Maritza Gallardo v. United States ( 2014 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARITZA GALLARDO,                        No. 12-55255
    Plaintiff-Appellant,
    D.C. No.
    v.                      2:11-cv-05013-
    JFW-PJW
    UNITED STATES OF AMERICA,
    Defendant-Appellee.          OPINION
    Appeal from the United States District Court
    for the Central District of California
    John F. Walter, District Judge, Presiding
    Argued and Submitted
    January 8, 2014—Pasadena, California
    Filed April 15, 2014
    Before: William A. Fletcher, Milan D. Smith, Jr.,
    and Paul J. Watford, Circuit Judges.
    Opinion by Judge W. Fletcher
    2                GALLARDO V. UNITED STATES
    SUMMARY*
    Federal Tort Claims Act
    The panel affirmed in part and vacated in part the district
    court’s dismissal, as time-barred, of Martiza Gallardo’s
    Federal Tort Claims Act action brought against the United
    States.
    The Federal Tort Claims Act (“FTCA”)’s statute of
    limitations is two years unless tolled. Maritza Gallardo did
    not file an administrative claim for negligence against the
    U.S. Marine Corps until four years after an alleged sexual
    assault. While the appeal was pending, the court decided
    Wong v. Beebe, 
    732 F.3d 1030
    (9th Cir. 2013) (en banc),
    holding that equitable tolling of the statute of limitations was
    available in FTCA actions.
    The panel held that Gallardo’s FTCA claim accrued at the
    time of the assault, not at the time she learned of the Corps’
    negligence, and concluded that the FTCA’s two-year statute
    of limitations, absent tolling, had run. The panel also held
    that Gallardo’s equitable tolling argument was not waived.
    Finally, the panel held that Wong’s conclusion that 28 U.S.C.
    § 2401(b) is nonjurisdictional and subject to equitable tolling
    applied to the entirety of that subsection. The panel
    remanded to the district court to consider Gallardo’s equitable
    tolling argument in the first instance.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    GALLARDO V. UNITED STATES                      3
    COUNSEL
    Randall Jonathan Paulson (argued), Law Offices of Randall
    J. Paulson, Santa Ana, California, for Plaintiff-Appellant.
    Adam C. Jed (argued) and Mark B. Stern, United States
    Department of Justice, Washington, D.C.; Donald W. Yoo,
    Office of the United States Attorney, Los Angeles, California,
    for Defendant-Appellee.
    OPINION
    W. FLETCHER, Circuit Judge:
    Plaintiff Maritza Gallardo appeals from the district court’s
    dismissal of her Federal Tort Claims Act (“FTCA”) action
    against the United States as time-barred. Gallardo’s claim
    arose out of an alleged sexual assault committed by a sergeant
    in the U.S. Marine Corps (“the Corps”) while he was on a
    recruitment detail at her middle school. Gallardo did not file
    an administrative claim for negligence against the Corps until
    four years after the assault. The FTCA’s statute of limitations
    is two years unless tolled. 28 U.S.C. § 2401(b).
    While this appeal was pending, we decided Wong v.
    Beebe, 
    732 F.3d 1030
    (9th Cir. 2013) (en banc), holding that
    equitable tolling of the statute of limitations is available in
    FTCA actions. See 
    id. at 1033.
    We overruled Marley v.
    United States, 
    567 F.3d 1030
    , 1038 (9th Cir. 2009), which
    held that equitable tolling is unavailable. In light of this
    change in the law, we vacate the district court’s dismissal of
    Gallardo’s FTCA claim and remand for that court to
    4              GALLARDO V. UNITED STATES
    determine whether equitable tolling is appropriate in the
    circumstances of this case.
    I. Background
    A. Alleged Sexual Assault
    The following narrative is based on allegations by
    Gallardo in her complaint and on statements by her mother,
    Maria Gallardo, in a declaration submitted to the district court
    in connection with its jurisdictional ruling under Federal Rule
    of Civil Procedure 12(b)(1). For present purposes, we
    assume the truth of these allegations and statements. See
    Brown v. Elec. Arts, Inc., 
    724 F.3d 1235
    , 1247 (9th Cir.
    2013).
    In March 2006, middle-school student Maritza Gallardo
    met U.S. Marine Corps Sergeant Ross Curtis at a civilian
    youth disciplinary “boot camp.” While Gallardo was at the
    camp, Curtis asked her for her Myspace address. After
    Gallardo left the camp, Curtis sent messages to her Myspace
    address between March and May, suggesting that they “hang
    out” together. Gallardo “resisted” Curtis’s overtures.
    In May 2006, Curtis represented the Corps, in his “Dress
    Blues” uniform, at Gallardo’s middle school career day.
    During the career day, they acknowledged each other but did
    not speak. Gallardo left the school grounds at the end of the
    day. Curtis saw her leave and called her, asking her to return
    to the school. Gallardo returned, and she and several other
    students accepted Curtis’s offer to give them a ride home.
