Frederick Aikens v. William Ingram, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cv-00371-BO. Copies to all parties and the district court/agency. [999100181].. [12-1334]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1334
FREDERICK AIKENS,
Plaintiff – Appellant,
v.
WILLIAM E. INGRAM, JR., individually and in his capacity as
Adjutant General of the North Carolina Army National Guard;
PETER VON JESS, individually and in his capacity as
Lieutenant Colonel of the North Carolina National Guard,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-cv-00371-BO)
Argued:
February 1, 2013
Decided:
May 2, 2013
Before KING, SHEDD, and THACKER, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion. Judge
Thacker wrote a separate opinion concurring in part and
dissenting in part.
ARGUED:
William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh,
North Carolina, for Appellant.
Jess D. Mekeel, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: William Woodward Webb, Jr., THE EDMISTEN, WEBB & HAWES
LAW FIRM, Raleigh, North Carolina, for Appellant.
Roy Cooper,
North Carolina Attorney General, Raleigh, North Carolina, for
Appellees.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Frederick Aikens, who served for thirty-two years in the
North
Carolina
Army
National
Guard,
herein
attempts
for
the
second time to have his claims against former colleagues William
E. Ingram, Jr., and Peter von Jess heard on the merits.
protracted
granted
first
the
round
of
defendants’
proceedings,
motion
to
the
dismiss
district
for
In the
court
lack
of
jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, on the ground that Aikens was required, but had
failed, to exhaust remedies with the Army Board for Correction
of Military Records (the “ABCMR”).
See Aikens v. Ingram, No.
5:06-cv-00185 (E.D.N.C. Sept. 13, 2007) (the “First Dismissal
Order”). 1
Aikens then took this matter to the ABCMR, but, as
Aikens had predicted it would, the ABCMR deemed itself powerless
to act on his application.
Consequently,
asserting
that
he
Aikens
was
returned
entitled
to
to
the
relief
district
from
the
court,
First
Dismissal Order under Federal Rule of Civil Procedure 60(b) as a
result of the court’s erroneous exhaustion ruling.
The court
nonetheless held a different view, that Aikens was ineligible
for Rule 60(b) relief.
See Aikens v. Ingram, No. 5:06-cv-00185
1
The district court’s First Dismissal Order is published as
Aikens v. Ingram, 513 F. Supp. 2d 586 (E.D.N.C. 2007).
3
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(E.D.N.C. Nov. 5, 2008) (the “Rule 60(b) Order”). 2
On appeal, a
three-judge panel of our Court affirmed the judgment by a 2-1
vote, see Aikens v. Ingram, 612 F.3d 285 (4th Cir. 2010), a
decision
that
was
rehearing en banc.
subsequently
vacated
with
the
grant
of
Ultimately, however, we again affirmed the
judgment, this time by a 7-5 vote.
See Aikens v. Ingram, 652
F.3d 496 (4th Cir. 2011) (en banc) (“Aikens I”).
Two days after we issued our en banc Aikens I decision,
Aikens initiated this second round of proceedings in the Eastern
District of North Carolina, asserting claims against Ingram and
von Jess that are identical to previously dismissed claims.
defendants
then
successfully
moved
for
dismissal
under
The
Rule
12(b)(6) — the district court having credited their contention
that the claims are now time-barred.
See Aikens v. Ingram, No.
5:11-cv-00371 (E.D.N.C. Feb. 27, 2012) (the “Second Dismissal
Order”). 3
In the appeal now before us, Aikens contests the
Second Dismissal Order, and, as explained below, we reverse and
remand for further proceedings.
2
The unpublished Rule 60(b) Order is found at J.A. 91-99.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
3
The unpublished Second Dismissal Order is found at J.A.
165-70.
4
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I.
A.
Aikens’s allegations against defendants Ingram and von Jess
are
described
more
thoroughly
in
Aikens
I.
It
serves
our
present purposes to note simply that Aikens last served in the
North Carolina Army National Guard with the rank of Colonel and
as
commanding
officer
of
the
139th
Rear
Operations
Center.
Aikens alleges that between April and November 2003, while he
was deployed to Kuwait in support of Operation Iraqi Freedom,
the defendants illegally intercepted his email and forwarded it
to his wartime commanders to substantiate allegations that he
had engaged in a hostile command environment and inappropriate
relationships with women.
conduct
led
to
several
According to Aikens, the defendants’
investigations
and
compelled
his
constructive discharge from the National Guard.
As he did in his initial complaint (the “First Complaint”),
Aikens asserts two claims against the defendants in his present
complaint (the “Second Complaint”):
a 42 U.S.C. § 1983 claim
for violation of his Fourth Amendment rights, and a claim for
invasion of privacy under North Carolina law. 4
4
It is accepted
Aikens filed the First Complaint on April 27, 2006, and
amended it on May 4, 2006.
The First Complaint differed from
the Second Complaint only in that the former alleged the state
law claim, plus a separate federal cause of action, against two
additional defendants. By the First Dismissal Order, those two
(Continued)
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that Aikens’s claims accrued on November 24, 2003, when Aikens
discovered that his email had been intercepted, and that each
claim is subject to a three-year statute of limitations.
Thus,
absent a tolling thereof, Aikens’s claims would have been barred
after November 24, 2006.
He filed his First Complaint with 212
days left in the unmodified limitations period, on April 27,
2006.
The
district
September
13,
court
2007,
issued
dismissing
its
First
without
Dismissal
prejudice
Order
the
on
First
Complaint against Ingram and von Jess “so that plaintiff may
exhaust
his
intraservice
administrative
First Dismissal Order 12.
remedies
with
ABCMR.”
The court observed that “[d]ismissing
the [First Complaint] without prejudice grants deference to the
military to handle its own affairs.”
the
court
stated
that,
“[i]f
the
Id. at 8.
ABCMR
Additionally,
does
not
have
jurisdiction, it will take no action and plaintiff may return to
federal
court.”
