Kwai Wong v. David Beebe

(“Because (2011) we affirm the district we do not reach grounds,

court on these challenges to the of Plaintiffs’ [other]

two

Act____’1 principle And the “cardinal is that “if it is not neces

judicial restraint” more, necessary it is not to

sary to decide DEA, PDK Labs. Inc. v.

decide more.” (D.C.Cir.2004) (Roberts, 786, 799

362 F.3d

J., concurring part concurring and in Morse v. Freder judgment), cited

ick, J., (Breyer, concurring

L.Ed.2d 290 judgment part dissenting

in the

part). WONG; Tien Tao

KWAI FUN Wu-Wei

Association, Plaintiffs-Appellants, BEEBE, Immigration

David V. former (nka

and Naturalization Service De

partment Security) of Homeland Offi

cial; America, United Defen States

dants-Appellees.

No. 10-36136. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted En

Banc March 2013.

Filed Oct. Speech declining 1. The Plaintiffs in Video Dealers filed the Free Clause to ad- Software statute, seeking vagueness Equal suit to invalidate a California dress Plaintiffs’ Protec- imposed labeling arguments. appeal, "which restrictions and a tion Id. at 956. On requirement on the sale or rental of Ninth Circuit 'violent affirmed the district court's minors, games’ grounds grant summary judgment video on the to the Plaintiffs rights guaranteed by Speech the Act based on Free claim. Id. at violate[d] their First and Fourteenth Amendments.” Video Because the court resolved the based case Dealers, Clause, Speech 556 F.3d at 953. The dis- the Free it declined to address Software granted trict court Plaintiffs’ motion for sum- the Plaintiffs’ additional constitutional claims. mary judgment, invalidating the Act based on (argued), Thomas Martin Steenson Tom Portland, OR; Steenson, Creighton, Beth Rose, Portland, OR, Creighton & for Plaintiffs-Appellants. Murphy (argued), George

Anne James Bartolotto, Herwig, Barbara L. Attor- neys, Justice, Department United States Division, D.C.; Washington, Civil R. Jo- Sher, seph Assistant United States Attor- Alexandria, VA, ney, Defendants-Ap- pellees. KOZINSKI,

Before: ALEX Chief PREGERSON, Judge, and HARRY A. TASHIMA, WALLACE M. MARGARET McKEOWN, FLETCHER, A. WILLIAM BERZON, R. MARSHA S. RICHARD CLIFTON, BYBEE, T. JAY S. CARLOS BEA, SMITH, JR., MILAN D. and MARY MURGUIA, Judges. H. Circuit BERZON; by Judge six months after the final denial of the Opinion KOZINSKI; by Judge Chief Concurrence by agency pre- claim to which it was TASHIMA; by Judge Dissent Dissent 2401(b). sented.” U.S.C. BEA.

Judge mind, statutory With this framework in procedural we turn to the history of

OPINION case, the material facts of which are not in BERZON, Judge: Circuit dispute. banc to hear this case en agreed We limitations in the statute of

clarify whether B. Facts Tort of the Federal (“FTCA”) equitably Act Claims ago, More than decade Kwai Fun “ju- hold that tolled. We Wong (“Wong”) and Tao Wu Wei Tien risdictional,” equitable tolling and that (“the Association”), religious Association a present- the available under circumstances organization, sued the United States case. ed Immigration several and Naturalization (“INS”) arising Service officials for claims I. BACKGROUND out Wong’s Wong detention. See Statutory Background A. (9th I), Cir.2004); (Wong INS 373 F.3d 952 timing The FTCA contains three rules II), Wong (Wong Fed.Appx. v. Beebe 381 may file a govern plaintiff when a (9th Cir.2010) curiam). (per only The in the against claim the United States FTCA, remaining claim is one under the 2675(a) First, § district court: 28 U.S.C. alleging against negligence the United an administrative exhaustion establishes on the con States based conditions of her requirement, which states that action “[a]n finement. against a upon shall not be instituted claim ... claimant the United States unless the the their Wong and Association filed first to presented shall have the claim the original in the district complaint court appropriate agency Federal his claim May That filed day, Wong same finally by agen- been shall have denied claim negligence pursu- her with the INS cy.” provides Section further ant to the FTCA’s administrative exhaus- agency failure of an to make final “[t]he 2675(a). § tion requirement, disposition of a claim within six months 2675(a), Wong required Under was to shall, filed option after it is wait six months—until November thereafter, claimant time be deemed claim, 2001—or until the INS denied the final denial of the claim.” Id. negligence before her claim in filing Second, one statute of limitations district court. U.S.C. two-year sets a within deadline 2675(a). 1346(b)(1), §§ must his claim present which a claimant Wong ... On filed appropriate agency “to the Federal November 2401(b); after claim accrues.” seeking such motion in district court leave Kubrick, see States v. United add- Complaint to file a Second Amended 62 L.Ed.2d claim No- ing negligence “on or after (1979). ie., vember after the six-month 2001”— 2675(a) waiting period required under

Finally, also sec- establishes expired. had INS issued a written claim ond limitations tort “[a] —that Wong’s denying decision administrative forever against the United States shall be 3, begun barred ... unless action is within claim on December risdictional,” tolling was equitable Wong had until June point, At that Wong’s to excuse claim in the not available negligence therefore to file her Pursuant district why: her claim. The untimely filing court. Here district filing from 2675(a), prohibited Wong claim for Wong’s FTCA court dismissed until after district court claim in the her appeal followed. jurisdiction. This lack of the INS the INS and it to presented she II. DISCUSSION writing ... claim]

“finally [the decided registered certified or [it] and sent Tolling Equitable Applicability of A. 2675(a). Alternatively, mail.” 28 FTCA Claims treat option Wong gave Background 1. General dispo- make final ... “failure the INS’s after months claim within six of [her] sition Department Veterans Irwin v. Af- “final denial of as the filed” [was] fairs, 498 U.S. exercise attempted to Wong claim.” Id. (1990), “general forth the sets L.Ed.2d motion in filed her when she option governing] applicability rule to file her seeking leave court the district the Gov- tolling suits after November “on or complaint amended 95, 111 That Id. at S.Ct. 453. ernment.” her after she filed months 2001”—six equi- the “rule of considered whether case her motion been the INS. Had claim with untimely Title tolling” applied to table 2401(b), then, to pursuant granted, brought against government. claim VII months—until had six Wong would have 94-95, Noting that 111 S.Ct. 453. Id. at com- 20, amended 2002—to file her May in between requirements lawsuits “[t]ime claim in the FTCA plaint with the added customarily subject to litigants are private 2401(b). As not- id. district court. See held that “the tolling,” Irwin equitable however, Wong’s claim ed, denied the INS presumption equitable same rebuttable 3, 2001, thereby starting on December against private to tolling applicable suits limita- the six-months anew the clock on to suits apply should also defendants 2401(b). Thus, the rele- tions 95-96, States.” Id. United Wong’s claim the filing vant deadline (internal marks quotation 111 453 S.Ct. 3, 2002. See Leh- was June district court omitted). States, 1010, 1015 154 F.3d man v. United “general rule” is not without Irwin’s (9th Cir.1998). limitation are statutes of exception. Some 5, 2002, months more than five April On absolute,” permit and do “more seeking leave her motion Wong after filed equi- certain to consider whether “court[s] amend, issued magistrate judge to extending warrant table considerations R”) (“F & Findings and Recommendations John R. Sand & period.” to Wong permitted recommending States, 130, v. 552 U.S. Gravel Co. United adding her complaint file an amended 750, L.Ed.2d 591 did not The district court claim. FTCA (2008). shorthand, “As convenient F R until the & adopting an order issue the time referred to Court has sometimes 25, 2002, after the six- three weeks June ” ‘jurisdictional.’ statutes as limits such expired. had filing month deadline 134, v. (citing 128 S.Ct. 750 Bowles complaint an amended Wong did file 2360, Russell, S.Ct. 13, 2002, which included FTCA August (2007)). 168 L.Ed.2d 96 court, Mar- relying on claim. The district “jurisdiction” terminology used States, 567 F.3d ley v. United equitable (9th Cir.2009), “ju- government-defendant in the held that can, however, agreed to hear be mislead We this case to resolve tolling context cases, the conflict between I of recent the Su Alvarez-Machain ing. In a series Marley. See Atonio v. dis Wards Cove “pressed has stricter preme Court Co., (9th rules, Packing 810 F.2d 1478-79 truly tinction between Cir.1987) (en banc). so, join Doing we adjudicatory au govern ‘a court’s which with several other in concluding circuits thority,’ nonjurisdictional ‘claim-pro subject equitable to toll rules,’ do not.” v. cessing which Gonzalez — States, ing. Arteaga v. United Thaler, U.S. -, (7th Cir.2013); F.3d 832-33 ex (2012) Santos Kontrick (quoting States, rel. Beato v. United 559 F.3d 443, 454-55, 124 Ryan, 540 S.Ct. v. U.S. (3d Cir.2009); 194-98 Perez v. United 906, 157 (emphasis add L.Ed.2d (5th Cir.1999). 167 F.3d 916-17 ed)). present is critical for This distinction because, courts no purposes, “[have] while Nonjurisdiction- 2. Jurisdictional vs. authority equitable exceptions to create Claim-Processing al Rules Bowles, jurisdictional requirements,” matter, As a threshold we must decide nonjurisdic “jurisdictional” whether is a claim-processing requirements re tional rule, cannot doctrines “subject pre main rebuttable [Irwin’s ] apply, nonjurisdictional “claim-pro or a sumption equitable tolling.” favor subject cessing presump rule” to Irwin’s Florida, Holland equitable tolling. tion favor Both (2010) (inter 2549, 2560, 177 L.Ed.2d 130 I Marley Alvarez-Machain were de omitted). nal quotation marks cided without the benefit of the Applying principles particu these clarifying most recent decisions Court’s here, lar statute of limitations our case law catego the difference between these two contradictory has come to results. Alva Accordingly, turning before ries. (Alvarez- rez-Machain v. United States 2401(b) itself, we discuss the Court’s (9th I), Machain 107 F.3d 701 Cir. years “bring efforts in recent some dis 1996), “[e]quitable tolling held that is avail “jurisdictional” cipline” to the label. See appropriate able for FTCA claims in the Shinseki, Henderson ex rel. Henderson v. later, Mar years circumstances.” Twelve - U.S. -, 1197, 1202-03, 179 131 S.Ct. precisely opposite, stating ley held Gonzalez, (2011); L.Ed.2d 159 see also 132 “that of limitations in the statute at S.Ct. 648. and, jurisdictional consequent labeling ly, equitable consequences doctrines that otherwise could untimely filing particular statutory requirement “jurisdic a claimant’s do not excuse Gonzalez, 1032; apply.”1 567 F.3d at see also tional” are “drastic.” 132 S.Ct. “[s]ubject-matter jurisdic A Adams v. United 658 F.3d 933 at 648. court’s (9th Cir.2011) forfeited,” (applying Marley). tion can never be waived or Marley dismissed I as hav- ion in the same case: Alvarez-Machain Alvarez-Machain (Alvarez-Machain II), ing precedential panel F.3d "no value” because the United States 266 Thus, (9th Cir.2001). opinion in that case was vacated and the case Alvarez-Machain good Marley Marley, was still law when was decid was taken en banc. See 567 F.3d at I conflict, (citing 1037-38 v. United ed. The result was an intracircuit Alvarez-Machain (Alvarez-Machain III), only through 284 F.3d 1039 which we can resolve en banc States (9th Cir.2002)). opinion proceedings. See Atonio v. Wards Cove Pack But that was Co., (9th by ing Cir. vacated III was not Alva- 810 F.2d 1478-79 Alvarez-Machain Rather, 1987) (en banc). opin- I. it was different rez-Machain ” jurisdiction] may (quoting Arbaugh, acter.’ Id. 546 U.S. at

“objections the court’s [to 1235). any point litiga 515-16, in the at need be resurrected S.Ct. tion,” obligated to consider courts are magic speak not “incant words in order to “go[ to sub sponte requirements ] sua Rather, clearly.” courts are to review Id.; also ject-matter jurisdiction.” see “context, relevant language, a statute’s Henderson, 1202; Proctor v. historical treatment” to determine whether Inc., Vishay Intertechnology 584 F.3d Congress clearly statutory intended a re- Cir.2009). (9th 1208, 1219 striction to be Reed Elsevi- er, Inc., 130 S.Ct. 1237. U.S. The Court has clarified recent “ ‘[j]urisdiction[al]’ that the term re years bright-line spate rule in a Applying this adjudicatory authority ... fers to a court’s cases, nonju- held of recent the Court has only properly applies prescrip [and] statutory various limitations on risdictional (sub delineating tions the classes cases coverage the substantive of statutes or the jurisdiction) ject-matter persons and the See, enforcing e.g., procedures for them. (personal jurisdiction) implicating that au R.R., 81-82, Union Pac. 558 U.S. at Elsevier, Muchnick, thority.” Reed Inc. v. jurisdictional not a Rail- (holding S.Ct. 584 154, 160-61, 1237, 176 way procedural requiring Labor Act rule added) (inter (emphasis L.Ed.2d 18 proof prearbitration of a settlement con- omitted). quotation nal marks and citation ference); Elsevier, Reed 559 U.S. at 164- interpretation, Under this narrow the term (holding jurisdiction- 130 S.Ct. 1237 not “jurisdictional” [only] “refers to a tribu Copyright registration require- al the Act power nal’s to hear a case.” Pac. Union Gonzalez, ment); at 648-52 Eng’rs R.R. Co. v. Bhd. Locomotive & (holding provi- certain Adjustment, Trainmen Gen. Comm. of sions of the Antiterrorism and Effective Region, Cent. (“AEDPA”) Penalty Death Act of 1996 (2009) (internal quo requiring ap- issuance of a certificate of omitted). tation marks So-called “claim- pealability indicating specific issues rules,” contrast, processing “are rules sufficiently implicate the denial of a consti- promote orderly progress that seek to Bowles, right); tutional but see litigation by parties requiring jurisdic- (holding S.Ct. 2360 procedural steps take certain at certain tional a time limit for filing notice of Henderson, specified times.” appeal a civil case under 28 U.S.C. 2107(c)). profligate “To ward off use of the pertains As the issue here to a statute of ‘jurisdiction,’ term adopted [the Court has] limitations, the Court’s recent decisions ‘readily bright a administrable line’ applying the “clear statement” rule to stat- determining classify whether to a statuto utory particularly time limits are instruc- ry jurisdictional.” limitation as Sebelius v. , tive. Henderson held that “a veteran’s — -, Auburn Reg’l Med. Ctr. to file a of appeal failure notice within the 120-day period” required under 38 U.S.C. (quoting Arbaugh Corp., v. Y & H 546 U.S. regarded “should [not] as 500, 516, S.Ct. L.Ed.2d ‘jurisdictional’ having consequences.” 131 (2006)). Specifically, courts must now ask Canvassing at 1200. S.Ct. the Court’s re- Congress ‘clearly “whether state[d]’ has discussing jurisdictional case law cent ver- jurisdictional; that the rule is absent such rules, nonjurisdietional a clear ... sus Henderson ex- statement ‘courts should treat nonjurisdietional “[fjiling the restriction in char- deadlines ... are plained “jurisdictional simply rules.” limit was claim-processing because it quintessential added). if (emphasis placed “[E]ven Id. at 1203 is in a section of a statute that also rules, mandatory,” such important and jurisdictional provisions.” contains Id. at jurisdictional given not be “should significant in 825. Nor was Auburn brand.” Id. Regional Congress Medical Center that ... “expressly made other time limits in text

Turning nonjurisdictional. the Medicare Act” Id. emphasized that the relevant Henderson “ added). (emphasis Structural jurisdictional not in consider- provision speak ‘does any way jurisdic- in provide terms or refer ations such as these did not a ” Id. at 1204 Court].’ tion of the Congress [Veterans “clear statement” that intended Airlines, v. Trans (quoting Zipes World 180-day jurisdictional. limit to be Inc., limitations was therefore “most (1982) (alteration in original)). L.Ed.2d 234 sensibly nonjurisdiction- characterized as a “ § Although mandatory 7266 is cast in al prescription.” Id. language” providing that claimant — Finally, applied analysis we similar ... appeal “shall file a notice of within 120 en addressing recent banc case whether “rejected days” the notion —Henderson requirement the exhaustion-of-remedies mandatory prescriptions, that ‘all however the Individuals with Disabilities Education jurisdic- emphatic, properly typed are (“IDEA”), 1415(i), Act ju- ” (quoting tional.’ Id. at 1204-05 Union Payne risdictional. Peninsula Sch. R.R., 584) Pac. (2011) (en banc). Dist., 653 F.3d 863 added). Indeed, (emphasis as Henderson the Supreme Based on Court’s recent line noted, Congress placed 7266 “in a sub- “clarifying of cases the difference between ‘Procedure,’” chapter entitled and not provisions limiting subject ju- our matter “Organization and Jurisdiction” sub- risdiction, ..., which cannot be waived statute, chapter “suggests of the ” processing provisions,’ ‘claims we con- 120-day limit regarded the as a 1415(i) jurisdictional not cluded §. claim-processing rule.” Id. Henderson (citing for three Id. at reasons. 867-69 therefore found no clear statement indicat- cases). Id.; ing “jurisdictional.” 7266 was (hold- Holland, see also at 2560 First, nothing “we observe[d] ing jurisdictional AEDPA’s statute of 1415 mentions 2244(d)). “Second, federal courts.” Id. jurisdictional nothing the relevant stat- recently, Regional

