Patrick Poppe v. United States
690 F. App'x 480
| 9th Cir. | 2017Background
- Poppe brought an FTCA dental malpractice claim against the United States.
- He initially filed an FTCA complaint that was later dismissed without prejudice.
- Poppe then filed a second FTCA action after the six‑month statute of limitations in 28 U.S.C. § 2401(b) had expired.
- The district court dismissed the second action as time‑barred and declined to apply equitable tolling; it mistakenly called § 2401(b) jurisdictional but used the correct equitable‑tolling inquiry.
- The Ninth Circuit affirmed, rejecting Poppe’s argument that the first (dismissed) complaint excused the late filing and concluding Poppe failed to show extraordinary circumstances warranting equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Poppe’s FTCA claim was timely under 28 U.S.C. § 2401(b) | Filing the initial FTCA complaint (later dismissed without prejudice) should excuse or toll the six‑month limit | The dismissed earlier complaint does not toll or reset the FTCA six‑month period | The claim was time‑barred; the earlier dismissal did not preserve the limitations period |
| Whether equitable tolling applies to save Poppe’s untimely FTCA claim | Equitable tolling should apply due to circumstances surrounding the litigation and the dismissed suit | No extraordinary circumstances prevented timely filing; Poppe did not meet the two‑part equitable‑tolling test | Equitable tolling not available; Poppe failed to show diligence and extraordinary circumstances |
| Whether § 2401(b) is jurisdictional such that the court lacked power to hear the late claim | (Implicit) Characterization of § 2401(b) as jurisdictional would bar relief | § 2401(b) is a nonjurisdictional claim‑processing rule subject to equitable tolling | Panel noted the district court mischaracterized § 2401(b) as jurisdictional but applied the correct equitable‑tolling standard and affirmed |
Key Cases Cited
- O’Donnell v. Vencor Inc., 466 F.3d 1104 (9th Cir.) (timely filed then dismissed complaint does not toll limitations period)
- Wong v. Beebe, 732 F.3d 1030 (9th Cir. en banc) (§ 2401(b) is nonjurisdictional and subject to equitable tolling; plaintiff must show diligence and extraordinary circumstances)
- Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221 (clarifying equitable tolling principles)
- United States v. Wong, 135 S. Ct. 162 (Supreme Court decision affirming principles on FTCA tolling)
- Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (equitable tolling requires satisfying distinct elements)