Id.
A
conforming
judgment
was
entered
on
September 14, 2007.
defendants were dismissed without prejudice for failure to
achieve service of process.
See First Dismissal Order 10-12.
The
First
Dismissal
Order
also
reflects
the
court’s
understanding, with respect to Ingram and von Jess, that Aikens
by then was pursuing his § 1983 claim only and was not seeking
relief under North Carolina law. See id. at 4.
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Aikens filed his application with the ABCMR less than a
month later, on October 10, 2007.
The ABCMR rejected Aikens’s
application for lack of jurisdiction on February 6, 2008, within
four months of the First Dismissal Order.
Aikens
explained
that
“it
has
been
The ABCMR’s letter to
determined
that
your
application and the remedy you seek is not within the purview of
the ABCMR.”
J.A. 44.
On
31,
March
2008,
within
two
months
of
the
ABCMR’s
decision, Aikens returned to the district court, moving under
Rule 60(b) of the Federal Rules of Civil Procedure for relief
from
the
First
Dismissal
Order.
Aikens
specifically
cited
clause (6) of Rule 60(b), which authorizes a court to relieve a
party from a final judgment for “any other reason [not spelled
out
in
clauses
requires
(1)-(5)]
the
movant
that
justifies
to
relief,”
demonstrate
and
which
“extraordinary
circumstances,” see Valero Terrestrial Corp. v. Paige, 211 F.3d
112, 118 n.2 (4th Cir. 2000).
In so doing, Aikens explained to
the court that Rule 60(b)(6) relief was necessary to avoid any
statute of limitations problem, and he indicated that he was
entitled to such relief because the court had erred in ordering
exhaustion of intraservice remedies and thereby jeopardizing the
timeliness
of
his
claims.
Aikens
also
invoked
the
court’s
statement in the First Dismissal Order that, if he were proved
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correct about the ABCMR’s lack of jurisdiction, he could “return
to federal court.”
The district court issued its Rule 60(b) Order more than
seven months later, on November 5, 2008.
therein
that,
in
stating
in
the
First
The court clarified
Dismissal
Order
that
Aikens could “return to federal court,” it “was not implying
that plaintiff could return to court in this action.”
60(b) Order 7.
Rule
“Rather,” the court explained, it “was making
the unremarkable observation that if the ABCMR determined that
it lacked jurisdiction, nothing in the [First Dismissal Order]
would prevent plaintiff from filing a new action against Ingram
and von Jess.”
Id.
Nevertheless, the district court also recognized that the
three-year statute of limitations on Aikens’s § 1983 claim had
“seemingly expired . . . on November 24, 2006,” more than nine
months before the court issued its First Dismissal Order.
Rule 60(b) Order 8.
See
The court found it unnecessary to “resolve
[the limitations period] issue definitively,” explaining that,
“[i]f plaintiff files a new action, and defendants assert the
statute-of-limitations defense, the court will then address the
issue.”
Id. at 8 n.1.
For purposes of resolving Aikens’s Rule
60(b) motion, the court deemed it sufficient to conclude that
Aikens was at fault for his statute of limitations predicament
and
thus
ineligible
for
Rule
60(b)(6)
8
relief.
Id.
at
8-9
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should
have
attempted
to
exhaust
intraservice remedies prior to filing First Complaint, or should
have
filed
First
Complaint
earlier
in
limitations
period
in
anticipation of court’s ruling that exhaustion was required).
On November 10, 2008, Aikens promptly noted his appeal to
this Court, where the matter resided for nearly three years,
undergoing both panel and en banc consideration.
By our en banc
Aikens I decision of July 13, 2011, the seven-judge majority
“conclude[d]
discretion
that
in
the
finding
district
that
court
Aikens
did
abuse
its
not
did
not
demonstrate
the
‘extraordinary circumstances’ necessary to employ Rule 60(b)(6)
as a bypass around routinely available procedures, particularly
when his failure to use those procedures was the product of his
strategic litigation choices.”
identified
“multiple
652 F.3d at 502.
procedural
mechanisms
The majority
that
Aikens
could
have used to pursue his claim,” including an appeal in this
Court
from
the
First
Dismissal
Order,
a
request
for
a
stay
pending exhaustion of intraservice remedies, and the filing of a
new action following such exhaustion.
Id. at 502-03.
Significantly, five of the seven judges of the Aikens I
majority joined in a concurring opinion proclaiming that the
district
court
could
have
found
“extraordinary
circumstances”
meriting Rule 60(b)(6) relief, but did not abuse its discretion
in ruling to the contrary.
See 652 F.3d at 504-05 (Diaz, J.,
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concurring) (acknowledging that, “[w]ere I the district judge in
this case, I might well have reached a conclusion different from
that
below
and
granted
Aikens’s
Rule
60(b)(6)
motion”).
Meanwhile, the five dissenting judges jointly declared that the
district
court
not
“extraordinary
could,
circumstances”
Complaint.
See
simply,
abuse
the
only
id.
at
of
but
and
512-13
J.,
standard
have
found
the
reinstated
(King,
discretion
should,
First
dissenting)
of
review
(“Put
does
not
confer upon a district court carte blanche to close its doors to
a litigant who is merely following the court’s own advice.”).
With respect to the filing of a new action, the full Aikens
I
majority
conceded
noted
that
had
that,
he
“[a]t
filed
oral
a
new
argument,
action
Aikens’
instead
of
counsel
a
Rule
60(b)(6) motion, it would have been timely filed and not subject
to a statute of limitations defense.”
652 F.3d at 503.
The
majority also observed, however, that it was “not clear when
Aikens’ cause of action accrued, and Aikens’ counsel agreed that
he did not know what tolling provisions might apply or how they
might apply.”
Id.
The majority abstained from any effort to
pinpoint the beginning and end of the applicable limitations
period — which thus, in the wake of Aikens I, remained an “open
question.”
