Hunter-Boykin v. George Washington University , 132 F.3d 77 ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1997 Decided January 9, 1998
No. 96-7039
Harriet Hunter-Boykin,
Appellant
v.
The George Washington University,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 94cv00039)
John P. Racin argued the cause and filed the briefs for
appellant.
Walter A. Smith, Jr. argued the cause for appellee. Robert
B. Cave and Mark J. Larson were on the brief. Peter W.
Tredick entered an appearance.
Before: Edwards, Chief Judge, Wald and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Concurring Opinion filed by Chief Judge Edwards.
Garland, Circuit Judge: The summary judgment motion at
issue in this case should have turned on the reasonable
interpretation of the phrase "to toll the running of any statute
of limitations period," as used in a letter agreement between
the plaintiff and defendant. Rather than determine whether
a reasonable juror could have read the phrase as the plaintiff
did, however, the court below applied a set of legal rules that
it thought required the phrase to be read as the defendant
urged. Because we conclude that the wrong rules were
applied, and because a reasonable juror could have read the
phrase as the plaintiff read it, we reverse the grant of
summary judgment against her.
I
The plaintiff in this case, Dr. Harriet Hunter-Boykin, is an
African American woman whom the defendant, The George
Washington University ("GW"), hired as an Assistant Profes-
sor of Secondary Education on August 2, 1990. On July 19,
1993, Hunter-Boykin's attorney wrote to GW, advising the
university that she was considering suing it for racial discrim-
ination. The letter alleged that GW had discriminated
against Hunter-Boykin in her original appointment by not
offering her a tenure-track, higher-paid position that it of-
fered a white applicant at the same time. Joint Appendix
("J.A.") 73-75.
According to the parties' calculations, a three-year statute
of limitations governed Hunter-Boykin's contemplated suit
under 42 U.S.C. s 1981, and that period would expire on
August 2, 1993, three years from the date of her original
appointment. In order to provide breathing room in which to
conduct settlement negotiations, the parties entered into an
agreement "to toll the running of any statute of limitations
period." The agreement, drafted by counsel for GW, was in
the form of a letter from GW's counsel to Hunter-Boykin's
counsel. Dated July 22, 1993, and signed by both attorneys,
the letter stated: "This will confirm that we have agreed ...
to toll the running of any statute of limitations period applica-
ble to any purported claims ... beginning on the date of this
letter through September 7, 1993." J.A. 76.
The parties agree that on the date of this letter agreement,
July 22, 1993, Dr. Hunter-Boykin still had eleven days left
before the statute of limitations would otherwise have run on
her contemplated lawsuit. Thereafter, they entered into five
additional and virtually identical letter agreements, changing
only the beginning and ending dates of the time period during
which the statute of limitations was "toll[ed]." The last letter
was dated December 17, 1993, and continued the tolling
"through January 7, 1994." J.A. 81.
On January 4, 1994, counsel for GW notified Hunter-
Boykin that GW had rejected her discrimination claims. He
warned that if she followed through on her threat of litiga-
tion, the University would defend its interests "with vigor."
J.A. 137. Undeterred, Hunter-Boykin filed suit on January
10, 1994, three days after the end of the tolling period
mentioned in the letter.
True to its word, GW did defend, and with vigor. It moved
for summary judgment, asserting that the plaintiff had filed
her complaint three days too late. Hunter-Boykin disagreed,
arguing that to "toll" the statute of limitations means to
"suspend" it. Since she had eleven days left to sue on the
date the statute was first suspended, Hunter-Boykin contend-
ed that she had eleven days left to file her complaint when
the last period of suspension ended on January 7, 1994. She
was not late, she said; she had eight days to spare.
Defendant GW replied that, under District of Columbia
law, private parties cannot agree to "suspend" the statute of
limitations. A defendant can, however, agree to "waive" its
right to assert a limitations defense for a discrete period.