More Auburn Medi- requires utes exhaustion under cal Center considered whether the Medi- in- IDEA.” Id. at 870. clearer 180-day statutory care Act’s deadline for “Without filing appeal challenging Congress,” an administrative struction from we declined to Medicare reimbursements is “infer” a exhaustion-of-reme- at 821. The held that it is Court “Finally, requirement. dies we [could] decision,” “Key not. our 1415(Z) the Court §why find no reason should be explained, “filing is that deadlines ordinari- prerequisite read to make exhaustion a indeed, ly jurisdictional; are not we have subject ju- the exercise of federal matter ‘quintessential described them as claim- contrary, sug- risdiction.” Id. To the we ” processing (quoting rules.’ Id. at 825 gested “many good that there were rea- 1203). Henderson, 131 S.Ct. at 1415(i) qualify § not why” sons should notably, determining Most Regional Auburn Medical Center went her rem- reject 180-day plaintiff on to the notion that whether a had exhausted science,” jurisdictional or refer subject speak not terms is an “inexact edies jurisdiction questions any way such as to the “fact-specific” [feder various Henderson, 1204; futile. would be al 131 S.Ct. at courts].” whether exhaustion 1415(i) Thus, summarized, ju- § not is we Rath Payne, see also 653 F.3d at 869-70. risdictional, clearly labeled 2401(b) as it “is not er, merely § what is ordi states jurisdic- in a jurisdictional, is not located statutory narily filing true of deadlines: admits of con- tion-granting provision, and ends, the limitations whether once exceptions.” Id. at authorized gressionally by application tolling prin extended Elsevier, Reed (quoting 870-71 not, a is “forever barred” ciples plaintiff 1237); also Leeson v. see presenting from his claim to the relevant Plan, Income Disability Transamerica Kubrick, adjudicatory body. (9th Cir.2012) (holding 671 F.3d 117, 100 S.Ct. 352. plan “partic- status as a employee’s that Notably, although language the exact claim, is an element of his ERISA ipant” 2401(b) differs, § is the same its lack of limitation). jurisdictional not a general, a reference to as the of limitations contained in non-tort statute 2401(b) § Is Not Jurisdictional 2401(a), six-year fil- which establishes a Marley stated “[Resolution “every civil action ing deadline for com- present depends case ... on [first] against menced the United States.” 28 categorize filing how to the six-month 2401(a). And Cedars-Sinai U.S.C. 2401(b)” “jurisdiction deadline of —as Shalala, Medical Center v. 125 F.3d nonjurisdictional requirement al” or as a (9th (a) Cir.1997), held subsection non- rule.” 567 F.3d at 1035. “claim-processing jurisdictional, emphasizing that it “does true, only asymmetrical in the That is speak jurisdiction, only but erects jurisdictional, that if the deadline is sense procedural bar.”2 tolled; appear, it cannot be as will even if jurisdictional, may assertion, tolling it is not still be Contrary government’s precluded by sufficiently congres clear unusually does not contain such expression sional of that restriction. We emphatic language that we infer con- squarely hold that falls gressional adjudicatory intent to limit the category, and so overrule claim-processing authority of the federal courts from that Marley’s contrary conclusion. language. prior have occa- We held containing sions that statutes of limitations our

Several factors underlie conclusion phrase subject “forever barred” are 2401(b) nonjurisdictional. equitable tolling. example, For the 1955 Language a. Clayton provided Act Amendments §§ right action to enforce a under First, terms, § provides its 15a, and 15c of the Act “shall be only tort claim the United “[a] forever barred unless commenced within four shall forever barred unless ... States years after the cause of action accrued.” 15 action within months” of mail- begun six added); (emphasis final U.S.C. 15b see also ing agency of notice of the denial. 28 2401(b). (1955). That statement “does Pub.L. No. 69 Stat. 283 Mt. America, (2008). L.Ed.2d That statement Aloe Vera Inc. United (9th Cir.2009), Supreme benefit of the 580 F.3d called into was made without the question vitality clarifying recent decisions CedarsSinai’s continued fol- Court's most lowing nonju- Court’s decision in John distinction between Co., R. Sand & Gravel risdictional rules.

1039 years Stages, Greyhound Corp., Inc. v. 616 three after the cause of action Hood shall (9th Cir.1980), accrued”) 394, added); F.2d 396-407 deter- (emphasis have Agri- § tolled. equitably mined that 15b could be cultural 1967, Fair Practices Act of Pub.L. Polymers, Corp. See also Hexcel v. Ineos 90-288, 6(a), § 93, (1967), No. 82 Stat. 95 Cir.2012) (9th Inc., 1055, 1060-61 681 F.3d 2305(c) (same); § at 7 U.S.C. Na- codified 15b); tolling § under Ro- (discussing tional Mobile Home Construction cf. Wood, tella v. 1974, Safety Standards Act of Pub.L. No. (2000) 1075, (indicating L.Ed.2d 1047 93-383, 613, 633, (1974), § 88 Stat. equitable tolling be available 5412(b) (same). § at 42 U.S.C. codified brought civil claims under the Racketeer 2401(b)’s § backdrop, Viewed Corrupt Organizations Influenced and Act “forever language appears barred” to be (“RICO”), applies the same four- a vestige more of mid-twentieth-century year statute of limitations congressional drafting conventions than a 15b). “clear statement” of Congress’s intent to Likewise, amendments to the jurisdictional include a filing deadline in (“FLSA”)— Fair Act Labor Standards the FTCA. which were enacted on the heels of the Moreover, even if one does read the provided every action under FTCA — language “forever barred” the FLSA “shall be barred unless forever an especially emphatic limitation on FTCA years commenced within two after claims, Court’s recent line of cause of action accrued” 29 U.S.C. clarifying jurisdictional/nonjuris- cases added); 40, (emphasis see also Pub.L. No. plain dictional distinction make that not all (1947). 6(b), 84, 61 Stat. Partlow v. “ ‘mandatory prescriptions, however emp- Orphans’ Jewish Home Southern Cali hatic, ... properly typed jurisdiction- are (9th 757, Cir.1981), fornia, 645 F.2d 760-61 ” Henderson, al.’ 131 S.Ct. at 1205 (quoting abrogated grounds by on other Hoffmann- R.R., 81, Pac. Union Roche, Sperling, La Inc. v. 584) added); Gonzalez, (emphasis see also (1989), 107 L.Ed.2d held Kontrick, 651; this statute of limitations could be nothing 124 S.Ct. 906. And in the equitably tolled. suggests any- text of that it is other various statutes enacted thing straightforward filing other than a century, Congress mid-twentieth included “quintessential claim-process- deadline —a provisions barr[ing]” “forever Henderson, ing rule[ ].” 131 S.Ct. at 1203. See, untimely e.g., claims. Automobile by Undeterred the statute’s silence as to Act Dealer Franchise 84 Pub.L. jurisdic- whether the limitations (1956), No. 70 Stat. 1125 codi- (and by placement tional its in a section (“Any at 15 U.S.C. action fied jurisdiction), Judge not directed at Bea brought pursuant to this Act shall be for- grand why § theory offers as to ever barred unless commenced within clearly nonetheless states a years three after the cause of action shall rule, positing types that there are two accrued.”) added); (emphasis have Nation- statutes of limitations: “Plain Statutes of al Traffic Safety and Motor Vehicle Act of “Consequence Limitations” and Statutes of 89-563, 111(b), Pub.L. No. 80 Stat. (1966), Limitations.” Bea Dissent at as amended Pub.L. No. mandatory purportedly “provide The latter (“Any 108 Stat. 745 action brought pursuant consequences according for failures to act to this section shall be prescriptions,” barred unless commenced within to their id. at and so forever respond to in a certain construct in some circumstances. “require the courts As with timely act.” to way party’s attempts rigid failure to Id. most create dichotomous to on to maintain the trick in Judge goes categories, devising Bea’s dissent is not the in provision categories placing a limitations various circum- that whenever barred,” ... “shall be stances into one or the other category. states that a claim barred,” Bea, “Congress spoken Although, according Judge has to a limi- or “forever jurisdictional provision containing in terms” and the courts lack tations “shall ... be “ adjudicate language the claim—even if barred” authority to forth inflexi- ‘set[s] ” dismissal,’ place- requiring or ble rule there is no mention of Bea Dissent Holland, jurisdiction provision. (quoting at at ment in a 130 S.Ct. at 2560), the upon simply 1066-67. words relied do not import. have that language ap- Judge consequential Bea’s First, “shall,” proach not one that the Court as to the word is the Court upon consistently rejected arguments has ever articulated relied de- has ” termining particular “seiz[ing] whether a suggest on the word ‘shall’ to “ Indeed, provision jurisdictional. mandatory is the ‘all prescriptions, howev- Irwin, approach emphatic, typed juris- Court criticized this er are ... properly ” that, Gonzalez, noting argument can “[a]n undoubt- dictional.’ at edly Henderson, 1205); ... language (quoting be made at 131 S.Ct. ..., stringent per- more but we are not see also Dolan United enough suaded that the difference 130 S.Ct. congressional a different (holding

manifest intent that a statute’s use of the availability with respect word “shall” alone does not render statuto- ry tolling.” jurisdictional). S.Ct. 453. deadline has held While Court Second, § does not terms or- provisions containing certain limitations der courts to do anything, including dis- barred,” phrase “shall be ... it has any untimely miss claim. Like the exhaus- “consequen- never relied on the notion of requirement tion-of-remedies issue Instead, tial” language to do so.3 the Payne, “neither the word ‘courts’ nor the repeatedly “magic Court has eschewed a ‘jurisdiction’ appears word in [§ ].” approach determining words” whether Payne, Instead, 653 F.3d at 869. procedural jurisdictional, requirements are phrase “shall be ... barred” is couched repeatedly taking approach a multifactor tense, passive and so could as well be Elsevier, inquiry. See Reed plaintiff, barring directed to the him from 1237; Reg’l U.S. at 130 S.Ct. Auburn suit, filing court, directing as to the Ctr., Med. 824. to bar filing. The “shall be ... observation, Beyond by- we shall barred” language of the six-month filing pass ruling Judge on whether Bea’s “con- deadline express therefore does not “an sequential” language theory helpful is a requiring inflexible rule dismissal whenev- assertion, Contrary Judge jurisdic- Bea’s John R. in 28 U.S.C. 2107 was Sand & Gravel did not hold 28 U.S.C. solely "consequential” tional based on its lan- "jurisdictional” “consequential” on based Gravel, guage; like John R. Sand & Bowles Rather, language of the statute. it held Ir- largely "century's prec- rested on the worth of presumption equitable tolling win’s rebut- practice edent and in American courts” rank- ted based the fact that "the Court had ... ing filing appeal” "time limits for notice previously provided interpreta- a definitive 551 U.S. at 209 n. tion” of 2501. 552 U.S. at 750. Nor did Bowles hold that the limitations Holland, barred, once is precluded permanently, run.” 130 S.Ct. not er its clock has omitted). (internal quotation marks at 2560 temporarily or until some later event oc- A curs. claimant therefore cannot refile 2401(b) § Third, in the word “forever” claim, the nor the time bar be lifted missing regard link with supply cannot the understood, imposed. once it is So the rule. See to declaration of inflexible term “forever” does have a function the The word “forev- Bea Dissent at 1068-69. statute, just Judge posits.4 as one not the one Bea commonly er” is most understood time, degree Thus, observed, or of focusing scope on not on as Fifth Circuit “the flexibility a static time frame. See Web- use of the words ‘forever barred’ [in Dictionary of the ster’s New International § equitable is irrelevant toll- ] ed.1940) (defin- (2d Language English ing, properly conceived does not re- to mean ing “[f]or “forever” limitless claims, prevents suscitate stale but rather ages; everlastingly; eter- time endless becoming them from stale in the first times; nally,” always; all inces- “[a]t Perez, place.”5 167 F.3d at 916. Dictionary santly”); English Oxford sum, In nothing language (defining “[ajlways, “forever” to mean at § 2401(b) including the term ... “shall times; [t]hroughout all all all cases — barred,” be and the word sup- time, eternally; throughout past all or all “forever” — plies a “clear statement” that time; such, Congress perpetually”). future As filing intended the six-month naturally read to deadline term “forever” is most claim, untimely jurisdictional.6 emphasize that an FTCA weight guishing nonjuris- the Bea 4. It is unclear how much between the term "forever.” For the dissent accords dictional rules. Bea Dissent at 84-87. As noted, however, part, categorizes most the dissent statutes that later decisions this Court simply terminology use "shall be barred” as availability and the Court affirm the "consequence” catego- within 15b, its self-created equitable § tolling under 15 U.S.C. ry. Judge See Bea Dissent at 1066-68. But Corp., at statute issue in Partlow. See Hexcel Bea then devotes an entire section to the 1060-61; Rotella, 681 F.3d at 528 U.S. at "forever,” espe- word and writes that "[i]t fundamentally, 120 S.Ct. 1075. More cially telling” Congress included the term precedents these undermine the notion that 2401(b), did "forever barred" in but not do through magic intended the use of 2401(a), very pre- so in "the section that Clayton words Act Amendments and Bea cedes the one here in issue.” Dissent provisions juris- FLSA limitations to establish 1068-70. allowing dictional bars in statutes for civil noted, fact, as we have does against private parties. suits provide that an FTCAclaim "shall be barred” years right unless it is filed within six after the 6.Judge Bea’s to Kendall v. United reference 2401(a); of action accrues. See 28 U.S.C. States, 107 U.S. 2 S.Ct. 27 L.Ed. chap. see also Act of June (1883), attributing jurisdic- support as (1948). Thus, Stat. 971 the dissent seems to meaning phrase tional barred,” "forever rest, part, proposition that it least in on the Bea Dissent at is mis- is the word "forever” that transforms limita- placed. Though John R. Sand & Gravel did language "consequential” tions into the vari- Kendall, rely it did so not because of text, ety. For reasons discussed in the logic, out deference to "[b]a- Kendall’s weight. word "forever” cannot bear that decisis,” principles R. & sic of stare John Sand Gravel, as the Judge Bea also takes issue with Partlow which, statute in R. Sand & Gravel was the John Stages, supra, Mount Hood as dis- (and above, court statute that Kendall same of claims cussed held statutes of limitation con- States, taining language subject Finn v. United similar to (1887), questions 31 L.Ed. 128 and Soriano v. Unit- tolling. Judge Bea precedents they pre- value ed of these because (1957)) already interpreted. ceded the Court's more recent cases distin- L.Ed.2d 306 had Ctr., 825; Placement b. Med. 133 S.Ct. at see also Gon- zalez, 132 S.Ct. at 651. surrounding The “context” plain language Not satisfied with the “clearly” indicate Con- likewise does 1346(b), government looks elsewhere to “rank” this gress’s intent 2401(b)’sjuris- for a “clear statement” of Ctr., Reg’l Auburn Med. import: legislative history dictional According government, the FTCA. jurisdiction-granting provision The provision FTCA’s limitations is “[t]he the FTCA is located 28 U.S.C. chapter only found outside of 171 aas 1346(b)(1) “[sjubject provides happenstance of recodifieation.” his title, 171 provisions chapter of this dissent, Judge Tashima likewise relies on the district courts shall have exclusive the earlier version of the FTCA to con- jurisdiction of civil actions on claims that “Congress provided clude a clear against the States ... United under cir statement [that FTCA’s limitations States, cumstances where the if a United provision jurisdictional] when enacting private person, would be liable to the 1946,” provision and that statement 1346(b)(1) claimant.” Section makes no today. remains clear Tashima Dissent at filing mention of the six-month deadline 1059. 2401(b). Furthermore, while place, In the first disposi 1346(b)(1) does pro cross-reference “the tively, it improper legislative is to consider 171,” chapter visions of it does not cross- history in this instance. “[T]he authorita 2401(b), reference which is located in text, tive statutory statement is the not the chapter chapter Thus, not 171. legislative history other extrinsic FTCA’s statute of limitations “is located in Corp. material.” Exxon Mobil v. Allapat provision separate provision] from [the Servs., Inc., 546, 568, tah 545 U.S. granting subject-matter federal courts ju (2005). S.Ct. 162 L.Ed.2d 502 Con risdiction over claims.” [FTCA] Reed El sequently, “when the language statute’s sevier, U.S. 130 S.Ct. 1237 plain, the sole function of the courts—at (internal quotation omitted); marks see least where the disposition required by the Henderson, also text is not absurd —is to enforce it accord Further, even if did ing to its terms.” Underwriters Hartford filing mention the six-month deadline in Bank, N.A., Ins. Co. Union Planters 2401(b), guidance the Court’s recent on 1, 6, L.Ed.2d subject indicates that an otherwise (2000) (quoting United States v. Ron Pair nonjurisdictional rule’s location within a Enters., Inc., 235, 241, statutory scheme automatically does not (1989)) (internal transform the rule into a pre omitted). quotation marks The current Thus, requisite. a rule “does not become statutory language 1326(b), §of the FTCA jurisdictional simply placed because it is in jurisdictional provision, cross-references a section a statute that also contains provisions of. other of the FTCA but not the jurisdictional provisions.” Reg’l chapter Auburn containing provi- the limitations 134-35, Indeed,