(recognizing
See
that,
id.
at
516-17
“notwithstanding
(King,
J.,
counsel’s
dissenting)
understandable
efforts to keep from conceding as stale any sort of claim his
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client may yet pursue, the precise date by which Aikens was
required to file in order to forestall a legitimate limitations
defense remains very much an open question”).
Unlike
the
seven
judges
in
the
Aikens
I
majority,
who
refrained from any assessment of whether Aikens could yet assert
timely claims, the five dissenting judges delved into the issue
and
agreed
“that
Aikens
may
yet
have
his
notwithstanding the majority’s decision today.”
(King, J., dissenting).
“[t]he
North
Carolina
day
in
court
652 F.3d at 518
The dissenters so concluded because
courts
recognize
the
general
principle
that ‘time frames may be tolled where equitable considerations
justify
their
suspension.’”
Id.
at
517
(quoting
Republic
Indus., Inc. v. Teamsters Joint Council No. 83 of Va. Pension
Fund,
718
F.2d
628,
644
(4th
Cir.
1983),
quoted
in
Fairway
Outdoor Adver. v. Edwards, 678 S.E.2d 765, 771 (N.C. Ct. App.
2009)).
B.
On July 15, 2011, when our en banc Aikens I decision was
just two days old, Colonel Aikens filed the Second Complaint in
the district court, re-asserting his 42 U.S.C. § 1983 and North
Carolina invasion of privacy claims against defendants Ingram
and von Jess.
Seven months later, on February 27, 2012, the
court
its
issued
defendants’
motion
Second
to
Dismissal
dismiss
on
11
the
Order,
ground
granting
that
the
the
Second
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claims
were
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barred
by
the
applicable
three-year
statutes of limitation.
As the district court explained, because Ҥ 1983 does not
provide
for
a
statute
of
limitations,
statute of limitations is applied.”
the
analogous
state
Second Dismissal Order 3
(citing Nat’l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161
(4th Cir. 1991)); see also Hardin v. Straub, 490 U.S. 536, 539
(1989) (instructing that “[l]imitations periods in § 1983 suits
are
to
statute
be
of
determined
by
limitations
reference
and
the
to
the
appropriate
coordinate
(internal quotation marks omitted)).
tolling
state
rules”
“In North Carolina, the
analogous state statute of limitations is three years.”
Second
Dismissal Order 3 (citing Nat’l Adver. Co., 947 F.2d at 1162).
A North Carolina “invasion of privacy claim is also governed by
a three year statute of limitations.”
Id. (citing Losing v.
Food Lion, L.L.C., 648 S.E.2d 261, 265 (N.C. Ct. App. 2007)).
Applying those North Carolina statutes of limitation, the
district court recognized “that the date upon which Plaintiff’s
causes
of
action
accrued
is
apparent
on
the
face
of
his
complaint” — that date being November 24, 2003, when Aikens
allegedly was first informed that Ingram had used illegal means
to obtain Aikens’s email.
See Second Dismissal Order 4.
The
court then determined that, “[e]ven if neither the time during
which Plaintiff’s original district court action was pending nor
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the time during which his ABCMR proceeding was pending should be
counted against the limitations period, Plaintiff’s clock began
to run again following the adjudication of his claim by the
ABCMR.”
Id. at 4-5.
“Plaintiff’s
“Accordingly,” the court concluded that
limitations
period
more
than
expired
during
the
three years between dismissal by the ABCMR on February 6, 2008,
and Plaintiff’s filing of the instant action on July 15, 2011.”
Id. at 5.
In
ruling
thusly,
the
district
court
rejected
Aikens’s
contention that, in the circumstances of these proceedings, the
doctrine of equitable tolling further extended the limitations
period for the time that his Rule 60(b) motion was pending in
that court and on appeal.
The district court acknowledged — “as
discussed by the dissent in [Aikens I]” — that “North Carolina
courts
have
tolling.”
certainly
recognized
the
Second Dismissal Order 5.
principle
of
equitable
But the district court
perceived that North Carolina courts “have only found [equitable
tolling’s]
application
appropriate
in
circumstances
where
the
actions of the defendant have somehow caused the plaintiff to
fail to pursue his claim within the limitations period.”
Id.
(emphasis
the
omitted).
The
district
court
observed
that
defendants herein had done nothing “that might be construed as
deceitful or misleading such that Plaintiff’s cause of action
was concealed.”
Id.
Moreover, the court deemed itself obliged
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to consider “the actions or inactions of Plaintiff” discussed by
the Aikens I majority in affirming the court’s prior denial of
Rule 60(b)(6) relief.
Id. at 5-6 (citing Aikens I, 652 F.3d at
502-03).
The district court summarized that, “[b]ecause Plaintiff’s
complaint in this action was filed well-outside the three year
statutes of limitations, and the Court finds no basis upon which
to
equitably
Plaintiff’s
toll
complaint
the
applicable
must
be
limitations
dismissed.”
Second
periods,
Dismissal
Order 6.
Aikens has filed a timely notice of appeal from the
judgment
entered
on
February
29,
2012,
and
we
possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Generally, we review de novo a district court’s dismissal
of
a
complaint
12(b)(6).
pursuant
Federal
Rule
of
Civil
Procedure
See Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010).
predicated
to
on
the
When a dismissal on limitations grounds is
denial
of
equitable
tolling,
review the court’s ruling for abuse of discretion.
however,
we
See Rouse v.
Lee, 339 F.3d 238, 247 n.6 (4th Cir. 2003) (en banc).
In any
event, “a district court by definition abuses its discretion
when it makes an error of law.”
See Rice v. Rivera, 617 F.3d
802, 811 (4th Cir. 2010) (internal quotation marks omitted).
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III.
As noted above, there were 212 days left in the three-year
limitations period when Colonel Aikens filed his First Complaint
on April 27, 2006.