That, GW asserted, is what it did: it agreed not to assert its
limitations defense if a complaint were filed during successive
periods ending with the period defined in the last letter. See
GW Summ. J. Reply Br. at 1, 5 (J.A. 122, 126). Moreover,
GW argued, the scope of a waiver must be "absolutely clear
and unequivocal." Because "the mere use of the word 'toll'
plainly does not show the University's clear and unequivocal
intent to waive its defense beyond January 7," GW asserted
that Hunter-Boykin's complaint was time-barred. Id. at 5 (J.A. 126) (emphasis in original).
GW's motion for summary judgment was referred to a
magistrate judge pursuant to 28 U.S.C. s 636(b)(1) and Local
Rule 504. The magistrate agreed with the parties' determi-
nation of the applicable limitations period and agreed that on
July 22, 1993, when the parties entered into their first tolling
agreement, Hunter-Boykin had eleven days left in which to
sue. Magistrate's Opinion ("Mag. Op.") at 5-6 (J.A. 155-56).
Accepting much of GW's argument, however, the magistrate
concluded that Hunter-Boykin had filed three days too late,
and recommended that the district court grant the universi-
ty's motion for summary judgment. Id. at 10-11 (J.A. 160-
61). The court adopted the magistrate judge's report in its
entirety and dismissed Hunter-Boykin's complaint with prej-
udice. J.A. 201-02.
II
We review the district court's grant of summary judgment
de novo. Jackson v. Finnegan, Henderson, Farabow, Garrett
& Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). The question
to be decided on a motion for summary judgment is "whether
a fair-minded jury could return a verdict for the plaintiff on
the evidence presented." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). In a matter involving a contract,
summary judgment is appropriate where the agreement "ad-
mits of only one reasonable interpretation." United Mine
Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469,
473 (D.C. Cir. 1993).
In deciding this case, the magistrate judge did not ask
whether Hunter-Boykin's interpretation of "toll" as meaning
"suspend" was reasonable. Instead, he first applied a rule
that, "[i]n the absence of a specific tolling statute, disputing
parties cannot by mutual agreement interrupt or suspend the
running of a statute of limitations." Mag. Op. at 6 (J.A. 156).
As there is no specific provision in the District of Columbia
Code "that authorizes the parties to an action to suspend or
defer the running of the statute of limitations," the magis-
trate held that "[s]uch an interpretation is contrary to the
District of Columbia statute and should be rejected by this
court." Id. at 7-8 (J.A. 157-58). However, although he
determined that parties could not suspend the running of the
statute of limitations, the magistrate agreed with GW that a
defendant could "waive" its right to assert an affirmative
defense. He therefore interpreted the agreement as a "waiv-
er"--the only interpretation he regarded as lawful. Id. at 8 (J.A. 158).
Second, in interpreting the scope of the waiver, the magis-
trate again did not ask what a reasonable juror could find.
Instead, he held that because the waiver stated a specific time
period, he was "not prepared to enlarge that period absent
persuasive evidence that defendant intended a date different
from the date stated." Id. Finding such "persuasive evi-
dence" lacking, the magistrate judge concluded that GW had
waived its statute of limitations defense only until January 7,
1994. Id.
Because the magistrate's view of what the letter agreement
meant clearly was colored by the two legal lenses he thought
he was bound to employ, we consider the validity of those
legal rules first. We then turn to the reasonable meaning of
the agreement itself.
III
The first legal rule applied below--that in the absence of a
specific authorizing statute, private parties cannot suspend
the running of the statute of limitations--turns the usual rule
of construction on its head. The usual rule is that "in the
absence of a controlling statute to the contrary, the parties to
a ... potential lawsuit may, by agreement, modify a statuto-
ry period of limitation." 54 C.J.S. Limitations of Actions
s 25, at 56 (1987) (emphasis added).1 The usual rule is quite
sensible, since a limitations defense is merely a "personal
privilege," of which a party may choose not to avail itself.
See Atchison & Keller, Inc. v. Taylor, 51 A.2d 297, 297 (D.C.
1947); see also Feldman v. Gogos, 628 A.2d 103, 104 (D.C.
