Maritza Gallardo v. USA

Filing

Filed order and amended opinion (WILLIAM A. FLETCHER, MILAN D. SMITH, JR. and PAUL J. WATFORD). Amending Disposition Opinion AFFIRMED IN PART VACATED IN PART; REMANDED. The court s opinion, filed April 15, 2014, and published at Gallardo v. United States, 2014 WL 1424469 (9th Cir. Apr. 15, 2014), is hereby amended as follows: (SEE ORDER FOR FULL TEXT) Future petitions for rehearing will not be entertained. [9117252]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARITZA GALLARDO,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

No. 12-55255
D.C. No.
2:11-cv-05013JFW-PJW
ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
January 8, 2014—Pasadena, California
Filed April 15, 2014
Amended June 3, 2014
Before: William A. Fletcher, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge W. Fletcher

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GALLARDO V. UNITED STATES
SUMMARY*

Federal Tort Claims Act
The panel filed an order amending its opinion, and an
amended opinion affirming in part and vacating in part the
district court’s dismissal, as time-barred, of Maritza
Gallardo’s Federal Tort Claims Act action brought against the
United States.
The Federal Tort Claims Act’s statute of limitations is
two years unless tolled. Maritza Gallardo did not file an
administrative claim for negligence against the U.S. Marine
Corps until four years after an alleged sexual assault. While
the appeal was pending, the court decided Wong v. Beebe,
732 F.3d 1030 (9th Cir. 2013) (en banc), holding that
equitable tolling of the statute of limitations was available in
FTCA actions.
The panel held that Gallardo’s FTCA claim accrued at the
time of the assault, not at the time she learned of the Corps’
negligence, and concluded that the FTCA’s two-year statute
of limitations, absent tolling, had run. The panel also held
that Gallardo’s equitable tolling argument was not waived.
Finally, the panel held that Wong’s conclusion that 28 U.S.C.
§ 2401(b) is nonjurisdictional and subject to equitable tolling
applied to the entirety of that subsection. The panel
remanded to the district court to consider Gallardo’s equitable
tolling argument in the first instance.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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GALLARDO V. UNITED STATES

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COUNSEL
Randall Jonathan Paulson (argued), Law Offices of Randall
J. Paulson, Santa Ana, California, for Plaintiff-Appellant.
Adam C. Jed (argued) and Mark B. Stern, United States
Department of Justice, Washington, D.C.; Donald W. Yoo,
Office of the United States Attorney, Los Angeles, California,
for Defendant-Appellee.

ORDER
The court’s opinion, filed April 15, 2014, and published
at Gallardo v. United States, 2014 WL 1424469 (9th Cir.
Apr. 15, 2014), is hereby amended as follows:
The first two paragraphs of Part III.B previously read:
In the alternative, Gallardo argues that the
statute of limitations should be equitably
tolled. When the district court dismissed
Gallardo’s claim, equitable tolling was not
available under the FTCA. See Marley, 567
F.3d at 1038. In 2013, however, we overruled
Marley, holding in Wong v. Beebe that
equitable tolling of the statute of limitations is
available in FTCA actions. 732 F.3d at 1033.
The government makes two arguments
against equitable tolling.
First, the
government argues that Gallardo did not raise
equitable tolling in the district court and has
therefore waived this argument. But at the

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GALLARDO V. UNITED STATES
time the district court ruled on the motion to
dismiss, equitable tolling was foreclosed by
Marley. The argument became available only
later, while this case was on appeal, when we
decided Wong. We therefore hold that
Gallardo’s equitable tolling argument is not
waived. See, e.g., Romain v. Shear, 799 F.2d
1416, 1419 (9th Cir. 1986) (an exception to
waiver exists “when a new issue arises while
appeal is pending because of a change in
law”).