Under North Carolina law, the statute of
limitations was tolled between April 27, 2006, and September 13,
2007, when the district court issued its First Dismissal Order.
See Long v. Fink, 342 S.E.2d 557, 559 (N.C. Ct. App. 1986)
(explaining that “the statute of limitations is tolled when suit
is
properly
instituted,
and
it
stays
action is alive” (emphasis omitted)).
tolled
as
long
as
the
Only 200 days elapsed
between the court’s issuance of the September 13, 2007 First
Dismissal Order and Aikens’s submission of his Rule 60(b) motion
on March 31, 2008, and there was just a two-day gap between our
en banc Aikens I decision of July 13, 2011, and Aikens’s filing
of his Second Complaint on July 15, 2011.
Complaint’s
claims
are
timely
if
the
Thus, the Second
doctrine
of
equitable
tolling was operational during the three-year-plus period that
the
Rule
60(b)
motion
underwent
consideration
by
first
the
district court and then our Court.
A.
When it declined to apply equitable tolling herein, the
district
equates
court
to
evinced
equitable
an
understanding
estoppel.
Indeed,
that
such
each
of
doctrine
the
North
Carolina decisions cited in the Second Dismissal Order — Duke
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University v. Stainback, 357 S.E.2d 690 (N.C. 1987), and Nowell
v. Great Atlantic & Pacific Tea Co., 108 S.E.2d 889 (N.C. 1959)
— involved the use of equitable estoppel to disallow statute of
limitations
delays
in
defenses
filing
defendants.
in
circumstances
claims
were
where
engendered
the
the
by
plaintiffs’
conduct
of
The Supreme Court of North Carolina explained in
those decisions that “[e]quity will deny the right to assert the
defense
of
the
statute
of
limitations
when
delay
has
been
induced by [the defendant’s] acts, representations, or conduct,
the
repudiation
faith.”
of
which
would
amount
to
a
breach
of
good
Stainback, 357 S.E.2d at 693 (paraphrasing Nowell, 108
S.E.2d at 891).
agreement
that
defendant
—
recognized,
Other state and federal courts are generally in
equitable
wrongdoing
is
absent
estoppel
that,
from
as
this
requires
wrongdoing
the
district
case.
See
court
Second
by
the
properly
Dismissal
Order 5.
Importantly, however, equitable estoppel is not necessarily
the same as equitable tolling.
Justice,
333
F.3d
273,
278-79
See Chung v. U.S. Dep’t of
(D.C.
Cir.
2003)
(describing
differences between equitable estoppel and equitable tolling);
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.
1990) (same); Felty v. Graves-Humphreys Co., 785 F.2d 516, 519
(4th Cir. 1986) (same).
When distinguishing the two doctrines,
courts have generally clarified that equitable estoppel requires
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the defendant’s wrongdoing, while equitable tolling does not.
See, e.g., Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878
(5th Cir. 1991) (“Equitable tolling focuses on the [plaintiff],
not on any possible misconduct by the [defendant].”); Williams
v. Bd. of Review, 948 N.E.2d 561, 567 (Ill. 2011) (“Unlike the
related
doctrine
of
equitable
estoppel,
equitable
tolling
requires no fault on the part of the defendant.”); Kaiser v.
Umialik
Ins.,
108
P.3d
876,
880
(Alaska
2005)
(“[E]quitable
estoppel turns on wrongdoing by the party invoking the statute
of limitations, while our equitable tolling rule looks only to
the claimant’s circumstances . . . .”).
Some courts “have used the terms ‘equitable tolling’ and
‘equitable estoppel’ interchangeably.”
F.3d 762, 767 n.4 (5th Cir. 1996).
Court
of
the
United
States
and
McAllister v. FDIC, 87
At times, both the Supreme
our
Court
have
referred
“equitable tolling” when describing “equitable estoppel.”
Irwin
v.
Dep’t
of
Veterans
(observing
that
“[w]e
situations
. . .
where
have
the
Affairs,
498
allowed
complainant
U.S.
89,
equitable
has
been
96
to
See
(1990)
tolling
in
induced
or
tricked by his adversary’s misconduct into allowing the filing
deadline to pass”); Harris v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000) (noting that equitable tolling has been applied where
“the plaintiffs were prevented from asserting their claims by
some kind of wrongful conduct on the part of the defendant”
17
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Doc: 31
(internal
Filed: 05/02/2013
quotation
marks
Pg: 18 of 34
omitted)).
But,
typical
of
other
courts, neither we nor the Supreme Court has limited equitable
tolling to equitable estoppel-type circumstances.
Furthermore, courts have employed equitable tolling “in a
variety of contexts and have developed differing parameters for
its application.”
See Hooper v. Ebenezer Senior Servs. & Rehab.
Ctr., 687 S.E.2d 29, 32-33 (S.C. 2009) (recognizing that “[t]he
equitable power of a court is not bound by cast-iron rules but
exists
to
do
particular
Pertinent
fairness
exigencies”
here,
for
and
is
flexible
(internal
example,
and
quotation
the
Supreme
adaptable
marks
Court
to
omitted)).
has
“allowed
equitable tolling in situations where the claimant has actively
pursued his judicial remedies by filing a defective pleading
during
the
statutory
period,”
including
where
the
timely filed his complaint in the wrong court.
plaintiff
See Irwin, 498
U.S. at 96 & n.3 (citing Burnett v. N.Y. Cent. R.R. Co., 380
U.S.
424
(1965)).
appropriate
reasoned
in
that
In
such
deeming
equitable
circumstances,
tolling
is
the
justified
tolling
Supreme
because
to
Court
the
be
has
defendant
received timely notice of the plaintiff’s claims, there was no
resulting
prejudice,
and
the
plaintiff
acted
with
diligence.
See Burnett, 380 U.S. at 429-30; cf. Baldwin Cnty. Welcome Ctr.
v.
Brown,
tolling
466
request
U.S.