1993). If individuals can give up considerably more impor-
tant protections--including their Fifth Amendment rights in a
criminal case--what reason could there be to deny them the
ability to extend a civil statute of limitations? Indeed, this
court asked itself just that question, and concluded that there
was no satisfactory answer, in the course of deciding that a
defendant can waive the protection of the statute of limita-
tions in a criminal prosecution. See United States v. Wilson,
26 F.3d 142, 155 (D.C. Cir. 1994).
Neither the magistrate, nor GW, cite any precedent from
the District of Columbia for the proposition that specific
statutory authority is required to permit private parties to
agree to suspend a statute of limitations--and we have found
none. Instead, the magistrate cited five opinions decided
under the laws of other states. Four of those five did not
involve the validity of private tolling agreements,2 and the
__________
1 In the context of an agreement to shorten a limitations period,
the Supreme Court stated the rule as follows: "[I]t is well estab-
lished that, in the absence of a controlling statute to the contrary, a
provision in a contract may validly limit, between the parties, the
time for bringing an action on such contract to a period less than
that prescribed in the general statute of limitations, provided that
the shorter period itself shall be a reasonable period." Order of
United Commercial Travelers v. Wolfe, 331 U.S. 586, 608 (1947).
Here, neither party contends that the length of the period proposed
by its opponent is itself unreasonable.
2 Instead, they involved the applicability of judge-made doc-
trines like equitable estoppel. See City of Bedford v. James Leffel
& Co., 558 F.2d 216 (4th Cir. 1977); Neal v. Laclede Gas Co., 517
S.W.2d 716 (Mo. Ct. App. 1974); Glenn v. Morelos, 555 A.2d 1064 (Md. Ct. Spec. App. 1989); Leonard v. Eskew, 731 S.W.2d 124 (Tex.
App. 1987).
fifth is also readily distinguishable.3
This court, on the other hand, has interpreted an agree-
ment between two parties as effectively extending the District
of Columbia statute of limitations. In Noel v. Baskin, the
limitations period on the payment of a note had been running
for almost two years when the debtor entered into an agree-
ment to waive the statute, "in consideration of the holders'
agreeing to postpone action until after [September 2, 1935]."
131 F.2d 231, 231-32 (D.C. Cir. 1942). The Noel court
interpreted the agreement as meaning that the lender had
agreed to refrain from suit until that date, and that after that
date passed, the three-year "statute would begin to run
[anew]." Id. at 232. GW asserts that Noel stands only for
the narrow proposition that parties may agree on the date
upon which an action will be deemed to accrue. But it is
difficult to see the practical difference between this proposi-
tion and the "suspension" view argued by Hunter-Boykin--
except that agreeing on a new accrual date gives the plaintiff
even more time to sue than would agreeing on a "suspension,"
because it restarts the limitations clock from zero.
Numerous other courts also have applied the usual rule
that, in the absence of a legislative indication to the contrary,
agreements to extend the statute of limitations are permitted
without specific statutory authorization. In Aiken v. Burnet,
for example, the Supreme Court upheld a waiver of the
statute of limitations in a taxpayer suit against the Internal
Revenue Service, rejecting the argument that, prior to the
enactment of a specific authorizing statute, the IRS lacked
authority to accept waivers: "While Section 250(d) first speci-
__________
3 Willow Tree Investments, Inc. v. Wilhelm, 465 N.W.2d 849 (Iowa 1991), involved an agreement to extend the maturity date of a
mortgage note, which the Iowa Supreme Court rejected solely on
the ground that the agreement was not recorded as expressly
required by an Iowa statute. A recent Maryland opinion, cited by
GW, also does not hold that parties may not agree to suspend the
statute of limitations; it merely holds that they did not do so in that
case. See Hartford Accident & Indem. Co. v. Scarlett Harbor
Assocs., 674 A.2d 106, 123 (Md. Ct. Spec. App. 1996), aff'd on other
grounds, 695 A.2d 153 (Md. 1997).
fied that a waiver be in writing and signed by the Commis-
sioner, there was nothing in that section which invalidated
waivers made prior to its enactment or limited the effect of
such instruments on the limitations therein imposed." 282
U.S. 277, 281 (1930). See also United States v. Curtiss
Aeroplane Co., 147 F.2d 639, 640-41 (2d Cir. 1945) (L. Hand,
J.).