Id. at 128 S.Ct. 750. John R. of law be settled than that it be settled ” recognized Sand & Gravel that the older cases right.’ (quoting Id. at 128 S.Ct. 750 Irwin, step which it relied were out of with Co., Burnet v. Coronado Oil & Gas justified that reliance on "Justice Bran- 76 L.Ed. 815 deist’s] ... observation] that ‘in most matters (dissenting opinion)). important it is applicable more that the rule 2401(b). sion, ambiguity acting There is no Government while within the scope regard; chapter employment, in this his office or under whatever not, include, chapter and does circumstances where the United if private person, period.7 would be liable to the loss, damage, injury, claimant for such Secondly, if we were to consider even or death accordance with the law of legislative history, we could the FTCA’s place where the act or oc- omission jurisdiction. no “clear statement” as to find curred. Mobil, 568-69, Exxon See 931(a) (1946). Congress reco- first enacted the reorganized dified and all of Title 28 in Legisla- in 1946 as Title of the FTCA IV 1948, and, so, doing placed the course of (“1946 Act”). Act Reorganization tive the FTCA’s limitations its cur- IV, Pub.L. No. tit. 60 Stat. location in chapter placing rent while (1946). provisions 842-47 most of the other provisions FTCA for- chapter were codified in 20 of Title FTCA merly chapter chapter located 28 of the United States Code. See 28 (“1948 Act”), Pub.L. No. 80-773 (1946).8 Stat. §§ originally 921-46 As U.S.C. (1948); 970-74 id. 62 Stat. 982- codified, grant jurisdiction the of FTCA’s jurisdiction-granting provision 85. The read: was relocated to chapter 85 and codified at Subject provisions chapter, to the of this 1346(b). § 933. Because district court the United States for the 1346(b) § longer was no located the plaintiff court the is district wherein res- chapter same as the other provi- FTCA the act or ident or wherein omission sions, “subject the to” phrase changed complained of occurred shall have provisions chapter to refer to “the of hear, determine, jurisdiction exclusive to of this title.” Id. judgment any claim and render out, against money Judge points As Tashima the refer- United 1346(b) only personal injury ... on account of or ence in the 1948 to version of error, by negligent wrong- chapter death caused or 173 was a as scrivener’s any employee chapter ful act or omission of of there was no 173 of Title 28. Ta- "producefd] year 7. The fact this statute after such claim accrued ... an action dissents, begun split, pursuant part is to 3 of this title. intracircuit several en banc pages analysis by majori- the event that a claim for a sum exceed- dozens of $1,000 ing presented agency to a Federal ty,” Tashima Dissent does not mean aforesaid, as the time to institute suit chapter that the to cross reference is itself pursuant part 3 of this title shall be ambiguous. jurists may While reasonable from extended for of six months certainly general equitable tolling debate the mailing the date of to the claimant of notice question presents, this case the cross refer- agency Federal to the final dis- such as chapter chapter ence to and not to position claim the date of or from plain day. withdrawal of the claim from Federal such title, agency pursuant to section of this original 8. The in Section expire the end if would otherwise before provided: 420 of the Act period. of such enacted, Every cog- claim the United States originally 60 Stat. 845. As nizable under title shall be forever require FTCA did not claimants to exhaust barred, year require- unless within one after such their remedies. That administrative presented writing claim accrued ... it is ment was added in 1966. See 28 U.S.C. 2401(b) (1994); agency H.R.Rep. to the Federal out of whose activi- No. 89-1532 arises, (1966); S.Rep. ties it if such claim is for a sum not 6-7 No. 89-1327 at 2-3 $1,000; (1966). exceeding or unless within one later, 1346(b) year shima at 1056. A Dissent Con- was revised to include many error, gress changing corrected the provisions of the appli- FTCA not the 1346(b) language “[sjubject to read: cable limitations period. provisions chapter to the 171.” See Judge Under Tashima’s ap- “inference” (1949). Pub.L. No. 63 Stat. 62 But proach statutory to the clear language, it nothing correction did to erase the would not have mattered what only fact that cross-reference jurisdictional wrote into the grant FTCA’s 1346(b), provision, is to a (and 1949). in 1948 later corrected in Con- chapter, chapter which does not con- gress could have revised the statute to tain the provisions. FTCA limitations “Subject read to the provisions chapter Nor does the directive of the 1948 Act (as did); 171” it eventually “Subject to the legislative we are not to “infer ... a provisions chapter 161”; 171 and construction from chapter in which a “Subject provisions 161,” of chapter provision appears” plain override the Judge interpretation Tashima’s would terms of as revised. No infer- still be the “subject provi- same— required ence is to conclude that original sion of the FTCA as codified in jurisdictional provision FTCA longer is no 1946.”9 “subject to” the limitations section. In- hold, instead, We means stead, only one need read says: what it that the district courts “shall so; determine that that is again, chapter have exclusive of civil actions 161 is not chapter period. Thus, al- against claims the United ]

though States! the Court “does presume not that money damages,” “[sjubject provi- to the the 1948 revision change worked a in the sions of chapter 171.” underlying substantive law unless an in- 1346(b). § legislative The FTCA’s history tent to change make such a clearly is supply cannot expressed,” Co., “clear statement” John R. Sand & Gravel (internal 136, contrary. 552 Accordingly, U.S. at 128 S.Ct. 750 there is no contex- quotation omitted), marks that tual reason to think intent was that the limitations clearly expressed when period provisions jurisdictional.10 cross-reference are proposition Gonzalez, We note as well jurisdiction. that that ter See 132 S.Ct. at any requirement jurisdiction- that the FTCA's 648. We have never held otherwise. And grant "subject al automatically to” is Supreme specific where the Court has held a jurisdictional prerequisite questionable ais chapter jurisdictional, 171 it has 1326(b) § one. requires plain- The fact that every not done so chapter because rule in 171 comply requirements tiffs to with certain jurisdictional requirement. is a See McNeil v. file a claim the United States, States does not 106, 111-13, United evety mean that each and one of those re- (1993); Smith v. United quirements power concern “a tribunal’s States, 122 R.R., hear a case.” Union Pac. 558 U.S. at (1993). L.Ed.2d 548 Indeed, 130 "subject origi- S.Ct. 584. to” nally IV, encompassed holdings Brady 10. Aside from our section v. United 411 of Title States, (9th Cir.2000), which F.3d made the Federal 211 502-03 Rules of Civil Proce- cases; States, applicable dure in FTCA Lesoeur v. United Judge under 21 F.3d (9th Cir.1994), held, approach, compliance Tashima’s respectively, with juris- Federal would requirement Rules have thus been a administrative exhaustion 2675(a) requirement. "Subject dictional discretionary to” excep- is more function sensibly 2680(a) litigants read to mean jurisdictional, have tion in are we have prescribed follow procedures, not not provi- addressed whether of the other each every procedures, one of those chapter if not sions in 171 of the FTCA set forth followed, gives jurisdictional rise to the "drastic” requirements. conse- holding In quences subject that follow from lack nonjurisdictional, mat- express we no Gravel, 137-39, Exceptions & 552 U.S. at

c. venerable, there has been a con 2401(b) “jurisdictional,” holding sistent line of treating eases the FTCA Congress Marley significant found period limitations counsel exceptions to the “explicitly included some ing against switching gears now. Al 2401(a), §in included no deadlines though we have held that 2401(b).” exceptions §in 567 F.3d at such jurisdictional, Marley, see 567 F.3d at 2401(a) provides, in relevant 1037. Section (citing Hosp., 1035-36 Berti v. V.A. any person that an “action of under part, (9th Cir.1988); Augustine F.2d disability beyond the seas at the legal States, (9th 704 F.2d United claim commenced time the accrues Cir.1983); States, Blain v. United disability ceas- years within three after the (9th Cir.1977) curiam); F.2d (per 2401(a). Marley es.” 28 U.S.C. rea- Mann v. United 399 F.2d “[bjecause Congress soned that chose (9th Cir.1968)), unlike in Bowles and John §in extend the time limit under Gravel, R. Sand & there is no circumstances, certain but did not include precedent question. Court on the any exceptions to the Elsevier, Reed 2401(b), Congress we must conclude that (re (Ginsburg, concurring) S.Ct. 1237 J. to be intended the deadlines of jecting non-Supreme citation to Court strictly.” adhered to 567 F.3d at 1037 precedent because Bowles and John R. omitted). (emphasis Sand & on longstanding Gravel “relied squared That cannot be with conclusion typing decisions of this Court the relevant Center, which Regional Auburn Medical ”) prescriptions ‘jurisdictional’ (emphasis rejected statutory that a argument original). And we have also held other jurisdic- time limit viewed as “should be I, inwise Alvarez-Machain 107 F.3d 696. tional because could have ex- Further, pr e-Alvarez-Machain I pressly provision nonjurisdiction- made the Marley preceded cases cited in both Irwin al, and indeed did so for other time limits and the Supreme Court’s more recent de- in the 133 S.Ct. at 825. Al- [statute].” clarifying cisions the distinction between though “Congress’s use of certain lan- nonjurisdictional and rules. guage part in one of the statute and differ- Indeed, pr our I deci- in e-Alvarez-Machain language ent another can indicate that intended,” ju- “drive-by sions are emblematic of the meanings different were cannot, interpretive rulings” without risdictional to which the principle more, against giving “prece- re- cautioned provide the “clear statement” Court has 2401(b) quired classify “jurisdic- effect” in its recent cases. dential more (internal quotation at Arbaugh, tional.” Id. 825-26 See at 126 S.Ct. 546 U.S. Santos, omitted); Berti, marks see also 559 F.3d example, three-page 1235. For a at 195-96. “jurisdictional,” opinion, labels provides analysis meaning no as to the d. Earlier Cases Berti, significance of that term.11 See Bowles, Finally, Accordingly, at 860 F.2d at 340. this is cer- unlike 551 U.S. 210-13, tainly “exceptional R. not the in which [case] S.Ct. John Sand 2401(b), period provisions as to the other lo- claim limitation not the views whether Blain, chapter post-exhaustion period. cated in 171 are six-month 673; 291; Mann, 552 F.2d at 399 F.2d at Blain, Mann, Augustine, in Mar- cited Augustine, 704 F.2d at 1077. ley, two-year administrative addressed Irwin, ‘century’s precedent prac- ening congressional worth of waiver.” 94-95, rank

tice in American courts’ time [the] S.Ct. 453. jurisdictional.” Reg’l limit as Auburn Gravel, R. John Sand & Ctr., at (quoting 133 S.Ct. Med. contrary. 128 S.Ct. is not to the That Bowles, 551 U.S. at 209 n. ease did note that has often “[t]he Court 2360). [sovereign read the time limits of these immunity more abso waiver] statutes as Purpose e. lute,” 133-34, 128 id. at S.Ct. and “has Finally, regard particular with sometimes referred to the time limits in ”12 role of the FTCA’s six-month limitations ‘jurisdictional.’ such statutes as Id. at filing suit we “find no reason 133-34, Bowles, (citing 128 S.Ct. 750 why should be read ... [§ ] [as] 2360). at U.S. But R. John prerequisite to the exercise of federal sub- Sand & not turn any bright- Gravel did ject jurisdiction.” matter Payne, 653 F.3d line distinction between statutes of limita at 870. “protect tion that case-spe defendant’s timeliness,” cific interest and those “lim

First, the consideration that the FTCA iting scope governmental of a waiver of against gov- authorizes suits the federal sovereign 133-34, immunity.” 552 U.S. not, alone, standing ernment does supply Instead, 128 S.Ct. 750. R. John Sand & such a concluding, reason. so “[w]e applied Gravel reiterated and pre Irwin’s have in mind that the waives [FTCA] sumption equitable tolling applies to immunity of the United States and that in statutes of limitations in suits limitations, construing the statute of government, distinguishing Irwin on the waiver, is a condition we should not grounds that “Irwin dealt with a different upon take it to extend the ourselves waiver ..., limitations statute while similar [that] beyond that which intended.” in language, [§ is unlike 2501] [§ 2501] Kubrick, 352; key respect that the Court had not see also Block v. North Dakota ex rel. Bd. previously provided a definitive interpreta Lands, Univ. and Sch. 137, 128 tion.” (1983). predicated But the fact that the FTCA is Second, there is no reason to think sovereign immunity on a waiver does not more concerned with “ac- filing juris- make the six-month deadline a hieving] a system-related goal” broader prerequisite, subject dictional equi- simply than with protecting govern- tolling. Although table waivers must be “case-specific ment’s interest timeli- construed,” “strictly explained Irwin that ness.” Id. at 128 S.Ct. 750. Holland waiver, “[o]nee has made such a is instructive in regard. As noted making above, ... the rule of equitable tolling Holland held that AEDPA’s statute Government, 2244(d) applicable against to suits § of limitations in 28 U.S.C. is not in way that applicable pri- jurisdictional, same to “subject and therefore is suits, little, vate amounts to if any, broad- presumption’ ‘rebuttable in favor ‘of eq- Bowles, 12. discussing Court’s other recent cases 551 U.S. 127 S.Ct. also the distinction between against governmental involve lawsuits enti- statutes, nonjurisdictional including Auburn they ties. But were not lawsuits in federal - Center, -, Regional Medical U.S. against government, court the federal and so 817, Gonzalez, -U.S. -, S.Ct. 132 S.Ct. precisely parallel sovereign not raise im- 641, Henderson, - U.S. -, 131 S.Ct. munity concerns. Holland, 130 S.Ct. ” body litigation.” tration of this Id. at (quoting at tolling.’ 130 S.Ct. uitable 458). 95-96, 112, 113 Irwin, at S.Ct. 1980. so, rejected argument Holland Doing that Judge Bea maintains McNeil’s con AED- tolling undermines equitable “that “orderly cern about the administration of While purposes.” Id. PA’s basic respect with litigation” to the ex [FTCA] systemic goal of acknowledging AEDPA’s requirement haustion-of-remedies in delays in the federal habeas “eliminating] § compels us also to treat emphasized that process,” review Holland 2401(b)’s filing ju § six-month deadline as every to end

AEDPA not seek “[does] disagree. risdictional. We Strict enforce all Id. Holland possible delay at costs.” requirement ment of an exhaustion serves 2244(d) to read therefore declined particular to assure a administrative inter intent to close indicating “congressional namely, in assuring the interest that est— a strong equitable courthouse doors that agency opportunity have a full officials ordinarily keep open.” claim would investigate internally consult with re 2401(b) does not evince Section likewise gard compensation to claims for due to appli congressional intent to foreclose negligence by agency employees. Fur for the sake equitable principles cation of ther, recognized by purpose Su system-related goals.” As Ku of “broader court preme reducing Court McNeil— 2401(b)’s explained, pur “obvious brick by claims congestion keeping out of court pose[ encourage prompt is to ] agency until an administrative has had presentation of claims.” U.S. not implicated chance settle them—is That is consistent “with the 100 S.Ct. 352. 2401(b)’s post-exhaustion sixth-month general purpose of statutes of limitations: 111-12, period. limitations See id. at or un protect ‘to defendants stale 8, 113 agency n. 1980.Where exhaus ” duly delayed claims.’ Credit Suisse Sec. required, tion is there is notice of the claim — (USA) Simmonds, U.S. -, LLC v. collection, and of the need for information 1414, 1420, 182 L.Ed.2d 446 to settle the opportunity as well as Gravel, (quoting R. Sand & John claim, well before suit is filed court. 750). 133, 128 . text, context, short, nothing McNeil United 2401(b) clearly purpose of indicates (1993), 1980, 124 L.Ed.2d 21 does limitations the FTCA’s six-month not detract from our conclusion. McNeil implicates adjudicatory the district courts’ ex strictly construed the administrative authority. therefore hold We requirement haustion claim-pro- nonjurisdictional is a 2675(a), holding that an FTCA action cessing subject presumption rule complet filed before exhaustion had been tolling, and so overrule favor of proceed in the district court ed could Marley’s contrary holding. litigation not substan even where the had tially progressed. 508 U.S. Presumption in Favor 4. The Irwin requirement, S.Ct. 1980. The exhaustion Equitable Tolling period, unlike the Having concluded juris by explicit statutory language tied nonjurisdictional statute of limitations is a diction, “jurisdictional” in and was deemed of subject presumption to Irwin’s favor (9th U.S., 499, 211 502 Brady v. F.3d Cir.2000). equitable tolling, we must next determine statutory “straightforward over 2675(a), presumption has been §in whether explained, command” McNeil Holland, in this case. See orderly served interest adminis come “[t]he 1048 Gonzales, 2560; presumption Leon v. 410 The Irwin is further Albillo-De (9th Cir.2005). 1090, strengthened by “discovery” appli “It is the rule 1098

F.3d 2401(b): periods plaintiff required § limitations are cable to A law that hornbook equitable tolling, file her claim with customarily subject the relevant federal agency years inconsistent with “within two after such claim tolling would be unless 2401(b). accrues,” Applying text of the relevant statute. id. the the pe- discovery to draft limitations common law rule—which does presumed must be light background principle.” appear of this in the statute —courts view a riods “ States, 43, ‘accruing]’ meaning 535 49- claim as within the Young v. United U.S. 1036, plaintiff 122 152 L.Ed.2d 79 of when the knows [§ ] S.Ct. (internal marks and citations both the existence and the cause of his quotation omitted). Kubrick, injury.” 444 We must therefore ask whether U.S. 119-21 reason to believe that and n. 352. a good practical “there Con- As [is] matter, gress equitable tolling did not want the this common law rule “extends the 2401(b). apply” by delaying doctrine to United statute of limitations the date Brockamp, 519 to run.” begins Arteaga, States v. on which (1997). Application L.Ed.2d 818 There F.3d at of a common law 833. discovery is no such reason. rule not enunciated in the stat aspects ute to reinforces the matter, initial As an we note notion that the statutes of limita FTCA’s presumption regarding tolling Irwin exceptions. tions admit of common law in suits periods against the fed- particularly government strong eral rule, discovery Without provisions FTCA cases. Various deadlines contained would against gov- FTCA confirm suits closely repose”: resemble a “statute of “a differently ernment are to be treated no fixed, date, statutory usually cutoff inde against private than suits defendants. variable, pendent such as claimant’s awareness of a violation.” Munoz example, governing For the “Li- v. Ash (9th Cir.2003). States,” ability croft, 339 F.3d [the] United states liable, jurisdictional prerequisite,” United States shall be re- a a “[t]he “[L]ike specting provisions relating repose subject of this title statute of is not to equitable claims, Leon, tolling. tort in the same manner and to Albillo-De 410 F.3d at 1097 Pleva, 5; private the same extent as a individual n. Lampf Lipkind, see also Pru Gilbertson, pis under like circumstances.” Petigrow & added); (emphasis Arteaga, see 1346(b)(1) Likewise, (1991); F.3d at grants P’ship, Albano v. Shea Homes Ltd. (9th Cir.2011). district courts exclusive 634 F.3d 534-36 While against government nonjurisdictional over civil actions statute of limitations “under circumstances where the plaintiff[s] bringing already United “bars from an private person, specified period would be lia- accrued claim after a if 1346(b)(1) added). time,” ble.” (emphasis of repose statute “terminates a Thus, matter, time, general right as a a specific FTCA of action after even if places injury yet suits the United on the States has not occurred.” Fields v. equal footing against private Sys., with suits n. Legacy Health 413 F.3d (9th Cir.2005).13 individuals. Munoz, Í00, (1997), example, we held that sec- 111 Stat. 2160 was a statute of “fixed, Nicaraguan Adjustment repose, statutory tion 203 of the because it contained Act, requiring Central American Relief Pub.L. No. 105— cutoff an alien to file date[s]”

