTCA precluded application of Section 4.16.350, the
Washington Supreme Court declined “as a matter of comity”
to answer the certified questions. The district court then took
up the Government’s motion to dismiss again, ultimately
holding that applying the statute of repose here would
conflict with federal law, and that therefore the FTCA statute
of limitations preempts Section 4.16.350. The court
concluded Bennett’s suit was thus timely filed, and denied
the Government’s motion to dismiss.
The district court certified its ruling for interlocutory
review and this court’s motions panel granted permission to
appeal. 2 We have jurisdiction pursuant to 28 U.S.C.
§ 1292(b) and review de novo the district court’s denial of
the motion to dismiss. Reese v. BP Expl. (Alaska) Inc.,
643 F.3d 681, 690 (9th Cir. 2011).
II.
The FTCA provides a limited waiver of the
Government’s sovereign immunity for tort claims. See
28 U.S.C. §§ 1346(b)(1), 2671–2680. With certain
exceptions not implicated here, the United States may be
2
Although deference is given to the ruling of the motions panel, we
have an independent duty to confirm that jurisdiction is proper. Kuehner
v. Dickinson & Co., 84 F.3d 316, 318–19 (9th Cir. 1996). Interlocutory
review is proper here because there plainly is “a controlling question of
law as to which there is substantial ground for difference of opinion” and
“an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). No party
suggests otherwise.
BENNETT V. UNITED STATES 9
held liable in tort for the actions or omissions of its
employees “under circumstances where the United States, if
a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.” Id. § 1346(b)(1); see also id. § 2674
(United States is liable “in the same manner and to the same
extent as a private individual under like circumstances”).
The FTCA thus incorporates substantive state law as
federal law to determine liability. The FTCA, however,
establishes its own administrative claim procedure and
statute of limitations provisions that apply uniformly in all
states. See Poindexter v. United States, 647 F.2d 34, 36–37
(9th Cir. 1981) (“It is long settled, however, that the statute
of limitations in the FTCA, 28 U.S.C. § 2401, governs in
FTCA actions, even when the state period of limitations is
longer or shorter.” (citations omitted)).
The FTCA provides that “[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.” 28 U.S.C. § 2401(b). In addition,
claims are barred “unless action is begun within six months”
of the date the relevant agency denies the claim. Id.Claimants cannot file actions in court until the agency has
finally denied their claims, except that they are entitled to
“deem[]” the agency’s “failure . . . to make final disposition
of a claim within six months after it is filed” to be “a final
denial” at any time after the six months has elapsed. Id.,§ 2675(a).
Under the FTCA, a claim for medical malpractice does
not accrue “until a plaintiff knows of both the existence of
an injury and its cause.” Hensley v. United States, 531 F.3d
1052, 1056 (9th Cir. 2008) (citing United States v. Kubrick,
444 U.S. 111, 122–23 (1979)). Here, there is no dispute that
10 BENNETT V. UNITED STATES
Bennett’s claim did not accrue before December of 2017,
when she was first diagnosed with a traumatic brain injury
to her prefrontal cortex, purportedly caused by the nasal pack
insertion in 2009. Her tort claim filed with the Navy in 2018
was well within the two-year time period provided by
§ 2401(b), and she filed this action within the requisite six-
month period after that claim was denied. Accordingly, all
agree that Bennett complied with the procedural and timing
requirements specified in the FTCA, and that those
requirements apply in lieu of any Washington state law
statute of limitations that might otherwise apply.
Section 4.16.350 is, in fact, what has sometimes been
referred to as a “bifurcated” or “hybrid” statute—it includes
both a statute of limitations and a statute of repose. See
Augutis v. United States, 732 F.3d 749, 752 (7th Cir. 2013)
(noting Illinois courts referred to the state statute as
“bifurcated”); Bagley v. United States, 215 F. Supp. 3d 831,
835 (D. Neb. 2016) (referring to a “hybrid statute,”
containing both a one-year statute of limitations and a
“three-year repose period”).
Section 4.16.350 provides, in pertinent part, that
[a]ny civil action for damages for injury
occurring as a result of health care . . . based
upon alleged professional negligence shall be
commenced within three years of the act or
omission alleged to have caused the injury or
condition, or one year of the time the patient
or his or her representative discovered or
reasonably should have discovered that the
injury or condition was caused by said act or
omission, whichever period expires later,
except that in no event shall an action be
BENNETT V. UNITED STATES 11
commenced more than eight years after said
act or omission . . . . 3
Under the statute of limitation portion of Section
4.16.350, had Bennett been suing a private sector medical
provider, her lawsuit, filed more than two years after her
discovery that her injury was caused by the 2009 procedure,
would have been barred as untimely under Washington state
law. 4 Again, however, it is well-settled that the FTCA
supplants state statute of limitations, and that part of Section
4.16.350 is undeniably not in play.