The defendant purports to see an important distinction
between a "suspension" and a "waiver" of a statute of limita-
tions. We do not, at least as the parties use the words in this
case. Even if we were to accept (as GW argues) that the
word "waiver" refers only to an agreement not to assert a
limitations defense during a fixed period, any agreement to
"suspend" could readily be reworded as an agreement to
"waive" for the fixed period of the suspension plus whatever
time remained on the limitations clock. Here, for example,
instead of agreeing to "suspend" the statute of limitations
until January 7, 1994, the parties could simply have agreed to
"waive" it through January 18 (January 7 plus eleven days).
We see no reason for the law to prohibit the former while
permitting the latter.
In support of the magistrate's opinion, GW makes a further
argument that the magistrate did not make: the District of
Columbia Code is not simply silent on the question of private
agreements to extend the statute of limitations; it affirma-
tively prohibits them. The provision of the code in question
states:
"Except as otherwise specifically provided for by law,
actions for the following purposes may not be brought
after the expiration of the period specified below from
the time the right to maintain the action accrues:
....
(8) for which a limitation is not otherwise specially
provided
--3 years...."
D.C. Code s 12-301 (West 1997) (emphasis added). GW
argues that the italicized phrase "plainly prevents private
parties from agreeing whenever they wish to literally suspend
or interrupt a limitations period set by statute." GW Br. at
12.
One problem with this argument is that, if we were to read
the statute as GW urges, its own position that waivers are
permitted while suspensions are prohibited would be untena-
ble. The statute mentions neither "suspensions" nor "waiv-
ers." It simply states that, except as otherwise provided by
law, actions "may not be brought" after the expiration of the
limitations period. Since a waiver also permits an "action to
be brought" after the expiration of the limitations period, the
statute provides no ground to distinguish between the two.
Yet, GW insists that the waiver it says it agreed to in this
case, which it concedes would permit a suit to be brought
more than three years after the cause of action accrued, is
lawful.4
But there is no reason to read the statute as GW urges,
and every reason not to do so. The most straightforward
reading of the italicized phrase is that it was not intended to
refer to private tolling agreements at all, but rather was
intended to refer to other provisions of the D.C. Code that
contain limitations periods for causes of action not listed in
s 12-301--so that it is clear those provisions take precedence
over the three-year "catch-all" of s 12-301(8).5 This reading
also has the virtue of being the one that Congress has
indicated it intended. In reporting on the proposed addition
__________
4 See GW Br. at 20 n.14. GW's only response is to argue that
"except as otherwise specifically provided for by law" refers to case
as well as statutory law, and that although this court permitted a
"waiver" of the statute of limitations in Noel, no District of Colum-
bia court "specifically" has permitted a "suspension" of a statute of
limitations. As noted in the preceding text, this misconstrues our
opinion in Noel.
5 Such provisions include: D.C. Code s 36-314 (one-year period
for filing workers' compensation claims); D.C. Code s 20-903 (six-
month period for filing claims against estate); D.C. Code s 12-309
(six-month period for filing notice of claim for action seeking
unliquidated damages against D.C. government); D.C. Code
s 1-1105 (one-year period for action to recover costs of labor and
materials and ninety-day period for filing notice of claim).
of the phrase in 1963, the Senate Judiciary Committee gave
this reason for its insertion: "The exception at the beginning
of this section is inserted to make it clear that a limitation for
a particular type of action found in any other provision of law
would take precedence over the general limitations of this
section." S. Rep. No. 88-743, at 71-72 (1963). See also D.C.
Code Encycl. s 12-301 (West 1966) (Revision Note). Hence,
there is no reason to read the phrase as any kind of reference
to private tolling agreements.
In United States v. Insurance Co. of N. Am. ("INA"), this
circuit was called upon to decide a case under a federal
statute of limitations quite similar to s 12-301. See 83 F.3d
1507 (D.C. Cir. 1996). The federal statute stated that, "ex-
cept as otherwise provided by Congress, every action for
money damages brought by the United States ... founded
upon any contract ... shall be barred unless the complaint is
filed within six years after the right of action accrues...."
