IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20114

 

DIANE KROBUSEK PEREZ,

Plaintiff-Appellant

versus

UNITED STATES OF AMERICA

Defendant-Appellee

 

Appeal from the United States District Court

for the Southern District of Texas

 

February 12, 1999

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The plaintiff in this appeal challenges the district court’s

conclusion that her action against the government was time-barred.

The case requires us to decide whether equitable tolling is

available in tort cases against the government and whether it is

applicable on the facts presented. We find it both available and

applicable, and thus REVERSE.

I

While performing with other members of her student bellydancing troupe at the Brazos Festival in College Station, Texas,

Diane Krobusek Perez stopped to pose for pictures in front of an

Armored Personnel Carrier. The Texas National Guard had placed the

APC on display to promote its recruitment efforts at the festival.
2

According to Perez, the presence of the scantily clad dancers

distracted the guardsmen in charge from their duties, and they did

not stop a third party from entering the APC and disengaging the

hand brake. The vehicle began to roll forward, and it struck

camouflage netting poles that in turn knocked Perez unconscious.

The date was September 29, 1990.

After the incident, Perez enlisted the aid of Matthew

Nancarrow, a Texas A&M student services attorney, who wrote a

letter to the Texas National Guard. The letter reported the charge

that the guards’ negligent supervision and lack of proper security

proximately caused the injuries Perez had suffered. It further

indicated that Perez was interested only “in pursuing

indemnification for the actual damages sustained.” Finally, the

letter requested advice “as to whether your outfit is self-insured

or maintains private liability insurance and who might handle my

clients’ [sic] claim.” 

Lt. Col. Donald R. Nichols later testified that he received

the letter and tried to call Nancarrow. Because Nancarrow was out,

Nichols left a message with his secretary. Specifically, he

allegedly informed her that any claim Perez might pursue should be

filed with the United States Army Claims Office, and he provided

her the address of that office. A notation on Nancarrow’s original

letter, purportedly written immediately after the phone call,

indicates that Nichols called Nancarrow’s telephone number, that

Nancarrow was out of town, that he left the message concerning the

Claims Office, and that the date was October 11, 1990. Nancarrow
3

later testified that he does not remember receiving Nichols’s

message.

On September 10, 1991, Perez filed suit in Texas state court

against the State of Texas, the Texas National Guard, and

Christopher Heck, who allegedly disengaged the hand brake. A year

later, on September 18, 1992, she filed an amended petition. After

another year and a half, on March 11, 1994, Texas National Guard

Captain Foy Watson advised Perez’s new attorney that the guardsmen

had been acting as employees of the federal government while on

duty at the festival. See 32 U.S.C. § 502 (providing a dual statefederal status for members of the National Guard). In accordance

with this theory, Texas and the Texas National Guard sought summary

judgment on the basis of state sovereign immunity on July 29, 1994.

This motion was denied, but a subsequent motion to dismiss was

granted on June 14, 1995.

On June 30, 1995, the plaintiff filed a claim with the U.S.

Army, and the Army denied it four months later, citing the two-year

statute of limitations of the Federal Tort Claims Act. See 28

U.S.C. § 2401(b) (providing that a claim “shall be forever barred

unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues or unless action is begun

within six months after . . . notice of final denial of the claim

by the agency to which it was presented”). The following May,

Perez filed this suit.

The district court dismissed the suit, concluding that notice

to the appropriate federal agency is a jurisdictional prerequisite
4

under the FTCA, citing Cook v. United States, 978 F.2d 164, 166

(5th Cir. 1992), and refusing to follow Schmidt v. United States,

933 F.2d 639 (8th Cir. 1991). The district court was persuaded

that Perez had failed to investigate the nature of her claim

diligently, and thus failed to recognize that the Texas National

Guard has a dual nature, sometimes serving the federal government

and sometimes serving the state. The court agreed that the

National Guard had violated regulatory requirements by failing to

provide Perez with an SF95 claim form. Nonetheless, emphasizing

that Perez’s decision to sue the Texas National Guard was not the

product of affirmative misstatements by the Texas National Guard,

the court refused to save her claim through application of

equitable tolling.

