Kawi Fung Wong v. David V. Beebe

We agreed to hear this case en banc to clarify whether the

statute of limitations in 28 U.S.C. § 2401(b) of the Federal

Tort Claims Act ("FTCA”) may be equitably tolled. We hold

that § 2401(b) is not "jurisdictional,” and that equitable

tolling is available under the circumstances presented in this

case.

I. BACKGROUND

A. Statutory Background

The FTCA contains three timing rules that govern when

a plaintiff may file a claim against the United States in the

district court: First, 28 U.S.C. § 2675(a) establishes an

administrative exhaustion requirement, which states that "[a]n

action shall not be instituted upon a claim against the United

States . . . unless the claimant shall have first presented the

WONG V. BEEBE 5

claim to the appropriate Federal agency and his claim shall

have been finally denied by the agency.” Section 2675

further provides that "[t]he failure of an agency to make final

disposition of a claim within six months after it is filed shall,

at the option of the claimant any time thereafter, be deemed

a final denial of the claim.” Id.

Second, one statute of limitations in § 2401(b) sets a twoyear

deadline within which a claimant must present his claim

"to the appropriate Federal agency . . . after such claim

accrues.” Id. § 2401(b); see United States v. Kubrick,

444 U.S. 111, 119–21 (1979).

Finally, § 2401(b) also establishes a second limitations

period—that "[a] tort claim against the United States shall be

forever barred . . . unless action is begun within six months

after the . . . final denial of the claim by the agency to which

it was presented.” 28 U.S.C. § 2401(b).

With this statutory framework in mind, we turn to the

procedural history of this case, the material facts of which are

not in dispute.

B. Facts

More than a decade ago, Kwai Fun Wong ("Wong”) and

Wu Wei Tien Tao Association ("the Association”), a

religious organization, sued the United States and several

Immigration and Naturalization Service ("INS”) officials for

claims arising out of Wong's detention. See Wong v. INS

(Wong I), 373 F.3d 952 (9th Cir. 2004); Wong v. Beebe

(Wong II), No. 07-35426 (9th Cir. June 4, 2010) (per curiam).

The only remaining claim is one under the FTCA, alleging

6 WONG V. BEEBE

negligence against the United States based on the conditions

of her confinement.

Wong and the Association filed their original complaint

in the district court on May 18, 2001. That same day, Wong

filed her negligence claim with the INS pursuant to the

FTCA's administrative exhaustion requirement, 28 U.S.C.

§ 2675(a). Under § 2675(a), Wong was required to wait six

months—until November 19, 2001—or until the INS denied

the claim, before filing her negligence claim in the district

court. See 28 U.S.C. §§ 1346(b)(1), 2675(a).

On November 14, 2001, Wong filed a motion in the

district court seeking leave to file a Second Amended

Complaint adding the negligence claim "on or after

November 20, 2001”—i.e., after the six-month waiting period

required under § 2675(a) had expired. The INS issued a

written decision denying Wong's administrative claim on

December 3, 2001.

At that point, Wong had until June 3, 2002, to file her

negligence claim in the district court. Here is why: Pursuant

to § 2675(a), Wong was prohibited from filing her claim in

the district court until after she presented it to the INS and the

INS "finally decided [the claim] . . . in writing and sent [it] by

certified or registered mail.” 28 U.S.C. § 2675(a).

Alternatively, § 2675(a) gave Wong the option to treat the

INS's "failure . . . to make final disposition of [her] claim

within six months after it [was] filed” as the "final denial of

the claim.” Id. Wong attempted to exercise that option when

she filed her motion in the district court seeking leave to file

her amended complaint "on or after November 20,

2001”—six months after she filed her claim with the INS.

Had her motion been granted, then, pursuant to § 2401(b),

WONG V. BEEBE 7

Wong would have had six months—until May 20, 2002—to

file her amended complaint with the added FTCA claim in the

district court. See id. § 2401(b). As noted, however, the INS

denied Wong's claim on December 3, 2001, thereby starting

anew the clock on the six-months limitations period in

§ 2401(b). Thus, the relevant deadline for filing Wong's

claim in the district court was June 3, 2002. See Lehman v.

United States, 154 F.3d 1010, 1015 (9th Cir. 1998).

On April 5, 2002, more than five months after Wong filed

her motion seeking leave to amend, the magistrate judge

issued Findings and Recommendations ("F&R”)

recommending that Wong be permitted to file an amended

complaint adding her FTCA claim. The district court did not

issue an order adopting the F&R until June 25, 2002, three

weeks after the six-month filing deadline had expired.

Wong did file an amended complaint on August 13, 2002,

which included the FTCA claim. The district court, relying

on Marley v. United States, 567 F.3d 1030, 1038 (9th Cir.

2009), held that § 2401(b) was "jurisdictional,” and that

equitable tolling was therefore not available to excuse

Wong's untimely filing of her claim. The district court

dismissed Wong's FTCA claim for lack of jurisdiction. This

appeal followed.

II. DISCUSSION

A. Applicability of Equitable Tolling to FTCA Claims

1. General Background

Irwin v. Department of Veterans Affairs, 498 U.S. 89

(1990), sets forth the "general rule . . . govern[ing] the

8 WONG V. BEEBE

applicability of equitable tolling in suits against the

Government.” Id. at 95. That case considered whether the

"rule of equitable tolling” applied to an untimely Title VII

claim brought against the government. Id. at 94–95. Noting

that "[t]ime requirements in lawsuits between private litigants

are customarily subject to equitable tolling,” Irwin held that

"the same rebuttable presumption of equitable tolling

applicable to suits against private defendants should also

apply to suits against the United States.” Id. at 95–96

(internal quotation marks omitted).

Irwin's "general rule” is not without exception. Some

statutes of limitation are "more absolute,” and do not permit

"court[s] to consider whether certain equitable considerations

warrant extending a limitations period.” John R. Sand &

Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008).

"As convenient shorthand, the Court has sometimes referred

to the time limits in such statutes as 'jurisdictional.'” Id. at

134 (citing Bowles v. Russell, 551 U.S. 205, 210 (2007)).

The "jurisdiction” terminology used in the governmentdefendant

equitable tolling context can, however, be

misleading. In a series of recent cases, the Supreme Court

has "pressed a stricter distinction between truly jurisdictional

rules, which govern 'a court's adjudicatory authority,' and

nonjurisdictional 'claim-processing rules,' which do not.”

Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (quoting

Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004) (emphasis

added)). This distinction is critical for present purposes,

because, while courts "[have] no authority to create equitable

exceptions to jurisdictional requirements,” Bowles, 551 U.S.

at 214, nonjurisdictional claim-processing requirements

remain "subject to [Irwin's] rebuttable presumption in favor

WONG V. BEEBE 9

of equitable tolling.” Holland v. Florida, 130 S. Ct. 2549,

2560 (2010) (internal quotation marks omitted).

Applying these principles to the particular statute of

limitations here, our case law has come to contradictory

results. Alvarez-Machain v. United States (Alvarez-Machain

I), 107 F.3d 696, 701 (9th Cir. 1996), held that "[e]quitable

tolling is available for FTCA claims in the appropriate

circumstances.” Twelve years later, Marley held precisely

the opposite, stating "that the statute of limitations in

28 U.S.C. § 2401(b) is jurisdictional and, consequently,

equitable doctrines that otherwise could excuse a claimant's

untimely filing do not apply.”1 567 F.3d at 1032; see also

Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011)

(applying Marley).

We agreed to hear this case to resolve the conflict

between Alvarez-Machain I and Marley. See Atonio v. Wards

Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987)

(en banc). Doing so, we join with several other circuits in

concluding that § 2401(b) is subject to equitable tolling. See

Arteaga v. United States, 711 F.3d 828, 832–33 (7th Cir.

2013); Santos ex rel. Beato v. United States, 559 F.3d 189,

1 Marley dismissed Alvarez-Machain I as having "no precedential value”

because the panel opinion in that case was vacated and the case was taken

en banc. See Marley, 567 F.3d at 1037–38 (citing Alvarez-Machain v.

United States (Alvarez-Machain III), 284 F.3d 1039 (9th Cir. 2002)). But

the opinion that was vacated by Alvarez-Machain III was not Alvarez-

Machain I. Rather, it was a different opinion in the same case: Alvarez-

Machain v. United States (Alvarez Machain II), 266 F.3d 1045 (9th Cir.

2001). Thus, Alvarez-Machain I was still good law when Marley was

decided. The result was an intracircuit conflict, which we can resolve

only through en banc proceedings. See Atonio v. Wards Cove Packing

Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc).

10 WONG V. BEEBE

194–98 (3d Cir. 2009); Perez v. United States, 167 F.3d 913,

916–17 (5th Cir. 1999).

2. Jurisdictional vs. Nonjurisdictional Claim-

Processing Rules

As a threshold matter, we must decide whether § 2401(b)

is a "jurisdictional” rule, to which equitable doctrines cannot

apply, or a nonjurisdictional "claim-processing rule” subject

to Irwin's presumption in favor of equitable tolling. Both

Alvarez-Machain I and Marley were decided without the

benefit of the Supreme Court's most recent decisions

clarifying the difference between these two categories.

Accordingly, before turning to § 2401(b) itself, we discuss

the Court's efforts in recent years to "bring some discipline”

to the "jurisdictional” label. See Henderson ex rel.

Henderson v. Shinseki, 131 S. Ct. 1197, 1202–03 (2011); see

also Gonzalez, 132 S. Ct. at 648.

The consequences of labeling a particular statutory

requirement "jurisdictional” are "drastic.” Gonzalez,

132 S. Ct. at 648. A court's "[s]ubject-matter jurisdiction can

never be waived or forfeited,” "objections [to the court's

jurisdiction] may be resurrected at any point in the litigation,”

and courts are obligated to consider sua sponte requirements

that "go[] to subject-matter jurisdiction.” Id.; see also

Henderson, 131 S. Ct. at 1202; Proctor v. Vishay

Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir. 2009).

The Court has clarified in recent years that the term

"'[j]urisdiction[al]' refers to a court's adjudicatory authority

. . . [and] properly applies only to prescriptions delineating

the classes of cases (subject-matter jurisdiction) and the

persons (personal jurisdiction) implicating that authority.”

WONG V. BEEBE 11

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61 (2010)

(emphasis added) (internal quotation marks and citation

omitted). Under this narrow interpretation, the term

"jurisdictional” "refers [only] to a tribunal's power to hear a

case.” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs &

Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S.

67, 81 (2009) (internal quotation marks omitted). So-called

"claim-processing rules,” by contrast, "are rules that seek to

promote the orderly progress of litigation by requiring that

the parties take certain procedural steps at certain specified

times.” Henderson, 131 S. Ct. at 1203.

"To ward off profligate use of the term 'jurisdiction,' [the

Court has] adopted a 'readily administrable bright line' for

determining whether to classify a statutory limitation as

jurisdictional.” Sebelius v. Auburn Reg'l Med. Ctr.,

133 S. Ct. 817, 824 (2013) (quoting Arbaugh v. Y & H Corp.,

546 U.S. 500, 516 (2006)). Specifically, courts must now ask

"whether Congress has 'clearly state[d]' that the rule is

jurisdictional; absent such a clear statement . . . 'courts should

treat the restriction as nonjurisdictional in character.'” Id.

(quoting Arbaugh, 546 U.S. at 515–16). Congress need not

"incant magic words in order to speak clearly.” Id. Rather,

courts are to review a statute's language, "context, and

relevant historical treatment” to determine whether Congress

clearly intended a statutory restriction to be jurisdictional.

Reed Elsevier, Inc., 559 U.S. at 166.

Applying this bright-line rule in a spate of recent cases,

the Court has held nonjurisdictional various statutory

limitations on the substantive coverage of statutes or the

procedures for enforcing them. See, e.g., Union Pac. R.R.,

558 U.S. at 81–82 (holding not jurisdictional a Railway Labor

Act procedural rule requiring proof of a prearbitration

12 WONG V. BEEBE

settlement conference); Reed Elsevier, 559 U.S. at 164–66

(holding not jurisdictional the Copyright Act registration

requirement); Gonzalez, 132 S. Ct. at 648–52 (holding not

jurisdictional certain provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA”) requiring

issuance of a certificate of appealability indicating which

specific issues sufficiently implicate the denial of a

constitutional right); but see Bowles, 551 U.S. at 209–10

(holding jurisdictional a time limit for filing a notice of

appeal in a civil case under 28 U.S.C. § 2107(c)).

As the issue here pertains to a statute of limitations, the

Court's recent decisions applying the "clear statement” rule

to statutory time limits are particularly instructive.

Henderson held that "a veteran's failure to file a notice of

appeal within the 120-day period” required under 38 U.S.C.

§ 7266(a) "should [not] be regarded as having 'jurisdictional'

consequences.” 131 S. Ct. at 1200. Canvassing the Court's

recent case law discussing jurisdictional versus

nonjurisdictional rules, Henderson explained that "[f]iling

deadlines . . . are quintessential claim-processing rules.” Id.

at 1203 (emphasis added). "[E]ven if important and

mandatory,” such rules, "should not be given the

jurisdictional brand.” Id.

Turning to the text of § 7266, Henderson emphasized that

the relevant provision "'does not speak in jurisdictional terms

or refer in any way to the jurisdiction of the [Veterans

Court].'” Id. at 1204 (quoting Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 394 (1982) (alteration in original)).

Although "§ 7266 is cast in mandatory language”—providing

that a claimant "shall file a notice of appeal . . . within 120

days”—Henderson "rejected the notion that 'all mandatory

prescriptions, however emphatic, are . . . properly typed

WONG V. BEEBE 13

jurisdictional.'” Id. at 1204–05 (quoting Union Pac. R.R.,

558 U.S. at 81) (emphasis added). Indeed, as Henderson

noted, Congress placed § 7266 "in a subchapter entitled

'Procedure,'” and not in the "Organization and Jurisdiction”

subchapter of the statute, which "suggests Congress regarded

the 120-day limit as a claim-processing rule.” Id. Henderson

therefore found no clear statement indicating that § 7266 was

"jurisdictional.” Id.; see also Holland, 130 S. Ct. at 2560

(holding not jurisdictional AEDPA's statute of limitations in

28 U.S.C. § 2244(d)).

More recently, Auburn Regional Medical Center

considered whether the Medicare Act's 180-day statutory

deadline for filing an administrative appeal challenging

Medicare reimbursements is jurisdictional. 133 S. Ct. at 821.

The Court held that it is not. "Key to our decision,” the Court

explained, is that "filing deadlines ordinarily are not

jurisdictional; indeed, we have described them as

'quintessential claim-processing rules.'” Id. at 825 (quoting

Henderson, 131 S. Ct. at 1203).

Auburn Regional Medical Center went on to reject the

notion that the 180-day limit was "jurisdictional simply

because it is placed in a section of a statute that also contains

jurisdictional provisions.” Id. at 825. Nor was it significant

in Auburn Regional Medical Center that Congress "expressly

made . . . other time limits in the Medicare Act”

nonjurisdictional. Id. (emphasis added). Structural

considerations such as these did not provide a "clear

statement” that Congress intended the 180-day limit to be

jurisdictional. The limitations provision was therefore "most

sensibly characterized as a nonjurisdictional prescription.”

Id. at 826.

14 WONG V. BEEBE

Finally, we applied a similar analysis in a recent en banc

case addressing whether the exhaustion-of-remedies

requirement of the Individuals with Disabilities Education

Act ("IDEA”), 20 U.S.C. § 1415(l), is jurisdictional. See

Payne v. Peninsula Sch. Dist., 653 F.3d 863 (2011) (en banc).

Based on the Supreme Court's recent line of cases "clarifying

the difference between provisions limiting our subject matter

jurisdiction, which cannot be waived . . . , and 'claims

processing provisions,'” we concluded that § 1415(l) is not

jurisdictional for three reasons. Id. at 867–69 (citing cases).

First, "we observe[d] that nothing in § 1415 mentions the

jurisdiction of the federal courts.” Id. at 869. "Second,

nothing in the relevant jurisdictional statutes requires

exhaustion under the IDEA.” Id. at 870. "Without clearer

instruction from Congress,” we declined to "infer” a

jurisdictional exhaustion-of-remedies requirement. Id.

"Finally, we [could] find no reason why § 1415(l) should be

read to make exhaustion a prerequisite to the exercise of

federal subject matter jurisdiction.” Id. To the contrary, we

suggested that there were "many good reasons why”

§ 1415(l) should not qualify as jurisdictional. Most notably,

determining whether a plaintiff had exhausted her remedies

is an "inexact science,” subject to various "fact-specific”

questions such as whether exhaustion would be futile. Id.

Thus, we summarized, § 1415(l) is not jurisdictional, as it "is

not clearly labeled jurisdictional, is not located in a

jurisdiction-granting provision, and admits of congressionally

authorized exceptions.” Id. at 870–71 (quoting Reed

Elsevier, 559 U.S. at 166); see also Leeson v. Transamerica

Disability Income Plan, 671 F.3d 969, 979 (9th Cir. 2012)

(holding that an employee's status as a plan "participant” is

an element of his ERISA claim, not a jurisdictional

limitation).

WONG V. BEEBE 15

3. § 2401(b) Is Not Jurisdictional

Marley stated that "[r]esolution of the present case . . .

[first] depends on how to categorize the six-month filing

deadline of § 2401(b)”—as a "jurisdictional” requirement or

as a nonjurisdictional "claim-processing rule.” 567 F.3d at

1035. That is true, but only in the asymmetrical sense that if

the deadline is jurisdictional, it cannot be tolled; as will

appear, even if it is not jurisdictional, tolling may still be

precluded by a sufficiently clear congressional expression of

that restriction. We hold that § 2401(b) falls squarely in the

claim-processing category, and so overrule Marley's contrary

conclusion.

Several factors underlie our conclusion that § 2401(b) is

nonjurisdictional.

a. Language

First, by its terms, § 2401(b) provides only that "[a] tort

claim against the United States shall be forever barred unless

. . . action is begun within six months” of mailing of notice of

the final agency denial. 28 U.S.C. § 2401(b). That statement

"does not speak in jurisdictional terms or refer in any way to

the jurisdiction of the [federal courts].” Henderson,

131 S. Ct. at 1204; see also Payne, 653 F.3d at 869–70.

Rather, § 2401(b) merely states what is ordinarily true of

statutory filing deadlines: once the limitations period ends,

whether extended by the application of tolling principles

or not, a plaintiff is "forever barred” from presenting his

claim to the relevant adjudicatory body. See Kubrick,

444 U.S. at 117.

16 WONG V. BEEBE

Notably, although the exact language differs, § 2401(b) is

the same in its lack of a reference to jurisdiction as the

general, non-tort statute of limitations contained in § 2401(a),

which establishes a six-year filing deadline for "every civil

action commenced against the United States.” 28 U.S.C.

§ 2401(a). And Cedars-Sinai Medical Center v. Shalala,

125 F.3d 765, 770 (9th Cir. 1997), held subsection (a)

nonjurisdictional, emphasizing that it "does not speak of

jurisdiction, but erects only a procedural bar.”2

Contrary to the government's assertion, § 2401(b) does

not contain such unusually emphatic language that we may

infer congressional intent to limit the adjudicatory authority

of the federal courts from that language. We have held on

prior occasions that statutes of limitations containing the

phrase "forever barred” are subject to equitable tolling. For

example, the 1955 Clayton Act Amendments provided that

any action to enforce a right under §§ 15, 15a, and 15c of the

Act "shall be forever barred unless commenced within four

years after the cause of action accrued.” 15 U.S.C. § 15b

(emphasis added); see also Pub. L. No. 137, 69 Stat. 283

(1955). Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d

394, 396–407 (9th Cir. 1980), determined that § 15b could be

equitably tolled. See also Hexcel Corp. v. Ineos Polymers,

Inc., 681 F.3d 1055, 1060–61 (9th Cir. 2012) (discussing

tolling under § 15b); cf. Rotella v. Wood, 528 U.S. 549, 561

(2000) (indicating that equitable tolling may be available for

2 Aloe Vera of America, Inc. v. United States, 580 F.3d 867, 872 (9th

Cir. 2009), called into question Ceder Sinai's continued vitality following

the Supreme Court's decision in John R. Sand & Gravel Co., 552 U.S. 130

(2008). That statement was made without the benefit of the Supreme

Court's most recent decisions clarifying the distinction between

jurisdictional and nonjurisdictional rules.

