RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0209p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

TODD N. ZAPPONE; CARRIE M. ZAPPONE; DUSTIN A.

ZAPPONE; SNZ; DNZ, 

Plaintiffs-Appellants, 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants-Appellees. 

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No. 16-4111 

Appeal from the United States District Court 

for the Northern District of Ohio at Toledo. 

No. 3:15-cv-02135—Jack Zouhary, District Judge. 

Argued: July 27, 2017 

Decided and Filed: September 7, 2017 

 Before: BATCHELDER, GIBBONS, and COOK, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: William T. Whitaker, WILLIAM T. WHITAKER CO. LPA, Akron, Ohio, for 

Appellants. Sherra Wong, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Appellees. ON BRIEF: William T. Whitaker, WILLIAM T. WHITAKER CO. LPA, 

Akron, Ohio, for Appellants. Bruce R. Ellisen, Robert J. Branman, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. 

_________________ 

OPINION 

_________________ 

 COOK, Circuit Judge. Todd N. and Carrie M. Zappone (“Zappones”) sued the United 

States and several IRS agents (“Defendants”), alleging state-law and constitutional torts 

>
No. 16-4111 Zappone, et al. v. United States, et al. Page 2

stemming from a search of the Zappones’ business and a seizure of cash from their company 

safe. The district court granted summary judgment in favor of the Defendants, concluding that 

the claims were time barred. We AFFIRM. 

I. 

 The Zappones own Ohio Scrap Corporation (“OSC”), a scrap-metal recycling business in 

Delta, Ohio. On November 8, 2012, IRS Special Agents executed search-and-seizure warrants 

on OSC’s offices and the Zappones’ home in the course of investigating alleged tax evasion and 

illegal restructuring. During the search, the Special Agents arrested the Zappones and seized 

their computers, cell phones, business records, and a large quantity of cash from the company 

safe. When the Special Agents took the money to The Brink’s Company after the search, the 

security company “counted [it] and issued a receipt . . . in the amount of $1,264,000.” But the 

Zappones maintain that the safe contained significantly more—$3,150,000 in total—and that the 

Special Agents pocketed the excess cash. 

 In April 2013, the United States brought a civil-forfeiture proceeding against the 

$1,264,000. See United States v. $1,264,000 in U.S. Currency, No. 3:13-cv-00905 (N.D. Ohio 

Apr. 22, 2013). Shortly thereafter, the Zappones asserted claims against the currency for that 

amount. In June, however, they filed amended claims alleging that the amount of the defendant 

currency “is understated with the true value at approximately Three Million One Hundred Fifty 

Thousand Dollars ($3,150,000).” 

 Alongside the civil-forfeiture case, the Zappones pursued other avenues for retrieving the 

Special Agents’ purportedly ill-gotten gains. In July 2014, the Zappones and OSC submitted 

administrative claims to the IRS seeking $1,886,000, the difference between the amount of 

currency allegedly seized and the amount that was then the res of the civil-forfeiture action. The 

claims arrived under a cover letter from attorney Michael T. Arnold, dated July 21, 2014. In 

addition to the claims, the Zappones submitted executed power-of-attorney forms that identified 

their counsel as Arnold, Robert J. Fedor, and Benjamin C. Heidinger and listed their counsel’s 

address. The IRS received these materials in August 2014. 
No. 16-4111 Zappone, et al. v. United States, et al. Page 3

On February 11, 2015, the IRS mailed letters denying the claims via certified mail to 

Fedor and Arnold. The letters advised the lawyers that their “client[s] may contest this 

determination and bring suit against the United States in the appropriate United States district 

court no later than six months after the date of the mailing of this notification.” The attorneys 

received the denials two days later. By this time, however, the Zappones had switched counsel. 

But they had not notified the IRS of Arnold and Fedor’s withdrawal of representation; nor is 

there record of the denial letters being returned to the IRS as undeliverable. 