Thus, the only question is whether the FTCA’s statute of
limitations also supplants the eight-year statute of repose
embodied in the latter clause of Section 4.16.350. The
Supreme Court has addressed a strikingly similar question in
a parallel context. In CTS Corp. v. Waldburger, 573 U.S. 1,
3–4 (2014), the Court confronted a provision in the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as
amended, 42 U.S.C. § 9601 et seq., that by its terms
3
The statute goes on to provide for tolling in the event of “proof of
fraud, intentional concealment, or the presence of a foreign body not
intended to have a therapeutic or diagnostic purpose or effect.” While a
general feature of statutes of repose is that they are not subject to
ordinary equitable tolling, there is no suggestion that this provision
precludes the eight-year limit in Section 4.16.350 from qualifying as a
true statute of repose, nor is there any indication that part of the statute
is implicated here.
4
Of course, had Bennett not been constrained by the FTCA, she
presumably would have filed suit around the time she instead filed her
tort claim, and it would have in fact been timely under the statute of
limitation portion of Section 4.16.350.
12 BENNETT V. UNITED STATES
preempts statutes of limitations applicable to state law tort
actions in certain circumstances. See 42 U.S.C. § 9658.
CTS explains:
Section 9658 applies to statutes of limitations
governing actions for personal injury or
property damage arising from the release of a
hazardous substance, pollutant, or
contaminant into the environment. Section
9658 adopts what is known as the discovery
rule. Under this framework, statutes of
limitations in covered actions begin to run
when a plaintiff discovers, or reasonably
should have discovered, that the harm in
question was caused by the contaminant. A
person who is exposed to a toxic contaminant
may not develop or show signs of resulting
injury for many years, and so Congress
enacted § 9658 out of concern for long
latency periods.
573 U.S. at 4.
The opinion then describes the issue before the Court: “It
is undoubted that the discovery rule in § 9658 pre-empts
state statutes of limitations that are in conflict with its terms.
The question presented in this case is whether § 9658 also
pre-empts state statutes of repose.” Id. While § 9658 of
CERCLA does not function identically to the statute of
limitations in the FTCA, the differences are not significant
BENNETT V. UNITED STATES 13
to the dichotomy between statutes of limitation and statutes
of repose. 5
The CTS court lays out that dichotomy:
Statutes of limitations and statutes of repose
both are mechanisms used to limit the
temporal extent or duration of liability for
tortious acts. Both types of statute can
operate to bar a plaintiff’s suit, and in each
instance time is the controlling factor. There
is considerable common ground in the
policies underlying the two types of statute.
But the time periods specified are measured
from different points, and the statutes seek to
attain different purposes and objectives.
573 U.S. at 7.
Specifically, the CTS court explains, a statute of
limitation ordinarily creates a time limit for suing in a civil
case, based on the date when the claim accrued. Id. A statute
of repose, in contrast, “puts an outer limit on the right to
bring a civil action. That limit is measured not from the date
5
Section 9658 of CERCLA does not replace state statutes of
limitation wholesale the way the FTCA does. Instead, it merely provides
that the accrual rules will be governed by the federal statutes, while the
state statutes continue to govern other aspects of the timing requirements.
42 U.S.C. § 9658(a)(1) (“[I]f the applicable limitations period for such
action (as specified in the State statute of limitations or under common
law) provides a commencement date which is earlier than the federally
required commencement date, such period shall commence at the
federally required commencement date in lieu of the date specified in
such State statute.”); Id. § 9658 (a)(2) (“Except as provided in paragraph
(1), the statute of limitations established under State law shall apply
. . . .”).
14 BENNETT V. UNITED STATES
on which the claim accrues but instead from the date of the
last culpable act or omission of the defendant.” Id. at 8.
While statutes of limitation and statutes of repose both
“encourage plaintiffs to bring actions in a timely manner,
and for many of the same reasons,” the emphasis is different.
Id. at 9–10. “Statutes of repose effect a legislative judgment
that a defendant should ‘be free from liability after the
legislatively determined period of time.’” Id. (citations
omitted).