WONG V. BEEBE 17

civil claims brought under the Racketeer Influenced and

Corrupt Organizations Act ("RICO”), which applies the same

four-year statute of limitations in 15 U.S.C. § 15b).

Likewise, the 1947 amendments to the Fair Labor

Standards Act ("FLSA”)—which were enacted on the heels

of the FTCA—provided that every action under the FLSA

"shall be forever barred unless commenced within two years

after the cause of action accrued” 29 U.S.C. § 255(a)

(emphasis added); see also Pub. L. No. 40, § 6(b), 61 Stat. 84,

88 (1947). Partlow v. Jewish Orphans' Home of Southern

California, 645 F.2d 757, 760–61 (9th Cir. 1981), abrogated

on other grounds by Hoffman-La Roche, Inc. v. Sperling,

493 U.S. 165 (1989), held that this statute of limitations could

be equitably tolled.

In various other statutes enacted in the mid-twentieth

century, Congress included limitations provisions "forever

barr[ing]” untimely claims. See, e.g., Automobile Dealer

Franchise Act of 1956, 84 Pub. L. No. 1026, § 3, 70 Stat.

1125 (1956), codified at 15 U.S.C. § 1223 ("Any action

brought pursuant to this Act shall be forever barred unless

commenced within three years after the cause of action shall

have accrued.”) (emphasis added); National Traffic and

Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563,

§ 111(b), 80 Stat. 718, 725 (1966), as amended by Pub. L.

No. 103-272, 108 Stat. 745 (1994) ("Any action brought

pursuant to this section shall be forever barred unless

commenced within three years after the cause of action shall

have accrued.”) (emphasis added); Agricultural Fair Practices

Act of 1967, Pub. L. No. 90-288, § 6(a), 82 Stat. 93, 95

(1967), codified at 7 U.S.C. § 2305(c) (same); National

Mobile Home Construction and Safety Standards Act of

1974, Pub. L. No. 93-383, § 613, 88 Stat. 633, 707 (1974),

18 WONG V. BEEBE

codified at 42 U.S.C. § 5412(b) (same). Viewed against this

backdrop, § 2401(b)'s "forever barred” language appears to

be more a vestige of mid-twentieth-century congressional

drafting conventions than a "clear statement” of Congress's

intent to include a jurisdictional filing deadline in the FTCA.

Moreover, even if one does read the "forever barred”

language in § 2401(b) as an especially emphatic limitation on

FTCA claims, the Supreme Court's recent line of cases

clarifying the jurisdictional/nonjurisdictional distinction make

plain that not all "'mandatory prescriptions, however

emphatic, are . . . properly typed jurisdictional.'” Henderson,

131 S. Ct. at 1205 (quoting Union Pac. R.R., 558 U.S. at 81)

(emphasis added); see also Gonzalez, 132 S. Ct. at 651;

Kontrick, 540 U.S. at 454. And nothing in the text of

§ 2401(b) suggests that it is anything other than a

straightforward filing deadline—a "quintessential claimprocessing

rule[].” Henderson, 131 S. Ct. at 1203.

Undeterred by the statute's silence as to whether the

limitations period is jurisdictional (and by its placement in a

section not directed at jurisdiction), Judge Bea offers a grand

theory as to why § 2401(b) nonetheless clearly states a

jurisdictional rule, positing that there are two types of statutes

of limitations: "Plain Statutes of Limitations” and

"Consequence Statutes of Limitations.” Bea Dissent at 67,

71. The latter purportedly "provide mandatory consequences

for failures to act according to their prescriptions,” id. at 72,

and so "require the courts to respond in a certain way to a

party's failure to timely act.” Id. Judge Bea's dissent goes on

to maintain that whenever a limitations provision states that

a claim "shall be . . . barred,” or "forever barred,” "Congress

has spoken in jurisdictional terms” and the courts lack

authority to adjudicate the claim—even if there is no mention

WONG V. BEEBE 19

of jurisdiction or placement in a jurisdiction provision. Id. at

72–74.

Judge Bea's consequential language approach is not one

that the Supreme Court has ever articulated or relied upon in

determining whether a particular limitations provision is

jurisdictional. Indeed, the Court criticized this approach in

Irwin, noting that, "[a]n argument can undoubtedly be made

that the . . . language is more stringent . . . , but we are not

persuaded that the difference . . . is enough to manifest a

different congressional intent with respect to the availability

of equitable tolling.” 498 U.S. at 95. While the Court has

held jurisdictional certain limitations provisions containing

the phrase "shall be . . . barred,” it has never relied on the

notion of "consequential” language to do so.3 Instead, the

Court has repeatedly eschewed a "magic words” approach to

determining whether procedural requirements are

jurisdictional, repeatedly taking a multifactor approach to the

inquiry. See Reed Elsevier, 559 U.S. at 165; Auburn Reg'l

Med. Ctr., 133 S. Ct. at 824.

Beyond that observation, we shall bypass ruling on

whether Judge Bea's "consequential” language theory is a

helpful construct in some circumstances. As with most

3 Contrary to Judge Bea's assertion, John R. Sand & Gravel did not hold

28 U.S.C. § 2501 "jurisdictional” based on the "consequential” language

of the statute. Rather, it held Irwin's presumption of equitable tolling

rebutted based on the fact that "the Court had . . . previously provided a

definitive interpretation” of § 2501. 552 U.S. at 137. Nor did Bowles

hold that the limitations provision in 28 U.S.C. § 2107 was jurisdictional

solely based on its "consequential” language; like John R. Sand & Gravel,

Bowles rested largely on the "century's worth of precedent and practice in

American courts” ranking "time limits for filing a notice of appeal”

jurisdictional. 551 U.S. at 209 n.2.

20 WONG V. BEEBE

attempts to create rigid dichotomous categories, the trick is

not in devising the categories but in placing various

circumstances into one or the other category. Although,

according to Judge Bea, a limitations provision containing

"shall . . . be barred” language "'set[s] forth an inflexible rule

requiring dismissal,'” Bea Dissent at 75 (quoting Holland,

130 S. Ct. at 2560), the words relied upon simply do not have

that import.

First, as to the word "shall,” the Court consistently has

rejected arguments "seiz[ing] on the word 'shall'” to suggest

that "'all mandatory prescriptions, however emphatic, are . . .

properly typed jurisdictional.'” Gonzalez, 132 S. Ct. at 651

(quoting Henderson, 131 S. Ct. at 1205); see also Dolan v.

United States, 130 S. Ct. 2533, 2539 (2010) (holding that a

statute's use of the word "shall” alone does not render

statutory deadline jurisdictional).

Second, § 2401(b) does not in terms order courts to do

anything, including dismiss any untimely claim. Like the

exhaustion-of-remedies requirement at issue in Payne,

"neither the word 'courts' nor the word 'jurisdiction' appears

in [§ 2401(b)].” Payne, 653 F.3d at 869. Instead, the phrase

"shall be . . . barred” is couched in the passive tense, and so

could as well be directed to the plaintiff, barring him from

filing the suit, as to the court, directing it to bar the filing.

The "shall be . . . barred” language of the six-month filing

deadline therefore does not express "an inflexible rule

requiring dismissal whenever its clock has run.” Holland,

130 S. Ct. at 2560 (internal quotation marks omitted).

Third, the word "forever” in § 2401(b) cannot supply the

missing link with regard to declaration of an inflexible rule.

See Bea Dissent at 76–77. The word "forever” is most

WONG V. BEEBE 21

commonly understood as one focusing on time, not on scope

or degree of flexibility in a static time frame. See Webster's

New International Dictionary of the English Language 990

(2d ed. 1940) (defining "forever” to mean "[f]or a limitless

time or endless ages; everlastingly; eternally,” and "[a]t all

times; always; incessantly”); Oxford English Dictionary

(2013) (defining "forever” to mean "[a]lways, at all times; in

all cases . . . [t]hroughout all time, eternally; throughout all

past or all future time; perpetually”). As such, the term

"forever” is most naturally read to emphasize that an

untimely FTCA claim, once barred, is precluded permanently,

not temporarily or until some later event occurs. A claimant

therefore cannot refile the claim, nor may the time bar be

lifted once it is imposed. So understood, the term "forever”

does have a function in the statute, just not the one Judge Bea

posits.4 Thus, as the Fifth Circuit observed, "the use of the

words 'forever barred' [in § 2401(b)] is irrelevant to equitable

tolling, which properly conceived does not resuscitate stale

4 It is unclear how much weight the Bea dissent accords the term

"forever.” For the most part, the dissent categorizes statutes that simply

use "shall be barred” terminology as within its self-created "consequence”

category. See Bea Dissent at 72–75. But Judge Bea then devotes an entire

section to the word "forever,” and writes that "[i]t is especially telling”

that Congress included the term "forever barred” in § 2401(b), but did not

do so in § 2401(a), "the very section that precedes the one here in issue.”

Bea Dissent at 76-79.

In fact, as we have noted, § 2401(a) does provide that an FTCA claim

"shall be barred” unless it is filed within six years after the right of action

accrues. See 28 U.S.C. § 2401(a); see also Act of June 25, 1948, chap.

646, 62 Stat. 971 (1948). Thus, the dissent seems to rest, at least in part,

on the proposition that it is the word "forever” that transforms limitations

language into the "consequential” variety. For reasons discussed in the

text, the word "forever” cannot bear that weight.

22 WONG V. BEEBE

claims, but rather prevents them from becoming stale in the

first place.”5 Perez, 167 F.3d at 916.

In sum, nothing in the language of § 2401(b)—including

the term "shall . . . be barred,” and the word

"forever”—supplies a "clear statement” that Congress

intended the six-month filing deadline to be jurisdictional.6

5 Judge Bea also takes issue with Partlow and Mount Hood Stages,

supra, which, as discussed above, held statutes of limitation containing

language similar to § 2401(b) subject to equitable tolling. Judge Bea

questions the value of these precedents because they preceded the Court's

more recent cases distinguishing between jurisdictional and

nonjurisdictional rules. Bea Dissent at 84–87. As noted, however, later

decisions by this Court and the Supreme Court affirm the availability of

equitable tolling under 15 U.S.C. § 15b, the statute at issue in Partlow.

See Hexcel Corp., 681 F.3d at 1060–61; Rotella, 528 U.S. at 561. More

fundamentally, these precedents undermine the notion that Congress

intended through the use of magic words in the Clayton Act Amendments

and FLSA limitations provisions to establish jurisdictional bars in statutes

allowing for civil suits against private parties.

6 Judge Bea's reference to Kendall v. United States, 107 U.S. 123

(1883), as support for attributing jurisdictional meaning to the phrase

"forever barred,” Bea Dissent at 77–78, is misplaced. Though John R.

Sand & Gravel did rely on Kendall, it did so not because of Kendall's

logic, but out of deference to "[b]asic principles of stare decisis,” John R.

Sand & Gravel, 552 U.S. at 139, as the statute in John R. Sand & Gravel

was the same court of claims statute that Kendall (and Finn v. United

States, 123 U.S. 227 (1887), and Soriano v. United States, 352 U.S. 270

(1957)) had already interpreted. Id. at 134–35. Indeed, John R. Sand &

Gravel recognized that the older cases on which it relied were out of step

with Irwin, but justified that reliance on "Justice Brandeis['s] . . .

observ[ation] that 'in most matters it is more important that the applicable

rule of law be settled than that it be settled right.'” Id. at 139 (quoting

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting

opinion)).

WONG V. BEEBE 23

b. Placement

The "context” surrounding § 2401(b) likewise does not

"clearly” indicate Congress's intent to "rank” this provision

as jurisdictional. Auburn Reg'l Med. Ctr., 133 S. Ct. at 824.

The jurisdiction-granting provision of the FTCA is

located at 28 U.S.C. § 1346(b)(1) and provides that "[s]ubject

to the provisions of chapter 171 of this title, the district courts

. . . shall have exclusive jurisdiction of civil actions on claims

against the United States . . . under circumstances where the

United States, if a private person, would be liable to the

claimant.” Section 1346(b)(1) makes no mention of the sixmonth

filing deadline in § 2401(b). Furthermore, while

§ 1346(b)(1) does cross-reference "the provisions of chapter

171,” it does not cross-reference § 2401(b), which is located

in chapter 161, not chapter 171. Thus, the FTCA's statute of

limitations "is located in a provision separate from [the

provision] granting federal courts subject-matter jurisdiction

over [FTCA] claims.” Reed Elsevier, 559 U.S. at 164

(internal quotation marks omitted); see also Henderson,

131 S. Ct. at 1205.

Further, even if § 1326(b) did mention the six-month

filing deadline in § 2401(b), the Court's recent guidance on

this subject indicates that an otherwise nonjurisdictional

rule's location within a statutory scheme does not

automatically transform the rule into a jurisdictional

prerequisite. Thus, a rule "does not become jurisdictional

simply because it is placed in a section of a statute that also

contains jurisdictional provisions.” Auburn Reg'l Med. Ctr.,

133 S. Ct. at 825; see also Gonzalez, 132 S. Ct. at 651.

24 WONG V. BEEBE

Not satisfied with the plain language of § 1346(b), the

government looks elsewhere for a "clear statement” of

§ 2401(b)'s jurisdictional import: the legislative history of the

FTCA. According to the government, "[t]he FTCA's

limitations provision is found outside of chapter 171 only as

a happenstance of recodification.” In his dissent, Judge

Tashima likewise relies on the earlier version of the FTCA

to conclude that "Congress provided a clear statement [that

the FTCA's limitations provision was jurisdictional] when

enacting the provision in 1946,” and that statement remains

clear today. Tashima Dissent at 59.

In the first place, and dispositively, it is improper to

consider legislative history in this instance. "[T]he

authoritative statement is the statutory text, not the legislative

history or any other extrinsic material.” Exxon Mobil Corp.

v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).

Consequently, "when the statute's language is plain, the sole

function of the courts—at least where the disposition required

by the text is not absurd—is to enforce it according to its

terms.” Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A., 530 U.S. 1, 6 (2000) (quoting United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)) (internal

quotation marks omitted). The current statutory language of

§ 1326(b), the FTCA jurisdictional provision, crossreferences

other provisions of the FTCA but not the chapter

containing the limitations provision, § 2401(b). There is no

ambiguity whatever in this regard; chapter 171 is not, and

does not include, chapter 161, period.7

7 The fact that this statute "produce[d] an intracircuit split, several en

banc dissents, and dozens of pages of analysis by the majority,” Tashima

Dissent at 56, does not mean that the cross reference to chapter 171is itself

ambiguous. While reasonable jurists may certainly debate the general

WONG V. BEEBE 25

Secondly, even if we were to consider the FTCA's

legislative history, we could find no "clear statement” as to

jurisdiction. See Exxon Mobil, 545 U.S. at 568–69. Congress

first enacted the FTCA in 1946 as Title IV of the Legislative

Reorganization Act ("1946 Act”). See Pub. L. No. 79-601,

tit. IV, 60 Stat. 812, 842–47 (1946). The provisions of the

FTCA were codified in chapter 20 of Title 28 of the United

States Code. See 28 U.S.C. §§ 921–46 (1946).8 As originally

codified, the FTCA's grant of jurisdiction read:

equitable tolling question this case presents, the cross reference to chapter

171, and not to chapter 161, is plain as day.

8 The original limitations provision in Section 420 of the Act provided:

Every claim against the United States cognizable under

this title shall be forever barred, unless within one year

after such claim accrued . . . it is presented in writing to

the Federal agency out of whose activities it arises, if

such claim is for a sum not exceeding $1,000; or unless

within one year after such claim accrued . . . an action

is begun pursuant to part 3 of this title. In the event that

a claim for a sum not exceeding $1,000 is presented to

a Federal agency as aforesaid, the time to institute a suit

pursuant to part 3 of this title shall be extended for a

period of six months from the date of mailing of notice

to the claimant by such Federal agency as to the final

disposition of the claim or from the date of withdrawal

of the claim from such Federal agency pursuant to

section 410 of this title, if it would otherwise expire

before the end of such period.

60 Stat. 812, 845. As originally enacted, the FTCA did not require

claimants to exhaust their administrative remedies. That requirement was

added in 1966. See 28 U.S.C. § 2401(b) (1994); H.R. Rep. No. 89-1532

at 6–7 (1966); S. Rep. No. 89-1327 at 2–3 (1966).

26 WONG V. BEEBE

Subject to the provisions of this chapter, the

United States district court for the district

court wherein the plaintiff is resident or

wherein the act or omission complained of

occurred . . . shall have exclusive jurisdiction

to hear, determine, and render judgment on

any claim against the United States, for

money only . . . on account of personal injury

or death caused by the negligent or wrongful

act or omission of any employee of the

Government while acting within the scope of

his office or employment, under

circumstances where the United States, if a

private person, would be liable to the claimant

for such damage, loss, injury, or death in

accordance with the law of the place where

the act or omission occurred.

28 U.S.C. § 931(a) (1946). Congress recodified and

reorganized all of Title 28 in 1948, and, in the course of doing

so, placed the FTCA's limitations provision in its current

location in chapter 161, while placing most of the other

FTCA provisions formerly located in chapter 20 in chapter

171. Pub. L. No. 80-773 ("1948 Act”), 62 Stat. 869, 970–74

(1948); id. 62 Stat. 869, 982–85. The jurisdiction-granting

provision was relocated to chapter 85 and codified at

28 U.S.C. § 1346(b). Id. at 933. Because § 1346(b) was no

longer located in the same chapter as the other FTCA

provisions, the "subject to” phrase was changed to refer to

"the provisions of chapter 173 of this title.” Id.

As Judge Tashima points out, the reference in the 1948

version of § 1346(b) to chapter 173 was a scrivener's error,

as there was no chapter 173 of Title 28. Tashima Dissent at

WONG V. BEEBE 27

53. A year later, Congress corrected the error, changing the

language of § 1346(b) to read: "[s]ubject to the provisions of

chapter 171.” See Pub. L. No. 81-55, 63 Stat. 62 (1949). But

that correction did nothing to erase the fact that the only

cross-reference in the jurisdictional provision, § 1346(b), is

to a chapter, chapter 171, which does not contain the FTCA

limitations provisions.

Nor does the directive of the 1948 Act that we are not to

"infer . . . a legislative construction from the chapter in which

a provision appears” override the plain terms of § 1346(b) as

revised. No inference is required to conclude that the FTCA

jurisdictional provision is no longer "subject to” the

limitations section. Instead, one need only read § 1346(b) to

determine that that is so; again, chapter 161 is not chapter

171, period. Thus, although the Court "does not presume that

the 1948 revision worked a change in the underlying

substantive law unless an intent to make such a change is

clearly expressed,” John R. Sand & Gravel Co., 552 U.S. at

136 (internal quotation marks omitted), that intent was clearly

expressed when the cross-reference to § 1346(b) was revised

to include many provisions of the FTCA but not the

applicable limitations period.

