the morning your arms as director of the appellate litigation clinic at the university of virginia school of law like to introduce to the court this morning to third year law students sara campbell and elizabeth joins both of whom satisfy the requirements judgment and the district court failed to address two of his three arguments what we grant the district court was correct not to apply mr biles first to all of our government the court said that first argument was the only argument he raised which is simply under federal equitable tolling doctrine i will be addressing the statutory tolling argument my co counsel will be addressing the equitable tolling arguments at the very least we asked this court to reverse the district court's grant of summary judgment every man for full consideration mr bottles tolling arguments the crux of the statutory twenty argument is this ordinarily federal courts considering section nine hundred eighty three claims borrow the a put couple basic statute of limitations and tolling provision from state law in this case that would be the two year personal injury statute of limitations and be tolling provisions that go along with that but the exception to this comes if those basic tolling provisions discriminator differentially treat federal law claims from state law claims in a way that makes it more difficult to file a federal law claim or somehow privileges a state claim over a federal law and that's the situation we have here the basic state law because he's using federal law instead of state law he loses out on the full benefit of his two year statute of limitations that's the essence of hostile and discriminatory under johnson versus doing this and so when we have a basic state law of limitations that is hostile or discriminatory toward a federal cause of action federal courts look to see if there are any other apocryphal provisions or tolling provisions under state law that they can apply and in virginia we have what the very junior tort claims act  recognize any non statutory basis for telling the statute i thought were junior does allow for equitable tolling in exceptional circumstances no your honor the cases that have considered that have held that there is an equitable stop or provision in certain circumstances and has not held that there is any equitable tolling provision or doctrine could equitable stoppel apply here is this an exceptional circumstance possibly your honor that we did not brief that argument but we do argue that equitable tolling should apply using the hall and test my co counsel be going into a little bit more thoroughly in arguments but the facts in the record you suggest that there were extraordinary circumstances in play here specifically that mr battle was effectively barred from making use of the law library and had to have no way of requesting cases or conducting research unless you could give them specific name of a case and this is your own is  should still have told the two year statute of limitations on mr battle's claim rendering his claim timely the district court erred in failing to consider mr battle's equitable tolling argument and this court should reverse the district courts grant the defendant's motion for s remain to the district court there are two approaches to federal equitable tolling the first is automatic this court may have played several equitable tolling principle because applying the virginia statute of limitations without an exhausting requirement issue about how federal law should apply rather than state law and board of regents versus to mahdia what can we start with a common recognition that ordinarily in one thousand nine hundred three kinds we applied the statute the can just explain it to me why would you do that what would give you the right to do that where state law is inconsistent with federal law and policy you do not have to look to the state while you can and how is your genius state law inconsistent with federal law and policy here where remedy is separate and independent from another remedy that's available i don't understand what you say under a nine hundred eighty three inmate must pursue his administrative remedies prior to filing as ninety three action and the supreme inconsistent to require a plaintiff to refrain from filing his civil action what about virginia law requires or mandate that a prisoner not does not provide would it be worthwhile to ask virginia if they have equitable tolling or tolling that would satisfy the concern that you've articulated since we are bound by state law on are you familiar with federal courts certifying issues to state courts no your honor when they're unclear about state law that's what my colleagues suggestion if the if we have a if the power to apply federal equitable principles where equity demands it and so in this circumstance because application of federal equitable principles would be necessary for the vindication of federal rights under one nine hundred eighty three federal equable principles rather than state acquittal principles should apply even in the absence of inconsistency with federal or with state law or federal office to state law and federal the statute of limitations should have been told automatically during the adopting this doctrine one circuit based a decision on both state and federal law and then three circuit to base their decision on federal preserve get precedent out right so now none of these circuits only base their decisions on state law where there yet the this right just apply equitable tone yes there are some of them expressly two of them i think expressly say is the federal equitable tolling yes or on and some adopted automatic federal equitable toiling in two different cases one of which relied on state law and federal circuit precedent and another one that cited only federal circuit precedent the policies underlying nine hundred eighty three mandate some degree of deference to state law and tolling ropes and i'm still struggling with the overly when we don't know actually w i and so the