1049 date, 347, Brockamp, cutoff Neither 519 setting Far a fixed U.S. 117 from 849, 38, Beggerly, in the traditional form of a S.Ct. nor 524 “is U.S. 118 1862, Aljian, statute of limitations.” Johnson two cases in which the Su- (9th Cir.2007). 12 781 n. As preme 490 F.3d Court held the presumption Irwin such, subject to the common just rebutted, indicates that the same conclu- rule, fa- discovery presumption so the law appropriate sion is here. Brockamp held tolling applies. voring equitable that a statute of filing limitations for tax application refund claims foreclosed of a condition on That acts as equitable tolling, citing as evidence of sovereign immunity FTCA’s waiver of Congress’s “highly intent the statute’s conclusion, essentially does not alter our detailed,” “technical,” “unusually earlier for the same reasons discussed with emphatic form.” 519 U.S. at 117 regard question. to the With S.Ct. 849. Brockamp emphasized further sovereign immunity, or without a waiver of law,” subject that “tax matter of the Irwin, following key inquiry, remains case, statute of limitations in that “is not tolling “is inconsistent equitable whether normally by case-specific characterized with the text of the relevant statute.”14 exceptions reflecting equities,” individual Beggerly, United States v. given the more than “200 million tax re- (1998); L.Ed.2d 32 see turns” and “more than 90 million re- Gravel, also John R. Sand & at U.S. processed year. funds” each Id. at 139, 128 S.Ct. 750. For the reasons al- turn, discussed, Beggerly, 117 S.Ct. 849. deter- §in ready nothing sug- “unusually generous” mined that gests equitable that it is inconsistent with twelve-year statute of limitations was “in- tolling. contrary, goes To the the FTCA compatible” equitable tolling, with way out of its in its efforts to treat large part subject private underlying United States the same as tort because the land,” “ownership defendants. matter concerned of application by April Noting "previous for relief 1990 or De- the Court’s cases " cember 1991. The statute did 'not await dealing with the effect of time limits in suits ” clock,’ specific event to start the deadline against the Government have not been entire- " endpoint as the '[r]ather served consistent,” ly Irwin discussed the result time in which definite Soriano, holding did and concluded that its permit [applicants] applica- would to file apply thirty-day time limit in Title ” (quoting tions.' 339 F.3d at 957 Iacono v. Act, Rights VII Civil Mgmt., Pers. 974 F.2d Office of Irwin, 94-95, 2000e-16(c). (Fed.Cir.1992) omitted)). (emphasis Instead, explained, Irwin "this opportunity adopt case affords us an has, times, 14. The Court indicat- general govern applicability more rule to equitable likely ed that considerations are less equitable tolling suits Gov- apply provisions limiting to limitations ernment,” namely, presump- the rebuttable scope governmental sovereign of a waiver of 95-96, tolling. Sand, tion in favor of Id. at immunity. See John R. Gravel & 133-34, 750; Soriano, announcing "general pro- S.Ct. 453. U.S. 275-77, Gravel, rule,” notably, spective 77 S.Ct. 269. Most John R. Sand & equitably Soriano declined to toll the statute U.S. at Irwin did not filing Soriano, of limitations for a claim in the Court of expressly overrule but made clear Claims, explaining "that proscribe the that Soriano is not to be read to upon and conditions which the application doctrines to limita- Government consents to be sued must be sovereign immunity tions on waivers strictly exceptions observed and thereto are every case. implied.” not to be See 352 U.S. at 77 S.Ct. 269. tolling “pertains would “throw a to an and area of the law where uncertainty [property] over equity cloud of finds comfortable home.” Id. As at rights.” noted, requirements Irwin in law- “[t]ime private suits between litigants are custom- ” arily subject ‘equitable to tolling.’ 498 upon similar to those relied For reasons And, S.Ct. 453. as dis- in the Court’s more recent Hol- above, places cussed the FTCA tort suits decision, land the statute limitations against equal the United States on footing significantly here “differs from the stat- individuals, with tort private suits in [Brockamp [.Begger- utes at issue ] exposing government liability “in Holland, ly 130 S.Ct. at 2561. Hol- ].” the same manner and to the same extent one-year AEDPA’s statute of land held 2244(d) private as a individual under like circum- nonjuris- limitations in 28 U.S.C. stances.” 28 U.S.C. 2674. That “subject Con- pre- dictional and to ‘rebuttable ” gress saw fit to include a sumption’ equitable tolling.’ in favor ‘of time limit on Irwin, Id. at such claims without (quoting specific 95- limitations 453) omitted). indicates, (emphasis Ap- on tolling anything, if Holland, plying presumption, ex- operation intended to allow the of normal that, plained unlike the statute of limita- equitable tolling principles that would be 2244(d) Brockamp, § tions at issue applicable in ordinary tort suits against language that “does not contain is ‘unusu- individuals, private not that it harbored an ally emphatic,’ nor it ‘re-iterat[e]’ does its intention otherwise. Moreover, time limitation.” Id. at 2561. Department Rouse v. United States subject “unlike the matters at issue both State, (9th Cir.2009) (analyz- 567 F.3d 408 Brockamp Beggerly collection —tax ing the Privacy two-year Act’s statute of subject and land claims—AEDPA’s mat- limitations, 552a(g)(5)), reached ter, pertains an corpus, habeas area of a similar result to the one we reach here. equity the law where finds a comfortable case, In that a U.S. citizen sued the “U.S. Accordingly, home.” Id. “neither AEDPA’s Department of State under the Privacy textual characteristics nor the statute’s ba- Act for damages arising from imprison- his purposes sic presumption ‘rebut’ the basic ment in foreign country.” 567 F.3d at set forth in Irwin.” Id. at 2562. held, first, 412. Rouse that the citizen’s applies same conclusion “sufficiently claims were similar to tradi- 2401(b). above, As discussed tional tort actions misrepresenta- such as FTCA’s limitations provision is not cast in light tion and false applica- to warrant the particularly emphatic language given its tion of Irwin’s presumption.” rebuttable provenance; nor is it unusually generous. Next, distinguished Rouse And,

See Part II.A.3. unlike the limitations § 552a(g)(5) from the provi- Brockamp, does not sions at issue in Brockamp Beggerly, its] limitations several times in “reiterate[ noting 552a(g)(5) “detailed], lacked ways.” several different Brockamp, 519 technical language” and did not con- Instead, U.S. at 117 S.Ct. 849. cern of law running “area[ ] where the like an ordinary, “reads run-of- of a defined statute of limitations is of limitations,” the-mill statute of reflecting ” (first special importance.’ Id. at 417 alter- Holland, its of enactment. (internal in original) quotation ation marks S.Ct. at 2561. omitted). Rouse therefore concluded that Furthermore, the Irwin presumption like the statute of had not been re- Holland, limitations at issue in that butted case. tolling erning equitable apply similar and we can

Finally, the reasons infer surveyed declining in to “good we no reason that Con those find to believe 2401(b)’s from “jurisdictional” status § tolling not want gress equitable did the (a) subsection provisions FTCA other apply.” Brockamp, doctrine to ILA.3, supra, Part Con see 350, 117 S.Ct. 849. excep explicit to decision include gress’s present assume for with- purposes, We provisions FTCA limitations tions in other that deciding, Wong’s out FTCA claim was presumption.15 rebut the does not Irwin in district In filed the court too late. that a explained, the fact stat As Holland so, to doing pause we note that whether equitable tolling to while “is silent as ute (1) depends this is so on: whether the expressly that re containing one claim could be considered filed in the dis- tolling” kind does not fers to a different point trict court at a than the earlier application equitable toll foreclose the actually adding amendment the FTCA 2561-62; Young, at see also ing. 130 S.Ct. filed; whether, so, if claim was the (rejecting (a) filing relevant date was November tolling pro an argument “express the Wong’s the date formal motion to file vision, same subsection as appearing (b) filed; complaint the amended No- was period, demonstrates [limitations] 20, 2001, the vember date as of which statutory intent not to toll the [limitations] complaint motion to file amended re- period”). amended; quested complaint be short, the Irwin is not presumption (c) Wong’s or December the date 2401(b)’s Nothing text or overcome. Reply Memorandum the motion to that Congress context indicates intended amend, request to reiterated applying equi- courts from ever preclude amend, filed. the first of Adopting was tolling to claims outside of the table filed dates own possible these would create its period. limitations six-month problem the court timeliness —whether McNeil, early filed too claim was —under Wong Equitable Is Entitled Toll- B. 111-13, 1980; adopt- ing might ing the second raise a McNeil also do, we ad- Concluding, equitable problem.16 justment of the limitations may Although there a defensible road be prohibited, not decide does thicket the result through yielding equitable tolling under what circumstances filed, timely claim that the FTCA was may appropriate. particular be Whether 15(c), constructively, least Fed.R.Civ.P. untimely par- claim excused for a be cf. that result one or reaching would entail varies ticular reason with the reason. We rulings concerning when FTCA only that under circumstances more novel decide here, consid- principles gov- the usual claims added amendment are presented example, Federal the date of 15. For the revisions of the filed on commencement Liability Employees 2679(d)(5). Com- Reform and Tort See 28 civil action. U.S.C. Act”), (the pensation Act of 1988 “Westfall 100-964, §§ 102 Stat. Pub.L. No. noted, seeking Wong’s motion As initial 2679(d)(5), (1988), 4564-65 28 U.S.C. sought to amend treat the INS’s leave provide under the action dismissed agency’s inactivity regarding her claim as the requirement exhaustion 2675(a), preceded under final decision timely is considered under her INS’s denial of claim on December if claim the administrative part supra 2001. See I.B. timely would have been had the claim been Moreover, notably, any requires ered filed. avenue of relief. It the effort ruling such would all likelihood itself that a reasonable person might expect- adjustment of rest on an ed to particular deliver under his or her periods, application usual be- circumstances.” Busby, Doe v. 661 F.3d filing cause some form of constructive (9th Cir.2011). Central to the date, from the date the different amended analysis plaintiff is whether the was “with- complaint actually filed in the district out in pursuing fault” his claim. Fed. court, end, required. would be In the Williams, Election Comm’n v. 104 F.3d then, there is little difference the under- (9th Cir.1996). 240 justification lying applying between tradi- regard With to the second equitable tolling principles tional and de- showing, garden variety “a claim of excus vising a equitable novel solution to the neglect, able such a simple as miscalcula filing problem date in this case. We there- tion lawyer leads a filing miss a established, proceed along fore tradi- deadline, does not warrant equitable toll tional route. Holland, (internal ing.” 130 S.Ct. at 2564 applying equitable In tolling, courts “fol omitted). quotation marks and citations a tradition in which courts of equity low[ ] Instead, litigant must show that “ex sought which, hardships have to ‘relieve traordinary circumstances were the cause time, from time to arise from a hard and of his untimeliness and it im ma[de] fast adherence’ to legal more absolute possible to file [the on time.” document] rules, which, strictly applied, if threaten Ramirez, (internal quota F.3d ” Holland, rigidity.’ the ‘evils of archaic omitted) (second tion marks and citations 130 S.Ct. at (quoting Hazel — Atlas in original). alteration Accordingly, “[e]q Co., Empire Glass Co. Hartford - tolling typically uitable granted when 238, 248, 88 L.Ed. 1250 litigants are unable to timely file [docu (1944)). Thus, equitable tolling doc result of ments] external circum trine “enables courts to meet new situa beyond stances their direct control.” Har intervention, tions [that] demand Carter, (9th ris v. 515 F.3d and to accord all the necessary relief Cir.2008). (in ... particular injustices.” correct omitted) (altera quotation ternal marks Applying these longstanding prin original). tions in ciples case, in this we conclude that what ever be the regarding case other bas “[L]ong-settled equitable-toll “ tolling, Wong’s es for easily circumstances ing principles” instruct ‘[generally, justify equitable tolling. noted, Wong’s As a litigant seeking equitable tolling bears claim untimely was because it was not filed the burden establishing two elements: within the six-month window running from (1) that he pursuing has been his rights December 2001—the date on which the (2) diligently, and extraordinary some ” Wong’s INS denied administrative claim— way.’ circumstances stood in his Credit to June 2002. That result was not the Suisse, 132 (quoting Pace v. consequence any fault or lack of due DiGuglielmo, 544 U.S. diligence on Wong’s part. If anything, (emphasis omitted)); Wong special took Yates, exercising care see also Ramirez v. due (9th Cir.2009). diligence: Wong F.3d sought As to first leave to file element, first her complaint standard for amended “[t]he reason “on or after No diligence able require 20, 2001,” was, does not an overzea vember at the time lous or pursuit extreme every filed, that request was day first follow- short, Wong’s In claim of her administrative reme was rendered ing exhaustion Wong per would have been untimely dies on which because of external circum- her claim in the district mitted to file beyond light stances her control. And, court. even after INS denied circumstances, these we that eq- conclude claim, thereby starting her anew the six- tolling properly applies uitable to excuse 2401(b), under see Leh month deadline Wong’s late-filed amended complaint, and man, Wong 154 F.3d at filed that her claim against FTCA the United reiterating Memorandum her re Reply may proceed. States therefore complaint quest to file an amended includ REVERSED REMANDED. ing Magistrate claim. As the FTCA noted, solely “due Judge KOZINSKI, Judge concurring Chief delay Magistrate Judge inherent judgment: system” that no action was taken with requests until the six- respect those agree Judges I with Tashima and Bea already had month limitations run. jurisdictional, that 28 U.S.C. Moreover, by informing parties plaintiff but can’t dissent because a like the court of her desire to file an FTCA Wong begins who her action FTCA too filing claim well before the deadline and early by filing can cure the defect a motion so, requesting Wong leave to do fulfilled premature to amend the complaint. See concern that partially notice underlies Chertoff, v. Valadez-Lopez 656 F.3d Crown, limitations statutes. See Cork & (9th Cir.2011). Wong 855-58 filed such a Co., Parker, 345, 352, Seal Inc. v. 462 U.S. finally motion before had she exhausted (1983); 103 S.Ct. 76 L.Ed.2d 628 remedies, her administrative which was Utah, Pipe Am. & Constr. Co. v. 414 U.S. 2675(a); too soon. See 28 U.S.C. 538, 554, McNeil v. United (1974). 1980, 124 L.Ed.2d persuaded by govern- are not We (1993). But, on December after Wong dilatory ment’s assertion that in the denied her claim and before the INS seeking to file her claim because she did six-month section window slammed expressly request timely ruling a from shut, Wong reply a filed memorandum re- persuaded the district court. Nor are we request iterating her for leave to file a Wong entirely have filed an should complaint. second amended complaint alleging the claim new FTCA typically reply While we don’t treat a waiting ruling rather than for a on the motion, nothing preclude there’s to a us Wong motion amend. was entitled to case, In doing Wong’s from so. re- expect timely ruling request a on her all a quest physical had attributes of amend, great which was made with a deal in writing, motion: It was made filed with filing of time to And a suit on spare. new court, side, prayed served on the other pending same facts as one would have with particularity” for relief and “state[d] all been inefficient for concerned—which is it. why she was entitled to See Fed. why alleging amendments new causes 7(b). pointed out that “the R.Civ.P. She allegations on the factual action same are currently plain- Thus, court has over permitted. See Fed.R.Civ.P. plaintiffs tiffs’ FTCA claims and should be Wong put forth the “effort that a reason- complaint allowed to amend the to add person might expected able to deliver conclusion, claims.” her she particular under her circumstances.” those Busby, prayed for this relief: again “[PJlaintiffs 661 F.3d It took the court more than seven to file their Sec- thus granted leave

should be to act on this routine motion—a months Complaint.” Amended ond have delay Wong didn’t cause and couldn’t Wong that if concedes government The that, government suggests foreseen. The complaint her to amend moved for leave waiting for the district court to instead of following the the six months INS’s during motion, Wong have re- act on her should claim, entitled to main of her she’s denial Yeah, right. many litigants How filed it. McNeil, lawsuit. tain her Cf. judge a have the nerve to vex federal with 1980; 5,n. Valadez- 107-10 & original motion while the is still clone Wong file F.3d at 855-58. did Lopez, 656 things happen Bad can to those pending? motion, a document albeit within such See, tiger’s e.g., Nugget tail. who twist captioned “Reply Memorandum.” Hydroelectric, L.P. v. Pac. & Elec. Gas (9th Cir.1992) (af- Co., 981 F.2d construing claims that firming imposition filing of sanctions for would be “nov Wong’s reply as motion motions). Instead, duplicative Wong used el,” maj. op. regularly but we treat reply sensibly: her She reiterated her re- equity filings non-motion as motions when amend, quest arguments advanced new See, v. e.g., for it. United States calls support request pointed out (9th Cir.1987) Rewald, 835 F.2d acquired jurisdiction that the court had as motion for (construing appeal notice of grant Wong’s it. To treat document as a remand); Aguirre-Pine United States legal nullity reply it a because she called da, Fed.Appx. 2009 WL than a inequitable rather motion is (9th Cir.2009) (construing letter as at *1 I thought nonsensical. we had abandoned counsel); appointment Rap motion for pedantry such 1938. See 5 Charles Alan Concerns, 42 anan v. Nikkei Manor/Nikkei Miller, Arthur R. Wright & Federal Prac- (9th Fed.Appx. 2002 WL 1891677 Cir. (3d ed.2004) tice and Procedure 2002) (construing letter as motion for ex (“Fortunately, under practice federal request argument). oral tension of time technical name attached to a motion or certainly nothing And there’s novel about not pleading important as as its sub- stance.”); Weinstein, a B. finding a motion nested within document see also Jack The See, Ghost Process Past: The Anni- e.g., purpose. that serves another of Fiftieth versary the Federal Rules Civil Pro- Harvey, Fed.Appx. United States of Erie, cedure and 54 Brook. L.Rev. 2-3 (9th Cir.2003) (construing opening (1988) (“When the Rules were first as counsel of brief as motion to withdraw adopted, they optimistically were intended record). Sometimes, required even we’re procedural to clear the clouds so See, 22- e.g., to do Circuit Rule so. Ninth sunlight might substance shine 1(e) (“Uncertified desig issues raised and through.”). opening nated in will appellant’s [an brief] majority The that construing claims expand construed as a motion Wong’s reply as satisfying section COA....”). novel, But even if it were so “an equitable adjustment would itself be enemy justice; Novelty what? is not an application peri- the usual of limitations judges, we’re plumbers. not Maj. op. willing ods.” 1052. If we’re to do of our com- Wong We owe the benefit that, my colleagues argue, we should avoid all, passion creativity. After had the just procedural equita- “thicket” and district court acted on her motion within bly toll the statute of 'limitations. Id. “In the section period, six-month she concludes, end,” majority “there is wouldn’t be in But district this fix. federal justifica- underlying little difference in the overworked, courts are chronically facing approach its and mine. tion between” text, volumes context and relevant briefing every day. of motions and But the FTCA’s liberally. That’s construing pleading a toll- equitable prohibit treatment historical deadline, enough for me. statutory plenty good ing of the majority filings. The of court construction judi- in the federal delays The inherent I side—but emerge on the same I ciary Wong’s problem, good caused And that provides. law the road our take powers should use such conscience we all the difference. makes to her. Had she filed up we have to make States, 508 U.S. McNeil v. United time-frame, nothing within the relevant (1993), 124 L.Ed.2d nothing there would be for us to construe dealt with section this. McNeil confirms by and she’d be barred the statute. See 2675(a), of the timing provision a different Dissent; Wong Dissent. But Bea Tashima FTCA, instituting an action which bars file, did and that document contains court before the administrative federal crystal clear motion to amend the com- agency.” “finally claim is denied Wong recognize plaint. owe it to We (quoting 28 113 S.Ct. 1980 judgment this. I therefore concur 2675(a)). held no Court reasoning in the of the re- terms that this exhaustion uncertain (as they go). dissents far as McNeil, jurisdictional. quirement 1980; also Bea see TASHIMA, joined by Judge, Circuit open at 1075. But it also left Dissent BEA, Judge, dissenting: Circuit who had filed possibility plaintiff join dissenting opinion I Judge Bea’s might, agency after complaint prematurely clarify I the Fed- separately full. write denial, else that “consti- something file (“FTCA’s”) legisla- Act’s eral Tort Claims a new ac- the commencement of tute[s] history, once under- history. tive This McNeil, tion.” context, dispels stood in full doubt “As the explained: 1980. The Court in- the FTCA’s us, assume that case comes to we to be tended noth- correctly held that Appeals Court the denial of ing by petitioner after done I. July claim on

his administrative a commencement of new constituted the central of the FTCA are provisions Two 113 S.Ct. 1980. The action.” Id. pro- limitations present purposes for —the opinion: this later in the Court reiterated vision, currently codified 28 the of question whether Court “Again, the 2401(b), jurisdiction-granting the and liberally construed have Appeals should at 28 U.S.C. provision, currently codified as petitioner’s [requesting counsel] letter 1346(b). history of begin I with a brief us.” action is not before instituting new provisions. these two Thus, while n. 113 S.Ct. 1980. Id. at 113 originally was enacted The FTCA timing require- a similar FTCA finding Reorga- Legislative as Title IV of the made jurisdictional, the Court ment to be (“1946 No. 79-601 nization Act. See Pub.L. our impair didn’t clear that the statute (1946). Act”), IV, 842-47 tit. 60 Stat. liberally construe power to traditional Act, of provisions the Pursuant to the 1946 eq- letters —when filings court mere —even Chapter were codified the FTCA asking so. If a letter uity calls for us to do (1946). §§ 921-946 Title 28. See “liberally construed ... can for counsel jurisdic- was the Among provisions these action,” why not instituting as a new read, in per- provision, which tion-granting no contradiction reply? The Court saw strictly part: and tinent construing the statute between types against this of civil actions the