Gallardo v. United States, No. 12-55255, slip op. 9 (9th Cir.
Apr. 15, 2014). The opinion is amended so that these two
paragraphs now read:
In the alternative, Gallardo argues that the
statute of limitations should be equitably
tolled. The government makes two arguments
against equitable tolling.
First, it argues in a supplemental brief that
Gallardo did not argue equitable tolling in the
district court and has therefore waived this
argument.
In its answering brief, the
government had argued on the merits that
equitable tolling was not available under the
FTCA. It contended that we had “overruled”
Alvarez-Machain v. United States, 107 F.3d
696, 701 (9th Cir. 1996) (holding that
equitable tolling is available under the
FTCA), in our 2009 decision in Marley, in
which we held that equitable tolling is not
available in FTCA actions.
After the

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GALLARDO V. UNITED STATES
government’s answering brief was filed, we
overruled Marley, holding in Wong that
equitable tolling is available. The government
then argued, for the first time, that Gallardo
had waived her equitable tolling argument by
not raising it in the district court. Because the
government failed to argue waiver in its
answering brief, its waiver argument is itself
waived. See Clem v. Lomeli, 566 F.3d 1177,
1182 (9th Cir. 2009). Even if the government
had not “waived the waiver,” however, we
would be inclined to hold that Gallardo has
not waived her equitable tolling argument.
See Romain v. Shear, 799 F.2d 1416, 1419
(9th Cir. 1986) (an exception to waiver exists
“when a new issue arises while appeal is
pending because of a change in law”). At the
time of the district court’s decision, Marley
was still on the books. It clearly held that our
prior holding in Alvarez-Machain was no
longer good law. See Marley, 567 F.3d at
1037–38 (explaining that the holding in
Alvarez-Machain “has no precedential
value”). Only after our en banc decision in
Wong did it become clear that Marley was not
good law.
Future petitions for rehearing will not be entertained.

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GALLARDO V. UNITED STATES
OPINION

W. FLETCHER, Circuit Judge:
Plaintiff Maritza Gallardo appeals from the district court’s
dismissal of her Federal Tort Claims Act (“FTCA”) action
against the United States as time-barred. Gallardo’s claim
arose out of an alleged sexual assault committed by a sergeant
in the U.S. Marine Corps (“the Corps”) while he was on a
recruitment detail at her middle school. Gallardo did not file
an administrative claim for negligence against the Corps until
four years after the assault. The FTCA’s statute of limitations
is two years unless tolled. 28 U.S.C. § 2401(b).
While this appeal was pending, we decided Wong v.
Beebe, 732 F.3d 1030 (9th Cir. 2013) (en banc), holding that
equitable tolling of the statute of limitations is available in
FTCA actions. See id. at 1033. We overruled Marley v.
United States, 567 F.3d 1030, 1038 (9th Cir. 2009), which
held that equitable tolling is unavailable. In light of this
change in the law, we vacate the district court’s dismissal of
Gallardo’s FTCA claim and remand for that court to
determine whether equitable tolling is appropriate in the
circumstances of this case.
I. Background
A. Alleged Sexual Assault
The following narrative is based on allegations by
Gallardo in her complaint and on statements by her mother,
Maria Gallardo, in a declaration submitted to the district court
in connection with its jurisdictional ruling under Federal Rule
of Civil Procedure 12(b)(1). For present purposes, we

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assume the truth of these allegations and statements. See
Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir.
2013).
In March 2006, middle-school student Maritza Gallardo
met U.S. Marine Corps Sergeant Ross Curtis at a civilian
youth disciplinary “boot camp.” While Gallardo was at the
camp, Curtis asked her for her Myspace address. After
Gallardo left the camp, Curtis sent messages to her Myspace
address between March and May, suggesting that they “hang
out” together. Gallardo “resisted” Curtis’s overtures.
In May 2006, Curtis represented the Corps, in his “Dress
Blues” uniform, at Gallardo’s middle school career day.
During the career day, they acknowledged each other but did
not speak. Gallardo left the school grounds at the end of the
day. Curtis saw her leave and called her, asking her to return
to the school. Gallardo returned, and she and several other
students accepted Curtis’s offer to give them a ride home.
After Curtis had dropped off everyone except Gallardo, he
“drove around for some time and parked in a nearby
neighborhood.” After he and Gallardo “talked for a while,”
Curtis “began driving . . . and eventually parked” again.
Curtis “began . . . kissing her, fondling her breasts, asking her
to tou[c]h his erect penis and eventually attempting sexual
penetration.” Gallardo began to cry. Curtis stopped, told her
not to tell anyone what had happened, and drove her home.
B. Curtis’s Criminal Prosecution
In August 2008, law enforcement officials arrested Curtis,
now a civilian, for a sexual assault on another minor. While
searching Curtis’s computer, officials found pictures and

