Anthony Booth v. United States , 914 F.3d 1199 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY K. BOOTH, in his own No. 16-17084
right and on behalf of all statutory
beneficiaries, D.C. No.
Plaintiff-Appellant, 2:11-cv-00901-
SPL
v.
UNITED STATES OF AMERICA, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted December 6, 2017
San Francisco, California
Filed January 31, 2019
2 BOOTH V. UNITED STATES
Before: Mary M. Schroeder and Marsha S. Berzon, *
Circuit Judges, and Sara Lee Ellis, ** District Judge.
Opinion by Judge Sara L. Ellis
SUMMARY ***
Federal Tort Claims Act
The panel affirmed the district court’s summary
judgment in favor of the United States in a Federal Tort
Claims Act (“FTCA”) action alleging that a United States
agency negligently caused plaintiff’s father’s death while
plaintiff was a minor.
The district court found that the claims were time-barred
because the minor’s representative submitted them too late.
The minor argued on appeal that his minority should have
operated to toll the statute of limitations on his claims.
The panel held that there is no minority tolling of the
FTCA’s statute of limitations. The panel further held that
the Supreme Court’s decision in United States v. Wong, 135
*
This case was submitted to a panel that included Judge Kozinski,
who retired. Following Judge Kozinski’s retirement, Judge Berzon was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge
Berzon has read the briefs and reviewed the record.
**
The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BOOTH V. UNITED STATES 3
S. Ct. 1625 (2015), did not suggest, let alone hold, that
minority tolling applied to the FTCA. The panel also held
that minority alone does not merit equitable tolling of the
FTCA’s statute of limitations. Accordingly, the panel
affirmed the district court’s judgment in favor of the
government.
COUNSEL
John P. Leader (argued), The Leader Law Firm, Tucson,
Arizona, for Plaintiff-Appellant.
Ann E. Harwood (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, Acting United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Defendant-
Appellee.
OPINION
ELLIS, District Judge:
Plaintiff-Appellant Anthony K. Booth claims that a
United States agency negligently caused his father’s death
while Booth was a minor. Because Booth was a minor, his
mother, acting as his representative, sued the United States
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671 et seq. The district court found that the
claims were time-barred because Booth’s representative
submitted them too late. Booth appeals, arguing that
minority should operate to toll the statute of limitations on
his claims. Because we conclude that prior decisions
holding that there is no minority tolling for the FTCA’s
4 BOOTH V. UNITED STATES
statute of limitations remain binding, and conclude that
minority tolling is a separate statutory matter from equitable
tolling, we affirm the district court’s decision.
I. Procedural and Factual Background
Booth’s father, also named Anthony Booth, died in a car
accident on an Arizona highway on February 19, 2005. The
younger Booth was weeks from his tenth birthday when he
lost his father.
Booth’s mother, Marlene June, timely filed an
Administrative Form 95 with the Federal Highway
Administration (“FHWA”), and on May 5, 2011, filed suit
against the United States in federal court in Arizona, on
behalf of Booth and other statutory beneficiaries (the late
Anthony Booth’s mother, daughters, and other son), alleging
that a highway barrier that failed during the highway
accident was not tested and approved in accord with FHWA
rules. 1 Booth was fifteen years old when June filed the
administrative claim and sixteen years old at the time she
filed the lawsuit.
The FTCA requires administrative exhaustion and sets
time limits for both exhaustion and the filing of a lawsuit.
“An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the
Government . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency and
1
Booth later substituted in as named plaintiff when he turned 18,
hence the title of this appeal. But for a good portion of the suit, June was
the named plaintiff. We refer in this opinion to the appropriate named
plaintiff for the pertinent time period under discussion.
BOOTH V. UNITED STATES 5
his claim shall have been finally denied by the agency in
writing and sent by certified or registered mail.” 28 U.S.C.
§ 2675. “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). Such a tort claim is also
barred “unless action is begun within six months after the
date of mailing, by certified or registered mail, of notice of
final denial of the claim by the agency to which it was
presented.” Id. 2
The Government moved to dismiss June’s case, arguing
that the FTCA’s statute of limitations could not be tolled.
The district court agreed, finding that the claim had accrued
more than two years before June presented it to the federal
agency and holding that, under Ninth Circuit precedent, the
FTCA’s statute of limitations is not subject to equitable
tolling or tolling for minority of the injured party. June
appealed.
While June’s appeal was pending, an en banc panel of
this Court was considering Wong v. Beebe, 732 F.3d 1030(9th Cir. 2013) (en banc). Wong also involved tolling of the
FTCA’s statute of limitations. The plaintiff-appellant in
Wong sought equitable tolling of the FTCA’s statute of
limitations for the time to file suit after bringing a claim to
the administrative agency. Id. at 1034. We held that the
FTCA’s statute of limitations is not jurisdictional and is
subject to equitable tolling. Id. at 1047, overruling Marley
v. United States, 567 F.3d 1030 (9th Cir. 2009).