Perez timely appeals, arguing that equitable tolling should

apply.

II

The district court’s citation to Cook notwithstanding, whether

the limitations provisions of the FTCA are jurisdictional--in which

case equitable tolling could not apply--remains an open question in

this circuit. The Cook court did state that “[f]urnishing notice

[within the specified time period] is a jurisdictional prerequisite

to filing suit under the FTCA.” 978 F.2d at 166. This statement,

however, was dicta, because nothing in the case turned on whether

the limitations provisions were jurisdictional. The Cook court did

not specifically mention equitable tolling, and nothing in its
5

presentation of the facts suggests that equitable tolling would

have been applicable had the court found it available.

Moreover, the case that Cook cited for the dictum was Transco

Leasing Corp. v. United States, 896 F.2d 1435, 1441 (5th Cir.),

amended on other grounds, 905 F.2d 61 (5th Cir. 1990). Transco is

clear enough, but it preceded the Supreme Court’s decision in Irwin

v. Department of Veterans Affairs, 498 U.S. 89, 94-96 (1990), by

several months. Irwin, a Title VII case, undid the old rule that

equitable tolling was never available against the government, and

thus placed the jurisdictional nature of the FTCA statute of

limitations into doubt. Cf. Houston v. United States Postal Serv.,

823 F.2d 896 (5th Cir. 1987) (applying the old rule to the FTCA).

It is thus to Irwin and its progeny that we must turn for guidance.

The Irwin Court reasoned that where Congress has decided to

waive its sovereign immunity, there should be no presumption that

it nevertheless intended that equitable tolling not apply. See id.

at 95 (“Once Congress has made such a waiver, we think that making

the rule of equitable tolling applicable to suits against the

Government, in the same way that it is applicable to private suits,

amounts to little, if any, broadening of the congressional

waiver.”). While the Court stressed that it sought to create a

single rule applicable to a wide variety of statutory

circumstances, see id. (arguing against a continuing effort to

decide such questions “on an ad hoc basis”), its reasoning accepts

that the availability of equitable tolling is a question of

congressional intent. 
6

Accordingly, the Supreme Court in United States v. Brockamp,

519 U.S. 347 (1997), found that Congress had exempted the

government from equitable tolling in I.R.C. § 6511. The Brockamp

Court echoed Irwin in phrasing the question, “Is there good reason

to believe that Congress did not want the equitable tolling

doctrine to apply [against the government]?” Id. at 851. In

answering “yes,” for § 6511, the Court emphasized two factors.

First, § 6511's limitations period was set forth “in a highly

detailed technical manner that linguistically speaking, cannot

easily be read as containing implicit exceptions.” Id. at 851.

Second, given the large number of tax returns and refunds processed

by the IRS, “[t]he nature and potential magnitude of the

administrative problem suggest that Congress decided to pay the

price of occasional unfairness in individual cases (penalizing a

taxpayer whose claim is unavoidably delayed) in order to maintain

a more workable tax enforcement system.” Id. at 852.

Two circuits have addressed the equitable tolling issue under

the FTCA. In Schmidt, the district court decided a disputed fact

in dismissing a claim as time barred. The Schmidt court concluded,

without repair to the language or history of the FTCA, that Irwin

necessarily meant that the statute was not jurisdictional, hence

the district court lacked the authority to find jurisdictional

facts. See 933 F.2d at 640. Glarner v. United States, 30 F.3d 697

(6th Cir. 1994), followed Schmidt, allowing equitable tolling.

The Sixth and Eighth Circuits arrived at the same result that

we will reach, but their reasoning was flawed. Both were decided
7

after Irwin but before Brockamp. Both the Schmidt and Glarner

courts seemed to believe that the Irwin rule allowing equitable

tolling would apply in all suits against the government. Brockamp

proves this deduction incorrect, so the Eighth and Sixth Circuits

may reconsider Schmidt and Glarner. We therefore consider the FTCA

issue afresh, though this fresh look ultimately leads to the same

place.