court had stated that where they were i mean these were tied together in another claim would be inconsistent with federal law and policy and so the court has not yet addressed ninety three actions in the context found cream court case in which the court took said well we're going to apply federal equitable polling here because there's been this whole under holland versus florida the thought that this rule about there are two approaches your honor i understand that i mean asking you about the first one which we've been talking about and have you found a case with the supreme court's done that the supreme court holland versus florida is the case by case  see a problem i have is that one thousand nine hundred eighty eight tells us that we are to look to state law in doing all this and you acknowledge that we look to state law of limitations period right yes your honor and limitations period and tolling provisions usually go hand in hand yes your honor but if we don't go with your first argument your colleagues argument then you're suggesting that we get to a separate argument altogether and in state tolling provisions but the reason that we would not look to the state tolling provision now is because that way that the statute of limitations in virginia would operate on the federal thank you very much appreciate  good morning honors and may please the court michel callan for defendants a pelleas i'd like to address two points raised by my friends on the other side one related to this idea of discrimination and the applicability of the birch in your tort claims act and two related to equitable tolling under virginia law but first i think it's helpful to walk through the timeline of this case because the timeline of this case highlights precisely why a bright line rule automatically tolling statutes of limitations case two months and twenty three days later mr battle exhausted his administrative remedy that you were twenty seventh two thousand and fourteen he then waited an additional twenty two months before filing the complaint in this case now the parties agree that virginia statute of limitations governing personal injury claims applies in this case the parties also agree that virginia's corresponding tolling provision for that statute of limitations does not apply so the question is whether mr battle is entitled to tolling from elsewhere he's not now on this discrimination point the other cases that my friends point out regarding discrimination are cases where the state statute of limitations specifically calls out federal law and treats it differently on its face so for example the johnson v davis case that they mentioned that one statute of limitations for state law claims and a completely separate timeframe for federal claims if you bring this exactly the same claim as a personal injury claim if someone does in virginia they get two years right somebody who brings it in prison under the p l r that is using ridgeon years statute of limitations never gets two years right well the statute of limitations is the same bo federal and state courts both two years that are you never gets two years to go to court he has a lesser period because he has student sauced under federal law correct there i mean there's just you said what you agreed on you behold under your representation to a six months of your statute of limitations has already gone by so you don't have what every other citizen who is making a claim of that plea could be exactly the same claim going to federal mean i'm comparing apples and apples it's the same claim it's a nine hundred eighty three claim it's excessive force exactly the same fall so th the limitations during the exhaustion period or whether or whether there is equitable remedies the kind of at issue here for mr battles with are there any equitable remedies available to case nor any argument that the defendant at issue here in any way got in the way doesn't help me i'm right and i was not just the say it's always going to be the case that sometimes going to be taken up with the administrative remed step in the process but what if just for sake of argument suppose the process hadn't concluded for two years after the injury through no fault cases which made for a shorter period of time that was actually taken and i have been a judge a long time and sometimes even the commonwealth of virginia makes mistakes and takes longer than they are supposed to under state law  correct i will i will i will respect that representation your honor i know none of the you would you would push back on it though you don't think the the commonwealth of virginia is a remain a say i'm sure i'm sure we have your honor but the virginia grievance procedure is capped at one hundred eighty days and my friends on the other side have not pointed to any cases in which that hasn't been respected and in fact what i know you certainly know that i mean there are millions of these these these cases are file which the remedy process wasn't properly working offer a levy that can go under the p l o raid the definition a prisoner only need to exhaust bailable administrative remedies and if the exhaustion process is such that plate would apply and the available under that circumstance the the p l r a requirement to exhaust bailable remedies those remedies would not have been available  that's one avenue how did all that work the prisoner has to know well they're not handling this right so actually the p o are exhaustion doesn't apply and i can go into federal court and then he would persuade some federal judge that in fact he doesn't have to  explain precisely that that situation and that in that situation of the administrative remedies are not available to to the inmate but there is an alternative also under virginia equitable principles and it is the  principle that when a defendant gets in the way of a plaintiff's ability to file in a time you had mentioned that in that sort of that that kind of quotable stoppel line of theory which seems to depend on us to certify this seems to me that