147,
where,
151-52
though
18
(1984)
there
(rejecting
was
an
equitable
“absence
of
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Pg: 19 of 34
prejudice,” plaintiff “fail[ed] to act diligently” and did not
file any complaint within applicable limitations period).
Those
three
concerns
underlie
an
equitable
tolling
test
that has been adopted by the highest courts of several states.
Under that test, as set forth by the Supreme Court of Alaska,
the doctrine of equitable tolling has been applied to
halt the running of the statute of limitations when
multiple legal remedies are available to the plaintiff
and time runs out on one remedy while the plaintiff is
pursuing another unavailing remedy.
A claim for
tolling has three elements:
(1) pursuit of the
initial
remedy
must
give
defendant
notice
of
plaintiff’s claim, (2) defendant’s ability to gather
evidence must not be prejudiced by the delay, and (3)
plaintiff must act reasonably and in good faith.
Kaiser, 108 P.3d at 881-82 (footnotes, alterations, and internal
quotation marks omitted); see also, e.g., McDonald v. Antelope
Valley Cmty. Coll. Dist., 194 P.3d 1026, 1031-32 (Cal. 2008)
(citing Collier v. City of Pasadena, 191 Cal. Rptr. 681 (Cal.
Ct. App. 1983)); Let the People Vote v. Bd. of Cnty. Comm’rs,
120 P.3d 385, 389 (Mont. 2005).
Those courts have “warn[ed]
against application of [equitable tolling] to what is at best a
garden variety claim of excusable neglect,” Weidow v. Uninsured
Emp’rs Fund, 246 P.3d 704, 709 (Mont. 2010) (internal quotation
marks
omitted),
appropriate
“where
but
have
found
equitable
a
first
action,
embarked
tolling
upon
to
be
[reasonably
and] in good faith, is found to be defective for some reason,”
McDonald, 194 P.3d at 1032.
In the latter scenario, equitable
19
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tolling
is
Filed: 05/02/2013
fair
to
both
Pg: 20 of 34
parties,
in
that
“it
secures
the
benefits of the statutes of limitation for defendants without
imposing the costs of forfeiture on plaintiffs.”
Cal.
Rptr.
at
(“[L]imitation
686;
see
periods
are
also
Weidow,
designed
Collier, 191
246
to
P.3d
ensure
at
709
justice
by
preventing surprise, but no surprise exists when defendants are
already
on
notice
of
the
substantive
claims
being
brought
against them.” (internal quotation marks omitted)).
B.
For its part, North Carolina has ample precedent discussing
equitable estoppel — including Stainback and Nowell — but no
controlling decision addressing equitable tolling.
Thus, our
job is to predict how the Supreme Court of North Carolina, as
the
state’s
highest
court,
would
rule
on
the
underlying Aikens’s equitable tolling request.
legal
issues
Cf. Horace Mann
Ins. Co. v. Gen. Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th
Cir. 2008) (“Because we are sitting in diversity, our role is to
apply the governing state law, or, if necessary, predict how the
state’s highest court would rule on an unsettled issue.”).
In
making
of
North
our
prediction,
Carolina,
“constitute
the
as
decisions
the
next
state’s
best
of
the
Court
intermediate
indicia
of
what
of
Appeals
appellate
state
law
court,
is.”
Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153,
1156 (4th Cir. 1992) (internal quotation marks omitted).
20
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In
Filed: 05/02/2013
Fairway
Outdoor
Pg: 21 of 34
Advertising
v.
Edwards,
the
North
Carolina court of appeals recognized that “‘[t]ime frames may be
tolled
where
suspension.’”
equitable
considerations
justify
their
678 S.E.2d 765, 771 (N.C. Ct. App. 2009) (quoting
Republic Indus., Inc. v. Teamsters Joint Council No. 83 of Va.
Pension Fund, 718 F.2d 628, 644 (4th Cir. 1983)).
Specifically,
the doctrine of equitable tolling informed the court’s analysis
of whether the plaintiff had acted within a reasonable time to
remove
a
billboard
from
the
defendants’
termination of the relevant lease.
premises
following
In that regard, the court
explained that “[t]he question of reasonable time in this case
may be answered by applying the legal principle that diligent
prosecution of related non-frivolous litigation should be taken
into account in determining whether a party’s time for action
has passed.”
had brought
Id.
a
On the facts before it — that the plaintiff
non-frivolous,
albeit
unsuccessful,
declaratory
judgment action the day after the lease expired and attempted to
remove
the
sign
within
two
weeks
of
the
decision
in
the
defendants’ favor — the court concluded that the plaintiff had
“not yet exhausted the reasonable time allowed for removal of
the sign.”
Id.
Similarly,
non-frivolous
arbitration
in
Republic
challenge
procedures
to
Industries,
the
tolled
we
determined
constitutionality
the
21
running
of
the
of
that
a
certain
statutory
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Pg: 22 of 34
period for initiating those procedures.
See 718 F.2d at 644.
In so ruling on the premise that “time frames may be tolled
where equitable considerations justify their suspension,” id.,
we relied on Burnett, wherein the Supreme Court of the United
States
applied
Employers
equitable
Liability
Act
tolling
(“FELA”)
to
save
suit
first timely filed in the wrong court.
429-30.
in
of
the
a
second
litigant
Federal
who
had
See Burnett, 380 U.S. at
The Burnett decision has also made several appearances
opinions
of
the
North
Carolina
court
of
appeals.
See
Carlisle v. CSX Transp., Inc., 668 S.E.2d 98, 105-07 (N.C. Ct.
App. 2008) (applying Burnett’s equitable tolling principles to
FELA action pending in North Carolina state courts); Cacha v.
Montaco,
Inc.,
(explaining,
in
554
S.E.2d
course
of
388,
393
rejecting
(N.C.