The only commentator addressing the question concludes that

the doctrine of equitable tolling should not apply to the FTCA.

See Richard Parker, Is the Doctrine of Equitable Tolling Applicable

to the Limitations Periods in the Federal Tort Claims Act?, 135

MIL. L. REV. 1 (1992). Arguing from the text of the statute, Parker

argues that the language “forever barred” in § 2401 suggests an

intent to treat late claims harshly. Parker’s primary legislative

history argument is that Congress did not pass the FTCA “in a

vacuum,” but “acted against a background of extant federal

legislation--including other waivers of sovereign immunity, some of

which contained tolling provisions.” Id. at 10. He also argues

that Congress’s failure to amend the statute by adding tolling

provisions, despite other amendments in 1948 and 1949, and despite

adding a tolling provision for claims brought by the government in

1966, indicates a desire not to allow tolling in FTCA cases.

These signals are ultimately equivocal at best. First, the

use of the words “forever barred” is irrelevant to equitable

tolling, which properly conceived does not resuscitate stale

claims, but rather prevents them from becoming stale in the first
8

place. Second, the Congress that drafted Title VII presumably

wrote against a similar background of limitations provisions, yet

this did not lead the Irwin Court to conclude that Congress assumed

a default rule barring equitable tolling. Third, deductions from

congressional inaction are notoriously unreliable. See, e.g.,

Lindahl v. Office of Personnel Management, 470 U.S. 768, 803 n.3

(1985) (White, J., dissenting); cf. United States v. Price, 361

U.S. 304, 313 (1960) (“[T]he views of a subsequent Congress form a

hazardous basis for inferring the intent of an earlier one.").

Perhaps these pieces of evidence are the best that can be

collected from a legislative record that does not directly address

the issue, but they are insufficient to overcome the presumption of

Irwin that the government is subject to equitable tolling.

Moreover, neither of the factors identified in Brockamp as

supporting a conclusion that the provision was jurisdictional

applies. 

First, Section 2401 is a garden variety limitations provision,

without the attention to detail in § 6511 that suggested preemption

of equitable remedies. The latter section includes four different

sets of rules that the Supreme Court quoted. The first and most

complicated states that a “[c]laim for . . . refund . . . of any

tax . . . 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, or if no return

was filed . . . within 2 years from the time the tax was paid.”

I.R.C. § 6511(a). By comparison, § 2401 makes just one
9

distinction, between the time period generally applicable and that

applicable if an agency issues a final denial of the claim.

Second, allowing equitable tolling would not create an

administrative nightmare for the FTCA regime, which encompasses far

fewer claims than might be filed against the Internal Revenue

Service. Thus, where the principles of equitable tolling would

ordinarily apply, such tolling should be allowed in an FTCA case.

III

A useful summary of equitable tolling is offered in Irwin

itself:

We have allowed equitable tolling in situations where the

claimant has actively pursued his judicial remedies by

filing a defective pleading during the statutory period,

or where the complainant has been induced or tricked by

his adversary’s misconduct into allowing the filing

deadline to pass. We have generally been much less

forgiving in receiving late filings where the claimant

failed to exercise due diligence in preserving his legal

rights. . . . But the principles of equitable tolling

described above do not extend to what is at best a garden

variety claim of excusable neglect.

498 U.S. at 96 (footnotes omitted). Despite its generality, this

passage indicates that equitable tolling is available where a

plaintiff has actively pursued judicial remedies but filed a

defective pleading, as long as the plaintiff has exercised due

diligence.

The Supreme Court supported its discussion of equitable

tolling, citing Burnett v. New York Central R.R. Co., 380 U.S. 424

(1965), as a case in which a plaintiff benefitted from equitable
 

1Burnett itself never explicitly mentioned “equitable

tolling,” and narrowly read it is an interpretation of a legal

tolling provision. Arguably, the Irwin citation folds the

principle of Burnett into the doctrine of equitable tolling.