Subject provisions chapter, the United to the district court for the United States States. See id. 971. plaintiff the is resident district wherein Also the Chapter removed from former or act omission com- or wherein the grouping the jurisdiction-granting was occurred, including the plained of United provision, in Chapter which was recodified for the States district courts Territories 1346(b). at 28 U.S.C. See id. at States, of the United possessions Similarly provision, 933. to the limitations jury, sitting without a shall have exclu- jurisdiction- this move consolidated the hear, determine, jurisdiction sive to granting provision with the provi- other judgment

render on claim against sions of granting Title 28 States, money only, the United ac- against civil actions the United' States. January cruing on and after on See id. at Because the reference 933. to account to or damage property loss of chapter” opening “this in the clause of injury personal account of or death given was now stale — negligent or wrongful caused the act longer in the chap- was no same any employee or omission of of the Gov- provisions ter as the FTCA other acting ernment while within the scope of —the read, changed “Subject clause was employment, his office or under circum- States, provisions chapter the United if 173 of this title.” stances where the private person, would be liable to the loss, damage, claimant injury, for such However, no Chapter there was 173 of or death in accordance with the law of Rather, Title 28. this awas scrivener’s place where the act or omission oc- error that have read Chapter should curred. Throughout drafting history added). §Id. (emphasis The FTCA Act, chapter would become jurisdic- thus conferred exclusive federal Chapter 171—titled “Tort Claims Proce- tion over tort actions the United designated Chapter dure”—had been “[sjubject provisions of’ with the cross-reference cor- Chapter within Chapter Included See, responding designation. e.g.,

was the provision, FTCA’s limitations (1947). Cong., H.R. 80th chs. then-codified at 28 U.S.C. 942. See id. When the chapter was renumbered to 171 § 942. Accordingly, originally enacted amendment, via a late S.Rep. Senate see Act, grant juris- FTCA’s (1948), No. at 8 the drafters sim- “[sjubject diction to” the ply failed to update cross-reference in provision. 1346(b). that, It is thus evident as of reorganized recodified Ti- Act, opening clause of (“1948 tle 28 in Pub.L. 1948. See 80-773 1346(b) read, § “Subject should have (1948). Act”), 1,§ 62 869 As part Stat. of the provisions chapter of 171 of this title.” recodification, the of provisions most the Indeed, later, a year Congress amended formerly grouped Chapter under 20 were 1346(b) § to correct this error and change regrouped Chapter under 171. See id. at the Chapter cross-reference to 171. See provision, 982-85. The limitations howev- 81-55, (1949); Pub.L. 63 62 Stat. see also er, was grouping removed from this (1949). 81-135, 1-2 S.Rep. No. placed in location in Chapter its current 2401(b). § at 28 U.S.C. See id. at II. There, 970-71. alongside it was situated 2401(a), history juris § 28 The of limitations and provides U.S.C. the for a six-year diction-granting provisions, statute of limitations other as recounted above, conjunction jurisdictional of only years taken in with the con its status two below, later, through long- offer “a clear the 1948 Act. Under siderations discussed Congress Supreme precedent, wanted the established Court [limi indication that however, jurisdictional.” we are not to “presume rule that the tations] Shinseki, revision change Henderson ex. rel. Henderson v. worked a in the un- — -, derlying substantive law U.S. unless intent (2011) (internal quotation to make such a change clearly L.Ed.2d 159 ex- omitted). First, impor pressed.” marks and most John R. Sand & Gravel Co. v. States, 130, 136, tantly, plain provi it is that the limitations United (2008) (internal jurisdictional original sion was as of the 169 L.Ed.2d 591 quo- Act, omitted); grant for the tation marks see also Keene is, States, “[sjubject “contin expressly Corp. to”—that v. United gent upon” compliance or conditional — rule). Here, provision. (citing applying with that New cases See Webster’s this not (3d ed.1994); Dictionary only “clearly expressed” World Coll. such intent lacking, see also Webster’s New International Dic but there is an abundance of evi- (2d ed.1940) tionary (defining contrary Congress “sub dence to the had —that ject “[b]eing contingency to” as under the no alter desire to the status (some of; dependent upon exposed provision. of the limitations action)”). contingent It is difficult Act,3 In the Reviser’s Notes to the 1948 imagine a more “clear statement” as to § Congress explained that 2401 “consoli- Congress’ intent.1 See Sebelius v. Auburn provision dates” the FTCA’s limitations —Ctr., U.S. -, Reg’l Med. six-year with the limitations of 28 (2013). 817, 824, 184 L.Ed.2d 627 2401(a), which, 2401(b), § § like If accepts proposition formerly one this had been codified elsewhere —which only obliquely disputes2— Rep. Title 28. H.R. A185 2401(b) then, (1947); 41(20) (1946) non-juris- order to find see also 28 U.S.C. (former dictional, six-year one must conclude that peri- section limitations od). strip intended to purely organizational This function— course, logic procedures, every 1. Of dictates re scribed not that each and followed, quirements Chapter procedures, jurisdic gives 171 are one of also those if not consequences At two tional. least Circuit Courts have so rise to the ‘drastic’ that follow reasoning. subject jurisdiction.” held in accord with this See Mad from lack of matter States, (8th Maj. Op. interpretation er v. United 654 F.3d at 1044 n. 9. This Cir.2011) (en banc) (relying ignores “[s]ubject only ordinary meaning "subject on the to,” 1346(b) language finding pres opening to" but it would render the clause of requirements surplusage. very entment of 28 U.S.C. existence of jurisdictional); White-Squire "prescribed procedures,” v. U.S. Postal as standalone Serv., (3d Cir.2010) statutory provisions, litigants 592 F.3d 457-58 "means Thus, (relying finding "[sjubject on the same in the sum cer have to follow [them].” requirement juris tain of 28 U.S.C. to” clause of would have no sub- dictional). import majority’s reading. But see Parrott v. United stantive under the (7th Cir.2008) (holding 536 F.3d 634-35 statutory exceptions repeatedly of 28 U.S.C. 3.The Court has relied on jurisdictional, notwithstanding determining whether a 2680 are not Reviser's Notes 1346(b)). change through language the substantive intended the was See, Gravel, e.g., 1948 Act. John R. Sand & footnote, 750; majority suggests 2. In a that the 128 S.Ct. Newman- the " Green, phrase '[s]ubject sensibly Alfonzo-Larrain, to’ is more read to Inc. v. (1989). litigants pre- L.Ed.2d mean that have to follow the 893 provisions improper legislative of Title 28 that “it is to consider

to consolidate the periods history” statutory limitations actions because the text is setting forth Maj. the obvious at It against government “plain.” Op. the is curious —is Congress separated unambiguous manages reason that that is statute provisions from the other FTCA produce split, to an intracircuit several en chapter dissents, it in 161.4 If there were placed pages banc and dozens of of anal any as to whether substantive doubt ysis by majority justify the its conclu intended, the Reviser’s Notes purpose was aside, sion. These considerations the fact (b) added, of the revised then “Subsection jurisdictional is that the goal inquiry the section ^[2401] simplifies and restates [for- “to ascertain Congress’ intent.” 942], change without Henderson, mer 28 U.S.C. majori at 1204. The Rep. H.R. at A185 substance.” ty recognizes that we must look to factors added). (emphasis such as “context” and “relevant historical intent, Maj. Op. treatment” to discern this Congress provided equally definitive Elsevier, (quoting Reed Inc. v. guidance in the actual text of the 1948 Act. Muchnick, provision, Congress In an in- uncodified (2010)), 176 L.Ed.2d but it pro structed, legislative “No inference of why legislative history vides no reason construction is to be drawn reason of similarly be considered.5 The chapter Title 28 ... in which effect, majority, require invokes the Act, § placed.” section is [] ment that there be evidence clear con added). course, (emphasis Of Stat. at 991 intent, gressional and it then seeks shut precisely required such an inference is very the door on the evidence that could 2401(b) non-jurisdictional, find because support showing. this Congress one must assume that intended jurisdictional to alter the status of the Perhaps recognizing “plain that its text” provision by removing limitations it from next, argument shaky ground, sits on it in Chapter placing Chap- the FTCA majority implicitly acknowledges that the ter 161. provision limitations un- Act, der the original 1946 but it contends short, there is no indication —let revision undid this status. “clearly expressed” alone a indication— Maj. Op. at 1043-44. In regard, this juris- intended to alter the majority passing does at least make a ref- dictional status of erence to the rule that we are not to through the 1948Act.

presume the 1948 Act effected substantive III. change “clearly expressed.” Maj. unless majority responses Op. According majority, offers several to the evidence, though, expression historical none of which is such clear can be found First, persuasive. in Congress’ amending contends the cross-reference purpose 4. The widely same was carried out with tion consolidates and clarifies three code."). respect separated jurisdiction-granting provision, provisions to the of the former which was consolidated in 1346 with the provisions jurisdic- granting other below, of Title 28 legislative history 5. As described government. tion in civil actions particularly probative congressional intent Act, 933; See 1948 see Stat. also given in the instant case that the focus is on Barron, William W. The Judicial Code: 1948 statutory by Congress, scheme as enacted Revision, ("The 8 F.R.D. given stat- only that this enactment occurred conferring jurisdiction utes years prior adoption ... are consoli- two of the current single statutory language. dated into a section. The revised sec- presume to did not effect substantive which did Chapter to §in circumstances, Maj. Op. provision. these it is change. the limitations Under include rely at 1044. to on the 1946 Act entirely reasonable providing as a “clear indication” of Con- apart upon falls quickly argument This Henderson, 131 S.Ct. at gress’ intent. key history of the two considering the the removal of explained, As provisions. limitations from the FTCA provision

the IV. pur- solely organizational Chapter was of Title provisions the to consolidate poses, history legislative Given the recited in ac- periods forth limitations setting above, difficulty concluding I have little Likewise, government. the tions provision that the was FTCA’s redesignation of the cross-reference jurisdictional. Congress intended merely an 1346(b), Chapter a clear to this effect provided statement jurisdiction The reorganization. artifact of in 1946. enacting when previously referenced granting provision only years reorganizing When Title 28 two the FTCA chapter” referring “this — ],” later, Congress “clearly express! did not reference Title 28—but this Chapter of all, provide any indication at that it jurisdiction- outdated once the became to disturb this status. For these intended stripped out of the granting provision was reasons, well as the reasons outlined as simply updated Chapter. Congress FTCA I dissenting opinion, respect- Judge Bea’s cross-reference, inserting the new fully dissent. Chapter, Chapter number of the FTCA end, therefore, majority’s 171. In the BEA, Judge, with whom Circuit majori- entirely circular. The argument is TASHIMA, joins, Judge, Circuit and noth- ty reorganization, relies on the dissenting: else, that ing expression as a clear courts, for majority opinion permits The effected substantive reorganization reasons, time in to extend the change.6 begun against can be which a tort action majority falls back on the Finally, the Government, ad- obligatory after the “drafting history” notion that the FTCA’s has filed and de- ministrative claim been of Con- supply cannot a clear statement clearly Congress I nied. Because believe Maj. at 1044. The 1946 gress’ Op. intent. expressed its intent however, Act, “drafting not reflect does limit the would statutory history.” It is the scheme claims by providing that tort federal courts And it is the by Congress. enacted unless action is “shall be forever barred” only years prior two put place scheme into follow- the six-month begun within current produced to the revisions administrative claim ing are denial of the statutory language, revisions that we Barron, that, ("Congress history. supra, my under treat- 6. The contends complete Re- reports history, included] in its legislative the limitations ment of the are regardless to each section in which jurisdictional viser’s Notes period would remain change ju- where is intended Congress noted all instances "what wrote into the FTCA’s therefor.”). requirement Maj. Op. reasons grant at 1044. risdictional in 1948.” affirmatively express such Congress truly Hardly If intended the case. created, status, I have but one intent is not one provision’s to alter the Supreme Court mandated as a matter of provided statement have an affirmative could Act, Corp., U.S. at See Keene in the doctrine. this effect in the text of the 1948 Notes, legislative S.Ct. 2035. in the Reviser’s or elsewhere 1060 (2008).2 agency, exceptions,

the concerned with no These “more absolute” statutes respectfully I dissent. protect “seek not so much to a defendant’s case-specific interest in timeliness as to I. The “Jurisdictional” vs. “Claim- system-related achieve a broader goal, Processing” Distinction and as facilitating such the administration of Inquiry Our claims, limiting scope governmen- of a correct, course, majority The sovereign tal waiver of immunity, pro- noting that the Supreme Court has created moting judicial 133, efficiency.” Id. at presumption a rebuttable that equitable S.Ct. 750. The Court has described the tolling applies against to suits the United time limits such statutes of limitations Dep’t States. See Irwin v. Veterans “jurisdictional.” See id. at 89, 95-96, Affairs, 498 U.S. 111 S.Ct. S.Ct. 750. (1990).1 112 L.Ed.2d pre- But that The believes the distinction be- sumption universally is not applicable. As “jurisdic- tween these “more absolute” or majority admits, application has no statutes, tional” to which to certain courts cannot kinds of “more absolute” stat- exceptions utes of create on equitable limitations. See John R. based con- Sand & siderations, Gravel Co. v. United “claim-processing mere 133-34, rules,” to which Irwin’s pre- rebuttable Irwin, petitioner however, 1. In neglect,” was fired from his excusable the Court af- job by ("VA”). the Veterans' Administration firmed the dismissal. See id. at See id. at 111 S.Ct. 453. He filed a VA, complaint alleging with the that it had unlawfully discharged him on the basis of Gravel, In John R. petitioner Sand & physical race and disability. See id. at Claims, filed an action in the Court of Federal 111 S.Ct. 453. The VA dismissed the com- asserting that various Environmental Protec- plaint, Equal Employment Opportuni- and the Agency tion activities on land it leased for ty ("EEOC”) Commission affirmed that deci- mining purposes amounted to an unconstitu- petitioner right sion. See id. The had the taking rights. tional of its leasehold See id. at file a civil action in district court but was 132, 128 S.Ct. 750. The initially Government required days to do so within 30 asserted that the untimely claims were under (citing EEOC's affirmance. See id. 42 U.S.C. provides which that "[e]v- 2000e-16(c)). petitioner filed a com- ery claim which the United States Court of plaint days in district court 44 after his attor- Federal Claims has shall be ney's notice, office received the EEOC's petition barred unless thereon is filed only days after the date on years within six after such claim first ac- which he claimed to have received the notice. 2501). (quoting crues.” See id. See id. The district court held that the limita- The Government later conceded that certain period began tions attorney’s when the office timely, subsequently claims were won on granted received the notice and the VA's mo- appeal, the merits. See id. On the Court of jurisdiction. tion to dismiss for lack of See id. Appeals for the Federal Circuit held that the The Fifth Circuit affirmed and held that com- untimely action was filed and should have pliance 2000e-16(c)’s §with time limit was a been dismissed for that reason. See id. at jurisdictional requirement. See id. The Su- 128 S.Ct. 750. The Court af- preme 2000e-16(c)'s Court held that time firmed compliance and held that instead, with jurisdictional; limit was not jurisdictional require- 2501’s time limit is a Court held pre- that "the same rebuttable 138-39, ment. See sumption id. equitable tolling 750. As applicable below, against private explained suits noted the Court also defendants should also apply difference between suits the United States.” Id. statutes of 95-96, princi- pre- S.Ct. 453. Because the limitations and those to which Irwin’s ples equitable tolling sumption applied. did "not extend to can be See id. at what garden variety is at best a claim of 128 S.Ct. 750. present “critical for and relevant historical treatment.” sumption applies, Reed Elsevier, Muchnick, The ma- Inc. v. Op. at 1034-35. purposes.” 166, 130 1237, 176 (2010).5 jority “quintessential L.Ed.2d calls rule,” at but claim-processing Op. see something change a name does not

