Todd Zappone v. United States, 870 F.3d 551

Background

On November 8, 2012 IRS special agents searched Ohio Scrap Corporation and the Zappones’ home, seized business records and cash; Brink’s receipt listed $1,264,000 though the Zappones allege $3,150,000 was taken.
The United States filed a civil forfeiture for $1,264,000; the Zappones later amended claims in that forfeiture to assert the larger $3,150,000 amount.
In July–August 2014 the Zappones submitted administrative FTCA claims for $1,886,000 (the asserted shortfall); the IRS mailed denial letters to the Zappones’ former attorneys on February 11, 2015.
The FTCA requires suit within six months after mailing of a final denial; the Zappones sued on October 14, 2015—two months after the six‑month deadline—so the district court granted summary judgment as time‑barred.
The Zappones also asserted Bivens claims (due process and Fourth Amendment) against individual agents; those claims accrued November 8, 2012 and Ohio’s two‑year statute of limitations (Ohio Rev. Code § 2305.10) ran November 8, 2014—so the October 2015 suit was untimely.
The district court rejected equitable tolling for both FTCA and Bivens claims; the Sixth Circuit affirmed, finding no extraordinary circumstances or diligence sufficient to toll the deadlines.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FTCA state‑law claims are timely after IRS mailed denial to former counsel	Zappone: denial was not received by them due to counsel change; equitable tolling should apply	U.S.: denial, mailed to counsel of record, triggered the six‑month deadline; plaintiffs failed to notify IRS of counsel change and missed deadline	Held: FTCA claims barred; equitable tolling denied (plaintiffs lacked diligence; attorney neglect is garden‑variety)
Whether equitable tolling applies to FTCA deadline	Zappone: Wong permits equitable tolling; facts justify tolling	U.S.: no extraordinary circumstance; plaintiffs and counsel were negligent	Held: no tolling under Sixth Circuit test or Holland; plaintiffs failed to show diligence or extraordinary obstacle
Whether Bivens (constitutional) claims are governed by Ohio’s 4‑yr conversion statute or 2‑yr general personal‑injury statute	Zappone: conversion (4‑yr) is most analogous because claim centers on misappropriation of money	U.S.: Bivens borrows residual personal‑injury statute (Ohio § 2305.10) — two years	Held: Two‑year general personal‑injury statute applies; Bivens claims untimely
Whether equitable tolling saves Bivens claims because plaintiffs pursued related claims in forfeiture action	Zappone: filing amended claims in forfeiture shows diligent pursuit; Burnett supports tolling	U.S.: forfeiture is in rem and not a substitute for Bivens; no service on individual agents	Held: No tolling — forfeiture action could not substitute for a damages suit against agents and did not effect service; equitable tolling denied

Key Cases Cited

United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (FTCA claims may be equitably tolled in appropriate circumstances)
Holland v. Florida, 560 U.S. 631 (2010) (two‑part test for equitable tolling: diligence and extraordinary circumstances)
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (2016) (discussion of Holland test outside habeas context)
Owens v. Okure, 488 U.S. 235 (1989) (§ 1983 and analogous Bivens claims borrow the state’s general/residual personal‑injury statute of limitations)
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (provides cause of action for certain constitutional violations by federal officers)
Burnett v. New York Cent. R.R. Co., 380 U.S. 424 (1965) (equitable tolling where plaintiff’s action in wrong forum commenced judicial handling adequate to bring in parties)
Jackson v. United States, 751 F.3d 712 (6th Cir. 2014) (application of equitable‑tolling factors in FTCA context)
Chomic v. United States, 377 F.3d 607 (6th Cir. 2004) (garden‑variety attorney neglect insufficient for tolling)