28 U.S.C. s 2415(a). One day short of the six years, the
parties had entered into an agreement to "toll" this statute of
limitations. Giving effect to that agreement, this court per-
mitted the United States to file suit almost six months after
the statute of limitations would otherwise have run. See 83
F.3d at 1509-11. We see no reason why similar effect may
not be given, under s 12-301, to the agreement at issue in
this case.
IV
Even if District of Columbia law does permit an agreement
to suspend a statute of limitations, GW argues that another
rule bars courts from giving effect to such an agreement,
"unless it is demonstrated by unequivocal evidence." GW
Br. at 20 (emphasis added). This argument appears to have
swayed the magistrate judge, who said he was unprepared to
read the letter agreement as Hunter-Boykin urged, "absent
persuasive evidence." Mag. Op. at 8 (J.A. 158) (emphasis
added).
These formulations, however, are similar to the one the
Supreme Court rejected in Liberty Lobby as inappropriate
for deciding a summary judgment motion in the usual civil
case. "The judge must ask himself," the Court said, "not
whether he thinks the evidence unmistakably favors one side
or the other, but whether a fair-minded jury could return a
verdict for the plaintiff on the evidence presented." 477 U.S.
at 252 (emphasis added). Liberty Lobby did note that the
inquiry on a motion for summary judgment necessarily impli-
cates the substantive evidentiary standard of proof that would
apply at the trial on the merits. Hence, although in the "run-
of-the-mill" civil case the judge should ask "whether reason-
able jurors could find by a preponderance of the evidence that
the plaintiff is entitled to a verdict," the test is different
where the substantive evidentiary burden is higher. Id. For
example, in a libel case where the First Amendment man-
dates a "clear and convincing" standard, the judge must
determine whether a reasonable juror could conclude that the
plaintiff has shown actual malice "with convincing clarity."
Id. GW's implicit argument, therefore, must be that this is
not a run-of-the-mill case, but rather that District of Colum-
bia law requires a heightened burden of proof to establish a
waiver of the statute of limitations: a burden of demonstrat-
ing "unequivocal" evidence.
The authority GW relies on to establish such a heightened
burden is this court's own opinion in Noel v. Baskin. But
this misreads Noel. The Noel court said that it would not
read an agreement between the parties as creating an "indefi-
nite" waiver of the statute of limitations, unless that purpose
were "expressed in unequivocal terms." 131 F.2d at 232.
"[I]n the absence of specific language making [the waiver]
perpetual," the court said, it should be held to operate only
for a reasonable time." Id. See also Munter v. Lankford,
232 F.2d 373, 374 (D.C. Cir. 1956) ("[I]n Noel v. Baskin ...
this court ruled that unless a waiver of the statute ... is
specifically stated to be perpetual, it should be held to operate
only for a reasonable time."). Hunter-Boykin does not con-
tend that the tolling agreement here should be construed as
an "indefinite" or "perpetual" waiver. Hence, Noel's stan-
dard of proof has no application to this case.6
V
Because the magistrate judge employed two incorrect legal
rules, he granted summary judgment against the plaintiff
without determining that no reasonable juror could read the
letter agreement as she did. Nor did GW explicitly argue for
such a determination in the briefs it filed in this court or
below. While asserting that the rules required the court to
accept its reading as a matter of law, GW appeared to
concede that Hunter-Boykin's reading was at least "one usual
and customary meaning." GW Br. at 21. See also id. at 10, 21, 23 & n.22, 24.
At oral argument, however, GW took a much harder line.
It argued not only that its interpretation of the letter agree-
ment was required legally, but that no reasonable person
could interpret it as plaintiff did. We find this view surpris-
ing. We expect that justices of the Supreme Court, judges of
this and other courts, and the heirs and assigns of Mr. Black
and other law dictionary authors, also would regard it so,
since all have used the word "toll" in the same manner as
Hunter-Boykin. And it is particularly appropriate in this
case to look to usage by judges and law dictionaries in order
to divine the meaning of "toll," since it is a term of art among
lawyers, and since it was used in a letter written from one
lawyer to another.