Under Judge Tashima's "inference” approach to the clear

statutory language, it would not have mattered what Congress

wrote into the FTCA's jurisdictional grant in 1948 (and later

corrected in 1949). Congress could have revised the statute

to read "Subject to the provisions of chapter 171” (as it

eventually did); "Subject to the provisions of chapter 171 and

161”; or "Subject to the provisions of chapter 161,” and

Judge Tashima's interpretation would still be the

28 WONG V. BEEBE

same—"subject to any provision of the original FTCA as

codified in 1946.”9

We hold, instead, that § 1326(b) means what it says: that

the district courts "shall have exclusive jurisdiction of civil

actions on claims against the United States[] for money

damages,” "[s]ubject to the provisions of chapter 171.”

28 U.S.C. § 1326(b). The FTCA's legislative history cannot

supply a "clear statement” to the contrary. Accordingly, there

is no contextual reason to think that the limitations period

provisions are jurisdictional.10

9 We note as well that the proposition that any requirement that the

FTCA's jurisdictional grant is "subject to” is automatically a jurisdictional

prerequisite is a questionable one. The fact that § 1326(b) requires

plaintiffs to comply with certain requirements to file a claim against the

United States does not mean that each and every one of those

requirements concern "a tribunal's power to hear a case.” Union Pac.

R.R., 558 U.S. at 81. Indeed, "subject to” originally encompassed section

411 of Title IV, which made the Federal Rules of Civil Procedure

applicable in FTCA cases; under Judge Tashima's approach, compliance

with the Federal Rules would have thus been a jurisdictional requirement.

"Subject to” is more sensibly read to mean that litigants have to follow the

prescribed procedures, not that each and every one of those procedures, if

not followed, gives rise to the "drastic” consequences that follow from

lack of subject matter jurisdiction. See Gonzalez, 132 S. Ct. at 648. We

have never held otherwise. And where the Supreme Court has held a

specific provision in chapter 171 jurisdictional, it has not done so because

every rule in chapter 171 is a jurisdictional requirement. See McNeil v.

United States, 508 U.S. 106, 111–13 (1993); Smith v. United States,

507 U.S. 197, 199 (1993).

10 Aside from our holdings in Brady v. United States, 211 F.3d 499,

502–03 (9th Cir. 2000), and Lesoeur v. United States, 21 F.3d 965, 967

(9th Cir. 1994), which held, respectively, that the administrative

exhaustion requirement in § 2675(a) and discretionary function exception

in § 2680(a) are jurisdictional, we have not addressed whether any of the

other provisions in chapter 171 of the FTCA set forth jurisdictional

WONG V. BEEBE 29

c. Exceptions

In holding § 2401(b) "jurisdictional,” Marley found it

significant that Congress "explicitly included some

exceptions to the deadlines in § 2401(a), but included no such

exceptions in § 2401(b).” 567 F.3d at 1037. Section 2401(a)

provides, in relevant part, that an "action of any person under

legal disability or beyond the seas at the time the claim

accrues may be commenced within three years after the

disability ceases.” 28 U.S.C. § 2401(a). Marley reasoned

that "[b]ecause Congress chose to extend the time limit in

§ 2401(a) under certain circumstances, but did not include

any exceptions to the limitations period of § 2401(b), we

must conclude that Congress intended the deadlines of

§ 2401(b) to be adhered to strictly.” 567 F.3d at 1037

(emphasis omitted).

That conclusion cannot be squared with Auburn Regional

Medical Center, which rejected the argument that a statutory

time limit "should be viewed as jurisdictional because

Congress could have expressly made the provision

nonjurisdictional, and indeed did so for other time limits in

the [statute].” 133 S. Ct. at 825. Although "Congress's use

of certain language in one part of the statute and different

language in another can indicate that different meanings were

intended,” that interpretive principle cannot, without more,

provide the "clear statement” required to classify § 2401(b)

as "jurisdictional.” Id. at 825–26 (internal quotation marks

omitted); see also Santos, 559 F.3d at 195–96.

requirements. In holding § 2401(b) nonjurisdictional, we express no

views as to whether the other provisions located in chapter 171 are

jurisdictional.

30 WONG V. BEEBE

d. Earlier Cases

Finally, unlike in Bowles, 551 U.S. at 210–13, and John

R. Sand & Gravel, 552 U.S. at 137–39, there has not been a

venerable, consistent line of cases treating the FTCA

limitations period as jurisdictional counseling against

switching gears now. Although we have held that § 2401(b)

is jurisdictional, see Marley, 567 F.3d at 1035–36 (citing

Berti v. V.A. Hosp., 860 F.2d 338, 340 (9th Cir.1988);

Augustine v. United States, 704 F.2d 1074, 1077 (9th

Cir.1983); Blain v. United States, 552 F.2d 289, 291 (9th Cir.

1977) (per curiam); Mann v. United States, 399 F.2d 672, 673

(9th Cir. 1968)), unlike in Bowles and John R. Sand &

Gravel, there is no Supreme Court precedent on the question.

See Reed Elseveir, 559 U.S. at 173–74 (Ginsburg, J.

concurring) (rejecting citation to non-Supreme Court

precedent because Bowles and John R. Sand & Gravel "relied

on longstanding decisions of this Court typing the relevant

prescriptions 'jurisdictional'”) (emphasis in original). And

we have also held otherwise in Alvarez-Machain I, 107 F.3d

696.

Further, the pre-Alvarez-Machain I cases cited in Marley

preceded both Irwin and the Supreme Court's more recent

decisions clarifying the distinction between jurisdictional and

nonjurisdictional rules. Indeed, our pre-Alvarez-Machain I

decisions are emblematic of the "drive-by jurisdictional

rulings” to which the Supreme Court has cautioned against

giving "precedential effect” in its more recent cases. See

Arbaugh, 546 U.S. at 511. For example, Berti, a three-page

opinion, labels § 2401(b) "jurisdictional,” but provides no

WONG V. BEEBE 31

analysis as to the meaning or significance of that term.11 See

Berti, 860 F.2d at 340. Accordingly, this is certainly not the

"exceptional [case] in which a 'century's worth of precedent

and practice in American courts' rank [the] time limit as

jurisdictional.” Auburn Reg'l Med. Ctr., 133 S. Ct. at 825

(quoting Bowles, 551 U.S. at 209 n.2).

e. Purpose

Finally, with regard to the particular role of the FTCA's

six-month limitations period for filing suit we "find no reason

why [§ 2401(b)] should be read . . . [as] a prerequisite to the

exercise of federal subject matter jurisdiction.” Payne,

653 F.3d at 870.

First, the consideration that the FTCA authorizes suits

against the federal government does not, standing alone,

supply such a reason. In so concluding, "[w]e . . . have in

mind that the [FTCA] waives the immunity of the United

States and that in construing the statute of limitations, which

is a condition of that waiver, we should not take it upon

ourselves to extend the waiver beyond that which Congress

intended.” Kubrick, 444 U.S. at 117–18; see also Block v.

North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S.

273, 287 (1983). But the fact that the FTCA is predicated on

a sovereign immunity waiver does not make the six-month

filing deadline a jurisdictional prerequisite, not subject to

equitable tolling. Although waivers must be "strictly

construed,” Irwin explained that "[o]nce Congress has made

11 Blain, Mann, and Augustine, cited in Marley, addressed the two-year

administrative claim limitation period in § 2401(b), not the six-month

post-exhaustion period. See Blain, 552 F.2d at 291; Mann, 399 F.2d at

673; Augustine, 704 F.2d at 1077.

32 WONG V. BEEBE

such a waiver, . . . making the rule of equitable tolling

applicable to suits against the Government, in the same way

that is applicable to private suits, amounts to little, if any,

broadening of the congressional waiver.” Irwin, 498 U.S. at

94–95.

John R. Sand & Gravel, 552 U.S. 130, is not to the

contrary. That case did note that "[t]he Court has often read

the time limits of these [sovereign immunity waiver] statutes

as more absolute,” id. at 133–34, and "has sometimes referred

to the time limits in such statutes as 'jurisdictional.'”12 Id. at

133–34 (citing Bowles, 551 U.S. at 210). But John R. Sand

& Gravel did not turn on any bright-line distinction between

statutes of limitation that "protect a defendant's case-specific

interest in timeliness,” and those "limiting the scope of a

governmental waiver of sovereign immunity.” 552 U.S. at

133–34. Instead, John R. Sand & Gravel reiterated and

applied Irwin's presumption that equitable tolling applies to

statutes of limitations in suits against the government,

distinguishing Irwin on the grounds that "Irwin dealt with a

different limitations statute [that] . . . , while similar to

[§ 2501] in language, is unlike [§ 2501] in the key respect

that the Court had not previously provided a definitive

interpretation.” Id. at 137.

Second, there is no reason to think § 2401(b) more

concerned with "achiev[ing] a broader system-related goal”

12 The Court's other recent cases discussing the distinction between

jurisdictional and nonjurisdictional statutes, including Auburn Regional

Medical Center, 133 S. Ct. 817, Gonzalez, 132 S. Ct. 641, Henderson,

131 S. Ct. 1197, Holland, 130 S. Ct. 2549, and Bowles, 551 U.S. 205, also

involve lawsuits against governmental entities. But they were not lawsuits

in federal court against the federal government, and so may not raise

precisely parallel sovereign immunity concerns.

WONG V. BEEBE 33

than simply with protecting the government's "case-specific

interest in timeliness.” Id. at 133. Holland is instructive in

this regard. As noted above, Holland held that AEDPA's

statute of limitations in 28 U.S.C. § 2244(d) is not

jurisdictional, and therefore is "subject to a 'rebuttable

presumption' in favor 'of equitable tolling.'” 130 S. Ct. at

2560 (quoting Irwin, 498 U.S. at 95–96). Doing so, Holland

rejected the argument "that equitable tolling undermines

AEDPA's basic purposes.” Id. at 2562. While

acknowledging AEDPA's systemic goal of "eliminat[ing]

delays in the federal habeas review process,” Holland

emphasized that AEDPA "[does] not seek to end every

possible delay at all costs.” Id. Holland therefore declined

to read § 2244(d) as indicating "congressional intent to close

courthouse doors that a strong equitable claim would

ordinarily keep open.” Id.

Section 2401(b) likewise does not evince congressional

intent to foreclose the application of equitable principles for

the sake of "broader system-related goals.” As Kubrick

explained, § 2401(b)'s "obvious purpose[] . . . is to encourage

the prompt presentation of claims.” 444 U.S. at 117. That is

consistent "with the general purpose of statutes of limitations:

'to protect defendants against stale or unduly delayed

claims.'” Credit Suisse Sec. (USA) LLC v. Simmonds,

132 S. Ct. 1414, 1420 (2012) (quoting John R. Sand &

Gravel, 552 U.S. at 133).

McNeil v. United States, 508 U.S. 106 (1993), does not

detract from our conclusion. McNeil strictly construed the

administrative exhaustion requirement in 28 U.S.C.

§ 2675(a), holding that an FTCA action filed before

exhaustion had been completed could not proceed in the

district court even where the litigation had not substantially

34 WONG V. BEEBE

progressed. 508 U.S. at 111–13. The exhaustion

requirement, unlike the § 2401(b) limitations period, is tied

by explicit statutory language to jurisdiction, and was deemed

"jurisdictional” in Brady, 211 F.3d 499, 502 (9th Cir. 2000).

The "straightforward statutory command” in § 2675(a),

McNeil explained, served "[t]he interest in orderly

administration of this body of litigation.” Id. at 112.

Judge Bea maintains that McNeil's concern about the

"orderly administration of [FTCA] litigation” with respect to

the exhaustion-of-remedies requirement in § 2675(a) compels

us also to treat § 2401(b)'s six-month filing deadline as

jurisdictional. We disagree. Strict enforcement of an

exhaustion requirement serves to assure a particular

administrative interest—namely, the interest in assuring that

agency officials have a full opportunity to investigate and

consult internally with regard to claims for compensation due

to negligence by agency employees. Further, that purpose

recognized by the Supreme Court in McNeil—reducing court

congestion by keeping claims out of court until an

administrative agency has had a chance to settle them—is not

implicated by § 2401(b)'s sixth-month post-exhaustion

limitations period. See id. at 111–12, 112 n.8. Where agency

exhaustion is required, there is notice of the claim and of the

need for information collection, as well as an opportunity to

settle the claim, well before suit is filed in court.

In short, nothing in the text, context, or purpose of

§ 2401(b) clearly indicates that the FTCA's six-month

limitations period implicates the district courts' adjudicatory

authority. We therefore hold that § 2401(b) is a

nonjurisdictional claim-processing rule subject to the

presumption in favor of equitable tolling, and so overrule

Marley's contrary holding.

WONG V. BEEBE 35

4. The Irwin Presumption in Favor of Equitable

Tolling

Having concluded that § 2401(b) is a nonjurisdictional

statute of limitations subject to Irwin's presumption in favor

of equitable tolling, we must next determine whether that

presumption has been overcome in this case. See Holland,

130 S. Ct. at 2560; Albillo-De Leon v. Gonzales, 410 F.3d

1090, 1098 (9th Cir. 2005). "It is hornbook law that

limitations periods are customarily subject to equitable

tolling, unless tolling would be inconsistent with the text of

the relevant statute. Congress must be presumed to draft

limitations periods in light of this background principle.”

Young v. United States, 535 U.S. 43, 49–50 (2002) (internal

quotation marks and citations omitted). We must therefore

ask whether "there [is] good reason to believe that Congress

did not want the equitable tolling doctrine to apply” to

§ 2401(b). United States v. Brockamp, 519 U.S. 347, 350

(1997). There is no such reason.

As an initial matter, we note that the Irwin presumption

regarding the tolling of limitations periods in suits against the

federal government is particularly strong in FTCA cases.

Various provisions of the FTCA confirm that suits against the

government are to be treated no differently than suits against

private defendants.

For example, § 2674, governing the "Liability of [the]

United States,” states that "[t]he United States shall be liable,

respecting the provisions of this title relating to tort claims, in

the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674

(emphasis added); see Arteaga, 711 F.3d at 833. Likewise,

§ 1346(b)(1) grants the district courts exclusive jurisdiction

36 WONG V. BEEBE

over civil actions against the government "under

circumstances where the United States, if a private person,

would be liable.” Id. § 1346(b)(1) (emphasis added). Thus,

as a general matter, the FTCA places suits against the United

States on equal footing with suits against private individuals.

The Irwin presumption is further strengthened by the

"discovery” rule applicable to § 2401(b): A plaintiff is

required to file her claim with the relevant federal agency

"within two years after such claim accrues,” id. § 2401(b).

Applying the common law discovery rule—which does not

appear in the statute—courts view a claim as "'accru[ing]'

within the meaning of [§ 2401(b)] when the plaintiff knows

both the existence and the cause of his injury.” See Kubrick,

444 U.S. at 119–21 and n.7. As a practical matter, this

common law rule "extends the statute of limitations by

delaying the date on which it begins to run.” Arteaga,

711 F.3d at 833. Application of a common law discovery

rule not enunciated in the statute to aspects of § 2401(b)

reinforces the notion that the FTCA's statutes of limitations

admit of common law exceptions.

Without the discovery rule, the deadlines contained in

§ 2401(b) would closely resemble a "statute of repose”: "a

fixed, statutory cutoff date, usually independent of any

variable, such as claimant's awareness of a violation.”

Munoz v. Ashcroft, 339 F.3d 950, 957 (9th Cir. 2003).

"[L]ike a jurisdictional prerequisite,” a statute of repose is not

subject to equitable tolling. Albillo-De Leon, 410 F.3d at

1097 n.5; see also Lampf, Pleva, Lipkind, Prupis & Petigrow

v. Gilbertson, 501 U.S. 350, 363 (1991); Albano v. Shea

Homes Ltd. P'ship, 634 F.3d 524, 534–36 (9th Cir. 2011).

While a nonjurisdictional statute of limitations "bars

plaintiff[s] from bringing an already accrued claim after a

WONG V. BEEBE 37

specified period of time,” a statute of repose "terminates a

right of action after a specific time, even if the injury has not

yet occurred.” Fields v. Legacy Health Sys., 413 F.3d 943,

952 n.7 (9th Cir. 2005).13

Far from setting a fixed cutoff date, § 2401(b) "is in the

traditional form of a statute of limitations.” Johnson v.

Aljian, 490 F.3d 778, 781 n.12 (9th Cir. 2007). As such, just

as it is subject to the common law discovery rule, so the

presumption favoring equitable tolling applies.

That § 2401(b) acts as a condition on the FTCA's waiver

of sovereign immunity does not alter our conclusion,

essentially for the same reasons discussed earlier with regard

to the jurisdictional question. With or without a waiver of

sovereign immunity, the key inquiry, following Irwin,

remains whether equitable tolling "is inconsistent with the

text of the relevant statute.”14 United States v. Beggerly,

13 In Munoz, for example, we held that section 203 of the Nicaraguan

Adjustment and Central American Relief Act, Pub. L. No. 105–100, 111

Stat. 2160 (1997), was a statute of repose, because it contained "fixed,

statutory cutoff date[s]” requiring an alien to file an application for relief

by April 1, 1990 or December 31, 1991. The statute did "'not await a

specific event to start the deadline clock,'” but "'[r]ather . . . served as the

endpoint of the definite time period in which Congress would permit

[applicants] to file applications.'” 339 F.3d at 957 (quoting Iacono v.

Office of Pers. Mgmt., 974 F.2d 1326, 1328 (Fed. Cir. 1992) (emphasis

omitted)).

14 The Supreme Court has, at times, indicated that equitable

considerations are less likely to apply to limitations provisions limiting the

scope of a governmental waiver of sovereign immunity. See John R.

Gravel & Sand, 552 U.S. at 133–34; Soriano, 352 U.S. at 275–77. Most

notably, Soriano declined to equitably toll the statute of limitations for

filing a claim in the Court of Claims, 28 U.S.C. § 2501, explaining "that

38 WONG V. BEEBE

524 U.S. 38, 48 (1998); see also John R. Sand & Gravel,

552 U.S. at 139. For the reasons already discussed, nothing

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.

Neither Brockamp, 519 U.S. 347, nor Beggerly, 524 U.S.

38, two cases in which the Supreme Court held the Irwin

presumption rebutted, indicates that the same conclusion is

appropriate here. Brockamp held that a statute of limitations

for filing tax refund claims foreclosed application of

equitable tolling, citing as evidence of Congress's intent the

statute's "highly detailed,” "technical,” and "unusually

emphatic form.” 519 U.S. at 350. Brockamp further

emphasized that "tax law,” the subject matter of the statute of

limitations in that case, "is not normally characterized by

case-specific exceptions reflecting individual equities,” given

limitations and conditions upon which the Government consents to be

sued must be strictly observed and exceptions thereto are not to be

implied.” See 352 U.S. at 275–76.

Noting that the Court's "previous cases dealing with the effect of time

limits in suits against the Government have not been entirely consistent,”

Irwin discussed the result in Soriano, and concluded that its holding did

not apply to the thirty-day time limit in Title VII of the Civil Rights Act,

42 U.S.C. § 2000e-16(c). Irwin, 498 U.S. at 94–95. Instead, Irwin

explained, "this case affords us an opportunity to adopt a more general

rule to govern the applicability of equitable tolling in suits against the

Government,” namely, the rebuttable presumption in favor of tolling. Id.

at 95–96. In announcing this "general prospective rule,” John R. Sand &

Gravel, 552 U.S. at 137, Irwin did not expressly overrule Soriano, but

made clear that Soriano is not to be read to proscribe the application of

equitable doctrines to limitations on waivers of sovereign immunity in

every case.