 On October 14, 2015, the Zappones1 filed the complaint in this case against twelve IRS 

employees and one IRS subcontractor, alleging both state-law torts (conversion, invasion of 

privacy, intentional infliction of emotional distress, and civil conspiracy) and constitutional 

claims (violation of their due process rights and unreasonable search and seizure). These claims 

stemmed from the IRS Special Agents’ execution of the search-and-seizure warrants on the 

Zappones’ property and the purported misappropriation of their cash. The district court later 

substituted the United States for the individual defendants with respect to the state-law claims. 

 After a status conference, the district court directed the Defendants to file a motion on the 

threshold issue of whether the applicable statutes of limitations barred the state-law and 

constitutional claims. Thereafter, the Defendants moved to dismiss all claims, and the Zappones 

opposed the motion. Recognizing that it would have to consider matters outside the complaint to 

address the parties’ statute-of-limitations arguments, the district court treated the motion to 

dismiss as one for summary judgment. The court decided in favor of the Defendants, concluding 

that the Zappones had filed their state-law and constitutional claims outside the appropriate 

limitations periods and rejecting their requests for equitable tolling. The Zappones appealed. 

II. 

 We review de novo the district court’s determination that the applicable statutes of 

limitations barred the Zappones’ state-law and constitutional claims. Banks v. City of Whitehall, 

344 F.3d 550, 553 (6th Cir. 2003) (citing Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934, 938 

 1

The Zappones’ three children—Dustin A. Zappone, SNZ, and DNZ—also brought state-law claims in this 

case. The United States moved to dismiss their claims, and the district court granted the motion. Neither the 

Zappones nor their children have challenged that ruling on appeal. 
No. 16-4111 Zappone, et al. v. United States, et al. Page 4

(6th Cir. 1999)). We also review de novo the district court’s “decision on the application of 

equitable tolling where the facts underlying the equitable tolling are undisputed.” Chavez v. 

Carranza, 559 F.3d 486, 493 (6th Cir. 2009) (citation omitted). “When the facts are in dispute, 

we apply an abuse of discretion standard.” Id. (citation omitted). 

A. 

We address the timeliness of the Zappones’ state-law claims against the United States 

first. The district court concluded that the statute of limitations under the Federal Tort Claims 

Act (“FTCA” or the “Act”) barred these allegations because the Zappones filed their complaint 

over six months after the IRS mailed notices denying their administrative claims. The court also 

rejected the Zappones’ argument for equitable tolling, concluding that their circumstances did 

not entitle them to relief under the doctrine. We agree with the district court with respect to both 

determinations. 

Although sovereign immunity generally shields the government from suit, Dep’t of the 

Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (citation omitted), the FTCA, 28 U.S.C. 

§ 2671, et seq., waives that immunity for certain tort claims. Specifically, it allows a plaintiff to 

sue the federal government for personal injury or property damage “caused by the negligent or 

wrongful act or omission” of government employees acting within the scope of their 

employment. Id. § 1346(b)(1); see also Chomic v. United States, 377 F.3d 607, 609 (6th Cir. 

2004). But in order to benefit from the FTCA’s waiver, a plaintiff must comply with two 

limitations periods. First, he must present an administrative claim “in writing to the appropriate 

Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). Second, he 

must bring the FTCA claim “within six months after the date of mailing, by certified or 

registered mail, of notice of final denial of the claim by the agency to which it was presented.” 

Id. If he fails to meet either of these time constraints, his “tort claim against the United States 

shall be forever barred.” Id. 

No party disputes that the Zappones did not satisfy the second of the two FTCA 

limitations periods. After the IRS mailed its denial notice for their administrative claims on 

February 11, 2015, the Zappones had until August 11, 2015, to bring their state-law claims. See 
No. 16-4111 Zappone, et al. v. United States, et al. Page 5

id. The Zappones failed to sue, however, until October 14, 2015—as the district court summed 

up, “two months too late.” 

Hoping to save their claims, the Zappones point to United States v. Kwai Fun Wong, in 

which the Supreme Court held that a court may equitably toll the time bar for FTCA claims filed 

outside the Act’s two statute-of-limitations periods. 135 S. Ct. 1625, 1638 (2015). They contend 

that the district court erred in declining to apply the equitable-tolling doctrine to their state-law 

claims. We disagree. 

1. The Equitable-Tolling Standard. 

In general, equitable tolling is available “when a litigant’s failure to meet a legallymandated deadline unavoidably arose from circumstances beyond that litigant’s control.” 