Ct.
plaintiffs’
App.
claim
2001)
for
equitable tolling of statute of repose, that Burnett “sp[oke]
only to tolling of statutes of limitation”); Bruce v. Bruce, 339
S.E.2d 855, 858 (N.C. Ct. App. 1986) (acknowledging that the
benefit of statutes of limitation “is often outweighed ‘where
the interests of justice require vindication of the plaintiff’s
rights’” (quoting Burnett, 380 U.S. at 428)). 5
5
Like many other courts, including the Supreme Court of the
United States and our Court, the North Carolina court of appeals
has used the term “equitable tolling” to describe “equitable
estoppel,”
see
Town
of
Pineville
v.
Atkinson/Dyer/Watson
Architects, P.A., 442 S.E.2d 73, 74-75 (N.C. Ct. App. 1994), but
(Continued)
22
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It
is
Filed: 05/02/2013
not
surprising
Pg: 23 of 34
that
the
North
Carolina
court
of
appeals has not only freely invoked Burnett and other equitable
tolling decisions, but also has treated them as uncontroversial.
After
all,
litigants
Irwin,
“[t]ime
are
498
Moreover,
requirements
customarily
U.S.
at
although
95
the
in
subject
to
(internal
North
lawsuits
between
equitable
quotation
Carolina
tolling[.]”
marks
supreme
private
omitted).
court
has
not
explicitly endorsed equitable tolling, that doctrine is entirely
consistent with the court’s jurisprudence.
Ins.
Co.,
957
F.2d
at
1156
(observing
that
Cf. Liberty Mut.
decisions
of
a
state’s intermediate appellate court “may be disregarded if the
federal court is convinced by other persuasive data that the
highest court of the state would decide otherwise” (internal
quotation marks omitted)).
In harmony with the widely accepted purpose of equitable
tolling, the North Carolina supreme court has aptly described
time limitations as “strik[ing] a delicate balance between the
rights of the diligent plaintiff who should not be barred from
pursuing
a
protection
meritorious
from
stale
claim
claims
and
the
after
a
defendant
viable
who
deserves
defense
weakened because of dead witnesses or forgotten facts.”
may
be
Black
has also, when it needed to do so, differentiated between the
two doctrines, see Cacha, 554 S.E.2d at 393.
23
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v.
Doc: 31
Filed: 05/02/2013
Littlejohn,
court’s
325
equitable
any
intent
mislead
protecting
showing
the
469,
estoppel
essential”
to
S.E.2d
or
Pg: 24 of 34
of
476
(N.C.
—
which
decisions
“[a]ctual
—
deceive”
plaintiff
1985).
fraud,
bad
reflect
than
deem
faith,
more
punishing
Even
“not
or
concern
the
the
an
for
defendant.
Stainback, 357 S.E.2d at 692; accord Gore v. Myrtle/Mueller, 653
S.E.2d 400, 405 (N.C. 2007) (“There need not be actual fraud,
bad faith, or an intent to mislead or deceive for the doctrine
of equitable estoppel to apply.”).
The court has emphasized
that equitable estoppel’s “‘compulsion is one of fair play,’”
Nowell, 108 S.E.2d at 891 (quoting McNeely v. Walters, 189 S.E.
114,
115
(N.C.
1937)),
a
notion
that
comports
with
the
among
the
recognition of equitable tolling.
We
are
thus
convinced
that
North
Carolina
is
jurisdictions that embrace the mainstream view that equitable
tolling — and not just equitable estoppel — may serve to extend
a statute of limitations.
Accordingly, we conclude that the
district court abused its discretion by ruling in its Second
Dismissal
Order,
equitable
tolling
as
a
matter
applies
of
only
North
in
Carolina
equitable
law,
that
estoppel-type
circumstances.
C.
The equitable tolling test most appropriate to the facts of
Colonel Aikens’s case derives from the Burnett decision of the
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Supreme Court of the United States.
Under that test, which the
Burnett Court applied to a plaintiff who had timely filed his
first complaint in the wrong court, we must consider whether
defendants
Ingram
and
von
Jess
received
timely
notice
of
Aikens’s claims, whether the defendants have been prejudiced by
delay
of
the
diligence.
P.3d
at
litigation,
and
whether
Aikens
has
acted
with
See 380 U.S. at 429-30; see also, e.g., Kaiser, 108
881-82
(recognizing
that
a
Burnett-type
test
is
appropriate where “multiple legal remedies [were] available to
the
plaintiff
and
time
[ran]
out
on
one
remedy
while
the
plaintiff [was] pursuing another unavailing remedy”).
First of all, there is no dispute that the defendants had
timely notice of Aikens’s claims, in that he filed the First
Complaint
period,
with
and
212
days
subsequently
Second Complaint.
left
in
the
re-alleged
unmodified
the
same
limitations
claims
in
the
Furthermore, there has been no showing that
the defendants have suffered prejudice; rather, the defendants
have simply pointed to the passage of time since Aikens’s claims
accrued, without identifying any specific way in which they have
been prejudiced, such as the loss of critical evidence.
Finally, we are satisfied that Aikens acted both diligently
and reasonably in filing his Rule 60(b) motion, followed by the
Second Complaint.
diligence);
See Burnett, 380 U.S. at 429-30 (requiring
Kaiser,
108
P.3d
25
at
881-82
(necessitating
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reasonableness).
Pg: 26 of 34
As for diligence, since the district court
issued its First Dismissal Order, the longest time Aikens has
taken to pursue a next step in the pursuit of his claims is
fifty-four days (less than eight weeks) — the amount of time
that passed between the February 6, 2008 decision of the ABCMR
repudiating jurisdiction over Aikens’s claims and the filing of
his Rule 60(b) motion in the district court on March 31, 2008.
At that point, the applicable limitations period, having been
tolled during the pendency of the First Complaint, had not yet
run.
Moreover, fifty-four days of delay, weighed in the context
of six years of Aikens’s persistent and steadfast efforts to
sustain this litigation, hardly evidences a lack of diligence.