WONG V. BEEBE 39

the more than "200 million tax returns” and "more than 90

million refunds” processed each year. Id. at 352. Beggerly,

in turn, determined that an "unusually generous” twelve-year

statute of limitations was "incompatible” with equitable

tolling, in large part because the underlying subject matter

concerned "ownership of land,” and equitable tolling would

"throw a cloud of uncertainty over [property] rights.”

524 U.S. at 48–49.

For reasons similar to those relied upon in the Supreme

Court's more recent Holland decision, the statute of

limitations here "differs significantly from the statutes at

issue in [Brockamp] and [Beggerly].” Holland, 130 S. Ct. at

2561. Holland held AEDPA's one-year statute of limitations

in 28 U.S.C. § 2244(d) nonjurisdictional and "subject to a

'rebuttable presumption' in favor 'of equitable tolling.'” Id.

at 2560 (quoting Irwin, 498 U.S. at 95–96) (emphasis

omitted)). Applying that presumption, Holland explained

that, unlike the statute of limitations at issue in Brockamp,

§ 2244(d) "does not contain language that is 'unusually

emphatic,' nor does it 're-iterat[e]' its time limitation.” Id. at

2561. Moreover, "unlike the subject matters at issue in both

Brockamp and Beggerly—tax collection and land

claims—AEDPA's subject matter, habeas corpus, pertains to

an area of the law where equity finds a comfortable home.”

Id. Accordingly, "neither AEDPA's textual characteristics

nor the statute's basic purposes 'rebut' the basic presumption

set forth in Irwin.” Id. at 2562.

The same conclusion applies to § 2401(b). As discussed

above, the FTCA's limitations provision is not cast in

particularly emphatic language given its provenance; nor is it

unusually generous. See Part II.A.3. And, unlike the

limitations provision in Brockamp, § 2401(b) does not

40 WONG V. BEEBE

"reiterate[] its limitations several times in several different

ways.” Brockamp, 519 U.S. at 351. Instead, § 2401(b)

"reads like an ordinary, run-of-the-mill statute of limitations,”

reflecting its period of enactment. Holland, 130 S. Ct. at

2561.

Furthermore, like the statute of limitations at issue in

Holland, § 2401(b) "pertains to an area of the law where

equity finds a comfortable home.” Id. As Irwin noted,

"[t]ime requirements in lawsuits between private litigants are

customarily subject to 'equitable tolling.'” 498 U.S. at 95.

And, as discussed above, the FTCA places tort suits against

the United States on equal footing with tort suits against

private individuals, exposing the government to liability "in

the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674.

That Congress saw fit to include a time limit on such claims

without any specific limitations on tolling indicates, if

anything, that it intended to allow the operation of normal

equitable tolling principles that would be applicable in

ordinary tort suits against private individuals, not that it

harbored an intention otherwise.

Rouse v. United States Department of State, 567 F.3d 408

(9th Cir. 2009) (analyzing the Privacy Act's two-year statute

of limitations, 5 U.S.C. § 552a(g)(5)), reached a similar result

to the one we reach here. In that case, a U.S. citizen sued the

"U.S. Department of State under the Privacy Act for damages

arising from his imprisonment in a foreign country.”

567 F.3d at 412. Rouse held, first, that the citizen's claims

were "sufficiently similar to traditional tort actions such as

misrepresentation and false light to warrant the application of

Irwin's rebuttable presumption.” Id. at 416. Next, Rouse

distinguished § 552a(g)(5) from the limitations provisions at

WONG V. BEEBE 41

issue in Brockamp and Beggerly, noting that § 552a(g)(5)

lacked "detail[ed], . . . technical language” and did not

concern an "area[] of law where the running of a defined

statute of limitations is of special importance.'” Id. at 417

(first alteration in original) (internal quotation marks

omitted). Rouse therefore concluded that the Irwin

presumption had not been rebutted in that case.

Finally, for the reasons similar to those we surveyed in

declining to infer § 2401(b)'s "jurisdictional” status from

other FTCA provisions and subsection (a) of § 2401, see

supra Part II.A.3, Congress's decision to include explicit

exceptions in other FTCA limitations provisions does not

rebut the Irwin presumption.15 As Holland explained, the fact

that a statute "is silent as to equitable tolling while containing

one provision that expressly refers to a different kind of

tolling” does not foreclose the application of equitable tolling.

130 S. Ct. at 2561–62; see also Young, 535 U.S. at 53

(rejecting the argument that an "express tolling provision,

appearing in the same subsection as the [limitations] period,

demonstrates a statutory intent not to toll the [limitations]

period”).

In short, the Irwin presumption is not overcome. Nothing

in § 2401(b)'s text or context indicates that Congress

intended to preclude courts from ever applying equitable

15 For example, the revisions of the Federal Employees Liability Reform

and Tort Compensation Act of 1988 (the "Westfall Act”), Pub. L. No.

100-964, §§ 5-6, 102 Stat. 4563, 4564-65 (1988), to 28 U.S.C.

§ 2679(d)(5), provide that an action dismissed under the exhaustion

requirement in 28 U.S.C. § 2675(a) is considered timely under 28 U.S.C.

§ 2401(b) if the administrative claim would have been timely had the

claim been filed on the date of commencement of the civil action. See

28 U.S.C. § 2679(d)(5).

42 WONG V. BEEBE

tolling to claims filed outside of the six-month limitations

period.

B. Wong Is Entitled to Equitable Tolling

Concluding, as we do, that equitable adjustment of the

limitations period in § 2401(b) is not prohibited, does not

decide under what circumstances equitable tolling may be

appropriate. Whether a particular untimely claim may be

excused for a particular reason varies with the reason. We

decide only that under the circumstances presented here, the

usual principles governing equitable tolling apply and we can

find no "good reason to believe that Congress did not want

the equitable tolling doctrine to apply.” Brockamp, 519 U.S.

at 350.

We assume for present purposes, without deciding, that

Wong's FTCA claim was filed in the district court too late.

In doing so, we pause to note that whether this is so depends

on: (1) whether the claim could be considered filed in the

district court at a point earlier than the amendment actually

adding the FTCA claim was filed; and (2) whether, if so, the

relevant filing date was (a) November 14, 2001, the date

Wong's formal motion to file the amended complaint was

filed; (b) November 20, 2001, the date as of which the motion

to file the amended complaint requested that the complaint be

amended; or (c) December 10, 2001, the date Wong's Reply

Memorandum on the motion to amend, which reiterated the

request to amend, was filed. Adopting the first of these

possible dates would create its own timeliness

problem—whether the court claim was filed too early—under

WONG V. BEEBE 43

McNeil, 508 U.S. at 111–13; adopting the second might also

raise a McNeil problem.16

Although there may be a defensible road through this

thicket yielding the result that the FTCA claim was timely

filed, at least constructively, cf. Fed. R. Civ. P. 15(c),

reaching that result would entail one or more novel rulings

concerning when FTCA claims added by amendment are

considered filed. Moreover, and notably, any such ruling

would in all likelihood itself rest on an equitable adjustment

of the usual application of limitations periods, because some

form of constructive filing date, different from the date the

amended complaint was actually filed in the district court,

would be required. In the end, then, there is little difference

in the underlying justification between applying traditional

equitable tolling principles and devising a novel equitable

solution to the filing date problem in this case. We therefore

proceed along the established, traditional route.

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.'” Holland,

130 S. Ct. at 2563 (quoting Hazel–Atlas Glass Co. v.

Hartford–Empire Co., 322 U.S. 238, 248 (1944)). Thus, the

equitable tolling doctrine "enables courts to meet new

situations [that] demand equitable intervention, and to accord

16 As noted, Wong's initial motion seeking leave to amend sought to

treat the INS's inactivity regarding her claim as the agency's final decision

under § 2675(a), but preceded the INS's denial of her claim on December

3, 2001. See supra part I.B.

44 WONG V. BEEBE

all the relief necessary to correct . . . particular injustices.”

Id. (internal quotation marks omitted) (alterations in original).

"[L]ong-settled equitable-tolling principles” instruct that

"'[g]enerally, a litigant seeking equitable tolling bears the

burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstances stood in his way.'” Credit Suisse, 132 S. Ct.

at 1419 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005) (emphasis omitted); see also Ramirez v. Yates,

571 F.3d 993, 997 (9th Cir. 2009). As to the first element,

"[t]he standard for reasonable diligence does not require an

overzealous or extreme pursuit of any and every avenue of

relief. It requires the effort that a reasonable person might be

expected to deliver under his or her particular circumstances.”

Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). Central

to the analysis is whether the plaintiff was "without any fault”

in pursuing his claim. Fed. Election Comm'n v. Williams,

104 F.3d 237, 240 (9th Cir. 1996).

With regard to the second showing, "a garden variety

claim of excusable neglect, such as a simple miscalculation

that leads a lawyer to miss a filing deadline, does not warrant

equitable tolling.” Holland, 130 S. Ct. at 2564 (internal

quotation marks and citations omitted). Instead, a litigant

must show that "extraordinary circumstances were the cause

of his untimeliness and . . . ma[de] it impossible to file [the

document] on time.” Ramirez, 571 F.3d at 997 (internal

quotation marks and citations omitted) (second alteration in

original). Accordingly, "[e]quitable tolling is typically

granted when litigants are unable to file timely [documents]

as a result of external circumstances beyond their direct

control.” Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir.

2008).

WONG V. BEEBE 45

Applying these longstanding principles in this case, we

conclude that whatever may be the case regarding other bases

for tolling, Wong's circumstances easily justify equitable

tolling. As noted, Wong's claim was untimely because it was

not filed within the six-month window running from

December 3, 2001—the date on which the INS denied

Wong's administrative claim—to June 3, 2002. That result

was not the consequence of any fault or lack of due diligence

on Wong's part. If anything, Wong took special care in

exercising due diligence: Wong first sought leave to file her

amended complaint "on or after November 20, 2001,” which

was, at the time that request was filed, the first day following

exhaustion of her administrative remedies on which Wong

would have been permitted to file her claim in the district

court. And, even after the INS denied her claim, thereby

starting anew the six-month deadline under § 2401(b), see

Lehman, 154 F.3d at 1014–15, Wong filed a Reply

Memorandum reiterating her request to file an amended

complaint including the FTCA claim. As the Magistrate

Judge noted, it was "due solely to the delay inherent in the

Magistrate Judge system” that no action was taken with

respect to those requests until the six-month limitations

period had already run. Moreover, by informing the parties

and the court of her desire to file an FTCA claim well before

the filing deadline and requesting leave to do so, Wong

fulfilled the notice concern that partially underlies limitations

statutes. See Crown, Cork & Seal Co., Inc. v. Parker,

462 U.S. 345, 352 (1983); Am. Pipe & Constr. Co. v. Utah,

414 U.S. 538, 554 (1974).

We are not persuaded by the government's assertion that

Wong was dilatory in seeking to file her claim because she

did not expressly request a timely ruling from the district

court. Nor are we persuaded that Wong should have filed an

46 WONG V. BEEBE

entirely new complaint alleging the FTCA claim rather than

waiting for a ruling on the motion to amend. Wong was

entitled to expect a timely ruling on her request to amend,

which was made with a great deal of time to spare. And

filing a new suit on the same facts as one pending would have

been inefficient for all concerned—which is why

amendments alleging new causes of action on the same

factual allegations are permitted. See Fed. R. Civ. P. 15.

Thus, Wong put forth the "effort that a reasonable person

might be expected to deliver under . . . her particular

circumstances.” Busby, 661 F.3d at 1015.

In short, Wong's claim was rendered untimely because of

external circumstances beyond her control. In light of these

circumstances, we conclude that equitable tolling properly

applies to excuse Wong's late-filed amended complaint, and

that her FTCA claim against the United States therefore may

proceed.

REVERSED and REMANDED.

Chief Judge KOZINSKI, concurring in the judgment:

I agree with Judges Tashima and Bea that 28 U.S.C.

§ 2401(b) is jurisdictional, but can't dissent because a

plaintiff like Wong who begins her FTCA action too early

can cure the defect by filing a motion to amend the premature

complaint. See Valadez-Lopez v. Chertoff, 656 F.3d 851,

855–58 (9th Cir. 2011). Wong filed such a motion before she

had finally exhausted her administrative remedies, which was

too soon. See 28 U.S.C. § 2675(a); McNeil v. United States,

508 U.S. 106, 112–13 (1993). But, on December 10, 2001,

WONG V. BEEBE 47

after the INS denied her claim and before the six-month

section 2401(b) window slammed shut, Wong filed a reply

memorandum reiterating her request for leave to file a second

amended complaint.

While we don't typically treat a reply as a motion, there's

nothing to preclude us from doing so. In this case, Wong's

request had all the physical attributes of a motion: It was

made in writing, filed with the court, served on the other side,

prayed for relief and "state[d] with particularity” why she was

entitled to it. See Fed. R. Civ. P. 7(b). She pointed out that

"the court currently has jurisdiction over plaintiffs' FTCA

claims and plaintiffs should be allowed to amend the

complaint to add those claims.” In her conclusion, she again

prayed for this relief: "[P]laintiffs should be granted leave to

file their Second Amended Complaint.”

The government concedes that if Wong moved for leave

to amend her complaint during the six months following the

INS's denial of her claim, she's entitled to maintain her

lawsuit. Cf. McNeil, 508 U.S. at 107–10 & n.5; Valadez-

Lopez, 656 F.3d at 855–58. Wong did file such a motion,

albeit within a document captioned "Reply Memorandum.”

The majority claims that construing Wong's reply as a

motion would be "novel,” maj. op. 43, but we regularly treat

non-motion filings as motions when equity calls for it. See,

e.g., United States v. Rewald, 835 F.2d 215, 216 (9th Cir.

1987) (construing notice of appeal as motion for remand);

United States v. Aguirre-Pineda, 349 Fed. App'x. 212, 2009

WL 3368445, at *1 (9th Cir. 2009) (construing letter as

motion for appointment of counsel); Rapanan v. Nikkei

Manor/Nikkei Concerns, 42 Fed. App'x. 976, 2002 WL

1891677 (9th Cir. 2002) (construing letter as motion for

48 WONG V. BEEBE

extension of time to request oral argument). And there's

certainly nothing novel about finding a motion nested within

a document that serves another purpose. See, e.g., United

States v. Harvey, 55 Fed. App'x. 445, 446 (9th Cir. 2003)

(construing opening brief as motion to withdraw as counsel

of record). Sometimes, we're even required to do so. See,

e.g., Ninth Circuit Rule 22-1(e) ("Uncertified issues raised

and designated in [an appellant's opening brief] will be

construed as a motion to expand the COA. . . .”). But even if

it were novel, so what? Novelty is not an enemy of justice;

we're judges, not plumbers.

We owe Wong the benefit of our compassion and

creativity. After all, had the district court acted on her motion

within the section 2401(b) six-month period, she wouldn't be

in this fix. But the court took more than seven months to act

on this routine motion—a delay Wong didn't cause and

couldn't have foreseen. The government suggests that,

instead of waiting for the district court to act on her motion,

Wong should have refiled it. Yeah, right. How many

litigants have the nerve to vex a federal judge with a clone

motion while the original is still pending? Bad things can

happen to those who twist the tiger's tail. See, e.g., Nugget

Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429,

439 (9th Cir. 1992) (affirming imposition of sanctions for

filing duplicative motions). Instead, Wong used her reply

sensibly: She reiterated her request to amend, advanced new

arguments in support of that request and pointed out that the

court had acquired jurisdiction to grant it. To treat Wong's

document as a legal nullity because she called it a reply rather

than a motion is inequitable and nonsensical. I thought we

had abandoned such pedantry in 1938. See 5 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1196 (3d ed. 2004) ("Fortunately, under federal practice the

WONG V. BEEBE 49

technical name attached to a motion or pleading is not as

important as its substance.”); see also Jack B. Weinstein, The

Ghost of Process Past: The Fiftieth Anniversary of the

Federal Rules of Civil Procedure and Erie, 54 Brook. L. Rev.

1, 2–3 (1988) ("When the Rules were first adopted, they were

optimistically intended to clear the procedural clouds so that

the sunlight of substance might shine through.”).

The majority claims that construing Wong's reply as

satisfying section 2401(b) would itself be "an equitable

adjustment of the usual application of limitations periods.”

Maj. op. 43. If we're willing to do that, my colleagues argue,

we should avoid this procedural "thicket” and just equitably

toll the statute of limitations. Id. "In the end,” the majority

concludes, "there is little difference in the underlying

justification between” its approach and mine. Id. But the

FTCA's text, context and relevant historical treatment

prohibit equitable tolling of the statutory deadline, not

equitable construction of court filings. The majority and I

may emerge on the same side—but I take the road our law

provides. And that makes all the difference.

McNeil v. United States, 508 U.S. 106 (1993), confirms

this. McNeil dealt with section 2675(a), a different timing

provision of the FTCA, which bars instituting an action in

federal court before the administrative claim is "finally

denied by the agency.” 508 U.S. at 111 (quoting 28 U.S.C.

§ 2675(a)). The Court held in no uncertain terms that this

exhaustion requirement is jurisdictional. McNeil, 508 U.S. at

113; see also Bea Dissent at 90. But it also left open the

possibility that a plaintiff who had filed a complaint

prematurely might, after agency denial, file something else

that "constitute[s] the commencement of a new action.”

McNeil, 508 U.S. at 110–11. The Court explained: "As the

50 WONG V. BEEBE

case comes to us, we assume that the Court of Appeals

correctly held that nothing done by petitioner after the denial

of his administrative claim on July 21, 1989, constituted the

commencement of a new action.” Id. at 110. The Court

reiterated this later in the opinion: "Again, the question

whether the Court of Appeals should have liberally construed

petitioner's letter [requesting counsel] as instituting a new

action is not before us.” Id. at 113 n.9. Thus, while finding

a similar FTCA timing requirement to be jurisdictional, the

Court made clear that the statute didn't impair our traditional

power to liberally construe court filings—even mere

letters—when equity calls for us to do so. If a letter asking

for counsel can be "liberally construed . . . as instituting a

new action,” why not a reply? The Court saw no

contradiction between construing the statute strictly and

construing a pleading liberally. That's plenty good enough

for me.

The federal judiciary caused Wong's problem, and in

good conscience we should use such powers as we have to

make it up to her. Had she filed nothing within the relevant

time-frame, there would be nothing for us to construe and

she'd be barred by the statute. See Bea Dissent; Tashima

Dissent. But Wong did file, and that document contains a

crystal clear motion to amend the complaint. We owe it to

Wong to recognize this. I therefore concur in the judgment

of the majority but in the reasoning of the dissents (as far as

they go).

TASHIMA, Circuit Judge, joined by BEA, Circuit Judge,

dissenting:

WONG V. BEEBE 51

I join Judge Bea's dissenting opinion in full. I write

separately to clarify the Federal Tort Claims Act's

("FTCA's”) legislative history. This history, once understood

in full context, dispels any doubt that the FTCA's limitations

provision was intended to be jurisdictional.

I.

Two provisions of the FTCA are central for present

purposes – the limitations provision, currently codified at

28 U.S.C. § 2401(b), and the jurisdiction-granting provision,

currently codified at 28 U.S.C. § 1346(b). I begin with a brief

history of these two provisions.

The FTCA was originally enacted in 1946 as Title IV of

the Legislative Reorganization Act. See Pub. L. No. 79-601

("1946 Act”), tit. IV, 60 Stat. 812, 842–47 (1946). Pursuant

to the 1946 Act, the provisions of the FTCA were codified in

Chapter 20 of Title 28. See 28 U.S.C. §§ 921–946 (1946).