Jackson v. United States, 751 F.3d 712, 718 (6th Cir. 2014) (quoting Robertson v. Simpson, 

624 F.3d 781, 783 (6th Cir. 2010)). Although “equitable tolling may be applied in suits against 

the government, courts will only do so sparingly, and not when there has only been a garden 

variety claim of excusable neglect.” Id. (quoting Chomic, 377 F.3d at 615). A litigant “carr[ies] 

the burden of establishing [his] entitlement to equitable tolling.” Id. at 718–19 (citation omitted). 

Historically, this court has considered five factors in evaluating whether to apply 

equitable tolling to a late claim. See, e.g., Jackson, 751 F.3d at 719; Chomic, 377 F.3d at 609. 

These factors are: “(1) the plaintiff’s lack of notice of the filing requirement; (2) the plaintiff’s 

lack of constructive knowledge of the filing requirement; (3) the plaintiff’s diligence in pursuing 

her rights; (4) an absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in 

remaining ignorant of the particular legal requirement.” Jackson, 751 F.3d at 719 (citing Truitt 

v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). 

But this court has also recognized limitations to this approach, casting doubt on the need 

for strict adherence to it. In Graham-Humphreys v. Memphis Brooks Museum of Art, for 

example, we observed that the five factors are neither comprehensive nor material in all cases. 

209 F.3d 552, 560–61 (6th Cir. 2000) (citing Truitt, 148 F.3d at 648); see also Cook v. Stegall, 

295 F.3d 517, 521 (6th Cir. 2002). And “a litigant’s failure to meet a legally-mandated deadline” 

due to “unavoidab[le] . . . circumstances beyond that litigant’s control” is often the most 
No. 16-4111 Zappone, et al. v. United States, et al. Page 6

significant consideration in courts’ analyses, rather than any particular factor of the five-part 

standard. Graham-Humphreys, 209 F.3d at 560–61 (citations omitted). 

Notably, the Supreme Court has articulated a more streamlined, two-factor test for 

analyzing equitable-tolling requests in the habeas context. In Holland v. Florida, the Court held 

that a prisoner requesting equitable tolling must demonstrate both “‘(1) that he has been pursuing 

his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and 

prevented timely filing.” 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 

418 (2005)). Later, the Court applied this test to determine the timeliness of a claim under the 

Contract Disputes Act, although noting that it “had no occasion to decide whether an even 

stricter test” or “a more generous test than Holland’s should apply” to that matter and other nonhabeas cases. Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755–56 & 756 

n.2 (2016); see also Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231–32 (2014). And, in dicta 

in Wong, the same case in which it held that equitable tolling applied to FTCA suits, the Court 

alluded to the two-factor Holland test. See 135 S. Ct. at 1633. 

The government urges us to adopt the two-part Holland test to assess the timeliness of the 

Zappones’ state-law claims, asserting that it is more streamlined and avoids the drawbacks of the 

five-factor approach this court has identified in previous cases. Although these observations are 

persuasive, our hands are mostly tied. Because the Supreme Court has never expressly adopted 

the Holland test outside of the habeas context, see Menominee Indian Tribe, 136 S. Ct. at 756 

n.2, and because this court has previously applied the five-factor approach in FTCA suits, see 

Jackson, 751 F.3d at 719, the law-of-the-circuit doctrine precludes us from supplanting that 

approach to embrace a new equitable-tolling standard for FTCA cases (or, potentially, for other 

types of non-habeas civil cases). See Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir. 

2004) (“Under the law-of-the-circuit doctrine, only the Court sitting en banc may overrule 

published circuit precedent, absent an intervening Supreme Court decision or a change in the 

applicable law.”). But since the “propriety of equitable tolling must necessarily be determined 

on a case-by-case basis,” Truitt, 148 F.3d at 648 (citation omitted), both standards can inform 

our evaluation of the Zappones’ circumstances here. This is particularly so because the two 

approaches are quite compatible and may often lead to the same result. And we conclude that, 
No. 16-4111 Zappone, et al. v. United States, et al. Page 7

under either approach, the Zappones fail to meet the requisite burden to excuse the untimeliness 

of their state-law claims. 