With respect to reasonableness, Aikens’s Rule 60(b) motion
cannot be called anything but reasonable.
At the time of the
motion, the defendants had taken the position — a position that
they continue to espouse — that the statutes of limitation on
Aikens’s claims had expired on November 24, 2006, more than nine
months
prior
to
the
Dismissal Order.
district
court’s
issuance
of
its
First
Meanwhile, under Aikens’s interpretation of
the First Dismissal Order, the court had assured him that he
could “return to federal court” if he were proved correct about
the ABCMR’s lack of jurisdiction.
Although
clarifying
the
court
that
it
thereafter
had
not
See First Dismissal Order 8.
denied
meant
26
to
Rule
60(b)(6)
“imply[]
that
relief,
plaintiff
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could return to court in [the same] action,” see Rule 60(b)
Order 7, five of the twelve judges of our en banc Court agreed
with Aikens’s interpretation.
See Aikens I, 652 F.3d at 509
(King, J., dissenting) (observing that, in light of the district
court’s “explicit[] assur[ance]” that Aikens “could ‘return to
federal court,’” he “understandably chose to file his Rule 60(b)
motion”).
Even
more
significantly,
ten
of
our
twelve
judges
recognized that the district court could have granted Aikens’s
Rule 60(b) motion in the exercise of its discretion.
See Aikens
I, 652 F.3d at 505 (Diaz, J., concurring) (“While the principal
dissent convincingly demonstrates that the district court could
have granted Aikens’s motion, it fails to establish that failure
to grant the motion was so beyond the pale that it constitutes
an abuse of discretion.” (emphasis omitted)); id. at 512 (King,
J.,
dissenting)
grant
Aikens’s
(“[H]ad
Rule
the
district
court
60(b)
motion,
it
discretion to do so . . . .”).
been
inclined
certainly
had
to
the
As such, Rule 60(b)(6) relief
was a feasible legal remedy that Aikens reasonably pursued. 6
6
Of course, our Aikens I majority concluded that Aikens’s
neglect in availing himself of some additional avoidance
options, such as appealing the First Dismissal Order or
requesting a stay, supported the district court’s conclusion
that Aikens had failed to demonstrate the extraordinary
circumstances necessary to reopen the First Complaint pursuant
to Rule 60(b)(6).
See 652 F.3d at 502-03; see also Second
(Continued)
27
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Because
relevant
Filed: 05/02/2013
of
the
conditions
manifest
for
Pg: 28 of 34
presence
equitable
here
tolling
—
of
each
notice,
of
the
lack
of
prejudice, and diligent and reasonable action — we conclude that
equitable
tolling
was
operational
during
the
period
that
Aikens’s Rule 60(b) motion was being considered by the district
court and our Court.
Accordingly, the § 1983 and state law
Dismissal Order 5-6 (suggesting that “the actions or inactions
of Plaintiff” discussed by the Aikens I majority must inform the
present equitable tolling analysis).
Importantly, however, the
pertinent equitable tolling test does not require that Aikens
made perfect litigation choices, only reasonable ones.
See,
e.g., Lozeau v. GEICO Indem. Co., 207 P.3d 316, 319-20 (Mont.
2009) (applying equitable tolling where plaintiff first filed in
tribal court that was later determined to lack jurisdiction);
McDonald, 194 P.3d at 1029 (same where plaintiff first
voluntarily pursued internal administrative remedy); Solomon v.
Interior Reg’l Hous. Auth., 140 P.3d 882, 884-85 (Alaska 2006)
(same where plaintiff first filed in federal court).
Some other equitable tolling tests, applicable in different
contexts, necessitate a showing of extraordinary circumstances.
See, e.g., Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en
banc) (observing, with respect to habeas corpus claims, that
“[e]quitable tolling is appropriate when, but only when,
extraordinary circumstances beyond the petitioner’s control
prevented him from complying with the statutory time limit”
(alteration and internal quotation marks omitted)).
In any
event, because we deal here with the superficially untimely
Second Complaint, which Aikens was compelled to file as a
consequence of our en banc affirmance of the denial of Rule
60(b)(6) relief, an assessment of extraordinary circumstances
for purposes of equitable tolling would encompass new factors.
For example, we certainly would consider the fact that we
conducted
an
en
banc
proceeding,
which
was
itself
an
extraordinary event. See Fed. R. App. P. 35(a) (explaining that
rehearing en banc is disfavored and will not be granted except
to maintain uniformity of decisions or to resolve questions “of
exceptional importance”).
28
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claims alleged in his subsequent Second Complaint are not timebarred,
and
the
contrary
Second
Dismissal
Order
must
be
reversed. 7
IV.
Pursuant to the foregoing, we reverse the Second Dismissal
Order and remand for such other and further proceedings as may
be appropriate.
REVERSED AND REMANDED
7
Of course, as our good colleague emphasizes in her
separate opinion, another option would be to vacate and remand
for the district court to apply the pertinent equitable tolling
test in the first instance. We see such a remand as unnecessary
here, however.
There is no real dispute concerning notice,
prejudice, or diligence, leaving solely the question of whether
Aikens acted reasonably in filing his Rule 60(b) motion.
The
district court’s only sustainable answer to that question would
be “yes,” since ten of our twelve judges in Aikens I agreed that
Aikens’s Rule 60(b) motion could have been granted, thereby
rendering the motion patently reasonable.
29
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THACKER, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s conclusion that the district
court erred, as a matter of law, in holding that North Carolina
would not recognize the doctrine of equitable tolling outside of
the equitable estoppel context.
However,
with
all
due
respect
to
my
good
colleagues,
I
cannot agree with the majority’s decision to determine, for the
first time on appeal, that the balance of the equities in this
case
warrants
point.
the
application
of
equitable
tolling
at
this
Rather, in my view, this matter should be remanded to
permit the district court to exercise its discretion as to the
application
of
equitable
tolling
to
the
facts
presented.