2
We refer to the two-year and six-month statute of limitations
collectively in this opinion as the FTCA’s statute of limitations.
6 BOOTH V. UNITED STATES
After Wong, the panel hearing June’s initial appeal
issued a memorandum disposition that reversed the district
court’s decision granting the Government’s motion to
dismiss June’s lawsuit and remanded the issue of equitable
tolling to the district court. June v. United States, 550 F.
App’x 505 (9th Cir. 2013) (unpublished decision). The
Government then sought certiorari for both that decision and
Wong.
The Supreme Court took both cases, addressing and
affirming them both and ruling that the FTCA’s statute of
limitations (both the two-year time limit after accrual for
presenting claims to the administrative agency and the six-
month time limit for suit after denial of a claim by an agency)
is not jurisdictional, but instead is subject to equitable
tolling. United States v. Wong (“Wong/June”), — U.S. —,
135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme
Court remanded June’s case.
June’s case resumed in district court. Booth, having
reached the age of majority by this time, substituted in as
named plaintiff. The Government then moved for summary
judgment, arguing that Booth’s claim was barred by the
FTCA’s statute of limitations because June, as Booth’s
representative, did not file a claim with the administrative
agency until more than five years after Booth’s father’s car
accident and there were no circumstances that called for
equitable tolling. Booth cross-moved for summary
judgment, arguing that the statute of limitations should be
tolled because the nature of the Government’s involvement
in the car accident had been concealed, and because Booth
had been a minor at the time of the accident, at the time June
filed an administrative claim, and at the time June filed suit.
The district court granted the Government’s motion for
summary judgment. The district court held, as it had
BOOTH V. UNITED STATES 7
determined before the appeal, that Booth’s claim accrued on
the day of his father’s accident, February 19, 2005, and that
Booth had submitted his claim to the FHWA more than two
years later, through his mother June, on December 16, 2010.
The district court concluded that Booth could not equitably
toll the statute of limitations on concealment grounds and
also that Booth had waived any argument that his age tolled
the statute of limitations, as he had failed to raise the issue in
the prior appeal. Booth moved for reconsideration. The
district court denied the motion, and Booth timely appealed.
II. Standard of Review
The Court reviews the district court’s grant of summary
judgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,
871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same
standard used by the district court and “view the evidence in
the light most favorable to the nonmoving party, determine
whether there are any genuine issues of material fact, and
decide whether the district court correctly applied the
relevant substantive law.” Animal Legal Def. Fund v. U.S.
Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).
III. Analysis
On appeal, Booth asserts that his status as a minor during
most of these proceedings tolls the FTCA’s statute of
limitations—specifically that portion of the statute of
limitations that requires a plaintiff to file a claim with the
responsible agency within two years of the accrual of the
8 BOOTH V. UNITED STATES
claim. 3 28 U.S.C. § 2401(b). No longer considered
jurisdictional, the FTCA’s statute of limitations can now be
tolled, Wong, 732 F.3d at 1047, including for equitable
considerations, Wong/June, 135 S. Ct. at 1633 (“The time
limits in the FTCA are just time limits, nothing more. Even
though they govern litigation against the Government, a
court can toll them on equitable grounds.”). Booth argues
that minority tolling—the rule applicable in many
circumstances that statutes of limitations are tolled during
the minority of the would-be plaintiff—should be applicable
under the FTCA. He also maintains being a minor is
sufficient for equitable tolling of the FTCA’s statute of
limitations.4
3
Booth does not challenge on appeal the district court’s decision
that the government’s alleged concealment does not justify equitable
tolling.
In his briefing, Booth did not challenge the district court’s
determination that his claim accrued on the day of the accident. Because
he raised the issue for the first time at argument, he has waived it. See
Harger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).
4
We can dispose of two issues at the outset. The first is the
Government’s argument that the district court properly found that Booth
had waived the issue of minority tolling. Wong and Wong/June changed
the Ninth Circuit’s previous rule precluding any tolling of the FTCA
statute of limitations, so Booth could not have waived the question of
how that change affects minority tolling. See Gallardo v. United States,
755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived
when not raised before Wong). The second is Booth’s argument that
Arizona’s minority tolling statute applies and tolls the FTCA’s statute of
limitations. State rules on minority tolling do not apply. “A court must
look to state law for the purpose of defining the actionable wrong for
which the United States shall be liable, but to federal law for the
limitations of time within which the action must be brought.” Poindexter
v. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.