Among these provisions was the jurisdiction-granting

provision, which read, in pertinent part:

Subject to the provisions of this chapter, the

United States district court for the district

wherein the plaintiff is resident or wherein the

act or omission complained of occurred,

including the United States district courts for

the Territories and possessions of the United

States, sitting without a jury, shall have

exclusive jurisdiction to hear, determine, and

render judgment on any claim against the

United States, for money only, accruing on

and after January 1, 1945, on account of

damage to or loss of property or on account of

52 WONG V. BEEBE

personal injury or death caused by the

negligent or wrongful act or omission of any

employee of the Government while acting

within the scope of his office or employment,

under circumstances where the United States,

if a private person, would be liable to the

claimant for such damage, loss, injury, or

death in accordance with the law of the place

where the act or omission occurred.

Id. § 931(a) (emphasis added). The FTCA thus conferred

exclusive federal jurisdiction over tort actions against the

United States, but "[s]ubject to the provisions of” Chapter 20.

Included within Chapter 20 was the FTCA's limitations

provision, then-codified at 28 U.S.C. § 942. See id. § 942.

Accordingly, as originally enacted in the 1946 Act, the

FTCA's grant of jurisdiction was "[s]ubject to” the

limitations provision.

Congress recodified and reorganized Title 28 in 1948.

See Pub. L. 80-773 ("1948 Act”), § 1, 62 Stat. 869 (1948).

As part of the recodification, most of the provisions formerly

grouped under Chapter 20 were regrouped under Chapter 171.

See id. at 982–85. The limitations provision, however, was

removed from this grouping and placed in its current location

in Chapter 161, at 28 U.S.C. § 2401(b). See id. at 970–71.

There, it was situated alongside 28 U.S.C. § 2401(a), which

provides for a six-year statute of limitations in other types of

civil actions against the United States. See id. at 971.

Also removed from the former Chapter 20 grouping was

the jurisdiction-granting provision, which was recodified in

Chapter 85, at 28 U.S.C. § 1346(b). See id. at 930, 933.

Similarly to the limitations provision, this move consolidated

WONG V. BEEBE 53

the jurisdiction-granting provision with the other provisions

of Title 28 granting jurisdiction in civil actions against the

United States. See id. at 933. Because the reference to "this

chapter” in the opening clause of § 1346(b) was now stale –

given that § 1346(b) was no longer in the same chapter as the

other FTCA provisions – the clause was changed to read,

"Subject to the provisions of chapter 173 of this title.” Id.

However, there was no Chapter 173 of Title 28. Rather,

this was a scrivener's error that should have read Chapter

171. Throughout the drafting history of the 1948 Act, the

chapter that would become Chapter 171 – titled "Tort Claims

Procedure” – had been designated Chapter 173, with the

cross-reference in § 1346(b) corresponding to this

designation. See, e.g., H.R. 2055, 80th Cong., chs. 85, 173

(1947). When the chapter was renumbered to 171 via a late

Senate amendment, see S. Rep. No. 80-1559, at 8 (1948), the

drafters simply failed to update the cross-reference in

§ 1346(b). It is thus evident that, as of the 1948 Act, the

opening clause of § 1346(b) should have read, "Subject to the

provisions of chapter 171 of this title.” Indeed, a year later,

Congress amended § 1346(b) to correct this error and change

the cross-reference to Chapter 171. See Pub. L. 81-55, 63

Stat. 62 (1949); see also S. Rep. No. 81-135, at 1–2 (1949).

II.

The history of the limitations and jurisdiction-granting

provisions, as recounted above, taken in conjunction with the

considerations discussed below, offer "a clear indication that

Congress wanted the [limitations] rule to be jurisdictional.”

Henderson ex. rel. Henderson v. Shinseki, 131 S. Ct. 1197,

1203 (2011) (internal quotation marks omitted). First, and

most importantly, it is plain that the limitations provision was

54 WONG V. BEEBE

jurisdictional as of the original 1946 Act, for the grant of

jurisdiction was expressly "[s]ubject to” – that is, "contingent

or conditional upon” – compliance with that provision. See

Webster's New World Dictionary 1333 (3d Coll. ed. 1994);

see also Webster's New International Dictionary 2509 (2d ed.

1940) (defining "subject to” as "[b]eing under the

contingency of; dependent upon or exposed to (some

contingent action)”). It is difficult to imagine a more "clear

statement” as to Congress' intent.1 See Sebelius v. Auburn

Reg'l Med. Ctr., 133 S. Ct. 817, 824 (2013).

If one accepts this proposition – which the majority only

obliquely disputes2 – then, in order to find § 2401(b) nonjurisdictional,

one must conclude that Congress intended to

1 Of course, this logic dictates that the requirements of Chapter 171 are

also jurisdictional. At least two Circuit Courts have so held in accord with

this reasoning. See Mader v. United States, 654 F.3d 794, 807 (8th Cir.

2011) (en banc) (relying on the "[s]ubject to” language of § 1346(b) in

finding the presentment requirements of 28 U.S.C. § 2675(a)

jurisdictional); White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457–58

(3d Cir. 2010) (relying on the same in finding the sum certain requirement

of 28 U.S.C. § 2675(b) jurisdictional). But see Parrott v. United States,

536 F.3d 629, 634–35 (7th Cir. 2008) (holding that the statutory

exceptions of 28 U.S.C. § 2680 are not jurisdictional, notwithstanding the

language of § 1346(b)).

2 In a footnote, the majority suggests that the phrase "'[s]ubject to' is

more sensibly read to mean that litigants have to follow the prescribed

procedures, not that each and every one of those procedures, if not

followed, gives rise to the 'drastic' consequences that follow from lack of

subject matter jurisdiction.” Maj. Op. at 28 n.9. This interpretation not

only ignores the ordinary meaning of "subject to,” but it would render the

opening clause of § 1346(b) surplusage. The very existence of the

"prescribed procedures,” as standalone statutory provisions, "means that

litigants have to follow [them].” Thus, the "[s]ubject to” clause of

§ 1346(b) would have no substantive import under the majority's reading.

WONG V. BEEBE 55

strip the limitations provision of its jurisdictional status only

two years later, through the 1948 Act. Under longestablished

Supreme Court precedent, however, we are not to

"presume that the 1948 revision worked a change in the

underlying substantive law unless an intent to make such a

change is clearly expressed.” John R. Sand & Gravel Co. v.

United States, 552 U.S. 130, 136 (2008) (internal quotation

marks omitted); see also Keene Corp. v. United States,

508 U.S. 200, 209 (1993) (citing cases applying this rule).

Here, not only is such "clearly expressed” intent lacking, but

there is an abundance of evidence to the contrary – that

Congress had no desire to alter the jurisdictional status of the

limitations provision.

In the Reviser's Notes to the 1948 Act,3 Congress

explained that § 2401 "consolidates” the FTCA's limitations

provision with the six-year limitations period of 28 U.S.C.

§ 2401(a), which, like §2401(b), had formerly been codified

elsewhere in Title 28. See H.R. Rep. 80-308, at A185 (1947);

see also 28 U.S.C. § 41(20) (1946) (former section of sixyear

limitations period). This purely organizational function

– to consolidate the provisions of Title 28 setting forth

limitations periods in actions against the government – is the

obvious reason that Congress separated § 2401(b) from the

other FTCA provisions and placed it in chapter 161.4 If there

3 The Supreme Court has repeatedly relied on the Reviser's Notes in

determining whether a substantive change was intended through the 1948

Act. See, e.g., John R. Sand & Gravel, 552 U.S. at 136; Newman-Green,

Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989).

4 The same purpose was carried out with respect to the jurisdictiongranting

provision, which was consolidated in § 1346 with the other

provisions of Title 28 granting jurisdiction in civil actions against the

government. See 1948 Act, § 1, 62 Stat. at 933; see also William W.

56 WONG V. BEEBE

were any doubt as to whether a substantive purpose was

intended, the Reviser's Notes then added, "Subsection (b) of

the revised section [2401] simplifies and restates [former

28 U.S.C. § 942], without change of substance.” H.R. Rep.

80-308, at A185 (emphasis added).

Congress provided equally definitive guidance in the

actual text of the 1948 Act. In an uncodified provision,

Congress instructed, "No inference of a legislative

construction is to be drawn by reason of the chapter in Title

28 . . . in which any [] section is placed.” 1948 Act, § 33,

62 Stat. at 991 (emphasis added). Of course, precisely such

an inference is required to find § 2401(b) non-jurisdictional,

because one must assume that Congress intended to alter the

jurisdictional status of the limitations provision by removing

it from the FTCA Chapter and placing it in Chapter 161.

In short, there is no indication – let alone a "clearly

expressed” indication – that Congress intended to alter the

jurisdictional status of the limitations provision through the

1948 Act.

III.

The majority offers several responses to this historical

evidence, none of which is persuasive. First, the majority

contends that "it is improper to consider legislative history”

because the statutory text is "plain.” Maj. Op. at 24. It is a

curious statute that is unambiguous but manages to produce

Barron, The Judicial Code: 1948 Revision, 8 F.R.D. 439, 445 (1949)

("The statutes conferring jurisdiction . . . are consolidated into a single

section. The revised section consolidates and clarifies three widely

separated provisions of the former code.”).

WONG V. BEEBE 57

an intracircuit split, several en banc dissents, and dozens of

pages of analysis by the majority to justify its conclusion.

These considerations aside, the fact is that the goal of the

jurisdictional inquiry is "to ascertain Congress' intent.”

Henderson, 131 S. Ct. at 1204. The majority recognizes that

we must look to factors such as "context” and "relevant

historical treatment” to discern this intent, Maj. Op. at 11

(quoting Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,

1246 (2010)), but it provides no reason why legislative

history may not similarly be considered.5 The majority, in

effect, invokes the requirement that there be evidence of clear

congressional intent, and it then seeks to shut the door on the

very evidence that could support this showing.

Perhaps recognizing that its "plain text” argument sits on

shaky ground, next, the majority implicitly acknowledges that

the limitations provision was jurisdictional under the original

1946 Act, but it contends that the 1948 revision undid this

status. Maj. Op. at 25–28. In this regard, the majority does

at least make a passing reference to the rule that we are not to

presume the 1948 Act effected substantive change unless

"clearly expressed.” Maj. Op. at 27. According to the

majority, though, such clear expression can be found in

Congress' amending the cross-reference in § 1346(b) to

Chapter 171, which did not include the limitations provision.

Maj. Op. at 27.

5 As described below, the legislative history is particularly probative of

congressional intent in the instant case given that the focus is on the

statutory scheme as enacted by Congress, and given that this enactment

occurred only two years prior to the adoption of the current statutory

language.

58 WONG V. BEEBE

This argument quickly falls apart upon considering the

history of the two key provisions. As explained, the removal

of the limitations provision from the FTCA Chapter was

solely for organizational purposes, to consolidate the

provisions of Title 28 setting forth limitations periods in

actions against the government. Likewise, the redesignation

of the cross-reference in § 1346(b), to Chapter 171, was

merely an artifact of reorganization. The jurisdictiongranting

provision previously referenced "this chapter” –

referring to the FTCA Chapter of Title 28 – but this reference

became outdated once the jurisdiction-granting provision was

stripped out of the FTCA Chapter. Congress simply updated

the cross-reference, inserting the new number of the FTCA

Chapter, Chapter 171. In the end, therefore, the majority's

argument is entirely circular. The majority relies on the

reorganization, and nothing else, as a clear expression that the

reorganization effected substantive change.6

Finally, the majority falls back on the notion that the

FTCA's "drafting history” cannot supply a clear statement of

Congress' intent. Maj. Op. at 27–28. The 1946 Act,

however, does not reflect "drafting history.” It is the

6 The majority contends that, under my treatment of the legislative

history, the limitations period would remain jurisdictional regardless of

"what Congress wrote into the FTCA's jurisdictional grant in 1948.” Maj.

Op. at 27. Hardly the case. If Congress truly intended to alter the

provision's jurisdictional status, it could have provided an affirmative

statement to this effect in the text of the 1948 Act, in the Reviser's Notes,

or elsewhere in the legislative history. See Barron, supra, at 446

("Congress . . . includ[ed] in its reports the complete Reviser's Notes to

each section in which are noted all instances where change is intended and

the reasons therefor.”). The requirement that Congress affirmatively

express such an intent is not one I have created, but one that is mandated

as a matter of Supreme Court doctrine. See Keene Corp., 508 U.S. at 209.

WONG V. BEEBE 59

statutory scheme as enacted by Congress. And it is the

scheme put into place only two years prior to the revisions

that produced the current statutory language, revisions that

we are to presume did not effect any substantive change.

Under these circumstances, it is entirely reasonable to rely on

the 1946 Act as providing a "clear indication” of Congress'

intent. Henderson, 131 S. Ct. at 1205.

IV.

Given the legislative history recited above, I have little

difficulty concluding that the FTCA's limitations provision

was intended to be jurisdictional. Congress provided a clear

statement to this effect when enacting the provision in 1946.

When reorganizing Title 28 only two years later, Congress

did not "clearly express[],” or provide any indication at all,

that it intended to disturb this status. For these reasons, as

well as the reasons outlined in Judge Bea's dissenting

opinion, I respectfully dissent.

BEA, Circuit Judge, with whom TASHIMA, Circuit Judge,

joins, dissenting:

The majority opinion permits courts, for equitable

reasons, to extend the time in which a tort action can be

begun against the Government, after the obligatory

administrative claim has been filed and denied. Because I

believe Congress clearly expressed its intent that 28 U.S.C.

§ 2401(b) would limit the jurisdiction of federal courts by

providing that tort claims "shall be forever barred” unless

action is begun within the six-month period following denial

60 WONG V. BEEBE

of the administrative claim by the concerned agency, with no

exceptions, I respectfully dissent.

I. The "Jurisdictional” vs. "Claim-Processing”

Distinction and Our Inquiry

The majority is correct, of course, in noting that the

Supreme Court has created a rebuttable presumption that

equitable tolling applies to suits against the United States.

See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95–96

(1990).1 But that presumption is not universally applicable.

As the majority admits, it has no application to certain kinds

of "more absolute” statutes of limitations. See John R. Sand

1 In Irwin, the petitioner was fired from his job by the Veterans'

Administration ("VA”). See id. at 90. He filed a complaint with the VA,

alleging that it had unlawfully discharged him on the basis of race and

physical disability. See id. at 91. The VA dismissed the complaint, and

the Equal Employment Opportunity Commission ("EEOC”) affirmed that

decision. See id. The petitioner had the right to file a civil action in

district court but was required to do so within 30 days of the EEOC's

affirmance. See id. (citing 42 U.S.C. § 2000e-16(c)). The petitioner filed

a complaint in district court 44 days after his attorney's office received the

EEOC's notice, which was only 29 days after the date on which he

claimed to have received the notice. See id. The district court held that

the limitations period began when the attorney's office received the notice

and granted the VA's motion to dismiss for lack of jurisdiction. See id.

The Fifth Circuit affirmed and held that compliance with § 2000e-16(c)'s

time limit was a jurisdictional requirement. See id. The Supreme Court

held that § 2000e-16(c)'s time limit was not jurisdictional; instead, the

Court held that "the same rebuttable presumption of equitable tolling

applicable to suits against private defendants should also apply to suits

against the United States.” Id. at 95–96. Because the principles of

equitable tolling did "not extend to what is at best a garden variety claim

of excusable neglect,” however, the Court affirmed the dismissal. See id.

at 96.

WONG V. BEEBE 61

& Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008).2

These "more absolute” statutes "seek not so much to protect

a defendant's case-specific interest in timeliness as to achieve

a broader system-related goal, such as facilitating the

administration of claims, limiting the scope of a

governmental waiver of sovereign immunity, or promoting

judicial efficiency.” Id. at 133. The Court has described the

time limits in such statutes of limitations as "jurisdictional.”

See id. at 134.

The majority believes the distinction between these "more

absolute” or "jurisdictional” statutes, to which courts cannot

create exceptions based on equitable considerations, and mere

"claim-processing rules,” to which Irwin's rebuttable

presumption applies, is "critical for present purposes.” See

Op. at 8–9. The majority calls § 2401(b) a "quintessential

claim-processing rule,” see Op. at 18, but calling something

2 In John R. Sand & Gravel, the petitioner filed an action in the Court of

Federal Claims, asserting that various Environmental Protection Agency

activities on land it leased for mining purposes amounted to an

unconstitutional taking of its leasehold rights. See id. at 132. The

Government initially asserted that the claims were untimely under

28 U.S.C. § 2501, which provides that "[e]very claim of which the United

States Court of Federal Claims has jurisdiction shall be barred unless the

petition thereon is filed within six years after such claim first accrues.”

See id. (quoting 28 U.S.C. § 2501). The Government later conceded that

certain claims were timely, and subsequently won on the merits. See id.

On appeal, the Court of Appeals for the Federal Circuit held that the

action was untimely filed and should have been dismissed for that reason.

See id. at 133. The Supreme Court affirmed and held that compliance

with § 2501's time limit is a jurisdictional requirement. See id. at 138–39.

As noted below, the Court also explained the difference between

jurisdictional statutes of limitations and those to which Irwin's

presumption can be applied. See id. at 133–34.

62 WONG V. BEEBE

a name does not change its nature.3 And the critical question

is not whether we characterize § 2401(b) as a "quintessential

claim-processing rule,” see Op. at 18, but whether Congress

mandated that its prescribed time limit be jurisdictional, see

Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011) (noting

that "Congress is free to attach the conditions that go with the

jurisdictional label to a rule that [courts] would prefer to call

a claim-processing rule.”).4 To make this determination, the

court must "look to see if there is any clear indication that

Congress wanted the rule to be jurisdictional.” Id. (internal

quotation marks and citation omitted). And, to find such a

"clear indication,” we must examine the statute's "text,

3 The majority ignores the simple truth contained in the aphorism

ascribed, perhaps apocryphally, to Abraham Lincoln: "If you call a tail a

leg, how many legs has a dog? Five? No, calling a tail a leg don't make

it a leg.”

4 In Henderson, the petitioner, a veteran of the Korean War who had

been given a 100-percent disability rating for paranoid shizophrenia, filed

a claim with the Department of Veterans Affairs ("VA”) for supplemental

benefits based on his need for in-home care. See id. at 1201. The VA

regional office and Board of Veterans' Appeals denied the petitioner's

claim. See id. The petitioner filed a notice of appeal with the Veterans

Court, but he missed the 120-day filing deadline by 15 days. See id.

(citing 38 U.S.C. § 7266(a)). The Veterans Court dismissed the appeal for

lack of jurisdiction, treating compliance with the 120-day deadline as a

jurisdictional requirement. See id. at 1202. The Federal Circuit affirmed.

See id. Because § 7266(a) "provide[d] no clear indication that Congress

wanted the provision to be treated as having jurisdictional attributes,” the

Supreme Court reversed and held that the 120-day limitation period was

not jurisdictional. Id. at 1205–06.

WONG V. BEEBE 63

context and relevant historical treatment.” Reed Elsevier, Inc.

v. Muchnick, 559 U.S. 154, 166 (2010).5

II. The Statute's Text

Section 2401(b) provides, in relevant part, that "[a] tort

claim against the United States shall be forever 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.”

28 U.S.C. § 2401(b).

A. Reading § 2401(b) with § 2675.

Perhaps where the majority goes wrong is in considering

§ 2401(b) as a stand-alone statute of limitations, rather than

considering it in conjunction with the complementary

administrative exhaustion requirement of 28 U.S.C. § 2675.