    After Curtis had dropped off everyone except Gallardo, he
    “drove around for some time and parked in a nearby
    neighborhood.” After he and Gallardo “talked for a while,”
    GALLARDO V. UNITED STATES                      5
    Curtis “began driving . . . and eventually parked” again.
    Curtis “began . . . kissing her, fondling her breasts, asking her
    to tou[c]h his erect penis and eventually attempting sexual
    penetration.” Gallardo began to cry. Curtis stopped, told her
    not to tell anyone what had happened, and drove her home.
    B. Curtis’s Criminal Prosecution
    In August 2008, law enforcement officials arrested Curtis,
    now a civilian, for a sexual assault on another minor. While
    searching Curtis’s computer, officials found pictures and
    Myspace messages that he had sent to Gallardo. Detectives
    interviewed Gallardo at her home in the fall of 2008.
    The following year, Gallardo and her mother were
    subpoenaed for Curtis’s criminal trial. During the trial,
    Gallardo’s mother learned from a female member of the
    Corps that Curtis had assaulted her, but that her military
    superiors had taken no disciplinary action against him after
    she reported the assault. Gallardo later learned that in March
    2006, two months before Curtis sexually assaulted her on
    career day, he had been court-martialed for sexually
    assaulting three female members of the Corps. The result of
    Curtis’s court-martial was that “the Corps retained his
    enlistment, assigned him to recruitment detail, and he was
    scheduled to be discharged in June 2006.”
    C. Proceedings Below
    In May 2010, after learning of Curtis’s history of sexually
    assaulting women, and of the Corps’ knowledge of those
    assaults at the time it assigned him to the recruitment detail
    at her middle school, Gallardo filed an administrative claim
    with the Corps and the Department of Defense. The
    6              GALLARDO V. UNITED STATES
    gravamen of Gallardo’s claim was that the assault occurred
    because of the Corps’ negligence in assigning a known sex
    offender to work with middle-school students. Gallardo’s
    administrative claim was denied in December 2010.
    Gallardo then filed suit in federal district court based on
    the same allegations as those in her administrative claim.
    Defendants moved to dismiss Gallardo’s claim as untimely
    under the FTCA’s two-year statute of limitations. In
    response, Gallardo argued that “her claim did not accrue until
    the facts of [Curtis’s] military record became known at the
    time of his criminal trial” in 2009.
    The district court agreed with defendants, holding under
    United States v. Kubrick, 
    444 U.S. 111
    (1979), that
    Gallardo’s claim accrued at the time of Curtis’s assault.
    Gallardo timely appealed.
    II. Standard of Review
    “We review de novo a district court’s interpretation of the
    statute of limitations under the FTCA, and its decision as to
    whether a statute of limitations bars a claim.” Hensley v.
    United States, 
    531 F.3d 1052
    , 1056 (9th Cir. 2008) (citations
    omitted).
    III. Discussion
    On appeal, Gallardo makes two arguments. First, she
    argues that the district court erred in concluding that her
    claim accrued at the time of Curtis’s assault. Second, she
    argues that the statute of limitations should be equitably
    tolled. We disagree with her first argument. However, her
    second argument may have merit. In light of our intervening
    GALLARDO V. UNITED STATES                     7
    precedent in Wong v. Beebe holding that equitable tolling is
    available in FTCA actions, we remand to the district court to
    consider Gallardo’s equitable tolling argument in the first
    instance.
    A. Accrual of Gallardo’s Claim
    A plaintiff bringing an FTCA claim against the United
    States must first file an administrative claim with the
    appropriate agency “within two years after such claim
    accrues.” 28 U.S.C. § 2401(b). Otherwise, it is “forever
    barred.” 
    Id. Gallardo argues
    that her claim did not accrue until 2009,
    when she learned of the Corps’ negligence. We disagree.
    Gallardo’s argument is foreclosed by Kubrick. The Supreme
    Court held in Kubrick that once a plaintiff becomes aware of
    her injury and its immediate cause, her claim 
    accrues. 444 U.S. at 122
    . In so deciding, the Supreme Court declined
    to “hold that Congress intended that ‘accrual’ of a claim must
    await awareness by the plaintiff that [her] injury was
    negligently inflicted.” 
    Id. at 123.
    Our post-Kubrick precedents are consistent with the
    conclusion that Gallardo’s claim accrued at the time of
    Curtis’s assault. For example, in Hensley v. United States,
    
    531 F.3d 1052
    (9th Cir. 2008), we held that the plaintiffs’
    claim against the United States resulting from an accident
    involving a vehicle driven by a naval officer “accrued at the
    time of the collision and not later when the Attorney General
    certified that the [officer] was acting within the scope of his
    federal employment at the time of the collision.” 
    Id. at 1054.