calling II. The Statute’s Text question critical its nature.3 And the 2401(b) provides, Section in relevant § we characterize as a not whether part, against tort claim “[a] the Unit- rule,” “quintessential claim-processing see ed States shall be forever barred unless Op. Congress but whether man- ... begun action is within six months after time limit be prescribed dated that its the date of mailing, by regis- certified or Shinseki, jurisdictional, see Henderson v. mail, tered of notice of final denial of the — -, U.S. S.Ct. by agency claim pre- to which it was (2011) (noting “Congress L.Ed.2d 159 2401(b). sented.” 28 U.S.C. go is free to attach the conditions that with jurisdictional label to a rule that Reading § A. with prefer claim-pro- would to call a [courts] rule.”).4 cessing Perhaps To determina- majority goes wrong make this where the tion, considering § the court to if is in must “look see there as a stand-alone limitations, any clear Congress indication wanted statute rather than consider (internal jurisdictional.” conjunction it in ing complemen the rule to be with the omitted). quotation tary require marks and citation administrative exhaustion And, indication,” to find such a “clear we ment of 28 U.S.C. 2675. The has Court “text, against must examine the statute’s context instructed such a restrictive view Elsevier, authors, majority ignores simple 3. The truth con- 5.In Reed some of whom ascribed, aphorism perhaps tained in the registered copyrights had for their works and apocryphally, you to Abraham Lincoln: "If not, publishers others who had sued and elec- leg, many legs dog? call a tail a how has a copyright infringement. tronic databases for No, calling leg Five? a tail a don’t make it a parties See id. at 130 S.Ct. 1237. The leg.” settled and filed a motion in federal district certify a court class for settlement and Henderson, petitioner, a veteran of approve agreement. the settlement See id. at given the Korean had a War who been 100- 159, 130 S.Ct. 1237. Ten freelance authors paranoid percent disability rating schizo- for ("the respondents”) objected. phrenia, Department Muchnick filed a claim with the ("VA”) supplemental objec- Veterans Affairs for ben- id. The district court overruled those tions, efits based on his need for in-home care. See certified a settlement class of freelance regional id. at 1201. The VA office and settlement, authors, approved the and entered Appeals peti- Board of Veterans’ denied the judgment. final See id. Muchnick re- The petitioner tioner’s claim. See id. The filed a spondents appealed, and the Second Circuit Court, appeal notice with the Veterans held that the district court lacked 120-day filing he missed the deadline certify arising class of claims from 7266(a)). days. (citing See id. 38 U.S.C. infringement unregistered works. See id. appeal The Veterans Court dismissed the for (citing 130 S.Ct. 1237 jurisdiction, treating compliance lack of with 411(a), provides, part, which in relevant 120-day jurisdictional deadline as a re- infringement that "no civil action for of the quirement. See id. at 1202. The Federal copyright United States work shall be Circuit affirmed. See id. Because preregistration registration instituted until "provide[d] no clear indication that made”). copyright claim has been having wanted the treated to be Supreme Court reversed and held that attributes,” Court 411(a) imposed nonjurisdictional precon- 120-day and held that the limitation reversed id. at 130 S.Ct. 1237. was not Id. at 1205-06. dition to suit. See 2675(a). bringing requires for suit. U.S.C. This section statutory conditions Dalm, See United States that an administrative claim be made to L.Ed.2d 548 responsible agency, and it disallows (1990).6 Instead, to courts should read suit until the denial of such claim is final. qualify an gether “provisions [indi fil See id. No such administrative claims right bring upon suit com vidual]’s an ing is needed commence action pliance with certain conditions.” Id.7 against private person applicable under Here, statutory provisions qualify two Irwin, state law. tort right individual’s to file suit (reasoning principles “applicable the United States. See 28 U.S.C. against private to suits defendants should 2401(b). First, 2675(a); § § 28 U.S.C. against also to suits the apply United § provides action shall not “[a]n States”). upon against instituted a claim the 2675(a)’s § logical Section is ..., money damages United States complement. provides It that: pre claimant have unless the shall first against tort claim the [a] United States appropriate sented the claim to the Feder pre- shall be forever barred unless it is agency al and his claim shall have been in writing appropriate sented to the finally by agency writing denied the and registered by agency years sent certified mail.” 28 Federal within two after Dalm, Dalm, respondent appoint- provisions. the had been In there were two such employer's (stating See id. at 110 S.Ct. 1361 ed of her administratrix estate. provides 26 U.S.C. which that "[n]o 110 S.Ct. 1361. In id. return for proceeding any suit or services, shall be maintained in her she received fees from the estate recovery any court for the of internal revenue payments employer's and two from the sur- alleged tax erroneously to have been or ille- viving brother. See id. at 110 S.Ct. 1361. gally assessed or collected ... until a claim reported respondent payments The the latter duly for refund or credit has been filed with gifts paid appropriate gift the tax. See 6511(a), Secretary,” the and 26 U.S.C. ("IRS”) id. The Internal Revenue Service that, provides taxpayer required which if a is respondent's audited the income tax returns tax, respect to file a return with to a the payments and determined that the should "[cjlaim for refund or credit ... shall be filed reported have been as income. See id. The by taxpayer years the within 3 from the time respondent petitioned the Tax Court for a years the return was filed or 2 from the time subsequently redetermination but settled the paid, periods the tax was whichever of such agreed case. See id. After she to the settle- later,” expires qualifi- were both relevant ment, respondent immediately filed an taxpayer's right bring cations on a to a refund gift administrative claim for return of the tax suit). provisions Because both established paid. she had See id. the IRS When failed to suit, taxpayer's right bring conditions on a months, act on her claim within six she filed together. the Court read them See id. at court, seeking suit in district refund of ("Read together, import S.Ct. 1361 "overpaid gift tax.” Id. at these sections is clear: unless a claim for granted 1361. The district court the Govern- refund of a tax has been filed within the time ment's motion to dismiss the suit for lack of 6511(a), by § imposed limits a suit for refund jurisdiction, respondent's because the suit not be maintained in court.” untimely applicable under the statute of (citations omitted)); see also Antonin Scalia & 6511(a). limitations: 26 See id. Garner, Bryan Reading A. Interpre- Law: The The Sixth Circuit reversed and held that the Legal ("Perhaps tation of Texts 167 no equitable recoupment doctrine of should be interpretive fault more common than the applied permit respondent's suit to canon, failure to follow the whole-text proceed. See id. The Court re- judicial interpreter calls on the to consider text, versed and held that the district court did not the entire in view of its structure and of untimely have to entertain the physical logical many relation of its parts.”). action. See id. at 110 S.Ct. 1361. (fictional, claim accrues or unless action is despite such the absence of the term “jurisdiction”); Russell, months alter the begun within six date Bowles mailing, by registered certified or (2007) (same mail, final claim of notice of denial with respect to 28 U.S.C. 2107(a) (c))8; Dalm, agency presented. to which it was (same 110 S.Ct. 1361 respect with 2401(b). This estab- 28 U.S.C. and 26 U.S.C. applicable present- lishes the time limits 6511(a)).9 to appreci- fails ing an beginning administrative claim and ate a crucial difference between the stat- Dalm, import a civil action. As utes of limitations the Court has deemed they these two sections is clear are when jurisdictional and those to which the Court together: read Unless administrative has applied equitable tolling: whether the claim presented responsible agen- expressly statute mandates a consequence cy begun, before action is and unless both for the timely failure to file. the claim begun and the action are within 2401(b), imposed by the time limits 1. Plain Statutes Limitations: No tort claim the United States “shall Consequences Mandated for be forever barred.” Timely Failure to File 2401(b) B. Section Refers to Some statutes of require that Courts’ Jurisdiction. performed certain actions be within a spec- holds, The in a rather concluso- period ified of time without specifying con- fashion, ry § “does not speak sequences to applied where the actions jurisdictional in terms or in any way refer performed See, are not prescribed. e.g., to the of the federal courts.” 411(a) § (“[Subject U.S.C. to certain (internal Op. at quotations and cita- exceptions], no civil action infringement omitted). disagree. tions I itWhile is of copyright the United States work § true that does not mention the shall preregistration be instituted until “jurisdiction,” term the same is true of registration copyright claim has several statutes of limitations the Court title.”); been made accordance with this 2244(d)(1) (“A has found to be § See John 28 U.S.C. 1-year period Gravel, R. Sand & 552 U.S. 128 of apply limitation shall to an application § S.Ct. 750 (holding juris- 28 U.S.C. for a corpus by writ of habeas a person Bowles, jury peti- permitted 8. In an Ohio by petitioner convicted the statute. See id. The tioner of murder and sentenced him to 15- appeal filed his 14-day notice of after the years-to-life imprisonment. See id. at period by allowed statute but within the 17 petitioner unsuccessfully 127 S.Ct. 2360. The days by allowed the district court. See id. challenged his conviction and sentence on jurisdic- The Sixth Circuit held that it lacked appeal, direct and then filed a federal habeas appeal, tion to entertain the because the no- corpus petition. See id. The district court appeal untimely tice of filed. See id. entry denied habeas relief. See id. After the The Court affirmed and held that judgment, petitioner days of final the had 30 timely filing appeal “the of a notice of in a appeal. (citing to file a notice of See id. jurisdictional requirement.” civil case is a 2107(a)). U.S.C. He failed to do so. See id. 127 S.Ct. 2360. Instead, reopen he later filed a motion to the appeal in which to file a notice of Unfortunately, yet the Court has not ana- 2107(c), under 28 U.S.C. which allows dis- lyzed jurisdic- whether is or is not filing period trict courts to extend the for 14 tional. We must therefore use what tools the days. granted See id. The district court reopen, given “inexplicably gave motion to Court has us in its discussions of similar [the petitioner] days,” days statutory provisions instead by analogy. of the 14 and reason judgment noncompliance statutory timing provi of a with custody pursuant 7266(a) (“In court.”); sions, State federal courts will not by review the Court of ordinary order to obtain impose course their own coercive Claims of a final Appeals Co., for Veterans Peabody sanction.” Barnhart v. Coal Appeals, of the Board of decision Veterans’ 149, 159, adversely by affected such deci- person (2003).10 L.Ed.2d It good makes of appeal sion shall file notice with the sense, then, regularly the Court has days within 120 after the date on Court lacking held that statutes of limitations notice decision provisions specifying consequences do not 4004(a) (“[A] mailed....”); F.R. BankrJP. speak terms or refer complaint objecting to the debtor’s See, jurisdiction. e.g., courts’ discharge shall be filed no later than 60 Henderson, at 1204 (holding days date set for after first the meet- the terms of 38 U.S.C. “do not 341(a).”). ing of creditors under These evidence, suggest, provide let alone clear statutes, quotations as evidenced carry ju was meant above, mandatory are often written in consequences”); risdictional Holland Significantly, they par- terms. while make Florida, mandatory, they ties’ actions do not con- (holding L.Ed.2d 130 that 28 mandatory tain consequences for noncom- 2244(d)(1) “does not set forth an pliance. requiring inflexible rule dismissal whenev (internal er its clock run” quotation Court has instructed that “if a stat- has omitted))11; ute specify consequence does not for marks and citations Reed El Barnhart, Holland, 10. In petitioner the Court addressed 26 U.S.C. was convicted of 9706(a)'s first-degree requirement murder and sentenced that the to death. Commission- 1, Supreme See id. at 2555. The Florida Court Security assign, er of Social before October and, 1, judgment, affirmed that 2001, on October 1993, industry eligible each coal retiree for Supreme petition the Court denied the operating company benefits to an or related date, for id. certiorari. See On that entity, responsible which would then be for 2244(d)'s one-year statute of limita funding assigned beneficiary’s the benefits. filing petition began a tions for habeas to run. 152-53, See id. at 123 S.Ct. 748. The Com- (i.e. September days See id. On complete did assign- missioner not all the one-year before the limitations ex date, by statutory ments the and several coal pired), state-appointed attorney filed a mo companies challenged by the Commissioner's post-conviction tion for relief in the state tardy assignments. then See id. at court, automatically stopped the run companies summary S.Ct. 748. The obtained ning period. of the limitations See id. In case, judgments in each and the Sixth Circuit May the state trial denied court relief. affirmed. See id. at 123 S.Ct. 748. The By February See id. when the Florida Supreme Court held that it was "unrealistic Supreme argument Court heard oral in the unassigned to think that understood case, petitioner appointed the and his attor enduring 'consequence' an status as of un- Indeed, ney rarely communicated. See id. work, completed nothing for indicates petitioner Supreme the asked the Florida Congress even foresaw that some beneficia- attorney Court to remove the from his case operators ries matchable with still in business "complete because aof breakdown in com might assigned not be before October munication,” including keep a failure to him 164-65, Thus, 1993.” Id. 123 S.Ct. 748. informed of the case’s status. id. See The statutory read spur the "a deadline as Supreme petitioner’s Court denied Florida action, prompt tardy comple- not as bar to request. petitioner id. at See 2556. The sub ensuring tion of the business of that benefits sequently attorney wrote the several times by are funded ... those identified Con- emphasized importance filing gress principally responsible.” as Id. at timely petition corpus for habeas in federal Supreme 123 S.Ct. 748. court once the Florida ruled Court sevier, proceed pre- to determine whether that 411(a) and, not, if sumption “does not has been rebutted that 17 U.S.C. (holding running timing provi- terms or refer whether speak sion should tolled for reasons. jurisdiction of the district way to the any Irwin, (citation omitted)); See Kontrick v. courts” 906, 157 443, 454, 453.13

Ryan, 540 U.S. (2004) (holding filing that “the L.Ed.2d 867 Consequence of Limita- Statutes Bankruptcy prescribed deadline[ ] Mandatory Consequences tions: not delineate what 4004 ... Rule[ ] do[es] Timely for a Failure to File competent to bankruptcy courts are cases however, contrast, lim- for the are statutes of adjudicate”).12 These cases stand specify consequences If the itations that of a identified above: general proposition prescribed to adhere to a party’s not mandate dismissal failure statutory text does See, noncompliance, e.g., time limit. 26 U.S.C. consequence as the (“No main- proceeding the statute as hav suit or shall be courts should not read (i.e. recovery any manda tained in court for the ing jurisdictional consequences In tax ... until a claim for exception). without internal revenue tory dismissal instruction, duly stead, the courts refund or credit has been filed with per Irwin’s Secretary....”); equitable tolling may be presume should question, (“Every and then claim of which United States applied to the statute objection provided had to be id. In November rule that such him. See days after the date Supreme Court affirmed the denial of made within “60 first set Florida meeting (quoting for the of creditors.” post-conviction relief. See id. On December 1, 2005, mandate, 4004(a)). Bkrtcy. and the federal Fed. R. P. The creditor's it issued its began again objection untimely rule. See to tick. See id. under this habeas clock later, days one-year did not file a motion to dis- Twelve id. debtor however, objection untimely, period expired, petitioner never hav miss the until with the Bankruptcy decided that the ing that the Florida after the Court been informed discharge ruling. id. at should be refused. See id. The Court had made a 2556-57. petitioner Bankruptcy Court held that the time limit was When the learned of the adverse jurisdictional, ruling January immediately and the Seventh Circuit he pro petition and mailed it affirmed. See id. at 124 S.Ct. 906. The wrote a se habeas that id. at The Court affirmed and held Rule to the district court. See jurisdictional, "a equitable tolling was not so that district court held that right rely petitioner did not debtor forfeits the to on Rule 4004 if unwarranted because the system the time help to determine the debtor does not raise Rule’s seek from the court bankruptcy court reach- when the mandate issued. See id. The Elev limitation before objection the creditor's to affirmed and held that the attor es the merits of enth Circuit discharge.” ney’s negligence could never constitute an “extraordinary to circumstance” sufficient course, pre- period. if court finds that the toll the limitations See id. The Su 13. Of equita- preme rejected sumption court’s erro been rebutted or that no Court the district has statute, petitioner justify tolling the it that the had ble considerations neous determination complaint diligent for failure to not been and the Eleventh Circuit's should dismiss categorical approach. comply limitations. The rigid, See id. at 2565. with the statute of that, 2244(d)'s key when a statute that time limit was consideration here is It then held mandatory consequences subject equitable tolling specify for to and remanded for does not act, permitted timely the court is to proceedings. further See id. at 2565. failure to rely presumption that on Irwin’s Kontrick, Nothing objected tolling applies. in the text of that a creditor to a debt- presumption liquidation proceeding. suggests that the should discharge in a statute or's applicable apply. 124 S.Ct. 906. The See id. nonjurisdictional (noting that has of Federal Claims Court rule petition thereon did “not set forth an inflexible unless statute shall be barred years after such claim dismissal six whenever its clock has requiring is filed within 2107(a) (“Ex- accrues.”); (internal 28 U.S.C. first marks and cita- quotation run” section, in this provided omitted)). as otherwise cept majority agree tions I with the any judgment, order appeal bring shall no are mandatory prescriptions not all that action, proceeding in an suit or decree See properly categorized appeals a court of of a civil nature before that, But I also believe to Op. at 1039. filed, appeal notice of is unless review mandatory prescriptions determine entry of such thirty days after within jurisdictional, pay must close atten- are we decree.”); order or 28 U.S.C. judgment, Congress what has made precisely tion to (“Any civil action under this 2409a(g) (i.e. or the con- mandatory party’s a action section, brought by an action a except for party’s timely for a failure to sequences State, unless it is com- shall be barred act). Thus, Congress has mandated when date years within twelve menced particular consequence that a will accom- accrued.”). Like the first upon which pany party’s noncompliance with statuto- category swpra, of statutes discussed these courts are not free to ry timing provisions, mandatory They terms. speak statutes or, consequences as the ma- impose other not, however, merely require par- do case, jority impose does in this to fail to specified actions at times. In- ties take any consequence at all. stead, require these statutes the courts simple: The reason is When way fail- respond party’s in a certain consequence particular mandates that timely by making act the conse- ure imposed, power it limits the court’s to act. noncompliance, just rather than quences is that the claim consequence When the acts, mandatory. “shall be barred” or the case “shall not be clear, then, It there are two is maintained,” spoken juris Congress has mandatory provisions: kinds of different R. dictional terms.14 John Sand & Cf. (1) those that make certain actions manda- Gravel, 128 S.Ct. 750 specify do not tory parties on the (holding that which in 28 U.S.C. consequences noncompliance, juris language, cludes “shall be barred” provide mandatory those that also conse- dictional); Dalm, according act quences for failures to (holding has prescriptions. their The Court men- 6511(a),which, when read with 26 U.S.C. importance tioned the of this distinction 7422(a), “may main includes not be Henderson, 131 past. language, jurisdictional). tained” nonjurisdictional in (holding a statute R. Sand holds John & Grav part language suggest, because its did “not el and Bowles “did not hold statutes at [the evidence, let alone clear that the provide on the conse carry jurisdictional issue] based provision was meant to Holland, quential language of the statute” but be- consequences”); 130 S.Ct. at acknowledge holding may relying "magic words” that must be I that such a not conflict with Medical Center v. Cedars-Sinai Op. phrases included. at 1040. These are Shalala, 765, (9th Cir.1997), 125 F.3d 770 merely examples of terms which mandate that but, for at I reasons discussed infra particular consequence imposed, must be that believe case is inconsistent with subse consequence what and that is makes the stat- quent Supreme longer Court cases and is no jurisdictional. ute good law. Further, by giving examples Con- of when gress spoken jurisdictional has terms I am in

