Gallardo v. United States
755 F.3d 860
9th Cir.2014Background
- Gallardo sues the United States under the FTCA for a sexual assault by a Marine Corps sergeant on a recruitment detail at her middle school; assault occurred in March–May 2006, with the most relevant incident May 2006.
- Gallardo filed an administrative FTCA claim in May 2010, which was denied in December 2010.
- The district court dismissed the FTCA claim as time-barred under 28 U.S.C. § 2401(b) because the two-year accrual ran in 2008 without tolling.
- The district court relied on Kubrick to hold accrual occurred at the time of Curtis’s assault, not when Gallardo learned of negligence in 2009.
- On appeal, Wong v. Beebe (en banc) held equitable tolling is available in FTCA actions, and this court vacated and remanded to consider tolling in the first instance under the new law.
- The opinion addresses accrual timing and whether equitable tolling can save Gallardo’s late filing given the intervening legal change in authority
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual timing under FTCA | Gallardo argues accrual occurred in 2009 upon learning of negligence | Gallardo’s claim accrued at the assault in 2006 per Kubrick | Accrual occurred at the time of Curtis’s assault (May 2006) |
| Equitable tolling under FTCA | Tolling should apply due to Wong’s adoption of tolling; Marley overruled | Tolling not available or waived | Wong makes § 2401(b) nonjurisdictional and tolling is possible; remand for tolling analysis; waiver arguments are waived or not controlling |
Key Cases Cited
- Kubrick v. United States, 444 U.S. 111 (U.S. 1979) (accrual when plaintiff knows the injury and its immediate cause)
- Hensley v. United States, 531 F.3d 1052 (9th Cir. 2008) (ignorance of government employee involvement irrelevant to accrual)
- Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996) (earlier view on tolling under FTCA)
- Marley v. United States, 567 F.3d 1030 (9th Cir. 2009) (held tolling not available under FTCA (overruled))
- Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013) (en banc; tolling available under FTCA; nonjurisdictional)
- Romain v. Shear, 799 F.2d 1416 (9th Cir. 1986) (exception to waiver when change in law arises on appeal)
- Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009) (waiver principles in procedural context)
- Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984) (relevance to accrual and knowledge of injury)