CTS further explains the consequences of the distinction
between a statute of limitation and a statute of repose. A
statute of repose “is not related to the accrual of any cause of
action.” 573 U.S. at 16 (citation omitted). “Rather, it
mandates that there shall be no cause of action beyond a
certain point, even if no cause of action has yet accrued.
Thus, a statute of repose can prohibit a cause of action from
coming into existence.” Id.
As additional support for this proposition, CTS cites
Hargett v. Holland, 337 N.C. 651, 654–655 (1994) (“A
statute of repose creates an additional element of the claim
itself which must be satisfied in order for the claim to be
maintained . . . . If the action is not brought within the
specified period, the plaintiff literally has no cause of
action.” (internal quotation marks omitted)). CTS then
summarizes, “A statute of repose can be said to define the
scope of the cause of action, and therefore the liability of the
defendant . . . . A statute of repose . . . may preclude an
alleged tortfeasor’s liability before a plaintiff is entitled to
sue, before an actionable harm ever occurs.” 573 U.S. at 16–
17.
Here, Bennett concedes that the eight-year limit in
Section 4.16.350 is a statute of repose, and that it represents
BENNETT V. UNITED STATES 15
substantive law of the state of Washington. As there is no
contradictory statute of repose in the FTCA, and the FTCA
generally applies the substantive law “of the place where the
act or omission occurred,” it follows that Section 4.16.350
applies to Bennett’s claims and precludes them. The acts
and/or omissions forming the basis of Bennett’s claims
occurred in February of 2009. The effect of the statute of
repose arose eight years later, in February of 2017. At that
point, even though Bennett’s claim had not accrued, had not
even come “into existence,” she “literally ha[d] no cause of
action.” CTS, 573 U.S. at 16–17.
Under otherwise identical circumstances including all
the same timing, had Bennett been treated by non-federal
physicians and health care providers, she would have no
viable claim. 6 Under the FTCA, therefore, there is no waiver
of sovereign immunity because these are not “circumstances
where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see
also Kubrick, 444 U.S. at 117–18 (“We should also have in
mind that the Act waives the immunity of the United States
and . . . we should not take it upon ourselves to extend the
waiver beyond that which Congress intended. Neither,
however, should we assume the authority to narrow the
waiver that Congress intended.”(citations omitted)).
There are scant circuit-level precedential decisions
addressing this question, but those that exist are in accord. In
Augutis, the Seventh Circuit concluded that because a state
statute of repose was a “substantive limitation on the tort of
medical malpractice,” it precluded a plaintiff from
6
Though, as noted above, the constitutionality of Section 4.16.350
under the Washington state constitution remains to be resolved.
16 BENNETT V. UNITED STATES
proceeding under the FTCA despite his compliance with its
claims and filing requirements. 732 F.3d at 754. While the
Augutis court additionally observed that the plaintiff in that
case could have complied with both the FTCA and the state
statute of repose (unlike Bennett, for whom the statute of
repose cut off the claim before accrual), the decision does
not appear to be dependent on that fact. See id. at 754–55.
In Anderson v. United States, 669 F.3d 161 (4th Cir.
2011), the Fourth Circuit observed that although
“substantive state law establishes—and circumscribes—
FTCA causes of action, federal law defines the limitations
period.” Id. at 164–65. Anderson went on to explain that
“[s]tate law may nevertheless speak to the timeliness of a
claim brought under the FTCA, because a state’s enactment
of a statute of repose ‘creates a substantive right in those
protected to be free from liability after a legislatively-
determined period of time.’” Id. (quoting First United
Methodist Church of Hyattsville v. U.S. Gypsum Co.,
882 F.2d 862, 866 (4th Cir. 1989)).
Anderson ultimately concluded that “[b]ecause statutes
of repose are substantive limitations on liability, an FTCA
claim does not lie against the United States where a statute
of repose would bar the action if brought against a private
person in state court.” Id. 7 Thus, the fact that the FTCA
7
Anderson then certified to the Court of Appeals of Maryland the
question of whether the statute before it in fact was a statute of repose.
Upon receiving the state court’s response that it was instead a statute of
limitations, the Fourth Circuit concluded the plaintiff’s FTCA claim was
not foreclosed. Anderson v. United States, 474 F. App’x 891, 892 (4th
Cir. 2012).
BENNETT V. UNITED STATES 17
supplants state statutes of limitations does not mean it
overrides state statutes of repose. 8
III.