    “[A]s a general rule, ignorance of the involvement of
    government employees is irrelevant to accrual of a federal
    8              GALLARDO V. UNITED STATES
    tort claim.” 
    Id. at 1056.
    We wrote that Kubrick does not
    allow for “delay[ing] accrual of a federal tort claim until
    plaintiff knows or has reason to know of the culpability of
    federal agents.” 
    Id. (quoting Gibson
    v. United States,
    
    781 F.2d 1334
    , 1344 (9th Cir. 1986)). We explained:
    At the moment Eich [the naval officer] struck
    Mrs. Hensley’s car with his own, the Hensleys
    knew both the fact of the injury and its
    immediate physical cause. The fact that Mrs.
    Hensley suffered an injury was immediately
    apparent; the cause (a collision) was
    immediately apparent; and even the identity
    of the person who inflicted the injury (Eich)
    was immediately apparent. Therefore, the
    Hensleys’ claim accrued at the time of the
    accident.
    
    Hensley, 531 F.3d at 1057
    (citation omitted).
    Gallardo cannot distinguish her case from Hensley. She
    emphasizes on appeal that “she could not have known or had
    reason to suspect” that the Corps was “complicit” in her
    injury “because the cause known at the time was [Curtis’s]
    assault.” But, as we held in Hensley, “ignorance of the
    involvement of United States employees is irrelevant.” 
    Id. at 1057
    (quoting Dyniewicz v. United States, 
    742 F.2d 484
    ,
    487 (9th Cir. 1984)). Here, Gallardo “knew both the fact of
    the injury and its immediate physical cause,” 
    id., in May
    2006. Because Gallardo did not file her administrative claim
    until four years later, the FTCA’s two-year statute of
    limitations, absent tolling, had run.
    GALLARDO V. UNITED STATES                     9
    B. Equitable Tolling
    In the alternative, Gallardo argues that the statute of
    limitations should be equitably tolled. When the district court
    dismissed Gallardo’s claim, equitable tolling was not
    available under the FTCA. See 
    Marley, 567 F.3d at 1038
    . In
    2013, however, we overruled Marley, holding in Wong v.
    Beebe that equitable tolling of the statute of limitations is
    available in FTCA 
    actions. 732 F.3d at 1033
    .
    The government makes two arguments against equitable
    tolling. First, the government argues that Gallardo did not
    raise equitable tolling in the district court and has therefore
    waived this argument. But at the time the district court ruled
    on the motion to dismiss, equitable tolling was foreclosed by
    Marley. The argument became available only later, while this
    case was on appeal, when we decided Wong. We therefore
    hold that Gallardo’s equitable tolling argument is not waived.
    See, e.g., Romain v. Shear, 
    799 F.2d 1416
    , 1419 (9th Cir.
    1986) (an exception to waiver exists “when a new issue arises
    while appeal is pending because of a change in law”).
    Second, the government argues that Wong does not
    control because that case involved a different provision of the
    FTCA’s statute of limitations. The statute imposes two
    deadlines:
    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 or unless action
    is begun within six months after the date of
    mailing . . . of notice of final denial of the
    10             GALLARDO V. UNITED STATES
    claim by the agency to which it was
    presented.
    28 U.S.C. § 2401(b) (emphasis added). The provision at
    issue in Wong was the six-month time limit for filing suit
    after agency denial of a claim. 
    See 732 F.3d at 1033
    –34. The
    applicable provision here is the two-year time limit for filing
    a claim with the agency. Although these two provisions are
    part of the same statutory subsection, the government
    contends that our holding in Wong applies only to the six-
    month provision.
    Our language and reasoning in Wong foreclose the
    government’s argument. We repeatedly stated in Wong that
    § 2401(b) is nonjurisdictional and subject to equitable tolling,
    without distinguishing between the six-month and two-year
    provisions. See, e.g., 
    id. at 1033
    (“We hold that § 2401(b) is
    not ‘jurisdictional,’ and that equitable tolling is available
    under the circumstances presented in this case.”); 
    id. at 1038
    (“Several factors underlie our conclusion that § 2401(b) is
    nonjurisdictional.”); 
    id. at 1049
    (“[N]othing in § 2401(b)
    suggests that it is inconsistent with equitable tolling. To the
    contrary, the FTCA goes out of its way in its efforts to treat
    the United States the same as private tort defendants.”).
    Conclusion
    We hold that Wong’s conclusion that 28 U.S.C. § 2401(b)
    is nonjurisdictional and subject to equitable tolling applies to
    the entirety of that subsection. We therefore vacate the
    district court’s decision holding that Gallardo’s FTCA claim
    GALLARDO V. UNITED STATES                  11
    is time-barred. We remand to the district court to consider
    Gallardo’s equitable tolling argument in the first instance.
    We otherwise affirm. Each side shall bear its own costs.
    AFFIRMED in part, VACATED in part, and
    REMANDED.