646 F.3d 185
5th Cir.2011Background
- Alexander, on behalf of her minor son Cooper, sued the United States under the FTCA for injuries allegedly from formaldehyde exposure in FEMA EHUs after Hurricanes Katrina and Rita.
- Cooper moved into an EHU in May 2006; symptoms related to formaldehyde appeared almost immediately, and Alexander knew the smell came from the EHU.
- FEMA issued notices and conducted studies; by 2006-2007 FEMA warned residents and urged medical advice, with later CDC recommendations in 2008.
- Alexander filed an administrative FTCA claim on July 10, 2008, and suit followed seven months later; the district court dismissed for lack of jurisdiction as untimely.
- The district court held Alexander’s claim accrued in May 2006, making the administrative claim untimely; she was selected as a bellwether plaintiff.
- The Fifth Circuit reviews jurisdictional dismissals de novo and addresses accrual rules, equitable tolling, and continuing tort arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| accrual timing under Kubrick rule | Alexander argues discovery tolled accrual until July 2007. | Government argues accrual occurred May 2006 when injury and cause were known. | Discovery rule does not apply; accrual May 2006. |
| discovery rule applicability | Kubrick discovery rule delays accrual when causation is controlled by defendant. | Causation here was knowable and within Alexander’s ability to discover. | Kubrick discovery rule not applicable. |
| equitable tolling | Reasonable reliance on government reps tolled limitations. | Equitable tolling cannot extend FTCA limits; tolling not warranted here. | Equitable tolling does not apply. |
| continuing tort doctrine | FTCA claims may accrue when tortious acts cease. | FTCA accrual is based on awareness of injury, not cessation of conduct. | Continuing tort doctrine does not apply to this FTCA claim. |
Key Cases Cited
- United States v. Kubrick, 444 U.S. 111 (Supreme Court 1979) (discovery rule for accrual when injury and cause known)
- Johnson v. United States, 460 F.3d 616 (5th Cir. 2006) (Kubrick-derived discovery rule for FTCA accrual)
- Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) (burden on plaintiff to prove jurisdiction; limitations are jurisdictional)
- Beech v. United States, 345 F.2d 872 (5th Cir. 1965) (limitations periods in sovereign-immunity waivers are jurisdictional)
- Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444 (5th Cir. 2007) (continuing tort doctrine discussion in FTCA context)
- MacMillan v. United States, 46 F.3d 377 (5th Cir. 1995) (discovery rule and accrual considerations)
- DuBose v. Kansas City S. Ry. Co., 729 F.2d 1026 (5th Cir. 1984) (limitations and accrual principles in FTCA)