2. The Sixth Circuit’s Five-Factor Approach. 

We address the Zappones’ arguments with respect to each factor. 

a. Factors 1, 2, and 5: Lack of Actual Knowledge of the Filing Requirement, 

Lack of Constructive Knowledge of the Filing Requirement, and 

Reasonableness in Remaining Ignorant of the Particular Legal Requirement. 

The Zappones say they had no actual or constructive knowledge of the FTCA’s sixmonth filing deadline. They also posit that this ignorance was reasonable by contending that 

they did not learn of the denial letter’s mailing in time to meet the appropriate deadline. In 

support, they aver that: (i) they did not learn of the notice of denial mailed to attorneys Fedor and 

Arnold because they had switched attorneys prior to the denial; (ii) the IRS knew before mailing 

the denials that Fedor and Arnold no longer represented them; and (iii) the IRS should have sent 

the denials to their home address as shown on the administrative claims instead of to their 

attorneys’ address. Each of these assertions fails to persuade us that these three factors weigh in 

the Zappones’ favor. 

That the Zappones did not learn of the IRS’s claim denials from their old (or new) 

attorneys fails to advance their cause because a lawyer’s mistake normally does not warrant 

equitable tolling. Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003) (citation omitted); see also 

Choice Hotels Int’l, Inc. v. Grover, 792 F.3d 753, 754 (7th Cir. 2015). This is especially true 

where, as here, the attorneys’ missteps amount to “a garden variety claim of excusable neglect.” 

Jackson, 751 F.3d at 718 (quoting Chomic, 377 F.3d at 615). 

The Zappones’ contention that the IRS knew of their change in counsel lacks support in 

the record. The Zappones point to minutes of a telephonic status conference in the civilforfeiture proceeding in which attorneys Fedor, Arnold, and Heidinger moved to withdraw their 

representation. But that withdrawal was limited to the forfeiture case and therefore did not 

constitute a withdrawal from their pending administrative claim for damages. The IRS thus had 

no reason to know that the Zappones’ counsel had changed. 
No. 16-4111 Zappone, et al. v. United States, et al. Page 8

And finally, the Zappones’ assertion that the IRS should have mailed the claim denials to 

their home address ignores what the federal regulations require. The pertinent provisions simply 

obligate the IRS to send a written denial “to the claimant, his attorney, or legal representative by 

certified or registered mail.” 28 C.F.R. § 14.9(a) (emphasis added). The regulations do not 

require the IRS to send notice to the claimant’s attorney and the claimant. See id. 

Ultimately, the Zappones’ failure to learn of the IRS’s denial notice was a problem of 

their own making: they never informed the IRS of their change in counsel, their prior attorneys 

neglected to inform them of the denial, and their new attorney fell short of retrieving the denial 

letter in time. Plus, the Zappones pinpoint no pertinent case law2

 to shore up their theory that a 

failure to receive IRS denial notices entitles them to de facto equitable tolling. Accord Jackson, 

751 F.3d at 720 (“Although [the plaintiff] argues that a situation in which a denial letter was 

never delivered mandates application of equitable tolling, she cites no authority to support her 

claim.”). 

b. Factor 3: Diligence in Pursuit of Their Claims. 

The Zappones next argue that they diligently pursued their claims by pointing to the 

efforts of their new lawyer. They contend that, upon “releasing” their prior counsel and “hiring 

their subsequent counsel, [they] were aware that [their new counsel] made many attempts to 

retrieve” the case file—which included, presumably, the IRS’s denial letter. The Zappones say 

that “[t]here [was] little more [they] could have done but make sure their new attorney demanded 

the full and complete file.” But this argument holds no water. There was much more the 

Zappones could have done: notify the IRS that their counsel had changed, revoke the power-ofattorney documents previously filed, or submit new power-of-attorney forms, as the regulations 

prescribe. See 26 C.F.R. § 601.505. 

c. Factor 4: Prejudice to the Government. 