1067 (1998). 1003, S.Ct. 140 L.Ed.2d 210 precedent 118 century’s worth cause of “a point, To illustrate this one asks: What Op. at in American courts.” practice and adju- statutory power does a court have to “century’s 1040, But what was n. 3. which, according congres- dicate a claim to on? The based precedent” worth mandate, sional “shall be barred” or “shall that some stat- recognition ancient Court’s not be maintained?” The answer is sim- consequences. have utes of natural, then, It to ple: None.15 seems States, 123, v. United 107 Kendall U.S. conclude that when a statute includes such (1883) (stat- 277, 437 2 27 L.Ed. S.Ct. jurisdictional in terms. language, speaks it “every “forever barred” ute of limitation Prods., Landgraf v. USI Film 511 v. ”); claim Finn United 244, 274, 114 128 L.Ed.2d U.S. 227, 233, 31 L.Ed. (1994) (“[Jjurisdictional speak statutes express words of the act (holding that the rather than to power of the court “forever stating claims were of 1863 — rights obligations parties.” right a condition to the to a barred” —was (citation omitted)).16 the United States judgment if the court must dismiss petition falls into the second cat- Section satisfied). Such conse- merely condition was It egory identified above. does not statutory do; “the courts’ ... quences speak specify party specifies what a must the case.” Steel Co. act adjudicate consequences of a failure to accord- power Env’t, begun limit. If action is not Citizens Better ing to its time for thirty days entry judgment, separates after of such order 15. This fact the two kinds of stat- decree,” except may or that a court "extend utes of limitations. When a statute does not consequence, opera- appeal showing specify mandatory upon of excusa time cause,” (i.e. presumption neglect good jurisdictional); tion of Irwin’s makes sense ble is Dalm, (hold Congress generally intend- courts can assume U.S. at 110 S.Ct. 1361 which, 6511(a), tolling apply something ing ed unless that 26 when U.S.C. otherwise). Congress speci- 7422(a), suggests provides When with read however, mandatory consequence, fies a a tax been "unless a claim for refund of has ..., Congress should assume meant what it courts filed within the time limits a suit for (i.e. consequence mandatory is any said that the refund ... not be maintained case). applicable every court,” jurisdictional). It has also men is language speak the kind of that would tioned Henderson, stated, jurisdictional terms. See Unfortunately, has while Court occasions, jurisdictional (implying at 1204 lan particular that a statute on several terms, guage suggestion "that the would include a speak jurisdictional does not see jurisdictional carry meant to exactly ante at it has not clarified when Holland, speak consequences”); terms. a statute does Still, juris speak in (implying that a statute would the Court has held that the statutes in language it "set forth an inflexible category are dictional if the second above Gravel, requiring whenever its clock U.S. rule dismissal See John R. Sand & (internal quotation cita (holding marks and that 28 U.S.C. has run” 128 S.Ct. 750 event, omitted)). "[ejvery as the provides that claim of which tions which acknowledges, the Court has instructed that Federal Claims has the United States Court of magic petition Congress "need not incant words be barred unless the shall speak clearly.” Op. (quoting Sebel years at 1036 filed within six after such claim first Ctr., -, accrued,” Bowles, Reg’l Med. - U.S. jurisdictional); ius v. Auburn (2013)). (holding S.Ct. 2360 that 28 U.S.C. Thus, (c), explicitly state that a provide "no need not jurisdictional; specify judgment, it is free to appeal bring any order or time limit is shall action, power to proceeding consequences that relate to a court's suit or of a decree in adjudicate that the court will appeals cases and trust a court of for civil nature before filed, consequences mean. appeal understand what those review unless notice of within agency by Congress after the mailed vided within six months and the claim, claim its final denial of the such Court.

“shall be forever barred.” See 28 U.S.C. 2401(b). Because the court has no stat- Importance C. The claim, adjudicate I utory power to such Term “Forever.” that, would hold unlike the statute consid- Holland, § forth an “set[s] ered majority escapes The rather requiring inflexible rule dismissal whenev- straightforward conclusion with the asser- “ Holland, run.” er its clock has merely tion states what is manner, at 2560. In that and unlike the always statutory filing true of deadlines: Henderson, lan- statute considered ends, once the limitations whether guage “provide[s] clear evi- by application tolling prin- extended that the was meant to dence[] not, ciples or a plaintiff is ‘forever barred’ carry jurisdictional consequences.” presenting from his claim to the relevant Henderson, Thus, 131 S.Ct. at 1204. its adjudicatory body.” Op. (citing at 1038 pronouncement “speak[s] jurisdictional Kubrick, 352).18 444 U.S. at or, least, very terms” “refer[s] majority simply The has written the term any way of the district statute, ascribing “forever” out of the it no Elsevier, courts.” Reed 559 U.S. at meaning importance nor at all. It is a 1237.17 “vestige mid-twentieth-century mere congressional conventions,”19 drafting Op. my calls delineation of nothing and adds that the statute “grand theory”. statutes of limitations a it, say would not without all because stat- Op. appreciate at 1039. I praise, their limitations, I humbly applicable, submit utes if nothing “grand” there is bar claims following “forever,” about the “clear pro- Op. evidence” see at 1038-39. specifies mandatory 17. While a statute Op. Surely deadlines." at 1038. it is not this consequences jurisdictional, 2401(b), portion: reverse is "Section the limitations See, McNeil, necessarily e.g., true. here, provision involved is the balance struck 111-12, (holding U.S. at 113 S.Ct. 1980 by Congress in the context of tort claims specify which does not manda- Government; against the and we are not free tory consequences noncompliance, juris- for pur- to construe it so as to defeat its obvious dictional). imply This dissent does not pose, encourage pres- which prompt is to specification mandatory consequences Kubrick, entation of claims.” 444 U.S. at only way express is the its surely 100 S.Ct. 352. And it is not this intent that a statute be Con- portion: “We should also have in mind that gress may express its intent that a statute be immunity the Act waives of the United (i.e. jurisdictional ways in other it need not construing States and that in the statute of words), and, indeed, magic incant a statute limitations, which is a condition of that waiv- for reasons other than er, upon we should not take it ourselves to Elsevier, the text. See Reed beyond extend the waiver that which Con- courts, (2010) (instructing 130 S.Ct. 1237 gress intended.” Id. at determining jurisdiction- whether a statute is simply support majori- I see no for the al, "text, to look to the statute's context and ty’s position in Kubrick. ” (emphasis relevant historical treatment add- ed)). majority’s deprecatory labelling 19.The is off U.S., years. about 100 struggled 18. I must confess that I Kendall v. have to find portion U.S. at opinion of the Court's the term "forever in Ku- supports majority's position brick barred” in the act of March about "ordinarily statutory filing what is definitively interpreted. true of States, 273, But the fails to consider the ano v. United 352 U.S. at statutory 269,20 standard canon of construction Gravel, S.Ct. R. John Sand & if requires give meaning, that courts to 134, 750, way possible, to each of a statute’s terms. See holding “jurisdic- statutes of limitations SEC., 181, 53, Lowe v. 208 n. 105 tional.” (1985) (“[W]e 2401(b), then, As used in the term give every must effect to word that Con- “forever” that means an FTCA claim is statute.”); in gress used see also Anto- invariably barred unless a civil action is Garner, nin Bryan Reading Scalia & A. commenced within the six-month Interpretation Legal Law: The Texts (2012) (explaining surplus- following final denial “[t]he of the administrative age canon holds that it no is more Moreover, claim. according majori- to the by court’s function to subtraction revise ty’s theory, the fact that Congress includ- addition.”). majority, than To the ed “forever barred” in language “various tautological; term “forever” is it has no other statutes enacted in the mid-twenti- meaning whatsoever. But that is not the century,” Op. eth see must mean view of well-established dictionaries at the Congress merely plugged boilerplate See, e.g., time the statute was drafted. language into provisions, these without Dictionary Webster’s New International thinking or assigning any special meaning (2d ed.1943) (defining the adverb “for- it employ. words chose to But the ever” as “1. For a time or limitless endless Congress fact that included in the term ages; everlastingly; eternally,” and “2. At periods, various limitations and not all times; always; incessantly,” all and identi- periods, suggests op- exact fying “invariably” “unchangeably” as posite is true: On the occasions when Con- synonyms). gress barred,” used the term “forever it “forever,” Usage of the term as in “for- intentionally did so and for a reason. It is barred,” something ever connotes that ob- especially telling Congress did not circumstances, tains under and all majority’s adhere to the “drafting claimed something invariably that is so. But this when, convention” it drafted nothing new. Kendall v. United 2401(a), very section that precedes States, interpreted Court the one here in issue. See Act of June statute of limitations which included the (June chap. 62 Stat. 971 phrase “forever barred” and stated: 1948) (“Every civil action commenced claims ‘What are thus barred? The ex- against the United States shall be barred press words of the statute leave no room complaint unless the is filed within six for contention. Every claim-except those years right after the of action first ac- specially enumerated-is forever barred un- crues.”); see also Russello v. United years less asserted within six from the it time first accrued.” 107 (1983) (“[W]here Congress L.Ed.2d in- added). Forever, 277 (emphasis particular language cludes one section of barred”, inclusionary “forever has an statute but omits it another section of meaning “every claim”—as well as a tem- — Act, generally the same poral meaning presumed all time. Kendall has —for continued to approvingly intentionally pur- be cited Son- acts John R. Sand & Gravel held that Soriano is good still law. 552 U.S. at disparate inclusion or exclu- D. Ninth Circuit Precedent

posely in the omitted)). (citations sion” majority The relies on three of this previous opinions support court’s its that “forev- majority finally holds The if 2401(b)’s conclusion that “shall be forev merely focuses anything, mean er” does language er barred” does not mean barred, emphasizes that “once on time and jurisdictional.21 statute’s time limit is permanently, precluded is claim] FTCA [a Op. at It See 1038-39. first relies on until some later event temporarily not Shalala, Cedars-Sinai Medical Center v. that “the word ‘forever’ cannot occurs” and (9th 765, Cir.1997), 125 F.3d which I give Op. it. weight” [the] bear 2401(a) held that is not However, 1041, our canons of con- n. 4. fairness, majority notes that weight the lack of cannot bear struction opinion’s vitality continued was called into Lowe, it, see majority gives America, question by Aloe Vera Inc. v. 2557, 53, at n. and neither States, (9th United 580 F.3d Cir. Kendall, history. 107 U.S. at can our See 2009) (“To the extent that Cedars-Sinai is 125, 2 Sand, R. holding still valid after John to the facile construct I do not subscribe juris does Cedars-Sinai not dictate read “forever barred” to mean we can 7431(d).” (cita dictional nature of section I nothing more than “barred.” Nor do omitted)). It tion dismisses that state non-cipher. “forever” is a “We are believe ment, however, because it “was made statutory text.” not free to rewrite the Supreme without the benefit of the Court’s McNeil, 111, 113 508 U.S. at S.Ct. 1980. clarifying most recent decisions the dis By providing presented that claims not jurisdictional nonju tinction between prescribed within the time “shall be forev- Op. risdictional n. 2. rules.” at 1038 Of barred,” clearly Congress expressed er its course, nowhere, gets this claim us be (Kendall, “every intention that claim” 107 cause Cedars-Sinai also decided with 277) 125, 2 U.S. at would be invari- Thus, out the benefit of those decisions. barred, ably barred so that sometimes Cedars-Sinai; blindly rely we cannot on equitable might be held to considerations instead, we must it ac examine whether to begin extend the time which actions cords with the Court’s most re guidance.22 such claims. cent statutory savings provision suggest also cites out of circuit au- does not States, thority Arteaga v. United F.3d preclude equita- intended it to — Cir.2013); (7th 832-33 Santos ex rel. Santos, tolling.” ble 559 F.3d at 196. See States, 559 F.3d Beato v. United 194-98 (1948) ("No Pub.L. No. 62 Stat. States, (3d Cir.2009); v. United 167 F.3d Perez legislative inference of a construction is to be (5th Cir.1999) proposi- 916-17 the—for chapter drawn reason of the in Title subject tolling. tion that ever, is How- Procedure, Judiciary and Judicial persuasive. Arteaga these cases are not placed.”). Finally, which section is Perez holds that because 28 U.S.C. 2674 meant to phrase discussed the use of the "forever government way liable in the hold the same irrelevant, barred” and found it was but failed individual, private equitable tolling as a distinguish attempt prior to consider and individuals, private available to toll- term, interpreting the cases such as Perez ing Arteaga, is available under the FTCA. U.S., U.S., 167 F.3d at and Finn v. However, Arteaga ig- F.3d at 833. court 8 S.Ct. 82. plain language nores the agency present- states "to the to which it was guidance” 22. The Court's "recent includes private may ed.” A individual not be held Further, R. v. United John Sand & Gravel Co. agency liable for an claim. Santos ignores Congress’ clear intent when it con- Elsevier, Muchnick, (2008), placement separate cludes that "the Reed Inc. v. jurisdic- Cedars-Sinai’s analysis ified that a statute of and brief. question simple tional when it “speak[s] jurisdic- Cedars-Sinai, 125 F.3d at 770. The court any way tional terms or refer[s] held: “Because the statute of limitations of the district courts.” Reed Elsevier, 165, codified at 28 U.S.C. makes no 559 U.S. at 130 S.Ct. 1237 added). jurisdiction only (emphasis mention erects As previously dis- bar, cussed, procedural way ... we hold one to refer to the courts’ 2401(a)’s six-year jurisdiction statute of limitations is “suggest is to ... jurisdictional, subject but is to waiver.” was carry jurisdictional meant to (citations omitted). Henderson, problems Two with consequences.” 131 S.Ct. at Cedars-Sinai’s analysis 1204. Cedars-Sinai lead me to con- failed to appreciate that, longer good clude that it is no law. by providing claim not filed within specified barred,” the time “shall be First, Cedars-Sinai appears to erect an limited the power courts’ to act absolute rule that a statute limitations is and, thus, jurisdic- referred to the courts’ jurisdictional only specifically when it men- tion. See Cedars- “jurisdiction.” tions the term Sinai, 125 F.3d at 770. Since Cedars- Second, Cedars-Sinai heavily relied on decided, however, Sinai Irwin’s Supreme quotation 2501, of 28 U.S.C. Court has advised that Congress “need not which the Court had deemed in Soriano v. United magic incant words ... to speak clearly 270, Sebelius, jurisdiction].” (1957).24 269,1 [about S.Ct. L.Ed.2d 306 After Irwin, requirement at 824.23 A that Congress use initially good there was reason to “jurisdiction” the term afoul believe Soriano had been overruled. See runs of this Irwin, Moreover, instruction. 98, the Court has elar- 111 S.Ct. 453 Soriano, petitioner, 176 L.Ed.2d 18 24. In a resident of the (2010), Florida, Holland v. Philippines, filed suit in the Court of Claims (2010), S.Ct. 177 L.Ed.2d "just compensation requisi- to recover for the - Shinseki, -, Henderson v. U.S. (2011), tioning by Philippine guerilla forces of certain and Au foodstuffs, equipment, supplies, and merchan- Center, -, Regional burn Medical - U.S. during Japanese occupation dise 133 S.Ct. 817. Philippine Islands.” Id. at pro- 269. The relevant statute of limitations Sebelius, governing 23. statute allowed “[e]very vided that claim of which the Court file, providers days, care health within 180 of Claims has shall be barred appeal an administrative Provider Re- petition unless the thereon is filed within imbursement Review Board from an initial years six claim after such first accrues.” Id. determination of the reimbursement owed for (quoting at 271 n. 77 S.Ct. 269 28 U.S.C. inpatient services rendered to Medicare bene- 2501). petitioner (citing The filed suit more than ficiaries. See id. at 821 (a)(3)). years Secretary alleged requisition claiming 1395oo The of the De- six after the Services, partment by of Health and Human delay by his was caused World War II condi- regulation, authorized the Board to extend Philippines. tions in the See id. at limitation, cause, 180-day good up Court of Claims dismissed the years. three See id. The Court held that the reaching question. suit without the limitation 180-day jurisdic- limitation was not Supreme See id. at 77 S.Ct. 269. The regulation permitting tional and that the that, by Court affirmed and held the time the three-year permissible extension was a con- suit, petitioner filed "his claim ... was barred struction of the statute. See id. at 821-22. It statute.” Id. 77 S.Ct. 269. equitable tolling further held that "does not apply appeals to administrative of the kind here at issue.” Id. at 822. recent (White, J., concurring part and concur- date all of the Court’s (“Not reason, only is ring judgment) guidance in the well. For that we with our tradi- holding inconsistent Court’s again take a critical look at should once involving cases sover- approach tional relying them. reasoning their before directly prior immunity, it overrules eign court The Partlow held that Court, v. United by this Soriano decision applied to 29 tolling could be omitted)). (citation it Because States.” applicable the statute of limitations to ac Soriano, overruled seemed Irwin had brought under the Fair Labor Stan tions the terms be barred” also seemed “shall Partlow, Act. 645 F.2d at 760- dards juris- make a insufficient to statute were Interestingly, the court did not con true, If that had been Gedars- dictional. any in-depth analysis duct the statute’s But the may have been correct. Sinai text, context, In or historical treatment. clarified Irwin and reaf- Court has since deed, not once opinion the Partlow does vitality. R. firmed Soriano’s See John quote the text or even mention statute’s 137, Gravel, 552 U.S. at Sand & phrase “shall be forever barred.” See (“[T]he Irwin], while men- Court [in Instead, the court relied on id. at 757-61. particular that reflects the tioning case circuits, opinions from two of our sister of claims interpretive history of court Soriano, statute, says nothing at held that 255 could be namely each that overturning all about or other (citing at 760 equitably tolled. See id. Ott normally in that line. Courts do not case Corp., v. 523 F.2d Midland-Ross long overturn a line of earlier cases with- (6th Cir.1975), Hodgson v. Hum (citations mentioning out the matter.” (10th phries, 454 F.2d 1283-84 Cir. omitted)). clarification, and Ce- Given 1972)). It then noted “courts have intervening tension with Su- dars-Sinai’s equitable tolling often stated that is read decisions, preme I would hold that it Court every into federal statute of limitations.” of no incorrectly prece- was decided and is added). (citation omitted) It (emphasis Oregon dential on this issue. See value then concluded the statute should be Serv., Forest Natural Desert Ass’n U.S. tolled in the circumstances of that case. (9th (ex- Cir.2008) 550 F.3d 782-83 See id. at 760-61. precedent is “effec- plaining that circuit If it were unclear at the time Partlow tively “reasoning overruled” when its or decided, has since become abun- theory clearly ... irreconcilable with the dantly equitable tolling clear that theory intervening higher reasoning or every be read into federal statute of limita- (internal authority.” quotation marks and Gravel, tions. See R. & John Sand omitted)). citations (explaining U.S. at 128 S.Ct. 750 then cites Partlow v. Jew that some federal statutes of limitations— ish Home Southern Orphans’ Califor such as 28 U.S.C. for instance— (9th nia, Cir.1981), 645 F.2d 760-61 jurisdictional, must be treated as so that abrogated grounds by on other Hoffmann- courts are forbidden to “consider whether Roche, La Sperling, Inc. v. certain considerations warrant (1989), extending period[s]” they [the] Stages, Greyhound Corp., Mt. Inc. v. Hood contain). Moreover, Partlow fails to con- (9th Cir.1980), 616 F.2d 396-407 by analysis required duct the kind of instances where this court has held that more recent decisions. See Reed Court’s language “shall be forever barred” did Elsevier, at not render a statute course, Op. jurisdictional analysis that “the pre- (providing 1039. Of these cases ‘legal must focus on the character’ of the Commission determination particular [of requirement, by which we look- issue],” discern[ ] factual accommodation Clay- text, context, ing to the condition’s and ton and Interstate Commerce Acts would (citations relevant historical treatment” compelled have “the court to dismiss omitted)). reasons, For these I would hold stay pending suit necessary today that Partlow is flat wrong, and of no administrative determination.” Id. at 399. precedential question present- value on the Thus, “[congressional purposes under the ly before the court. statutory regimes two would be served Stages, Mt. Hood this court tolling held that the statute of limitations during the equitable tolling applied could be to 15 proceeding.” Commission Id. at 400. For 15b. Stages, See Mt. Hood reason, the court held that the statute again telling F.2d 396. It is once of limitations could be “tolled pending re- the court did not conduct any in-depth sort administrative agency for a pre- analysis of the statute’s text or even men- liminary determination of issues within its tion phrase the statute’s “shall be forever primary jurisdiction.” 405; Id. at see also clear, barred.” See id. 396-406. It is Indus., Co., Pace Inc. v. Three Phoenix then, that the decision was not based on a (9th Cir.1987) (“[0]ur 813 F.2d determination that the statute did not re- decision [in Mt. Hood Stages rested on ] any way fer in jurisdiction. the courts’ policy considerations of federal pri- word, In a Stages Mt. Hood skipped the mary jurisdiction which are not present first, Court-required step of textual analy- here.”). sis for a pur- consideration of the statute’s Contrary to the majority’s implication, pose in a regulatory scheme. See Reed Op. see Mt. Hood Stages does not