The Court has instructed against such a restrictive view of

5 In Reed Elsevier, authors, some of whom had registered copyrights for

their works and others who had not, sued publishers and electronic

databases for copyright infringement. See id. at 158. The parties settled

and filed a motion in federal district court to certify a class for settlement

and approve the settlement agreement. See id. at 159. Ten freelance

authors ("the Muchnick respondents”) objected. See id. The district court

overruled those objections, certified a settlement class of freelance

authors, approved the settlement, and entered final judgment. See id. The

Muchnick respondents appealed, and the Second Circuit held that the

district court lacked jurisdiction to certify a class of claims arising from

the infringement of unregistered works. See id. at 159–60 (citing

17 U.S.C. § 411(a), which provides, in relevant part, that "no civil action

for infringement of the copyright in any United States work shall be

instituted until preregistration or registration of the copyright claim has

been made”). The Supreme Court reversed and held that § 411(a)

imposed a non-jurisdictional precondition to suit. See id. at 166.

64 WONG V. BEEBE

statutory conditions for bringing suit. See United States v.

Dalm, 494 U.S. 596, 601 (1990).6 Instead, courts should read

together "provisions which qualify an [individual]'s right to

bring . . . suit upon compliance with certain conditions.” Id.7

6 In Dalm, the respondent had been appointed administratrix of her

employer's estate. See id. at 598. In return for her services, she received

fees from the estate and two payments from the employer's surviving

brother. See id. at 599. The respondent reported the latter payments as

gifts and paid the appropriate gift tax. See id. The Internal Revenue

Service ("IRS”) audited the respondent's income tax returns and

determined that the payments should have been reported as income. See

id. The respondent petitioned the Tax Court for a redetermination but

subsequently settled the case. See id. After she agreed to the settlement,

the respondent immediately filed an administrative claim for return of the

gift tax she had paid. See id. When the IRS failed to act on her claim

within six months, she filed suit in district court, seeking a refund of

"overpaid gift tax.” Id. at 600. The district court granted the

Government's motion to dismiss the suit for lack of jurisdiction, because

the respondent's suit was untimely under the applicable statute of

limitations: 26 U.S.C. § 6511(a). See id. The Sixth Circuit reversed and

held that the doctrine of equitable recoupment should be applied to permit

the respondent's suit to proceed. See id. The Supreme Court reversed and

held that the district court did not have jurisdiction to entertain the

untimely action. See id. at 610.

7 In Dalm, there were two such provisions. See id. at 601–02 (stating

that 26 U.S.C. § 7422, which provides that "[n]o suit or proceeding shall

be maintained in any court for the recovery of any internal revenue tax

alleged to have been erroneously or illegally assessed or collected . . . until

a claim for refund or credit has been duly filed with the Secretary,” and

26 U.S.C. § 6511(a), which provides that, if a taxpayer is required to file

a return with respect to a tax, the "[c]laim for refund or credit . . . shall be

filed by the taxpayer within 3 years from the time the return was filed or

2 years from the time the tax was paid, whichever of such periods expires

the later,” were both relevant qualifications on a taxpayer's right to bring

a refund suit). Because both provisions established conditions on a

taxpayer's right to bring suit, the Court read them together. See id. at 602

("Read together, the import of these sections is clear: unless a claim for

WONG V. BEEBE 65

Here, two statutory provisions qualify an individual's right to

file suit for tort against the United States. See 28 U.S.C.

§ 2675(a); 28 U.S.C. § 2401(b). First, § 2675 provides that

"[a]n action shall not be instituted upon a claim against the

United States for money damages . . . , unless the claimant

shall have first presented the claim to the appropriate Federal

agency and 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). This section requires that an

administrative claim be made to the responsible agency, and

it disallows suit until the denial of such claim is final. See id.

No such administrative claims filing is needed to commence

an action against a private person under applicable state law.

Irwin, 498 U.S. at 96 (reasoning that principles "applicable to

suits against private defendants should also apply to suits

against the United States”).

Section 2401(b) is § 2675(a)'s logical complement. It

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 or

action is begun within six months after the

date of mailing, by certified or registered

refund of a tax has been filed within the time limits imposed by § 6511(a),

a suit for refund . . . may not be maintained in any court.” (citations

omitted)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 167 (2012) ("Perhaps no interpretive fault is

more common than the failure to follow the whole-text canon, which calls

on the judicial interpreter to consider the entire text, in view of its

structure and of the physical and logical relation of its many parts.”).

66 WONG V. BEEBE

mail, of notice of final denial of the claim by

the agency to which it was presented.

28 U.S.C. § 2401(b). This provision establishes the time

limits applicable to presenting an administrative claim and

beginning a civil action. As in Dalm, the import of these two

sections is clear when they are read together: Unless an

administrative claim is presented to the responsible agency

before action is begun, and unless both the claim and the

action are begun within the time limits imposed by § 2401(b),

the tort claim against the United States "shall be forever

barred.”

B. Section 2401(b) Refers to Courts' Jurisdiction.

The majority holds, in a rather conclusory fashion, that

§ 2401(b) "does not speak in jurisdictional terms or refer in

any way to the jurisdiction of the federal courts.” Op. at 15

(internal quotations and citations omitted). I disagree. While

it is true that § 2401(b) does not mention the term

"jurisdiction,” the same is true of several statutes of

limitations the Court has found to be jurisdictional. See John

R. Sand & Gravel, 552 U.S. at 134 (holding 28 U.S.C. § 2501

jurisdictional, despite the absence of the term "jurisdiction”);

Bowles v. Russell, 551 U.S. 205, 213 (2007) (same with

respect to 28 U.S.C. § 2107(a) and (c))8; Dalm, 494 U.S. at

8 In Bowles, an Ohio jury convicted the petitioner of murder and

sentenced him to 15-years-to-life imprisonment. See id. at 207. The

petitioner unsuccessfully challenged his conviction and sentence on direct

appeal, and then filed a federal habeas corpus petition. See id. The

district court denied habeas relief. See id. After the entry of final

judgment, the petitioner had 30 days to file a notice of appeal. See id.

(citing 28 U.S.C. § 2107(a)). He failed to do so. See id. Instead, he later

filed a motion to reopen the period in which to file a notice of appeal

WONG V. BEEBE 67

609 (same with respect to 26 U.S.C. § 7422(a) and 26 U.S.C.

§ 6511(a)).9 The majority fails to appreciate a crucial

difference between the statutes of limitations the Court has

deemed jurisdictional and those to which the Court has

applied equitable tolling: whether the statute expressly

mandates a consequence for the failure timely to file.

1. Plain Statutes of Limitations: No Consequences

Mandated for Failure Timely to File

Some statutes of limitations require that certain actions be

performed within a specified period of time without

specifying consequences to be applied where the actions are

not performed as prescribed. See, e.g., 17 U.S.C. § 411(a)

("[Subject to certain exceptions], no civil action for

infringement of the copyright in any United States work shall

be instituted until preregistration or registration of the

copyright claim has been made in accordance with this

title.”); 28 U.S.C. § 2244(d)(1) ("A 1-year period of

limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

under 28 U.S.C. § 2107(c), which allows district courts to extend the filing

period for 14 days. See id. The district court granted the motion to

reopen, but "inexplicably gave [the petitioner] 17 days,” instead of the 14

days permitted by statute. See id. The petitioner filed his notice of appeal

after the 14-day period allowed by statute but within the 17 days allowed

by the district court. See id. The Sixth Circuit held that it lacked

jurisdiction to entertain the appeal, because the notice of appeal was

untimely filed. See id. The Supreme Court affirmed and held that "the

timely filing of a notice of appeal in a civil case is a jurisdictional

requirement.” Id. at 214.

9 Unfortunately, the Court has not yet analyzed whether § 2401(b) is or

is not jurisdictional. We must therefore use what tools the Court has given

us in its discussions of similar statutory provisions and reason by analogy.

68 WONG V. BEEBE

State court.”); 38 U.S.C. § 7266(a) ("In order to obtain review

by the Court of Appeals for Veterans Claims of a final

decision of the Board of Veterans' Appeals, a person

adversely affected by such decision shall file a notice of

appeal with the Court within 120 days after the date on which

notice of the decision is mailed . . . .”); F. R. Bankr. P.

4004(a) ("[A] complaint . . . objecting to the debtor's

discharge shall be filed no later than 60 days after the first

date set for the meeting of creditors under §341(a).”). These

statutes, as evidenced by the quotations above, are often

written in mandatory terms. Significantly, while they make

parties' actions mandatory, they do not contain mandatory

consequences for noncompliance.

The Court has instructed that "if a statute does not specify

a consequence for noncompliance with statutory timing

provisions, the federal courts will not in the ordinary course

impose their own coercive sanction.” Barnhart v. Peabody

Coal Co., 537 U.S. 149, 159 (2003).10 It makes good sense,

10 In Barnhart, the Court addressed 26 U.S.C. § 9706(a)'s requirement

that the Commissioner of Social Security assign, before October 1, 1993,

each coal industry retiree eligible for benefits to an operating company or

related entity, which would then be responsible for funding the assigned

beneficiary's benefits. See id. at 152–53. The Commissioner did not

complete all the assignments by the statutory date, and several coal

companies challenged the Commissioner's by then tardy assignments. See

id. at 156. The companies obtained summary judgments in each case, and

the Sixth Circuit affirmed. See id. at 157. The Supreme Court held that

it was "unrealistic to think that Congress understood unassigned status as

an enduring 'consequence' of uncompleted work, for nothing indicates

that Congress even foresaw that some beneficiaries matchable with

operators still in business might not be assigned before October 1, 1993.”

Id. at 164–65. Thus, it read the statutory deadline as "a spur to prompt

action, not as a bar to tardy completion of the business of ensuring that

benefits are funded . . . by those identified by Congress as principally

WONG V. BEEBE 69

then, that the Court has regularly held that statutes of

limitations lacking provisions specifying consequences do

not speak in jurisdictional terms or refer to the courts'

jurisdiction. See, e.g., Henderson, 131 S. Ct. at 1204

(holding that the terms of 38 U.S.C. § 7266(a) "do not

suggest, let alone provide clear evidence, that the provision

was meant to carry jurisdictional consequences”); Holland v.

Florida, 130 S. Ct. 2549, 2560 (2010) (holding that

28 U.S.C. § 2244(d)(1) "does not set forth an inflexible rule

requiring dismissal whenever its clock has run” (internal

quotation marks and citations omitted))11; Reed Elsevier,

responsible.” Id. at 172.

11 In Holland, the petitioner was convicted of first-degree murder and

sentenced to death. See id. at 2555. The Florida Supreme Court affirmed

that judgment, and, on October 1, 2001, the Supreme Court denied the

petition for certiorari. See id. On that date, 28 U.S.C. § 2244(d)'s oneyear

statute of limitations for filing a habeas petition began to run. See id.

On September 19, 2002 (i.e. 12 days before the one-year limitations period

expired), a state-appointed attorney filed a motion for post-conviction

relief in the state court, which automatically stopped the running of the

limitations period. See id. In May 2003, the state trial court denied relief.

See id. By February 2005, when the Florida Supreme Court heard oral

argument in the case, the petitioner and his appointed attorney rarely

communicated. See id. Indeed, the petitioner asked the Florida Supreme

Court to remove the attorney from his case because of a "complete

breakdown in communication,” including a failure to keep him informed

of the case's status. See id. The Florida Supreme Court denied the

petitioner's request. See id. at 2556. The petitioner subsequently wrote

the attorney several times and emphasized the importance of filing a

timely petition for habeas corpus in federal court once the Florida

Supreme Court ruled against him. See id. In November 2005, the Florida

Supreme Court affirmed the denial of post-conviction relief. See id. On

December 1, 2005, it issued its mandate, and the federal habeas clock

began again to tick. See id. Twelve days later, the one-year limitations

period expired, with the petitioner never having been informed that the

Florida Supreme Court had made a ruling. See id. at 2556–57. When the

70 WONG V. BEEBE

559 U.S. at 165 (holding that 17 U.S.C. § 411(a) "does not

speak in jurisdictional terms or refer in any way to the

jurisdiction of the district courts” (citation omitted)); Kontrick

v. Ryan, 540 U.S. 443, 454 (2004) (holding that "the filing

deadline[] prescribed in Bankruptcy Rule[] 4004 . . . do[es]

not delineate what cases bankruptcy courts are competent to

adjudicate”).12 These cases stand for the general proposition

identified above: If the statutory text does not mandate

dismissal as the consequence for noncompliance, the courts

should not read the statute as having jurisdictional

consequences (i.e. mandatory dismissal without exception).

petitioner learned of the adverse ruling on January 18, 2006, he

immediately wrote a pro se habeas petition and mailed it to the district

court. See id. at 2557. The district court held that equitable tolling was

unwarranted because the petitioner did not seek help from the court

system to determine when the mandate issued. See id. The Eleventh

Circuit affirmed and held that the attorney's negligence could never

constitute an "extraordinary circumstance” sufficient to toll the limitations

period. See id. The Supreme Court rejected the district court's erroneous

determination that the petitioner had not been diligent and the Eleventh

Circuit's rigid, categorical approach. See id. at 2565. It then held that

§ 2244(d)'s time limit was subject to equitable tolling and remanded for

further proceedings. See id. at 2565.

12 In Kontrick, a creditor objected to a debtor's discharge in a liquidation

proceeding. See id. at 446. The applicable rule provided that such an

objection had to be made within "60 days after the first date set for the

meeting of creditors.” Id. (quoting Fed. R. Bkrtcy. P. 4004(a)). The

creditor's objection was untimely under this rule. See id. The debtor did

not file a motion to dismiss the objection as untimely, however, until after

the Bankruptcy Court decided that the discharge should be refused. See

id. The Bankruptcy Court held that the time limit was not jurisdictional,

and the Seventh Circuit affirmed. See id. at 447. The Supreme Court

affirmed and held that Rule 4004(a) was not jurisdictional, so that "a

debtor forfeits the right to rely on Rule 4004 if the debtor does not raise

the Rule's time limitation before the bankruptcy court reaches the merits

of the creditor's objection to discharge.” Id.

WONG V. BEEBE 71

Instead, per Irwin's instruction, the courts should presume

equitable tolling may be applied to the statute in question, and

then proceed to determine whether that presumption has been

rebutted and, if not, whether the running of the timing

provision should be tolled for equitable reasons. See Irwin,

498 U.S. at 95–97.13

2. Consequence Statutes of Limitations: Mandatory

Consequences for a Failure Timely to File

In contrast, however, are statutes of limitations that

specify the consequences of a party's failure to adhere to a

prescribed time limit. See, e.g., 26 U.S.C. § 7422(a) ("No

suit or proceeding shall be maintained in any court for the

recovery of any internal revenue tax . . . until a claim for

refund or credit has been duly filed with the Secretary . . . .”);

28 U.S.C. § 2501 ("Every claim of which the United States

Court of Federal Claims has jurisdiction shall be barred

unless the petition thereon is filed within six years after such

claim first accrues.”); 28 U.S.C. § 2107(a) ("Except as

otherwise provided in this section, no appeal shall bring any

judgment, order or decree in an action, suit or proceeding of

a civil nature before a court of appeals for review unless

notice of appeal is filed, within thirty days after the entry of

such judgment, order or decree.”); 28 U.S.C. § 2409a(g)

("Any civil action under this section, except for an action

brought by a State, shall be barred unless it is commenced

13 Of course, if the court finds that the presumption has been rebutted or

that no equitable considerations justify tolling the statute, it should dismiss

the complaint for failure to comply with the statute of limitations. The key

consideration here is that, when a statute does not specify mandatory

consequences for failure timely to act, the court is permitted to rely on

Irwin's presumption that equitable tolling applies. Nothing in the text of

that statute suggests that the presumption should not apply.

72 WONG V. BEEBE

within twelve years of the date upon which it accrued.”).

Like the first category of statutes discussed supra, these

statutes speak in mandatory terms. They do not, however,

merely require that parties take actions at specified times.

Instead, these statutes require the courts to respond in a

certain way to a party's failure to timely act by making the

consequences of noncompliance, rather than just the acts,

mandatory.

It is clear, then, that there are two different kinds of

mandatory provisions: (1) those that make certain actions

mandatory on the parties but do not specify the consequences

of noncompliance, and (2) those that also provide mandatory

consequences for failures to act according to their

prescriptions. The Court has mentioned the importance of

this distinction in the past. See Henderson, 131 S. Ct. at 1204

(holding a statute nonjurisdictional in part because its

language did "not suggest, let alone provide clear evidence,

that the provision was meant to carry jurisdictional

consequences”); Holland, 130 S. Ct. at 2560 (noting that the

nonjurisdictional statute did "not set forth an inflexible rule

requiring dismissal whenever its clock has run” (internal

quotation marks and citations omitted)). I agree with the

majority that not all mandatory prescriptions are properly

categorized as jurisdictional. See Op. at 18. But I also

believe that, to determine which mandatory prescriptions are

jurisdictional, we must pay close attention to precisely what

Congress has made mandatory (i.e. a party's action or the

consequences for a party's failure timely to act). Thus, when

Congress has mandated that a particular consequence will

accompany a party's noncompliance with statutory timing

provisions, courts are not free to impose other consequences

or, as the majority does in this case, to fail to impose any

consequence at all.

WONG V. BEEBE 73

The reason is simple: When Congress mandates that a

particular consequence be imposed, it limits the court's power

to act. When the consequence is that the claim "shall be

barred” or the case "shall not be maintained,” Congress has

spoken in jurisdictional terms.14 Cf. John R. Sand & Gravel,

552 U.S. at 134 (holding that 28 U.S.C. § 2501, which

includes "shall be barred” language, is jurisdictional); Dalm,

494 U.S. at 609 (holding that 26 U.S.C. § 6511(a), which,

when read with 26 U.S.C. § 7422(a), includes "may not be

maintained” language, is jurisdictional). The majority holds

that John R. Sand & Gravel and Bowles "did not hold [the

statutes at issue] jurisdictional based on the consequential

language of the statute” but because of "a century's worth of

precedent and practice in American courts.” Op. at 19, n.3.

But what was that "century's worth of precedent” based on?

The Court's ancient recognition that some statutes of

limitations have consequences. Kendall v. United States,

107 U.S. 123, 125 (1883) (statute of limitation "forever

barred” "every claim”); Finn v. United States, 123 U.S. 227,

332 (1887) (holding that the express words of the act of

1863—stating claims were "forever barred”—was a condition

to the right to a judgment against the United States and the

court must dismiss the petition if the condition was not

satisfied). Such consequences speak to "the courts' statutory

14 I acknowledge that such a holding may conflict with Cedars-Sinai

Medical Center v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997), but, for

reasons discussed infra at 79–83, I believe that case is inconsistent with

subsequent Supreme Court cases and is no longer good law.

Further, by giving examples of when Congress has spoken in

jurisdictional terms I am not relying on "magic words” that must be

included. Op. at 19. These phrases are merely examples of terms which

mandate that a particular consequence must be imposed, and that

consequence is what makes the statute jurisdictional.

74 WONG V. BEEBE

. . . power to adjudicate the case.” Steel Co. v. Citizens for

Better Env't, 523 U.S. 83, 89 (1998). To illustrate this point,

one asks: What statutory power does a court have to

adjudicate a claim which, according to congressional

mandate, "shall be barred” or "shall not be maintained?” The

answer is simple: None.15 It seems natural, then, to conclude

that when a statute includes such language, it speaks in

jurisdictional terms. See Landgraf v. USI Film Prods.,

511 U.S. 244, 274 (1994) ("[J]urisdictional statutes speak to

the power of the court rather than to the rights of obligations

of the parties.” (citation omitted)).16

15 This fact separates the two kinds of statutes of limitations. When a

statute does not specify a mandatory consequence, the operation of Irwin's

presumption makes sense (i.e. courts can generally assume Congress

intended equitable tolling to apply unless something suggests otherwise).