To argue that her claims can go forward notwithstanding
that they did not accrue and were not filed—with the agency
or with the court—within the period provided by the statute
of repose, Bennett makes two interrelated arguments. First,
Bennett contends state statutes of repose simply do not apply
to claims under the FTCA. For this proposition, Bennett
relies predominately on an unpublished district court
decision which discussed a range of topics in addressing the
question of whether New Mexico’s statute of repose required
dismissal of the plaintiff’s complaint. See Romero v. United
States, 2018 WL 1363833 (D.N.M. Mar. 15, 2018).
8
At least two unpublished circuit decisions also reach the same
result. In Smith v. United States, 430 F. App’x 246 (5th Cir. 2011), the
Fifth Circuit had little trouble concluding that Texas’s ten-year statute of
repose in medical malpractice cases precluded an FTCA claim. The court
observed that for liability to attach under the FTCA, the conduct must be
actionable under state law where it occurred. Id. at 247. “Here, the law
of Texas controls because that is where Smith’s operation was performed
. . . . This is a statute of repose, which unlike a statute of limitation
creates a substantive right to be free of liability after the specified time.”
Id. (citation omitted). Similarly, in Huddleston v. United States, 485
F. App’x 744 (6th Cir. 2012), the court observed: “The statute of repose
is a substantive requirement, not just a procedural hurdle. Unlike a statute
of limitations, which eliminates the remedy available to plaintiffs,
Tennessee’s statute of repose extinguishes the cause of action itself.” Id.at 745–46 (citations omitted). The court further stated, “[s]uch
substantive limitations apply to suits brought against the United States
under the FTCA, which permits liability only where the United States, if
a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred . . . .” Id. at 746.
18 BENNETT V. UNITED STATES
The foundational premise of Romero is that the FTCA
provisions governing the timing and presentation of
administrative claims and its statute of limitations, somehow
preclude the potential applicability of any other rules
generally involving the subject of timing. See id. at *15–16.
The FTCA, however, unquestionably borrows substantive
state law on liability. Although not in the precise context of
the FTCA, the Supreme Court has made very clear that even
where a federal statute overrides state statutes of limitations,
it does not thereby also supplant state statutes of repose,
which may have timing aspects, but which ultimately go to
whether a substantive claim exists or not. See CTS, 573 U.S.
at 16–17.
Bennett next argues that the FTCA preempts state
statutes of repose that are supposedly “inconsistent” with the
timing provisions in the FTCA where, as here, they preclude
a claim that the FTCA would not. Again, however, there is
no impermissible inconsistency. Statutes of limitation and
statutes of repose serve overlapping, but ultimately different
purposes. States often enact schemes, as Washington did
here, where their own residents injured by private
individuals may find they have lost the right to pursue claims
as a result of a statute of repose, even before the injury was
manifest or the claim had accrued. The FTCA was not
intended to give individuals suing federal actors greater
substantive rights than they would have against private
defendants. The FTCA spells out in detail the statute of
limitations provisions that in some cases may give plaintiffs
more time to sue than in state court (or perhaps sometimes
less), but absent any similar provisions in the FTCA
rewriting the rules applicable to statutes of repose, such
statutes are incorporated, not preempted, as representing the
substantive law of the place where the act or omission
occurred.
BENNETT V. UNITED STATES 19
Bennett repeatedly insists that because the FTCA
expressly defines when claims accrue, it plainly was
“intended” to govern the timeliness of claims. Accrual,
however, is a concept that relates specifically to statutes of
limitation, and not to statutes of repose. So, if anything, the
FTCA’s focus on accrual demonstrates it is not intended to
supplant substantive state statutes of repose that affect
viability of claims without regard to when those claims
accrue. 9
IV.
On remand, the district court is left with the threshold
question of the constitutionality of Section 4.16.350 under
the Washington state constitution. Depending on the
outcome of that issue, this action may either be dismissed for
lack of jurisdiction or proceed to the merits of Bennett’s
claims.
REVERSED AND REMANDED.
9
Some district court cases cited by Bennett, including Romero and
Mamea v. United States, 2011 WL 4371712 (D. Haw. Sept. 16, 2011),
raise a policy concern that were a claim to accrue shortly before
expiration of a statute of repose, it arguably could skew or undermine the
administrative claims process. No such issue is presented here, where
Bennett was already outside the statute of repose before her claim
accrued. Whether some sort of equitable exception or different rule
might appropriately be applied in other circumstances is a question that
must await a case with such facts.