Accordingly, I respectfully concur in part and dissent in part.
In this case, “[t]he operative review standard in the end
will depend on what aspect of the lower court’s decision is
challenged.”
Belot v. Burge, 490 F.3d 201, 206 (2d Cir. 2007).
Specifically, to the extent the district court’s decision rested
on a conclusion of law, that aspect of the decision should be
reviewed de novo.
See Smith v. Pennington, 352 F.3d 884, 892
(4th Cir. 2003) (“[T]o the extent a challenge to the denial of
tolling is not to the existence of certain facts, but instead
rests on whether those facts demonstrate a failure to bring a
timely claim, resolution of this challenge turns on questions of
30
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Pg: 31 of 34
law which are reviewed de novo.”) (internal quotation marks and
citations omitted).
To the extent the district court’s decision
rested on an application of law to fact, that aspect of the
decision should be reviewed for an abuse of discretion.
See id.
(“[A]s to all circumstances other than where the relevant facts
are undisputed and the district court denied equitable tolling
as a matter of law, we review the denial of tolling below for
abuse of discretion.”) (internal citations and quotation marks
omitted).
Here, the district court’s opinion rested entirely on its
conclusion that, as a matter of North Carolina law, equitable
tolling
is
not
context.
cognizable
However,
majority
properly
outside
of
this
conclusion
recounts,
while
the
was
equitable
in
there
estoppel
error.
is
no
As
the
controlling
Supreme Court of North Carolina decision addressing equitable
tolling,
the
including
cases
state
lion’s
appellate
Appeal,
and
from
share
the
courts,
North
of
the
United
the
Carolina
pertinent
States
United
authority
Supreme
States
intermediate
Court,
--
other
Circuit
Courts
of
appellate
courts
--
clearly recognizes that the doctrine of equitable tolling is
more broad than the doctrine of equitable estoppel insofar as
the
latter
requires
misconduct
while the former does not.
on
the
part
of
the
defendant
As a result, I do not hesitate to
concur with the majority’s holding on this question.
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Unfortunately, the majority and I part ways at Part C. of
the
majority
opinion.
Application
of
the
law
of
equitable
tolling to the facts of a particular case is ordinarily a matter
within the district court’s discretion in the first instance.
Given that here the district court erroneously concluded that
North
Carolina
law
would
not
countenance
equitable
tolling
outside of the equitable estoppel context, the district court
has not yet had the opportunity to consider the operation of
equitable tolling to the facts of this case.
Therefore, I must
dissent from this aspect of the majority opinion: I would remand
this
case
to
permit
the
district
court
to
determine
whether
equitable tolling is, in fact, warranted on these facts.
We should be reluctant to substitute our judgment for that
of the district court, as the majority does here, because, as we
have long held, “the abuse of discretion standard requires a
reviewing court to show enough deference to a primary decisionmaker’s judgment that the court does not reverse merely because
it would have come to a different result in the first instance.”
Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,
322 (4th Cir. 2008). 1
1
In concluding that the facts of this case support the
operation of equitable tolling, the majority opinion relies
extensively on the concurring and dissenting opinions from our
previous en banc decision in Aikens I.
See ante at 26.
However, neither the majority nor the dissent in Aikens I
(Continued)
32
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As
Filed: 05/02/2013
noted,
the
district
Pg: 33 of 34
court
has
not
yet
had
the
opportunity to apply the legal test announced in this opinion -that is, whether “defendants Ingram and von Jess received timely
notice
of
Aikens’s
claims,
whether
the
defendants
have
been
prejudiced by delay of the litigation, and whether Aikens has
acted with diligence[,]” -- to the operative facts.
See ante at
25 (citing Burnett v. N.Y. Cent. R. Co., 380 U.S. 424 (1965)).
In my view, remand would allow the parties to properly brief the
issue in light of the governing legal standard announced herein
(see ante at 25) and, similarly, would permit the district court
to supplement the record if needed.
Cf. Davani v. Va. Dep’t of
Transp., 434 F.3d 712, 720 (4th Cir. 2006) (“While the district
court’s failure to address these legal arguments below does not
alone
prevent
us
from
addressing
them
on
appeal,
prudence
counsels that, because of the undeveloped state of the record,
we refrain from doing so at this time.”) (internal citations
omitted).
Finally, I note the disposition I propose finds support in
the cases of this circuit, as we have repeatedly remanded cases
to
the
district
court
after
finding
that
the
district
court
directs the ultimate outcome of this case on this issue at this
point, as Aikens I posed a separate question -- whether this
case
involves
sufficiently
extraordinary
circumstances
to
warrant Rule 60(b)(6) relief -- than the one posed here.
33
Appeal: 12-1334
Doc: 31
Filed: 05/02/2013
Pg: 34 of 34
abused its discretion by failing to adequately take into account
a recognized judicial factor or after announcing a new legal
principle on appeal.
See, e.g., DIRECTV, Inc. v. Rawlins, 523
F.3d 318, 330 n.14 (4th Cir. 2008) (“Having clarified the proper
course of analysis that must govern a district courts exercise
of discretion in awarding damages, we find it prudent to allow
the
district
court
analysis
in
the
Assocs.,
1
remanding
case
F.3d
to
to
reconsider
first
225,
the
instance.”);
234
permit
(4th
the
application
Rosciszewski
Cir.
district
1993)
court
of
v.
that
Arete
(reversing
to
exercise
and
its
discretion in light of a newly announced legal principle). 2
For
these
reasons,
I
respectfully
concur
in
part
and
dissent in part.
2
Other courts have taken this approach in the specific
context of equitable tolling. See, e.g., Townsend v. Comm’r of
Soc. Sec., 415 F.3d 578 (6th Cir. 2005); Daviton v. Columbia/HCA
Corp., 241 F.3d 1131 (9th Cir. 2001).
34
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