When Congress specifies a mandatory consequence, however, courts

should assume Congress meant what it said (i.e. that the consequence is

mandatory and applicable in every case).

16 Unfortunately, while the Court has stated, on several occasions, that

a particular statute does not speak in jurisdictional terms, see ante at 68,

it has not clarified exactly when a statute does speak in jurisdictional

terms. Still, the Court has held that the statutes in the second category

above are jurisdictional. See John R. Sand & Gravel, 552 U.S. at 134

(holding that 28 U.S.C. § 2501, which provides that "[e]very claim of

which the United States Court of Federal Claims has jurisdiction shall be

barred unless the petition is filed within six years after such claim first

accrued,” is jurisdictional); Bowles, 551 U.S. at 213 (holding that

28 U.S.C. § 2107(a) and (c), which provide that "no appeal shall bring any

judgment, order or decree in an action, suit or proceeding of a civil nature

before a court of appeals for review unless notice of appeal is filed, within

thirty days after entry of such judgment, order or decree,” except that a

court may "extend the time for appeal upon a showing of excusable

neglect or good cause,” is jurisdictional); Dalm, 494 U.S. at 609 (holding

that 26 U.S.C. § 6511(a), which, when read with 26 U.S.C. § 7422(a),

provides that "unless a claim for refund of a tax has been filed within the

time limits . . . , a suit for refund . . . may not be maintained in any court,”

WONG V. BEEBE 75

Section 2401(b) falls into the second category identified

above. It does not merely specify what a party must do; it

specifies the consequences of a failure to act according to its

time limit. If action is not begun within six months after the

agency mailed its final denial of the claim, such claim "shall

be forever barred.” See 28 U.S.C. § 2401(b). Because the

court has no statutory power to adjudicate such a claim, I

would hold that, unlike the statute considered in Holland,

§ 2401(b) "set[s] forth an inflexible rule requiring dismissal

whenever its clock has run.” Holland, 130 S. Ct. at 2560. In

that manner, and unlike the statute considered in Henderson,

the language of § 2401(b) "provide[s] clear evidence[] that

the provision was meant to carry jurisdictional

consequences.” Henderson, 131 S. Ct. at 1204. Thus, its

pronouncement "speak[s] in jurisdictional terms” or, at the

very least, "refer[s] in any way to the jurisdiction of the

district courts.” Reed Elsevier, 559 U.S. at 165.17

is jurisdictional). It has also mentioned the kind of language that would

speak in jurisdictional terms. See Henderson, 131 S. Ct. at 1204

(implying that jurisdictional language would include a suggestion "that the

provision was meant to carry jurisdictional consequences”); Holland,

130 S. Ct. at 2560 (implying that a statute would speak in jurisdictional

language if it "set forth an inflexible rule requiring dismissal whenever its

clock has run” (internal quotation marks and citations omitted)). In any

event, as the majority acknowledges, the Court has instructed that

Congress "need not incant magic words . . . to speak clearly.” Op. at 11

(quoting Sebelius v. Auburn Reg'l Med. Ctr., 133 S. Ct. 817, 824 (2013)).

Thus, Congress need not explicitly state that a time limit is jurisdictional;

it is free to specify consequences that relate to a court's power to

adjudicate cases and trust that the court will understand what those

consequences mean.

17 While a statute that specifies mandatory consequences is

jurisdictional, the reverse is not necessarily true. See, e.g., McNeil,

508 U.S. at 111–12 (holding 28 U.S.C. § 2675, which does not specify

mandatory consequences for noncompliance, jurisdictional). This dissent

76 WONG V. BEEBE

The majority calls my delineation of statutes of

limitations a "grand theory”. Op. at 18. I appreciate their

praise, but I humbly submit there is nothing "grand” about

following the "clear evidence” provided by Congress and the

Supreme Court.

C. The Importance of the Term "Forever.”

The majority escapes this rather straightforward

conclusion with the assertion that "§ 2401(b) merely states

what is always true of statutory filing deadlines: once the

limitations period ends, whether extended by the application

of tolling principles or not, a plaintiff is 'forever barred' from

presenting his claim to the relevant adjudicatory body.” Op.

at 15 (citing Kubrick, 444 U.S. at 117).18 The majority has

does not imply that the specification of mandatory consequences is the

only way for Congress to express its intent that a statute be jurisdictional.

Congress may express its intent that a statute be jurisdictional in other

ways (i.e. it need not incant magic words), and, indeed, a statute may be

jurisdictional for reasons other than the text. See Reed Elsevier, 559 U.S.

at 166 (2010) (instructing courts, in determining whether a statute is

jurisdictional, to look to the statute's "text, context and relevant historical

treatment” (emphasis added)).

18 I must confess that I have struggled to find which portion of the

Court's opinion in Kubrick supports the majority's position about what is

"ordinarily true of statutory filing deadlines.” Op. at 15. Surely it is not

this portion: "Section 2401(b), the limitations provision involved here, is

the balance struck by Congress in the context of tort claims against the

Government; and we are not free to construe it so as to defeat its obvious

purpose, which is to encourage the prompt presentation of claims.”

Kubrick, 444 U.S. at 117. And surely it is not this portion: "We should

also have in mind that the Act waives the immunity of the United States

and that in construing the statute of limitations, which is a condition of

that waiver, we should not take it upon ourselves to extend the waiver

beyond that which Congress intended.” Id. at 117–18. I simply see no

WONG V. BEEBE 77

simply written the term "forever” out of the statute, ascribing

it no meaning nor importance at all. It is a mere "vestige of

mid-twentieth-century congressional drafting conventions,”19

Op. at 18, and adds nothing that the statute would not say

without it, because all statutes of limitations, if applicable,

bar claims "forever,” see Op. at 15–17.

But the majority fails to consider the standard canon of

statutory construction that requires courts to give meaning, if

possible, to each of a statute's terms. See Lowe v. SEC.,

472 U.S. 181, 208 n.53 (1985) ("[W]e must give effect to

every word that Congress used in the statute.”); see also

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 174 (2012) (explaining that

"[t]he surplusage canon holds that it is no more the court's

function to revise by subtraction than by addition.”). To the

majority, the term "forever” is tautological; it has no meaning

whatsoever. But that is not the view of well-established

dictionaries at the time the statute was drafted. See, e.g.,

Webster's New International Dictionary 990 (2d ed. 1943)

(defining the adverb "forever” as "1. For a limitless time or

endless ages; everlastingly; eternally,” and "2. At all times;

always; incessantly,” and identifying "invariably” and

"unchangeably” as synonyms).

Usage of the term "forever,” as in "forever barred,”

connotes something that obtains under any and all

circumstances, something that is invariably so. But this is

support for the majority's position in Kubrick.

19 The majority's deprecatory labelling is off by about 100 years. In U.S.

v. Kendall, 107 U.S. at 124, the term "forever barred” in the act of March

3, 1863, was definitively interpreted.

78 WONG V. BEEBE

nothing new. In Kendall v. United States, the Supreme Court

interpreted a statute of limitations which included the phrase

"forever barred” and stated: "What claims are thus barred?

The express words of the statute leave no room for

contention. Every claim-except those specially enumerated-is

forever barred unless asserted within six years from the time

it first accrued.” 107 U.S. at 125 (emphasis added). Forever,

as in "forever barred”, has an inclusionary meaning—"every

claim”—as well as a temporal meaning—for all time.

Kendall has continued to be cited approvingly in Soriano v.

United States, 352 U.S. at 273,20 and John R. Sand & Gravel,

552 U.S. at 134, on the way to holding statutes of limitations

"jurisdictional.”

As used in § 2401(b), then, the term "forever” means that

an FTCA claim is invariably barred unless a civil action is

commenced within the six-month period following final

denial of the administrative claim. Moreover, according to

the majority's theory, the fact that Congress included "forever

barred” language in "various other statutes enacted in the

mid-twentieth century,” see Op. at 17, must mean that

Congress merely plugged boilerplate language into these

provisions, without thinking or assigning any special meaning

to the words it chose to employ. But the fact that Congress

included the term in various limitations periods, and not all

limitations periods, suggests the exact opposite is true: On the

occasions when Congress used the term "forever barred,” it

did so intentionally and for a reason. It is especially telling

that Congress did not adhere to the majority's claimed

"drafting convention” when, in 1948, it drafted § 2401(a), the

very section that precedes the one here in issue. See Act of

20 John R. Sand & Gravel held that Soriano is still good law. 552 U.S.

at 137.

WONG V. BEEBE 79

June 25, 1948, chap. 646, 62 Stat. 971 (June 25, 1948)

("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.”); see also Russello v.

United States, 464 U.S. 16, 23 (1983) ("[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion” (citations omitted)).

The majority finally holds that if "forever” does mean

anything, it merely focuses on time and emphasizes that

"once barred, [a FTCA claim] is precluded permanently, not

temporarily or until some later event occurs” and that "the

word 'forever' cannot bear [the] weight” that I give it. Op. at

21, n.4. However, our canons of construction cannot bear the

lack of weight the majority gives it, see Lowe, 472 U.S. 181

at n.53, and neither can our history. See Kendall, 107 U.S. at

125.

I do not subscribe to the facile construct that we can read

"forever barred” to mean nothing more than "barred.” Nor do

I believe "forever” is a non-cipher. "We are not free to

rewrite the statutory text.” McNeil, 508 U.S. at 111. By

providing that claims not presented within the time prescribed

"shall be forever barred,” Congress clearly expressed its

intention that "every claim” (Kendall, 107 U.S. at 125) would

be invariably barred, not sometimes barred so that equitable

considerations might be held to extend the time in which to

begin actions on such claims.

80 WONG V. BEEBE

D. Ninth Circuit Precedent

The majority relies on three of this court's previous

opinions to support its conclusion that § 2401(b)'s "shall be

forever barred” language does not mean that the statute's time

limit is jurisdictional.21 See Op. at 16–17. It first relies on

Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 770

(9th Cir. 1997), which held that § 2401(a) is not

jurisdictional. In fairness, the majority notes that this

opinion's continued vitality was called into question by Aloe

Vera of America, Inc. v. United States, 580 F.3d 867, 872 (9th

Cir. 2009) ("To the extent that Cedars-Sinai is still valid after

John R. Sand, the holding in Cedars-Sinai does not dictate the

jurisdictional nature of section 7431(d).” (citation omitted)).

It dismisses that statement, however, because it "was made

21 The majority also cites out of circuit authority—Arteaga v. United

States, 711 F.3d 828, 832–33 (7th Cir. 2013); Santos ex rel. Beato v.

United States, 559 F.3d 189, 194–98 (3d Cir. 2009); Perez v. United

States, 167 F.3d 913, 916–17 (5th Cir. 1999)—for the proposition that

§ 2401(b) is subject to tolling. However, these cases are not persuasive.

Arteaga holds that because 28 U.S.C. § 2674 meant to hold the

government liable in the same way as a private individual, and equitable

tolling is available to private individuals, equitable tolling is available

under the FTCA. Arteaga, 711 F.3d at 833. However, the Arteaga court

ignores the plain language of § 2401(b) which states "to the agency to

which it was presented.” A private individual may not be held liable for

an agency claim. Further, Santos ignores Congress' clear intent when it

concludes that "the placement of the separate statutory savings provision

does not suggest that Congress intended it to preclude equitable tolling.”

Santos, 559 F.3d at 196. See Pub. L. No. 773, 62 Stat. 869, 991 (1948)

("No inference of a legislative construction is to be drawn by reason of the

chapter in Title 28, Judiciary and Judicial Procedure, . . . in which any

section is placed.”). Finally, Perez discussed the use of the phrase

"forever barred” and found it was irrelevant, but failed to consider and

attempt to distinguish prior cases interpreting the term, such as Kendall v.

U.S. 167 F.3d at 915–918, and Finn v. U.S., 123 U.S. at 332.

WONG V. BEEBE 81

without the benefit of the Supreme Court's most recent

decisions clarifying the distinction between jurisdictional and

nonjurisdictional rules.” Op. at 16 n.2. Of course, this claim

gets us nowhere, because Cedars-Sinai was also decided

without the benefit of those decisions. Thus, we cannot

blindly rely on Cedars-Sinai; instead, we must examine

whether it accords with the Supreme Court's most recent

guidance.22

Cedars-Sinai's analysis of the jurisdictional question is

simple and brief. See Cedars-Sinai, 125 F.3d at 770. The

court held: "Because the statute of limitations codified at

28 U.S.C. § 2401(a) makes no mention of jurisdiction but

erects only a procedural bar, . . . we hold that § 2401(a)'s

six-year statute of limitations is not jurisdictional, but is

subject to waiver.” Id. (citations omitted). Two problems

with Cedars-Sinai's analysis lead me to conclude that it is no

longer good law.

First, Cedars-Sinai appears to erect an absolute rule that

a statute of limitations is jurisdictional only when it

specifically mentions the term "jurisdiction.” See Cedars-

Sinai, 125 F.3d at 770. Since Cedars-Sinai was decided,

however, the Supreme Court has advised that Congress "need

not incant magic words . . . to speak clearly [about

22 The Court's "recent guidance” includes John R. Sand & Gravel Co.

v. United States, 552 U.S. 130 (2008), Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010), Holland v. Florida, 130 S. Ct. 2549 (2010),

Henderson v. Shinseki, 131 S. Ct. 1197 (2011), and Auburn Regional

Medical Center, 133 S. Ct. 817.

82 WONG V. BEEBE

jurisdiction].” Sebelius, 133 S. Ct. at 824.23 A requirement

that Congress use the term "jurisdiction” runs afoul of this

instruction. Moreover, the Court has clarified that a statute of

limitations may be jurisdictional when it "speak[s] in

jurisdictional terms or refer[s] in any way to the jurisdiction

of the district courts.” Reed Elsevier, 559 U.S. at 165

(emphasis added). As previously discussed, one way to refer

to the courts' jurisdiction is to "suggest . . . that the provision

was meant to carry jurisdictional consequences.” Henderson,

131 S. Ct. at 1204. Cedars-Sinai failed to appreciate that, by

providing that any claim not filed within the time specified

"shall be barred,” § 2401(a) limited the courts' power to act

and, thus, referred to the courts' jurisdiction.

Second, Cedars-Sinai relied heavily on Irwin's quotation

of 28 U.S.C. § 2501, which the Court had deemed

jurisdictional in Soriano v. United States, 352 U.S. 270

(1957).24 After Irwin, there was initially good reason to

23 In Sebelius, the governing statute allowed health care providers to file,

within 180 days, an administrative appeal to the Provider Reimbursement

Review Board from an initial determination of the reimbursement owed

for inpatient services rendered to Medicare beneficiaries. See id. at 821

(citing 42 U.S.C. § 1395oo(a)(3)). The Secretary of the Department of

Health and Human Services, by regulation, authorized the Board to extend

the 180-day limitation, for good cause, up to three years. See id. The

Court held that the 180-day limitation period was not jurisdictional and

that the regulation permitting a three-year extension was a permissible

construction of the statute. See id. at 821–22. It further held that equitable

tolling "does not apply to administrative appeals of the kind here at issue.”

Id. at 822.

24 In Soriano, the petitioner, a resident of the Philippines, filed suit in the

Court of Claims to recover "just compensation for the requisitioning by

Philippine guerilla forces of certain foodstuffs, supplies, equipment, and

merchandise during the Japanese occupation of the Philippine Islands.”

WONG V. BEEBE 83

believe Soriano had been overruled. See Irwin, 498 U.S. at

98 (White, J., concurring in part and concurring in the

judgment) ("Not only is the Court's holding inconsistent with

our traditional approach to cases involving sovereign

immunity, it directly overrules a prior decision by this Court,

Soriano v. United States.” (citation omitted)). Because it

seemed Irwin had overruled Soriano, it also seemed the terms

"shall be barred” were insufficient to make a statute

jurisdictional. If that had been true, Cedars-Sinai may have

been correct. But the Court has since clarified Irwin and

reaffirmed Soriano's vitality. See John R. Sand & Gravel,

552 U.S. at 137 ("[T]he Court [in Irwin], while mentioning a

case that reflects the particular interpretive history of the

court of claims statute, namely Soriano, says nothing at all

about overturning that or any other case in that line. Courts do

not normally overturn a long line of earlier cases without

mentioning the matter.” (citations omitted)). Given this

clarification, and Cedars-Sinai's tension with intervening

Supreme Court decisions, I would hold that it was incorrectly

decided and is of no precedential value on this issue. See

Oregon Natural Desert Ass'n v. U.S. Forest Serv., 550 F.3d

778, 782–83 (9th Cir. 2008) (explaining that circuit precedent

is "effectively overruled” when its "reasoning or theory . . .

is clearly irreconcilable with the reasoning or theory of

Id. at 270–71. The relevant statute of limitations provided that "[e]very

claim of which the Court of Claims has jurisdiction shall be barred unless

the petition thereon is filed . . . within six years after such claim first

accrues.” Id. at 271 n.1 (quoting 28 U.S.C. § 2501). The petitioner filed

suit more than six years after the alleged requisition claiming his delay

was caused by World War II conditions in the Philippines. See id. at 271.

The Court of Claims dismissed the suit without reaching the limitation

question. See id. at 272. The Supreme Court affirmed and held that, by

the time the petitioner filed suit, "his claim . . . was barred by statute.” Id.

at 277.

84 WONG V. BEEBE

intervening higher authority.” (internal quotation marks and

citations omitted)).

The majority then cites Partlow v. Jewish Orphans' Home

of Southern California, 645 F.2d 757, 760–61 (9th Cir. 1981),

abrogated on other grounds by Hoffman-La Roche, Inc. v.

Sperling, 493 U.S. 165 (1989), and Mt. Hood Stages, Inc. v.

Greyhound Corp., 616 F.2d 394, 396–407 (9th Cir. 1980), as

instances where this court has held that the language "shall be

forever barred” did not render a statute jurisdictional. See

Op. at 17. Of course, these cases pre-date all of the Supreme

Court's recent guidance as well. For that reason, we should

once again take a critical look at their reasoning before

relying on them.

The Partlow court held that equitable tolling could be

applied to 29 U.S.C. § 255, the statute of limitations

applicable to actions brought under the Fair Labor Standards

Act. See Partlow, 645 F.2d at 760–61. Interestingly, the

court did not conduct any in-depth analysis of the statute's

text, context, or historical treatment. Indeed, the Partlow

opinion does not once quote the statute's text or even mention

the phrase "shall be forever barred.” See id. at 757–61.

Instead, the court relied on opinions from two of our sister

circuits, each of which held that § 255 could be equitably

tolled. See id. at 760 (citing Ott v. Midland Ross, 523 F.2d

1367, 1370 (6th Cir. 1975), and Hodgson v. Humphries,

454 F.2d 1279, 1283–84 (10th Cir. 1972)). It then noted that

"courts have often stated that equitable tolling is read into

every federal statute of limitations.” Id. (citation omitted)

(emphasis added). It then concluded that the statute should

be tolled in the circumstances of that case. See id. at 760–61.

WONG V. BEEBE 85

If it were unclear at the time Partlow was decided, it has

since become abundantly clear that equitable tolling is not to

be read into every federal statute of limitations. See John R.