__________
6 GW also cites the maxim that courts "will strictly enforce
statutes of limitations and will narrowly construe any exceptions to
the statute." GW Br. at 14 & n.5. Even if this were the law of the
District, we would not regard GW's construction of the agreement
as any "narrower" or "stricter" than Hunter-Boykin's construction.
Moreover, as noted in the following section, Hunter-Boykin's con-
struction is so much more reasonable than GW's that we would hold
for her even if we applied the maxim against her. The one maxim
that does seem appropriate here is that "ambiguity in a contract
should be resolved against the drafter," Cole v. Burns, 105 F.3d
1465, 1486 (D.C. Cir. 1997). In this case, the drafter was GW.
Hunter-Boykin, however, does not need the benefit of this or any
other maxim to prevail on this appeal.
We begin with the Supreme Court. In Chardon v. Soto,
the Court noted that "[t]his opinion uses the word 'tolling' to
mean that during the relevant period, the statute of limita-
tions ceases to run." 462 U.S. 650, 652 n.1 (1983). It then
went on to explain that " 'tolling effect' refers to the method
of calculating the amount of time available to file suit after
tolling has ended," and noted that there were several possible
"tolling effects." One, the Court said, was that the "statute
of limitations might merely be suspended; if so, the plaintiff
must file within the amount of time left in the limitations
period." Id. This, of course, is precisely the "tolling effect"
for which Hunter-Boykin argues. Another, the Court said,
was that the "limitations period is renewed [and] the plaintiff
has the benefit of a new period as long as the original." Id.
As we have pointed out above, this was the impact of the
agreement on a new accrual date in Noel. And finally,
Chardon noted, "[i]t is also possible to establish a fixed period
... during which the plaintiff may file suit, without regard to
the length of the original limitations period or the amount of
time left when tolling began." Id. This is the possibility for
which GW argues. It was, however, the one possibility for
which no one argued in Chardon. Compare id. at 661 (court
of appeals correctly applied "Puerto Rican rule that, after
tolling comes to an end, the statute of limitations begins to
run anew"), with id. at 665-66 (Rehnquist, J., dissenting)
(court should have applied federal tolling rule for class ac-
tions, which provides that tolling "suspends the running of a
statute of limitations").
We move next to this court. In Detweiler v. Pena, we
described the "tolling" provision of the Soldiers' and Sailors'
Civil Relief Act as "suspend[ing]" the statute of limitations
during a service member's period of active service. See 38
F.3d 591, 593 (D.C. Cir. 1994). In United States v. Wilson,
we explained that the effect of a waiver that "tolled" the
criminal statute of limitations for ninety days was to extend
the statute by that amount. See 26 F.3d 142, 156 & n.10
(D.C. Cir. 1994). And, as noted above, in INA we again
effectively interpreted a tolling agreement in the manner
Hunter-Boykin urges here. See 83 F.3d at 1510. Other
courts, too numerous to list, also have interpreted the word
"toll" as meaning "suspend" or its equivalent. See, e.g.,
Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1070 (7th Cir.
1978) ("Tolling, strictly speaking, is concerned ... with the
circumstances in which the running of the limitations period
may be suspended."); United States v. Neill, 952 F. Supp.
831, 833 (D.D.C. 1996) (request for foreign evidence "tolled"
the statute of limitations by "suspend[ing]" it until the foreign
country took action on the request); Clark v. Milan, 847
F. Supp. 409, 421 & n.26 (S.D. W. Va. 1994) (describing
"tolling agreement" as "suspending" the statute of limita-
tions).
Black's Law Dictionary defines "toll" the same way. Al-
though it lists two definitions, the one specifically applicable
to statutes of limitations parallels Hunter-Boykin's definition:
"To suspend or stop temporarily as the statute of limitations
is tolled during the defendant's absence from the jurisdiction
and during the plaintiff's minority." Black's Law Dictionary
1488 (6th ed. 1990).7 Ballentine's Law Dictionary is in ac-
cord. See Ballentine's Law Dictionary 1282 (3d ed. 1969)
("to suspend or interrupt the running of the statute of
limitations").