Regardless of how Burnett is characterized, it remains relevant for

the statutory construction it undertakes.

10

tolling despite having filed originally in the wrong court.1 Otto

Burnett had filed his Federal Employers’ Liability Act claim in the

wrong county, because he was apparently unaware of a special Ohio

rule specifying venue in actions against railroads. See id. at

425. The Supreme Court analyzed the text of the relevant

limitations provision, which stated that “no action shall be

maintained . . . unless commenced within three years . . . .”

Quoted in id. at 426. Noting that “the basic inquiry is whether

congressional purpose is effectuated by tolling the statute of

limitations in given circumstances,” id. at 427, the Court

“examine[d] the purposes and policies underlying the limitations

provision,” id. It then emphasized that the “[p]etitioner here did

not sleep on his rights but brought an action within the statutory

period . . .” Id. at 429. Finally, the Court concluded that “the

limitation provision is tolled until the state court order

dismissing the state action becomes final.” Id. at 435.

Perez’s error in this case, misunderstanding the dual nature

of the Texas National Guard, is of the same magnitude as the error

in Burnett. Both errors would have been uncovered through more

careful legal research. Thus, if Burnett does not count as a

“garden variety claim of excusable neglect,” this case cannot

either. What distinguishes Burnett and this case from such a
 

2The inference that there is a distinction between “presented

in writing” and “filed” is strengthened by analysis of the

immediately preceding provision, § 2401(a), which uses the “filed”

language. Presumably, if both § 2401(a) and § 2401(b) meant

“filed,” they both would have used the same language.

11

“garden variety” claim is that the plaintiff took some step

recognized as important by the statute before the end of the

limitations period. The Burnett action counted as “commenced”

because suit was filed, even though it was the wrong action. Here

too, suit was timely filed, albeit it confused the hat the National

Guard was wearing at the time of the accident.

The FTCA limitations period requires only that the claim be

“presented in writing to the appropriate Federal agency” before the

end of the limitations period. The filing of the claim against

the Texas National Guard meets this requirement. The Guard acts in

different capacities, but it is one entity. The appropriate agency

thus received the claim. The requirement that the claim be

“presented in writing” is textually weaker than a requirement that

the claim be “filed.”2 There need not be a formal legal claim filed

against a properly named defendant. Indeed, the letter that

Nancarrow sent would qualify as a sufficient presentment in writing

within the limitations period even if the subsequent filing of a

formal claim against the Texas National Guard would not.

IV

Nancarrow’s letter also provides an alternative justification

for equitable tolling that would suffice even if Perez’s attorneys

had not followed up on the letter at all. One thread of equitable

tolling doctrine has recognized the appropriateness of suspending
12

the statute of limitations when there has been fraudulent

concealment of information that the plaintiff would need to file

correctly. See generally Lyman Johnson, Securities Fraud and the

Mirage of Repose, 1992 Wis. L. Rev. 607, 634-42 (discussing this

strand along with another not relevant here).

While Perez cannot show intentional fraud, she can establish

that the National Guard violated a duty to her. Specifically, 32

C.F.R. § 536 et seq. placed a duty on the National Guard to forward

a claims form to Nancarrow or Perez after receiving his letter.

Section 536.2 states, “Any person who indicates a desire to file a

claim against the United States will be instructed concerning the

procedure to follow. He will be furnished claim forms, and, when

necessary, will be assisted in completing the forms and assembling

evidence.” Section 536.50(k)(2)(ii) states that claims “arising out

of tortious conduct by ARNG [Army National Guard] personnel”

received by the states “will be expeditiously forwarded through the

State adjutant general to the appropriate U.S. Army area claims

office in whose geographic area the incident occurred.” Finally, §

536.50(k)(6)(iv) provides that “[w]hen a claim is improperly

presented, is incomplete or otherwise does not meet the

requirements . . . the claimant or his or her representative will

be promptly informed in writing of the deficiencies and advised

that a proper claim must be filed within the 2 year statute of

limitations” (emphasis added).