Sand & Gravel, 552 U.S. at 133–34 (explaining that some

federal statutes of limitations—such as 28 U.S.C. § 2501, for

instance—must be treated as jurisdictional, so that courts are

forbidden to "consider whether certain equitable

considerations warrant extending [the] limitations period[s]”

they contain). Moreover, Partlow fails to conduct the kind of

analysis required by the Court's more recent decisions. See

Reed Elsevier, 559 U.S. at 166 (providing that "the

jurisdictional analysis must focus on the 'legal character' of

the requirement, which we discern[] by looking to the

condition's text, context, and relevant historical treatment”

(citations omitted)). For these reasons, I would hold that

Partlow is today flat wrong, and of no precedential value on

the question presently before the court.

In Mt. Hood Stages, this court held that equitable tolling

could be applied to 15 U.S.C. § 15b. See Mt. Hood Stages,

616 F.2d at 396. It is once again telling that the court did not

conduct any in-depth analysis of the statute's text or even

mention the statute's phrase "shall be forever barred.” See id.

at 396–406. It is clear, then, that the decision was not based

on a determination that the statute did not refer in any way to

the courts' jurisdiction. In a word, Mt. Hood Stages skipped

the first, Court-required step of textual analysis for a

consideration of the statute's purpose in a regulatory scheme.

See Reed Elsevier, 559 at 166.25 Instead, the decision was

based on the court's conclusion that "tolling the running of

limitations serves the important federal interest in

accommodating enforcement of the Sherman Act with

25 This dissent analyzes § 2401(b)'s purposes in Part III, infra.

86 WONG V. BEEBE

enforcement of the Interstate Commerce Act, and is not

inconsistent with the purposes of the Clayton Act's limitation

period.” Id. at 396.

In particular, the Mt. Hood Stages court found that tolling

would "contribute[] to a reasonable accommodation of the

[Interstate Commerce Commission]'s responsibility for

furthering the national transportation policy with the

responsibility of the courts to effectuate the national antitrust

policy.” Id. at 397. Because the case "involved subject

matter Congress ha[d] given the Commission jurisdiction to

regulate,” it "created a dispute only the Commission could

resolve.” Id. (emphasis added). The court noted that, "[i]f

Mt. Hood had filed [its] antitrust suit . . . prior to the

Commission determination [of a particular factual issue],”

accommodation of the Clayton and Interstate Commerce Acts

would have compelled "the court . . . to dismiss or stay the

suit pending the necessary administrative determination.” Id.

at 399. Thus, "[c]ongressional purposes under the two

statutory regimes would be served by tolling the statute of

limitations during the Commission proceeding.” Id. at 400.

For that reason, the court held that the statute of limitations

could be "tolled pending resort to an administrative agency

for a preliminary determination of issues within its primary

jurisdiction.” Id. at 405; see also Pace Indus., Inc. v. Three

Phoenix Co., 813 F.2d 234, 241 (9th Cir. 1987) ("[O]ur

decision [in Mt. Hood Stages] rested on considerations of

federal policy and primary jurisdiction which are not present

here.”).

Contrary to the majority's implication, see Op. at 16, Mt.

Hood Stages does not stand for the proposition that "shall be

forever barred” does not refer to the courts' jurisdiction.

Indeed, a statute may refer to the courts' jurisdiction and yet

WONG V. BEEBE 87

not be jurisdictional, much like a statute which does not speak

in jurisdictional terms may still be jurisdictional. See United

States v. Brockamp, 519 U.S. 347, 352 (1997) (holding that

the timing requirements of 26 U.S.C. § 6511 are

jurisdictional, even though the statute does not refer to the

courts' jurisdiction, because of the provision's "detail, its

technical language, the iteration of the limitations in both

procedural and substantive forms, and the explicit listing of

exceptions”). In short, even a statute that refers in some way

to the courts' jurisdiction may not be jurisdictional when, for

example, Congress has created dual statutory regimes, such

as those involved in Mt. Hood Stages, that essentially require

tolling for their accommodation. Of course, there are no such

dual regimes at issue in this case, nor does this case involve

the sort of federal policy and primary jurisdiction

considerations that animated the court's opinion in Mt. Hood

Stages. Thus, I would hold that Mt. Hood Stages offers no

useful guidance on the question whether § 2401(b)'s language

refers to the courts' jurisdiction.

In defense of Partlow and Mount Hood Stages, the

majority states that these cases still "undermine the notion

that Congress intended through the use of magic words . . . to

establish jurisdictional bars in statutes allowing for civil suits

against private parties.” Op. at 22, n.5. Of course, this

argument is merely a straw man; we all agree that Congress

never uses "magic words” to establish jurisdiction. See

supra, Bea Dissent at 75, n.17.

III. The Statute's Purpose

As earlier noted, in John R. Sand & Gravel, the Court

identified the kinds of goals that make statutes of limitations

jurisdictional: "[Jurisdictional] statutes of limitations . . . seek

88 WONG V. BEEBE

not so much to protect a defendant's case-specific interest in

timeliness as to achieve a broader system-related goal, such

as facilitating the administration of claims, limiting the scope

of a governmental waiver of sovereign immunity, or

promoting judicial efficiency.” 552 U.S. at 133.

Consideration of each of the goals outlined in John R. Sand

& Gravel illustrates that § 2401(b)'s broad, system-related

purposes require us to find that its timing provisions are

indeed jurisdictional.

A. Section 2401(b) Facilitates the Administration of

Claims

The Court has held that § 2401(b)'s "obvious purpose” is

to "encourage the prompt presentation of claims.” See United

States v. Kubrick, 444 U.S. 111, 117 (1979).26 The

requirement that a civil action be filed within six months of

26 In Kubrick, the respondent, a veteran, was admitted to a VA hospital

for treatment of an infected femur in April 1968. See id. at 113. Medical

personnel irrigated the infected area with neomycin, an antibiotic, until the

infection cleared. See id. Six weeks later, the respondent noticed some

hearing loss. See id. at 114. In January 1969, doctors informed the

respondent that it was "highly possible” that the neomycin treatment

caused his hearing loss. See id. In 1972, the respondent filed suit under

the FTCA, alleging he had been injured by negligent treatment at a VA

hospital. See id. at 115. The VA denied the respondent's administrative

claim, which he presented after he filed suit, in April 1973. See id. at 116

n.4. The Government then filed a motion to dismiss the suit as timebarred

under 28 U.S.C. § 2401(b)'s two-year statute of limitations, on the

theory that the respondent's claim accrued in January 1969, when doctors

told the respondent that his hearing loss was likely caused by the

neomycin treatment. See id. at 115. The district court rejected this

defense and rendered judgment for the respondent. See id. The Third

Circuit affirmed. See id. at 116. The Supreme Court reversed and held

that claims accrue when the individual "knows both the existence and the

cause of his injury.” See id. at 113, 124–25.

WONG V. BEEBE 89

a denial of an administrative claim guarantees that the civil

action will commence while the denial of the claim is

relatively fresh. For actions filed within that time period, the

Department of Justice, which will defend the cases, will be

able to access the relatively fresh memories of the

administrators who denied the claim. It is also more likely

that those administrators will be on the job six months after

the denial of the claim than would be the case if the denial

had taken place years before.

B. Section 2401(b) Limits a Waiver of Sovereign

Immunity

The Court has held that § 2401(b) limits the waiver of

sovereign immunity expressed in the FTCA. See Kubrick,

444 U.S. at 117–18. In particular, the Court has stated:

"We should . . . have in mind that the [FTCA]

waives the immunity of the United States and

that in construing the statute of limitations

[expressed in § 2401(b)], which is a condition

of that waiver, we should not take it upon

ourselves to extend the waiver beyond that

which Congress intended.”

Id. (emphasis added). This passage clearly identifies

§ 2401(b) as a provision "limiting the scope of a

governmental waiver of sovereign immunity,” which is

exactly the kind of broader, system-related goal that makes a

statute's time limit "more absolute.” See John R. Sand &

Gravel, 552 U.S. at 133; Op. at 31.

The majority agrees that the FTCA "is predicated on a

sovereign immunity waiver.” Op. at 31. Further, the

90 WONG V. BEEBE

majority admits that many of the cases upon which they

rely—Auburn Regional Medical Center, Gonzalez,

Henderson, Holland, and Bowles—do not involve issues of

government immunity and therefore "may not raise precisely

parallel sovereign immunity concerns” as are now before us.

See Op. at 32 n.12. The majority is unable to deny that (1)

the FTCA limits waiver of sovereign immunity and therefore

meets a goal that makes statutes of limitations jurisdictional

under John R. Sand & Gravel, or (2) this difference

distinguishes the FTCA and § 2401(b) from other cases on

which the majority tries to rely.

C. Section 2401(b) Promotes Judicial Efficiency

First, like all statutes of limitations, § 2401(b) "protect[s]

. . . the courts from having to deal with cases in which the

search for truth may be seriously impaired by the loss of

evidence, whether by death or disappearance of witnesses,

fading memories, disappearance of documents, or otherwise.”

See Kubrick, 444 U.S. at 117. By promoting the prompt

presentation of claims, § 2401(b) seeks to limit the amount of

evidence lost to time and ensure that courts will adjudicate

cases with complete records. See id.

Second, when read together with § 2675, it is clear that

§ 2401(b) was intended to protect against the burdens of

claims filed outside of its time prescriptions. In McNeil v.

United States, the Court held that § 2675's administrative

exhaustion requirement was jurisdictional. 508 U.S. 106,

111–12 (1993). There, the petitioner filed a complaint in

federal district court alleging that the United States Public

Health Service had injured him while conducting

experimentation on prisoners in the custody of the Illinois

Department of Corrections. See id. at 108. Four months

WONG V. BEEBE 91

later, he submitted a claim for damages to the Department of

Health and Human Services. See id. at 109. After the

Department denied the claim, the petitioner sent the district

court a letter and asked that it permit him to commence his

legal action. See id. The court held that it lacked jurisdiction

to entertain an action commenced before satisfaction of

§ 2675's administrative exhaustion requirement. See id. The

Seventh Circuit affirmed and held that the petitioner had filed

his action too early. See id.

The Supreme Court affirmed and held that § 2675's

administrative exhaustion requirement was a jurisdictional

prerequisite to filing suit under the FTCA. See id. at 112–13.

As relevant here, it noted that "every premature filing of an

action under the FTCA imposes some burden on the judicial

system . . . .” Id. at 112. Similar burdens are imposed on the

judicial system when actions are filed late, accompanied by

claims that the court should toll the running of the statute of

limitations for equitable reasons which may or may not

justify the plaintiff's tardiness. As was the case for premature

filings in McNeil, "the burden may be slight in the individual

case.” Id. But § 2401(b) "governs the processing of a vast

multitude of claims.” Id. For that reason, "adherence to the

straightforward statutory command” is the best way to

promote "[t]he interest in orderly administration of this body

of litigation.” Id.

Because § 2401(b) serves each of the three system-related

purposes identified in John R. Sand & Gravel as making

statutory time limits "more absolute,” equitable tolling should

not be applied here. Instead, we should hold that § 2401's

time limits are jurisdictional in nature.

92 WONG V. BEEBE

IV. The Statute's Context

Section 2401(b)'s context includes its placement in the

larger statutory scheme, as well as any relevant exceptions

Congress may have legislated. It also includes the Supreme

Court's "interpretation of similar provisions in many years

past.” Reed Elsevier, 559 U.S. at 168.

A. The Supreme Court's Interpretation of Similar

Provisions

The majority correctly notes that "there has not been . . .

a venerable, consistent line of [Supreme Court] cases treating

the FTCA limitations period as jurisdictional” and, indeed,

that "there is no Supreme Court precedent on the question.”27

Op. at 30. Still, the Supreme Court has examined similar

provisions and offered guidance useful here. As previously

stated, Kubrick and John R. Sand & Gravel, taken together,

strongly suggest that § 2401(b)'s time limits are

jurisdictional.

The Court's analysis in McNeil only bolsters this

conclusion. There, the Court held that 28 U.S.C. § 2675(a)

"bars claimants from bringing suit in federal court [under the

27 The majority's focus is—jurisprudentially speaking—far too narrow.

See Reed Elsevier, 559 U.S. at 168 ("[T]he relevant question here is not

. . . whether [the statute] itself has long been labeled jurisdictional, but

whether the type of limitation that [the statute] imposes is one that is

properly ranked as jurisdictional absent an express designation.”). Section

2401(b) expresses the same "type of limitation” the Court held

jurisdictional in Soriano and John R. Sand & Gravel. See 28 U.S.C.

§ 2501 ("Every claim of which the United States Court of Federal Claims

has jurisdiction shall be barred unless the petition thereon is filed within

six years after such claim first accrues.”).

WONG V. BEEBE 93

FTCA] until they have exhausted their administrative

remedies.” McNeil, 508 U.S. at 113. This requirement is

jurisdictional. Courts cannot entertain a suit brought before

exhaustion of administrative remedies, even if the claimant

exhausts those remedies before "substantial progress [is]

made in the litigation,” because such a suit was filed too

early. Id. at 110–11. Here, there is no dispute that, like the

petitioner in McNeil, Wong filed her action before denial of

her administrative claim and was similarly premature.

The majority emphasizes that § 2675(a) is located in

chapter 171 and that Congress expressly conditioned the

district courts' jurisdiction upon plaintiffs' compliance with

the provisions of that chapter. See Op. at 23. In McNeil,

however, the Court did not even mention this fact. Instead,

it based its decision on two considerations: (1) the statutory

text is unambiguous and expresses Congress's intent to

require complete exhaustion of administrative remedies, and

(2) "[e]very premature filing of an action under the FTCA

imposes some burden on the judicial system and on the

Department of Justice which must assume the defense of such

actions.” McNeil, 508 U.S. at 111–12. With respect to the

premature filing, the Court noted that, "[a]lthough the burden

may be slight in an individual case, the statute governs the

processing of a vast multitude of claims,” such that "[t]he

interest in orderly administration of this body of litigation is

best served by adherence to the straightforward statutory

command.” Id.

The Court's language suggests once again that the

FTCA's timing requirements fit into the jurisdictional

category. See John R. Sand & Gravel, 552 U.S. at 133

(identifying "facilitating the administration of claims” as one

of the broader, system-related goals that makes a statutory

94 WONG V. BEEBE

time limit "more absolute”). In McNeil, the Court took a

systemic view of its decision; it was concerned with the

"orderly administration of this body of litigation” precisely

because § 2675(a) "governs the processing of a vast multitude

of claims.” McNeil, 508 U.S. at 112. Because the same is

true of § 2401(b), our analysis should feature the same

concern. And, when one takes this more systemic view of

§ 2401(b), one will surely find that every premature—or

late—filing imposes a burden on the judicial system and on

the Department of Justice and agree with the Court that "strict

adherence to the procedural requirements specified by the

legislature is the best guarantee of evenhanded administration

of the law.” Id. at 113.28

B. Placement

Seeking another interpretive tool to support its position,

the majority emphasizes the fact that § 2401(b) is located in

28 The majority notes that § 2675 is silent as to the deadline for filing a

properly exhausted claim in the district court and concludes that "there is

no contextual reason to think that the limitations period provisions are also

jurisdictional.” Op. at 28. But § 2675 does not require only that

individuals exhaust their administrative remedies; instead, it specifies that

individuals must exhaust their administrative remedies first (i.e. before

they file complaints in federal court). See 28 U.S.C. § 2675(a). Thus, the

statute requires a particular timing of administrative exhaustion, and the

McNeil Court found this timing requirement significant. See McNeil,

508 U.S. at 111 (noting that the "petitioner's complaint was filed too

early”); id. at 112 (addressing the burdens premature filings impose on the

judicial system and the Department of Justice). Just as in McNeil,

appellant Wong's complaint was filed "too early” and imposed a burden

on the judicial system and Department of Justice. Because late filings

impose similar burdens on the courts and the Department of Justice, there

is good reason to believe that the limitations period expressed in § 2401(b)

is also jurisdictional.

WONG V. BEEBE 95

a provision separate from the FTCA's jurisdiction-granting

provision. See Op. at 23. With respect, this fact is irrelevant.

As the Court has explained, "some time limits are

jurisdictional even though expressed in a separate statutory

section from jurisdictional grants, while others are not, even

when incorporated into the jurisdictional provisions.”

Barnhart, 537 U.S. at 159 n.6 (citations omitted).

"Formalistic rules do not account for the difference, which is

explained by contextual and historical indications of what

Congress meant to accomplish.” Id.

Even more problematic to the majority's analysis of the

FTCA's reorganization in 1948, see Op. at 26, is the

inconvenient enactment of a law rejecting placement in the

Act as a valid interpretive tool. The majority acknowledges

that, before 1948, Congress had expressly conditioned the

grant of jurisdiction over tort claims against the United States

upon plaintiffs' compliance with, among other things, the

FTCA's original limitations provision. See Op. at 26. In

1948, however, Congress reorganized the FTCA and placed

the limitations provision in chapter 161 and other provisions,

such as § 2675, in chapter 171. See Op. at 26. It appears the

majority would conclude from this fact that Congress

intended to separate jurisdictional requirements (§ 2675) from

non-jurisdictional ones (§ 2401). Congress, however,

expressly rejected this possible reading of its reorganization

efforts by an enactment of law. See Pub. L. No. 773, 62 Stat.

869, 991 (1948) ("No inference of a legislative construction

is to be drawn by reason of the chapter in Title 28, Judiciary

and Judicial Procedure, . . . in which any section is placed.”).

The majority simply ignores this Act of Congress, perhaps

because it cuts directly against the majority's desired result:

interpretive value based on the statute's placement.

96 WONG V. BEEBE

Congress clearly stated that the placement of § 2401 in

chapter 161 was not intended to change the way it should be

interpreted. If Congress intended to condition the grant of

jurisdiction over tort claims against the United States on

compliance with the limitations period, the recodification in

1948 should not be read to alter that intent. That Congress

later amended the jurisdiction-granting provision to provide

that the district courts would have exclusive jurisdiction over

FTCA actions "[s]ubject to the provisions of chapter 171 of

this title,” 28 U.S.C. § 1346(b)(1), says nothing about the

jurisdictional status of a provision located in chapter 161.

C. The Significance of § 2401(a)'s Exceptions

"[A]s a general rule, . . . Congress's use of certain

language in one part of [a] statute and different language in

another can indicate that different meanings were intended.”

Sebelius, 133 S. Ct. at 825. As relevant here, § 2401(b)

enumerates no exceptions, while § 2401(a) provides that

"action of any person under legal disability or beyond the

seas at the time the claim accrues may be commenced within

three years after the disability ceases.” 28 U.S.C. § 2401(a).

The relevant meaning to be inferred from Sibelius'

interpretive canon quoted above is that Congress did not

intend for any exceptions to be applied to § 2401(b). The

majority is correct that this canon, standing alone, does not

constitute a "clear statement” by Congress. See Op. at 28.

The canon can, however, "tip the scales when a statute could

be read in multiple ways.” Sebelius, 133 S. Ct. at 826. I

would not hold that consideration of this canon alone dictates

a conclusion that § 2401(b)'s time limit is jurisdictional, but

it reinforces that conclusion when considered with the

statute's text and context.

WONG V. BEEBE 97

V. Conclusion

Congress clearly expressed its intent that § 2401(b) would

have "jurisdictional” consequences. Jurisdictional treatment

accords with the statute's text and the Supreme Court's

analysis of similar provisions. For these reasons, equitable

tolling should not be applied to the time limits contained in

§ 2401(b). I respectfully dissent.

The court held that plaintiff Kwai Fun Wong’s claim,

which was not filed within six months after the denial of her

administrative claim by the INS, was rendered untimely

because of external circumstances beyond her control. In

light of these circumstances, the court concluded that

equitable tolling properly applied to excuse Wong’s late-filed

amended complaint, and that her Federal Tort Claims Act

claim against the United States therefore could proceed.