 2

To support their argument, the Zappones rely on McCaffrey v. Nylon, Inc., No. CIV.A. 95-3787, 1996 WL 

122710, at *2 (E.D. Pa. Mar. 13, 1996), in which the court tolled the limitations period for a plaintiff suing the 

government when the IRS sent its notice of denial to the claimant directly, but the notice was never received. The 

facts of that case are distinguishable from the Zappones’ circumstances because: (i) the McCaffrey plaintiff was able 

to show correspondence with the IRS requesting that it communicate with his counsel rather than him, and (ii) the 

plaintiff presented evidence that he received no actual notice of the denial of the administrative claim. Id. at *1–2. 
No. 16-4111 Zappone, et al. v. United States, et al. Page 9

Finally, the Zappones assert that a mere two-month delay in filing their claims cannot 

possibly have prejudiced the government. The government, for its part, concedes that the 

prejudice factor does not weigh in its favor. The absence of prejudice, however, cannot serve as 

an independent basis for equitably tolling a limitations period, especially where, as here, the 

plaintiffs fail to demonstrate that any other factor supports tolling. Graham-Humphreys, 

209 F.3d at 562 n.12; see also Menominee Indian Tribe, 136 S. Ct. at 757 n.5. 

 In sum, the five-factor approach counsels against applying equitable tolling here. 

3. The Supreme Court’s Two-Part Holland Test. 

When we examine this case through the lens of the two-part Holland test—which 

requires (1) the plaintiff to have pursued his rights diligently, and (2) that some extraordinary 

circumstance stood in his way to prevent timely filing, 560 U.S. at 649—our conclusion remains 

the same. 

a. Diligence in Pursuit of Their Rights. 

As discussed, the Zappones could have taken the appropriate steps to notify the IRS of 

their change in attorney, see 26 C.F.R. § 601.505, but they failed to do so. “Ignorance of the 

legal process alone will not provide the basis for an equitable tolling claim.” Jones v. Gen. 

Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991) (citing Campbell v. Upjohn Co., 676 F.2d 1122, 

1127 (6th Cir. 1982)). The Zappones therefore fall short of establishing diligent pursuit of their 

rights. 
No. 16-4111 Zappone, et al. v. United States, et al. Page 10

b. Extraordinary Circumstances Standing in the Way of Timely Filing. 

As noted, none of the Zappones’ attorneys informed their clients of the receipt of the 

claim-denial notice. Nor did they notify the IRS of a change in representation before the IRS 

sent its denial letter. If they had done so, “the denial letter presumably would have been 

delivered” to the appropriate party. Jackson, 751 F.3d at 720. Again, “a garden variety claim” 

involving an attorney’s “excusable neglect” does not amount to an extraordinary circumstance 

warranting equitable tolling. Holland, 560 U.S. at 651–52. 

For these reasons, we uphold the district court’s determination that the Zappones 

untimely filed their state-law claims and that their circumstances do not merit equitable tolling. 

B. 

We turn next to the Zappones’ constitutional claims against the individual IRS agents for 

violating their due process and Fourth Amendment rights. After noting that these Bivens claims 

are “governed by the same statute of limitations as [] claim[s] under 42 U.S.C. § 1983,” and that 

“the statute of limitations for [§ 1983 claims] arising in Ohio” is two years, the district court 

dismissed them as untimely. It also rejected the Zappones’ alternative argument for equitable 

tolling. The district court reached the right result on both counts. 

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 

388 (1971), the Supreme Court “recognized a cause of action against federal officials for certain 

constitutional violations when no alternative processes exist to protect the plaintiff’s interests and 

no special factors counsel against recognizing the cause of action.” Zundel v. Holder, 687 F.3d 

271, 279 (6th Cir. 2012) (citations omitted). Bivens claims, like § 1983 claims, ordinarily 

borrow the personal-injury statute of limitations from the state in which the claim arose. See 

Hardin v. Straub, 490 U.S. 536, 540 (1989); Zundel, 687 F.3d at 281; McSurely v. Hutchison, 

823 F.2d 1002, 1004–06 (6th Cir. 1987). 

When a state, such as Ohio, has multiple personal-injury statutes with different 

limitations periods, courts use the statute of limitations applicable to residual or general personal 

injuries, not that for a particular specific intentional tort. See Owens v. Okure, 488 U.S. 235, 
No. 16-4111 Zappone, et al. v. United States, et al. Page 11

249–50 (1989); Browning v. Pendleton, 869 F.2d 989, 990–91 (6th Cir. 1989) (en banc). That 

means that Ohio Rev. Code § 2305.10, which governs the timeliness of general personal injury 

claims, applies to Bivens claims arising in Ohio. See Browning, 869 F.2d at 992. And that 

statute provides for a two-year limitations period, with the cause of action accruing at the time of 

injury. Ohio Rev. Code § 2305.10. 