Notwithstanding the above, GW argues that its interpreta-
tion should triumph because the agreement between the
parties was not simply to "toll" the statute of limitations, but
to "toll the running of any statute of limitations." The sixth
edition of Black's Law Dictionary defines this phrase as "a
metaphorical expression, by which it is meant that the time
specified in the statute of limitations is considered as having
passed and hence the action is barred." Black's Law Dictio-
nary 1333 (6th ed. 1990) (emphasis added) (citing United
States v. Markowitz, 34 F. Supp. 827, 829 (N.D. Cal. 1940)).
Arguing that this establishes that the "running of the statute
of limitations" means that the time has "passed" or "ex-
__________
7 The other listed meaning is "to bar, defeat or take away,"
which GW asserts supports its view. GW Br. at 21. This is not the
definition Black's specifically uses in connection with statutes of
limitation, and in any event does not suggest that Black's other
definition is an unreasonable one.
pire[d]," and is not just "passing," GW contends that we must
conclude that on January 7, 1994, the statute of limitations for
Hunter-Boykin's suit also had passed or expired. GW Br. at
22.
Even if we were to accept the use to which GW has put Mr.
Black's definition of "running",8 it surely is not the only
reasonable definition of the term. In fact, the case cited by
Black's as the source for its definition actually stands for the
opposite proposition, and supports Hunter-Boykin. See
United States v. Markowitz, 34 F. Supp. 827, 829-30 (N.D.
Cal. 1940) (rejecting interpretation of "running" as meaning
that "the statute of limitations is considered as having passed
rather than as passing," and explaining that when the "sus-
pension" of "the running of the statutory period of limita-
tions" is over, "the statutory period ... commences to run
again"). Other courts also have defined the term in a manner
wholly consistent with the interpretation offered by Hunter-
Boykin. See, e.g., United States v. Moyer, 308
F. Supp. 754, 756 (W.D. Pa. 1968) ("The term 'running' is not
synonymous with 'expiration,' and will be ascribed a meaning
that connotes the passing of time during which a defense ...
matures."), aff'd, 420 F.2d 375 (3d Cir. 1970). And at one
time, Black's itself defined "running" as meaning that the
time was "passing," not that it had "passed." See Black's
Law Dictionary 1498 (4th ed. 1968). Once again, the weight
of authoritative usage is on Hunter-Boykin's side.
VI
We conclude that a reasonable juror could readily interpret
the parties' tolling agreement in the manner suggested by
Hunter-Boykin. Because reasonableness is the appropriate
__________
8 We think the better way to interpret Black's definition is not
as describing the effect of tolling a statute of limitations while it is
running, but as describing the state of play after the statute of
limitations has run, as in this sentence: "After the running of the
statute of limitations, the action is barred." This also would
reconcile Black's definition of "running" with its definition of
"toll[ing]."
standard for summary judgment in this case, we reverse the
grant of judgment against her and order reinstatement of the
complaint. Since Dr. Hunter-Boykin did not herself move
for summary judgment, we do not consider the question
whether any reasonable juror could have interpreted the
tolling agreement in the manner urged by GW, and hence do
not determine whether Hunter-Boykin would be entitled to a
grant of summary judgment in her own favor.9
__________
9 We also do not need to reach Hunter-Boykin's additional
argument that, even if the letter agreement itself does not defeat
the statute of limitations, GW should be equitably estopped from
raising the statutory bar.
Edwards, Chief Judge, concurring: I concur in the court's
reasoning and judgment, save on one point. In my view, the
disputed tolling agreement has only one reasonable interpre-
tation: it suspended the running of the statute of limitations
until the closing date named in the agreement, January 7,
1994. Thus, if Hunter-Boykin moves for summary judgment
on remand, it appears that she should prevail as a matter of
law on this point.