you haven't you have not raised that as a possibility no your honor i mean for virginia equitable principles do you account for situations in which in which you inmate or any any that no problem here because it's not going to last forever you know last six months so that means people in prison have an eighteen month yeah and eighteen months statute of limitations cases that your honor is also referred to earlier and it was addressed to kind of help but against cabin their claims in a manner that would be workable parts so arguably congress wasn't really concerned about making you know in facilitating the ability of prisoners to file and wasn't necessarily concerned about preserving their access to the  but and that's what was actually a friendly question but yes i mean that is the purpose underlying the p l r but i think the bigger picture is is the question of injustice and my friends on the other side discuss to exhaust administrative remedies within the statute of limitations in that situation he might be caught in a catch twenty two wherein he is unable to be exact when it's really really actually do understand the facts of this case you know we do we understand what how long it took him and whether or not but but see the problem is that statute limitations are regarded as your outer boundary and because of that that you don't make your statue limitations your claim is gone and so that's why courts are pretty particular in when when your cause of action accrues whether in fact it will be  staged for some reason and that's what we're trying to get at here so i think that it's fair to say that most of the court's look to whether their reasoning was very  complete or not were offended by a state when there was no tolling provision that would apply to ordinary people in the state but not to people or so my understanding is that the offens arose from from this situation in which a in may not always i mean i could be read all the cases you know i have a diagram and i could go through them with you but i want to take up on your time but it is not the case in every one of those cases that's correct but in the they look to the individual you know statute of limitations that issue there and the individual grievance procedure and the particular concern that could arise in those situations i'm of them apply a federal acquittal t that that opinion contain no briefing on the other side it was a pro se litigant with who only had his brief there was no briefing on the other side and no argument there so to read that case more garage where do you think that cut think there is a problem well there i may add i don't not familiar with kentucky's grievance procedure at the time that boundary morgan was decided but that's why it's important to take this into account on a on a state by concerns that we do respect the state statute of limitations in tolly principle on the one hand but we recognize the administrative remedy exhaustion requirement caps on the other side as well although it's a little difficult the way they divide i think i know who i'm going to ask but can is there a way we can craft really to address the problem without an automatic default or bright line rule i think that's where the state equitable principles would come in it would be no no i don't think so so we  accommodate the administrative process everything the city can do to accommodate or any way to address the need but not on a bright officials denied the prisoner at two legal materials or the law library would that be already in ever i think there could be an argument to that effect to the extent that the defendants at issue library argument was never was not addressed as to individual defendants and here and the relief that sought here it's not tolling during the time frame that mr battle sought to access a law the relief that sought here is tolling during the time frame where he exhausted administrative remedies so that you are completely separate in the situation in which the defendants at issue here vented mr battle from accessing the library and there was an l the problem one of the problems i have here is that you're arguing on behalf of mr battle who doesn't need equitable towing he had twenty two months to file so he simply waited with all respect your honor we can not believe them mr battle did wait point two months sitting on his hands he was attempting the record indicates that he was attempting to conduct research then you have the wording then you do have the availability of the you don't need equitable equitable federal equitable told win because you got the equitable stopp argument that alan referred to that's correct your honor our client was not attempting to raise the statue of limitations that was a complete a complete part of the statute of limitations defense he was simply trying to have it told which is why he's argued saying when you say he didn't sit on his hands he tried and he was thwarted what you've just given me is an equitable stoppel argument under that virginia recognizes for tolling purposes but that only happens after the two years expire i mean that because in the spire is that right i'm not quite sure i understand i don't think so because it was the twenty two months between february twenty seven time and that is why he could not buy within the statute of limitations no that's that's not the way i read the you know with that he filed there are two there are a couple of factors that resulted in him correct your honor he was thwarted from doing so yes he was prepared to file his claim by january eleventh two thousand and sixteen which was twenty two months later it was within what he thought the statute of limitations would be but he couldn't that statutory method then we ask the court to consider equitable tolling given the difficulty mr battle has and at the very least remand for all factual developments so that mr battle can make his case before the district court that it is necessary thank you thank you very much we will come down and greet counsel and then take a short