No party disputes that the Zappones’ Bivens claims accrued on the day of the allegedly 

unlawful search—November 8, 2012. As the district court summarized, “[t]he Zappones were at 

[OSC]’s office during the search [when] the money [was] placed in the custody of the IRS, and 

thus knew of their alleged injury that day.” Applying Ohio Rev. Code § 2305.10, the Zappones 

thus had until November 8, 2014, to sue the IRS agents. But they failed to bring their claims 

until October 14, 2015—over eleven months past the statutory deadline. 

Nevertheless, the Zappones advance two arguments in a bid to revive their claims. 

First, they contend that the district court applied the wrong statute of limitations. They 

reason that because their claims chiefly arise out of an alleged unlawful appropriation of money, 

Ohio’s four-year statute of limitations governing the tort of conversion should apply, see Ohio 

Rev. Code § 2305.09(B), as it is the “most analogous statute of limitations” with respect to their 

claims. In support, they rely on Baker v. Mukasey, in which a panel of this court stated, with 

respect to Bivens claims, that it “appl[ies] the most analogous statute of limitations from the state 

where the events giving rise to the claim occurred.” 287 F. App’x 422, 424 (6th Cir. 2008). 

Notwithstanding this language from Baker, binding authority forecloses the Zappones’ 

argument. In Owens, the Supreme Court rejected the petitioners’ attempts to analogize their 

§ 1983 claims to particular state-law intentional torts and borrow those torts’ statutes of 

limitations. 488 U.S. at 249–50. The Court recognized that such an approach carries “enormous 

practical disadvantages,” including inconsistent application. Id. 242–48. And it also reasoned 

that, “[g]iven that so many claims brought under § 1983 have no precise state-law analog, 

applying the statute of limitations for the limited category of intentional torts would be 

inconsistent with § 1983’s broad scope.” Id. at 249. The Court thus concluded that “where state 

law provides multiple statutes of limitations for personal injury actions, courts considering 
No. 16-4111 Zappone, et al. v. United States, et al. Page 12

§ 1983 claims should borrow the general or residual statute for personal injury actions.” Id. at 

249–50. That same logic applies to locating the appropriate statute of limitations for Bivens 

claims. See Hardin, 490 U.S. at 540; Zundel, 687 F.3d at 281; McSurely, 823 F.2d at 1004–06. 

And as noted, Ohio Rev. Code § 2305.10 delineates the residual or general statute of limitations 

for personal-injury torts. See Browning, 869 F.2d at 992. 

Baker, an unpublished decision, does not compel a different result. That panel resolved a 

prisoner’s Bivens claims against prison officials without the benefit of briefing from the 

defendants. See 287 F. App’x at 424. Although the court voiced a rule seemingly in harmony 

with the Zappones’ position—that a court should apply “the most analogous statute of limitations 

from the state where the events giving rise to the claim occurred”—it did not then analyze the 

prisoner’s constitutional claims and try to locate the most analogous civil claims in the 

jurisdiction. See id. Instead, that statement was merely prefatory to the court’s determination 

that, since the prisoner’s claims arose in Kentucky, the court should use Kentucky’s one-year 

time limit applicable to personal-injury claims rather than any other state’s longer statute of 

limitations for personal-injury claims. See id. Baker’s reasoning thus does not stand for the 

proposition the Zappones would assign to it. And to the extent that Baker suggests a departure 

from the well-established rule that § 1983 and Bivens claims borrow the general or residual 

statute of limitations for personal injury claims, we reject that reasoning here. 