Elsevier, 130 S.Ct. 1237.25 proposition stand for the that “shall be Instead, the decision was based on the forever barred” does not refer to the court’s “tolling conclusion that running jurisdiction. Indeed, courts’ may a statute important limitations serves the federal jurisdiction to the yet courts’ refer interest in accommodating enforcement of jurisdictional, much like statute which the Sherman Act with enforcement of the not speak does may terms Act, Interstate Commerce in- and is not jurisdictional. still be See United States v. consistent with the purposes Clay- of the 347, 352, Brockamp, 519 U.S. ton Act’s limitation period.” Id. at 396. (holding that particular, In Stages the Mt. Hood court timing requirements of 26 U.S.C.

found that tolling would to a “contribute[ ] jurisdictional, 6511 are though even reasonable accommodation of the [Inter- statute juris- does not refer to the courts’ Commissionj’s state Commerce responsi- diction, “detail, provision’s because of the bility furthering transpor- the national its language, technical the iteration of the policy tation responsibility with the procedural limitations in both and substan- courts to effectuate the national antitrust forms, tive and the explicit listing excep- policy.” 397. Because the case tions”). short, even a statute that re- subject “involved Congress matter ha[d] way jurisdiction fers some to the courts’ given the Commission to regu- late,” jurisdictional when, not be for exam- dispute only “created a the Com- ple, Congress statutory mission could has (emphasis resolve.” Id. created dual add- ed). that, regimes, The court noted such Mt. Hood as those involved in Mt. “[i]f had filed ... prior [its] antitrust suit to the Stages, essentially Hood that require toll- 2401(b)’s III, analyzes purposes This dissent in Part infra. course, sovereign immuni- governmental waiver Of accommodation.

ing for their regimes at issue judicial efficiency.” dual ty, promoting there are no such involve the case, this case nor does this 750. Consideration U.S. jurisdic- primary policy sort of federal R. goals each of the outlined John that animated the tion considerations 2401(b)’s & illustrates Sand Gravel Thus, Stages. in Mt Hood opinion court’s broad, require us system-related purposes Stages offers that Mt. Hood I would hold in- timing provisions are to find its wheth- guidance question on the no useful deed 2401(b)’s language refers er jurisdiction. courts’ 2401(b) Facilitates A. Section of Partlow and Mount Hood In defense Administration of Claims that these cases Stages, majority states Congress the notion that “undermine still 2401(b)’s The Court has held that “ob magic words through the use of intended “encourage the purpose” vious is to in stat- jurisdictional bars to establish prompt presentation of claims.” Unit against private allowing for civil suits utes Kubrick, ed States course, 1041, n. 5. Op. at Of parties.” (1979).26 352, 62 L.Ed.2d 259 man; merely a we all argument is straw filed requirement civil action be “magic never uses agree within six months of a denial of an admin jurisdiction. See su- to establish words” guarantees that the civil istrative claim Bea Dissent at n. 17. pra, the denial of action will commence while relatively the claim is fresh. For actions Purpose III. The Statute’s period, Depart within that time filed noted, in R. As earlier John Sand & Justice, which defend the ment of will Gravel, the Court identified the kinds cases, relatively will be able to access the ju- that make statutes of limitations goals who fresh memories of the administrators of risdictional: statutes “[Jurisdictional] likely denied the claim. It is also more that limitations protect ... seek not so much to job on the six those administrators will be interest in time- case-specific a defendant’s after the denial of the claim than months system- as to achieve a broader liness the case if the denial had taken would be goal, facilitating such as the admin- related claims, years a limiting scope place of the of before. istration Kubrick, veteran, 4, respondent, a 1973. See id. at 116 n. 100 S.Ct. 352. The 26. In the was hospital admitted a VA for treatment of an Government then filed a motion to dismiss 113, April id. at infected femur in 1968. See the suit as time-barred under personnel irrigated 100 S.Ct. 352. Medical 2401(b)’s limitations, two-year of statute neomycin, area with an antibiot- the infected theory respondent’s claim ac- the that the ic, id. Six until the infection cleared. See 1969, January the crued in when doctors told later, respondent the noticed some weeks respondent hearing likely that his loss was 114, hearing id. at 100 S.Ct. 352. loss. See by neomycin the treatment. See id. at caused January re- In doctors informed the reject- 100 S.Ct. 352. The district court “highly possible” spondent it was that that judgment ed this defense and rendered for the neomycin hearing the treatment caused his respondent. id. af- See The Third Circuit respondent See id. In the filed loss. firmed. See id. at 100 S.Ct. 352. The FTCA, alleging he had been suit under the reversed and held that claims Court by negligent hospi- injured treatment at a VA accrue when the individual "knows both the The VA tal. See id. at 100 S.Ct. 352. injury.” claim, existence and the cause of his See id. respondent’s denied the administrative suit, 113, 124-25, April S.Ct. presented after he at which he filed 2401(b) seriously Limits a Waiver search for truth impaired Section B. Immunity Sovereign evidence, by of the loss of whether death disappearance witnesses, or of fading 2401(b) limits The Court has held that memories, documents, disappearance of immunity ex- sovereign the waiver of Kubrick, otherwise.” See U.S. at Kubrick, 444 in the pressed FTCA. See By promoting 100 S.Ct. 352. the prompt In particu- U.S. S.Ct. claims, presentation of seeks to lar, the Court has stated: limit the amount of lost evidence to time in mind that should ... have the “We adjudicate and ensure that will courts immunity of the waives the [FTCA] complete eases with records. See id. in construing that United States and [expressed of statute Second, together when read with 2401(b) ], condition that which is a of it is clear that was intended to waiver, upon take it our- we should not protect against the of burdens claims filed beyond selves to extend the waiver that prescriptions. outside its time which intended.” McNeil United the Court held added). (emphasis passage This clear- 2675’s administrative exhaustion re ly identifies a “limit- quirement scope of a waiver ing governmental of 106, 111-12, 113 1980, 124 S.Ct. L.Ed.2d 21 sovereign immunity,” exactly which (1993). There, petitioner filed a com broader, system-related goal kind plaint federal court alleging district makes statute’s time limit “more abso- the United Health States Public Service Gravel, See John R. & lute.” Sand injured conducting had him while experi 750; Op. at 1046. prisoners custody mentation on majority agrees that the “is FTCA Department the Illinois of Corrections. immunity on a predicated sovereign waiv- id. at See 113 S.Ct. 1980. Four Further, Op. at 1046. er.” later, months he claim for submitted many upon cases admits damages Department Health and they rely Medical Cen- Regional —Auburn Human Services. id. Gonzalez, Henderson, Holland, ter, 1980. After Department denied the govern- not issues of Bowles—do involve claim, petitioner the district sent court immunity “may ment and therefore permit letter and that it him asked precisely sovereign parallel immunity raise legal commence his action. See id. The , Op. as are us. See concerns” now before held that to court lacked 1046 n. 12. The unable entertain action commenced before sat (1) deny that the limits waiver of FTCA §of 2675’s exhaus isfaction administrative sovereign immunity and therefore meets a requirement. id. The tion See Seventh goal ju- that makes limitations statutes petition that the Circuit affirmed and held Gravel, R. Sand & risdictional under John early. had too er filed his action See id. (2) distinguishes difference the Supreme The affirmed and held Court 2401(b) § other from cases on FTCA that 2675’s administrative exhaustion re- rely. the majority which tries to jurisdictional prerequisite was a quirement 2401(b) C. Section Promotes filing the FTCA. See id. at suit under Efficiency Judicial 112-13, here, As 1980. relevant filing of an First, limitations, “every premature it noted that like all statutes imposes under some bur- “protects] the action the FTCA courts from having judicial in system....” to deal -with which the den the Id. at cases and, indeed, Supreme that “there is no are im- burdens 1980. Similar question.”27 Op. actions on the system precedent when Court judicial the posed on late, Still, claims has accompanied Supreme at 1045. the Court are filed running the toll provisions should and offered the court examined similar reasons limitations statute of previously useful here. As stat- guidance justify plaintiffs may not the may or Gravel, ed, R. Sand & Kubrick and John premature ease for the tardiness. As was together, strongly suggest taken McNeil, may be “the burden filings in 2401(b)’s jurisdictional. time limits are Id. But case.” slight in the individual only in analysis The Court’s McNeil bol- processing of a “governs There, this conclusion. the Court sters claims.” Id. For vast multitude 2675(a) claim- that 28 U.S.C. “bars held straightforward reason, “adherence suit in federal court bringing ants from way to is the best statutory command” they until have exhaust- [under FTCA] orderly in adminis- interest promote “[t]he their administrative remedies.” ed body litigation.” Id. tration of this McNeil, 113 S.Ct. 1980. each of the serves Because requirement Courts This identified system-related purposes three ex- brought cannot entertain suit before making as Gravel statuto- John R. Sand & remedies, haustion of administrative even absolute,” equitable ry limits “more time remedies if the claimant exhausts those applied here. In- not be tolling should progress “substantial made [is] before time stead, hold 2401’s we should litigation,” because such a suit was nature. limits are early. filed too Here, that, dispute no like there is Context The Statute’s IV. McNeil, petitioner Wong filed her 2401(b)’s context includes its Section action before denial of her administrative scheme, larger statutory placement in the similarly premature. claim and was exceptions relevant Con- as as well majority emphasizes that The legislated. It also includes gress may have chapter is located in 171 and that “interpretation Court’s Supreme district courts’ expressly conditioned the many years past.” provisions similar jurisdiction upon plaintiffs’ compliance Elsevier, Reed provisions chapter. of that with the McNeil, however, Op. at 1042. A. The Court’s mention this fact. In- Court did even Interpretation of Similar stead, it based its decision on two consider-

Provisions (1) statutory unambigu- text is ations: expresses Congress’s intent ous and majority correctly notes that “there complete exhaustion of venerable, require administra- ... a has not been consistent remedies, “[e]very premature treating cases tive [Supreme Court] line of jurisdictional” impos- action under the FTCA filing of an FTCA 2401(b) expresses jurisprudentially designation.”). the majority's focus Section is— Elsevier, juris- "type held speaking See Reed same of limitation” the Court too narrow. —far ("[T]he and John R. Sand & at 130 S.Ct. 1237 rele dictional Soriano 559 U.S. ("Every § claim question is not ... whether Gravel. See 28 U.S.C. [the vant here of Federal long jurisdic which the United States Court itself has been labeled of statute] tional, jurisdiction barred type that Claims has shall be unless but whether the of limitation years petition within six imposes properly the thereon is filed is one that is [the statute] accrues.”). jurisdictional express after such claim first ranked as absent judicial system procedural requirements the and adherenee to the es some burden on of Justice which must Department specified by legislature on the the is the best of such actions.” assume the defense guarantee of evenhanded administration of McNeil, 111-12, 113 at S.Ct. 1980. 508 U.S. at the law.” Id. 113 S.Ct. 1980.28 premature filing, the the respect to With B. Placement that, “[ajlthough the burden

Court noted case, in an individual the slight Seeking interpretive sup- another tool to of a vast governs processing the statute port position, majority emphasizes its claims,” that inter “[t]he multitude of such the fact in a located body orderly administration of this est separate juris- from the FTCA’s served adherence to litigation of is best diction-granting provision. Op. See at statutory command.” straightforward respect, this fact With is irrelevant. Id. has explained, As the Court “some time suggests once language The Court’s though limits are even ex- timing require- again that FTCA’s pressed separate statutory in a section jurisdictional category. ments fit into the jurisdictional grants, from while others are Gravel, at See John R. Sand & 552 U.S. not, incorporated juris- even when into the (identifying “facilitating 128 S.Ct. 750 Barnhart, provisions.” dictional 537 U.S. of claims” as one of the administration (citations at 159 n. 123 S.Ct. 748 omit- broader, a system-related goals makes ted). “Formalistic rules do not account absolute”). statutory time limit “more difference, explained by which is con- McNeil, systemic the Court took a view of textual and historical of indications what decision; its it was concerned with the Congress accomplish.” meant to liti- “orderly body administration of this problematic majority’s Even more gation” precisely “gov- because analysis reorganization of the FTCA’s processing erns the of a vast multitude of Op. at see is the inconvenient McNeil, claims.” rejecting placement enactment of a law S.Ct. 1980. Because the same is true of interpretive the Act as a valid tool. The 2401(b), analysis our should feature the that, majority acknowledges before And, same concern. when one takes this expressly had conditioned the 2401(b), systemic more one will view grant over tort claims surely every premature find that —or upon plaintiffs’ the United States judi- on the filing imposes burden late— with, compliance among things, other system Department cial and on the of Jus- agree original provision. tice and with the Court that “strict FTCA’s See McNeil, quirement significant. 28. The notes that 2675 is silent as (noting "peti- filing properly that the to the deadline for exhausted 113 S.Ct. 1980 complaint early”); claim in the district court and concludes that tioner’s was filed too id. (addressing "there is no contextual reason to think that 113 S.Ct. 1980 the burdens sys- period provisions ju- premature filings impose judicial the limitations are also Justice). Department Op. at Just as risdictional.” 1044. But 2675 does tem McNeil, only Wong’s complaint require appellant their individuals exhaust remedies; instead, early” imposed specifies a burden on the administrative filed "too judicial system Department of Justice. individuals must exhaust their adminis- (i.e. they filings impose burdens trative remedies first before file com- Because late similar Justice, court). plaints Department in federal See 28 U.S.C. on the courts and the Thus, 2675(a). requires par- good there is reason to believe that the limita- statute exhaustion, timing period expressed in is also ticular of administrative tions timing and the McNeil Court found this re- disability 1948, however, legal under Congress any person tion of 1043. Op. at placed the limi- at the time the claim beyond the FTCA and the seas reorganized chapter in 161 and other commenced within three provision tations accrues chapter § in 171. such as provisions, disability ceases.” years after majority appears It Op. 2401(a). at 1043. See meaning The relevant fact that from this Con- conclude would interpretive to be inferred from Sebelius’ separate intended gress Congress is that did quoted canon above 2675) (§ jurisdic- from non requirements applied to be any exceptions not intend for 2401). however, (§ Congress, tional ones 2401(b). majority The is correct reading of rejected possible this expressly canon, alone, not consti- standing this does by an enactment efforts reorganization its by Congress. See tute a “clear statement” No. 62 Stat. law. Pub.L. of can, however, “tip canon Op. at 1044. The (1948) (“No legislative of a inference in when a statute could be read scales of drawn reason construction is to be Sebelius, multiple ways.” 826. 28, Judiciary and in Title Judi- chapter of I not hold that consideration this would Procedure, ... section is cial canon alone a conclusion that dictates simply ignores placed.”). 2401(b)’s jurisdictional, limit is time Congress, perhaps because this Act of it reinforces that conclusion when consid- majority’s desired directly against cuts ered with the statute’s text and context. based on the interpretive result: value placement. statute’s V. Conclusion clearly place- stated that the Congress Congress clearly expressed its intent 161 was not chapter ment of “jurisdictional” have would way it change should be intended consequences. Jurisdictional treatment Congress If intended to con- interpreted. accords with the statute’s text and the jurisdiction over tort grant dition the analysis provi- of similar Court’s on com- against the United States claims reasons, equitable tolling For sions. these period, the re- pliance with the time limits applied should not be should not be read to codification in 1948 2401(b). §in I dis- respectfully contained That later alter that intent. sent. jurisdiction-granting provi- amended the the district courts provide sion to exclusive over

would have “[sjubject provisions

FTCA actions title,” chapter 1346(b)(1), juris- about the says nothing America, UNITED STATES of dictional of a located status Plaintiff-Appellee, chapter 161. CORTES, Jorge Defendant-Appellant. 2401(a)’s Significance of

C. The Exceptions 12-50137. No. rule, Congress’s general use “[A]s Appeals, United States Court language part of certain one stat- [a] Ninth Circuit. language

ute another can and different Argued and June Submitted meanings in- indicate that different were Filed Oct. Sebelius, 825. As tended.” here, § enumerates no ex- relevant

ceptions, that “ac- provides while

Case Details

Case Name: Kwai Wong v. David Beebe

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 9, 2013

Citation: 732 F.3d 1030

Docket Number: 10-36136

Court Abbreviation: 9th Cir.