The appellee argues that § 536.50 applies only to the United

States Army, but not to the National Guard. This is wrong.
13

Section 536.50(k)(2) specifically refers to that set of claims

“arising out of tortious conduct by ARNG personnel as defined in

paragraph (d)(1)(iii) of this section,” which refers directly to

the relevant National Guard statutes. In addition, § 536.1(b)(iv)

specifies the scope of § 536.50 as entailing “the administrative

settlement of claims under the Federal Tort Claims Act . . . for

personal injury, death or property damage caused by the negligent

act or omissions of members or employees of the DA while acting

within the scope of their employment.” The “DA” is the Department

of the Army, and § 536.50(d)(1)(iii) makes clear that “[m]embers of

the ARNG while engaged in training or duty” are the responsibility

of the DA.

Even if Nichols returned Nancarrow’s phone call, the National

Guard unquestionably failed to follow these regulations. The Sixth

Circuit in Glarner found that the Department of Veterans Affairs

had failed to comply with 38 C.F.R. § 14.604(a), which similarly

requires furnishing a copy of a claim form. The court allowed

equitable tolling, because “the VA failed in a legal duty to

Glarner,” 30 F.3d at 701.

The district court distinguished Glarner by noting that “the

plaintiff in the instant case has been represented by ‘able,’

‘skilled’ attorneys who are presumably familiar with the FTCA’s

statutory requirements.” This is off the mark, because nothing in

the regulations limits the National Guard’s responsibility to cases

in which the plaintiff is unrepresented. Perez clearly did not
14

sleep on her rights, and her attorneys, skilled or not, made an

error. 

Tolling is the only remedy for the regulatory violation, and

it is a remedy that fits. Just as the negligence per se doctrine

borrows statutory law in deference to the decisions of legislatures

and administrative agencies, so too must equitable tolling doctrine

incorporate democratically promulgated rules defining the

government’s obligation to prospective litigants. In this case,

there is a clear causal connection between the government’s failure

to follow its regulations and the plaintiff’s filing of an improper

complaint. If there had been no causation--for example, if Perez’s

lawyers knew of the relevant legal rules but filed against the

Texas National Guard because they thought a jury would be more

sympathetic to the federal defendant--then the per se doctrine

would not apply.

Fano v. O’Neill, 806 F.2d 1262 (5th Cir. 1987), does not

require us to deviate from the Sixth Circuit’s path. In that case,

we found that the INS’s failure to follow an internal agency

guideline did not trigger the doctrine of equitable estoppel. Fano

reminds us of the sound principle that the government cannot be

estopped on the same terms as others. See id. at 1256. As we have

seen, with the doctrine of equitable tolling, the presumption runs

the other way. Absent evidence to the contrary, equitable tolling

can be applied against the government. Moreover, Fano emphasized

the distinction between internal agency guidelines and regulations

passed according to notice-and-comment. See id. at 1264. When, as
15

here, we confront an exercise of legislative power, raw or

delegated, our obligation to ensure that Congress’s intent is

fulfilled looms larger. See generally Robert A. Anthony,

“Interpretive” Rules, “Legislative” Rules and “Spurious” Rules:

Lifting the Smog, 8 Admin. L.J. Am. U. 1 (1994) (discussing the

different legal effect of different types of rules promulgated by

administrative agencies). 

V

Though judges historically applied equitable tolling in their

role as chancellors of equity, the doctrine is not one that trial

courts have discretion to use whenever they please. Statutes of

limitations serve a vital role in blocking stale claims. As the

Supreme Court has made clear, some such statutes allow for

equitable tolling in limited circumstances to prevent a plaintiff

from unjustly losing a claim vigorously pursued. Only because the

facts of this case fall within the doctrine’s ambit, indeed do so

in two different ways, do we find the limitations period tolled

here.

REVERSED AND REMANDED.