BOOTH V. UNITED STATES 9
A. The Rule Against Minority Tolling of the FTCA’s
Statute of Limitations Should Continue to Apply
Minority tolling statutes provide that if a cause of action
accrues when a plaintiff is a child, the statute of limitations
on that cause of action is suspended until the plaintiff attains
the age of majority. The policy reason underlying such
statutes, as enunciated by one state appellate court in this
Circuit, is “[b]ecause a minor does not have the
understanding or experience of an adult, and because a minor
may not bring an action except through a guardian . . .
special safeguards are required to protect the minor’s right
of action.” W. Shield Investigations & Sec. Consultants v.
Superior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)
(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,
426 (Ct. App. 1979)), disapproved of on other grounds by
Gatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.
2002). The states in this Circuit all have statutes providing
for minority tolling for state-law tort claims. See Alaska
Stat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.
Civ. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho
Code § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.
Stat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.
Code § 4.16.190(1).
As the Fourth Circuit has recognized, “[t]he blackletter
rule . . . is that a statute of limitations runs against all
persons, even those under a disability, unless the statute
expressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,
80 (4th Cir. 1994). The Supreme Court long ago recognized
this rule as extending to minority tolling: “The exemptions
from the operation of statutes of limitations, usually
Baeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law
tolling statutes do not apply to the FTCA’s limitations period.”).
10 BOOTH V. UNITED STATES
accorded to infants . . . , do not rest upon any general
doctrine of the law . . . but in every instance upon express
language in those statutes giving them time, after majority
. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,
521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United
States v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)
(“The federal courts have consistently rejected requests to
create tolling exceptions for minors, reasoning that in the
absence of an express legislative directive to the contrary,
parents and guardians are assumed to be adequate
surrogates.”). Federal courts have consistently applied
Vance, following minority tolling for federal statutes of
limitations only if the statute setting out the limitations
period so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;
Vogel, 23 F.3d at 80.
Consistent with the Vance principle, we have never
recognized minority tolling for the FTCA’s statute of
limitations. See Papa v. United States, 281 F.3d 1004, 1001
(9th Cir. 2002) (“The time limitation for FTCA claims is not
tolled during a claimant’s minority.”); Landreth ex rel. Ore
v. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The
fact of minority does not toll the statute.”); Fernandez v.
United States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that
no minority tolling applies under the FTCA); Mann v. United
5
Minority tolling may be available for federal causes of action that
borrow the statute of limitations from state law such as § 1983, but only
if the relevant state law also includes a minority tolling provision and
that provision is not “inconsistent with the federal policy underlying the
cause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.
Tomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);
see also Bishop v. Children’s Ctr. for Developmental Enrichment,
618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling
provisions do not apply to the FTCA’s limitations period. See
Poindexter v. United States, 647 F.2d at 36.
BOOTH V. UNITED STATES 11
States, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time
limitation is not tolled during a claimant’s minority.”);
Brown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)
(“It is well established that minority does not toll the
limitations period prescribed in the Federal Tort Claims
Act.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.
1965) (refusing to toll the FTCA’s statute of limitations for
a minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.
1956) (same).
Congress, if so minded, may establish exceptions for
certain disabilities—including minority—and has done so in
various federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);
28 U.S.C. § 2501. By contrast, the FTCA began with a
statute of limitations that was “without express qualification
for legal disability,” and each time Congress amended the
limitation period, it did not add a tolling provision. Glenn,
231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,
Congress considered proposed amendments providing for
minority tolling of the FTCA’s statute of limitations. E.g.,
H.R. 3260, 3261, 101st Cong. (1989). But these proposed
amendments have not become law. Had Congress wanted to
include minority tolling in the FTCA’s statute of limitations,
it could have done so.
Booth asks that we ignore the prior FTCA case law
rejecting minority tolling here, arguing that Wong/June
requires that we abandon sixty years of precedent.
Wong/June says nothing to indicate that our past decisions
on this discrete issue are incorrect. The Supreme Court was
silent on minority tolling. And we have grounded our rule
against minority tolling in part on considerations
independent of whether the FTCA’s statute of limitations is
jurisdictional. Our case law emphasizes that Congress does
not appear to have intended to expand that waiver of
12 BOOTH V. UNITED STATES
immunity for the entire time an injured party is a minor. See
Pittman, 341 F.2d at 741 (“We do not believe that the
Congress could have intended that infants have up to
21 years for a statute of limitations.”). Under these cases,
the parent or guardian holds a legal duty to take action on
behalf of the minor child. Landreth, 850 F.2d at 534. The
parent’s knowledge of the injury and its cause is imputed to
the minor, leaving the parent responsible for initiation of suit
in a timely manner. Id. These considerations have no
relation to whether the statute of limitations is
jurisdictional. 6 In short, the Supreme Court’s decision in
Wong/June does not suggest, let alone hold, that minority
tolling applies to the FTCA.