Second, the Zappones argue that, even if a two-year statute of limitations governed their 

claims, the district court should have equitably tolled the period. In support, they say that they 

erroneously pursued their claims in the wrong forum, pointing to their filing of the amended 

claims in the civil-forfeiture action, which alleged that the IRS agents actually seized $3,150,000 

from their safe. United States v. $1,264,000 in U.S. Currency, No. 3:13-cv-0095 (N.D. Ohio 

Apr. 22, 2013). They reason that their pleadings in the forfeiture action reflect diligent pursuit of 

their claims. And their “good faith error,” they argue, entitles them to equitable tolling. 

The Zappones buttress their argument by citing Burnett v. New York Central Railroad 

Co., 380 U.S. 424 (1965). In that case, the plaintiff sued his employer, a railroad, in Ohio state 

court, alleging a violation of the Federal Employer’s Liability Act (FELA). Id. at 424. FELA 

provided for concurrent jurisdiction in state courts and U.S. district courts. 45 U.S.C. § 56. The 
No. 16-4111 Zappone, et al. v. United States, et al. Page 13

Ohio court had jurisdiction and the plaintiff had properly served the defendant with process. 

Burnett, 380 U.S. at 424–25. But because venue was not proper in the Ohio court and Ohio law 

barred transfer to another court where venue was proper, the Ohio court dismissed the action. Id.

at 425. Eight days after the Ohio court’s dismissal of his claims, the plaintiff filed an identical 

suit in federal court, but by this point, his claim was untimely under FELA’s three-year statute of 

limitations. Id. The Supreme Court concluded that equitable tolling warranted permitting the 

plaintiff’s claims to proceed because “when process has been adequate to bring in the parties and 

to start the case on a course of judicial handling which may lead to final judgment without 

issuance of new initial process, it is enough to commence the action within the federal statute.” 

Id. at 426 (quoting Herb v. Pitcairn, 325 U.S. 77, 79 (1945)). 

Burnett’s rationale offers no refuge for the Zappones’ untimely claims. The Zappones 

did not merely assert their entitlement to relief in the wrong forum—they did so in the wrong 

type of action. As the district court correctly noted, “the Zappones could not have pursued, 

diligently or otherwise, their Bivens claims” in the civil-forfeiture proceeding. A forfeiture 

action is a suit in rem against the res, or the seized property, the purpose of which is to determine 

“ownership and control” over that property. United States v. James Daniel Good Real Prop., 

510 U.S. 43, 52 (1993). In other words, a claim in a civil-forfeiture action is “brought against 

property, not people.” United States v. All Funds in Account Nos. 747.034/278, 747.009/278, 

& 747.714/278 Banco Espanol de Credito Spain, 295 F.3d 23, 25 (D.C. Cir. 2002). And while 

the purported owner of the property may intervene in the action, he may not assert counterclaims 

against the United States. United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30, 34 

(1st Cir. 1991). The Zappones therefore could not have diligently pursued damages against a 

federal agent in the civil-forfeiture action—they could not, in other words, “start the case on a 

course of judicial handling which may lead to final judgment without issuance of new initial 

process.” See Burnett, 380 U.S. at 426. 

Another significant fact distances this case from Burnett. In filing their amended claims 

in the civil-forfeiture proceeding, the Zappones never served process or other notice on the 

individual IRS agents. The amended claims, filed through the court’s ECF system, would have 

been delivered electronically only to the attorneys who had appeared on behalf of the United 
No. 16-4111 Zappone, et al. v. United States, et al. Page 14

States or on behalf of other claimants. Because the Zappones have shown no proof that they 

served the amended civil-forfeiture claims on any of the individual defendants named in the 

present case, process was far from “adequate” to “bring in the parties” subject to their Bivens 

claims. See id. at 426. 

In a last-ditch effort to salvage their constitutional claims, the Zappones contend that the 

district court should have left the question of equitable tolling for the jury. Not so. The decision 

to invoke equitable tolling is a question of law for a court to answer. Chavez, 559 F.3d at 494 

(citing Rose v. Dole, 945 F.2d 1331, 1334 (6th Cir. 1991)). And the district court did so 

correctly. 

III. 

 We AFFIRM.