As Booth recognizes, the statute of limitations for non-
tort claims brought against the United States, which is also
found under § 2401, does contain a tolling provision. See
28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of
title 41, 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.”). Although, on its face, the
second sentence of subsection (a) is generic, we held in
Glenn that it is not. See 231 F.2d at 886. Glenn noted that,
although both § 2401(a) and § 2401(b) are now contained in
the same statute, they did not begin that way. See id. Based
6
Our sister circuits would appear to agree. The Third and Eight
Circuits recognized before Wong/June that the FTCA’s statute of
limitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt
v. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,
these circuits held that minority tolling of the FTCA’s statute of
limitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.
Wilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).
BOOTH V. UNITED STATES 13
on the legislative history of § 2401 and the sources of
subsections (a) and (b), Glenn concluded that Congress did
not intend “that the sentence in [§ 2401(a)] qualified the
limitation on tort claims set forth in [§ 2401(b)].” Id.
Booth asks us to overrule Glenn. Putting aside that
Booth raised this argument for the first time at oral
argument, thus waiving it, we may not overrule Glenn, as
there is no Supreme Court or en banc case inconsistent with
it. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)
(en banc).
Moreover, applying subsection (a)’s tolling provision to
claims covered by subsection (b) would create an anomaly.
Under that interpretation, a formerly disabled plaintiff would
have three years to file an action after the disability ceases,
notwithstanding subsection (b)’s requirement that such
claims be filed with the agency within two years after the
claim accrues. Compare 28 U.S.C. § 2401(a) (“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.” (emphasis added)), with id.§ 2401(b) (“A tort claim against the United States shall be
forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim
accrues . . . .” (emphasis added)). We can think of no reason
Congress would have devised such a scheme.
We therefore reject Booth’s argument that the tolling
provision in subsection (a) should apply to claims covered
by subsection (b).
14 BOOTH V. UNITED STATES
B. Tolling for Minority Status Alone Is a Statutory
Matter Separate from Equitable Tolling
Separate and distinct from the statutory concept of
minority tolling is equitable tolling. “[A] court may pause
the running of a limitations statute . . . when a party ‘has
pursued his rights diligently but some extraordinary
circumstance’ prevents him from meeting a deadline.”
Wong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya
Alvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.
2d 200 (2014)). This is the concept of equitable tolling. “In
applying equitable tolling, courts ‘follow a tradition in which
courts of equity have sought to relieve hardships which, from
time to time, arise from a hard and fast adherence to more
absolute legal rules, which, if strictly applied, threaten the
evils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting
Holland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177
L. Ed. 2d 130 (2010)).
To obtain equitable tolling a litigant must establish
“(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstances stood in his way.”
Id. (citation omitted). The first element requires “the effort
that a reasonable person might be expected to deliver under
his or her particular circumstances,” id. (quoting Doe v.
Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks
whether the plaintiff was “‘without any fault’ in pursuing his
claim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th
Cir. 1996)). The second element requires the litigant to
“show that extraordinary circumstances were the cause of his
untimeliness and . . . made it impossible to file the document
on time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997
(9th Cir. 2009)). “Whether a particular untimely claim may
be excused for a particular reason varies with the reason.”
Id. at 1051.
BOOTH V. UNITED STATES 15
As noted above, suspending a limitations period during
minority has been available not as a result of equitable
tolling but only where a statute expressly so provides. See
Vance, 108 U.S. at 521. Particular circumstances connected
to one’s age could support equitable tolling. For example,
there may be cause for equitable tolling if a minor is
abandoned by his parents and/or guardians and so left
unprotected. Cf. Zavala ex rel. Ruiz v. United States,
876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us
that the alleged abandonment left him unprotected . . . .”).
Likewise, some states have recognized that equitable tolling
may be appropriate where a minor is “a ward of the state
without a next friend or guardian of his estate” or “has a
guardian of his person with interests possibly adverse to his
own,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.
Ct. 1994), or where the cause of action is not reasonably
knowable by the plaintiff or her parents because of her
minority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.
1994).
Still, minority alone is not the type of exceptional
circumstance described above. In multiple cases involving
minors with FTCA claims, this Court has considered
whether minority tolling applies (and held that it does not),
and then separately considered whether equitable tolling
applies and concluded that there was not a sufficient basis
for equitable tolling. See Papa, 281 F.3d at 1011; Zavala,
876 F.2d at 784. In so ruling in Zavala, this Court noted that
the minor had “a parent who had both the duty to bring a
claim and the knowledge necessary to pursue it.” 876 F.2d
at 784. Booth has shown no evidence to indicate that this
was not the case here as well, or to indicate any extraordinary
circumstances outside of the mere fact of his minority.
16 BOOTH V. UNITED STATES
Accordingly, we hold that there is no minority tolling of
the FTCA’s statute of limitations and that minority alone
does not merit equitable tolling of the FTCA’s statute of
limitations. The district court’s grant of summary judgment
to the United States is AFFIRMED.