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Myspace messages that he had sent to Gallardo. Detectives
interviewed Gallardo at her home in the fall of 2008.
The following year, Gallardo and her mother were
subpoenaed for Curtis’s criminal trial. During the trial,
Gallardo’s mother learned from a female member of the
Corps that Curtis had assaulted her, but that her military
superiors had taken no disciplinary action against him after
she reported the assault. Gallardo later learned that in March
2006, two months before Curtis sexually assaulted her on
career day, he had been court-martialed for sexually
assaulting three female members of the Corps. The result of
Curtis’s court-martial was that “the Corps retained his
enlistment, assigned him to recruitment detail, and he was
scheduled to be discharged in June 2006.”
C. Proceedings Below
In May 2010, after learning of Curtis’s history of sexually
assaulting women, and of the Corps’ knowledge of those
assaults at the time it assigned him to the recruitment detail
at her middle school, Gallardo filed an administrative claim
with the Corps and the Department of Defense. The
gravamen of Gallardo’s claim was that the assault occurred
because of the Corps’ negligence in assigning a known sex
offender to work with middle-school students. Gallardo’s
administrative claim was denied in December 2010.
Gallardo then filed suit in federal district court based on
the same allegations as those in her administrative claim.
Defendants moved to dismiss Gallardo’s claim as untimely
under the FTCA’s two-year statute of limitations. In
response, Gallardo argued that “her claim did not accrue until

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the facts of [Curtis’s] military record became known at the
time of his criminal trial” in 2009.
The district court agreed with defendants, holding under
United States v. Kubrick, 444 U.S. 111 (1979), that
Gallardo’s claim accrued at the time of Curtis’s assault.
Gallardo timely appealed.
II. Standard of Review
“We review de novo a district court’s interpretation of the
statute of limitations under the FTCA, and its decision as to
whether a statute of limitations bars a claim.” Hensley v.
United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (citations
omitted).
III. Discussion
On appeal, Gallardo makes two arguments. First, she
argues that the district court erred in concluding that her
claim accrued at the time of Curtis’s assault. Second, she
argues that the statute of limitations should be equitably
tolled. We disagree with her first argument. However, her
second argument may have merit. In light of our intervening
precedent in Wong v. Beebe holding that equitable tolling is
available in FTCA actions, we remand to the district court to
consider Gallardo’s equitable tolling argument in the first
instance.
A. Accrual of Gallardo’s Claim
A plaintiff bringing an FTCA claim against the United
States must first file an administrative claim with the
appropriate agency “within two years after such claim

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accrues.” 28 U.S.C. § 2401(b). Otherwise, it is “forever
barred.” Id.
Gallardo argues that her claim did not accrue until 2009,
when she learned of the Corps’ negligence. We disagree.
Gallardo’s argument is foreclosed by Kubrick. The Supreme
Court held in Kubrick that once a plaintiff becomes aware of
her injury and its immediate cause, her claim accrues.
444 U.S. at 122. In so deciding, the Supreme Court declined
to “hold that Congress intended that ‘accrual’ of a claim must
await awareness by the plaintiff that [her] injury was
negligently inflicted.” Id. at 123.
Our post-Kubrick precedents are consistent with the
conclusion that Gallardo’s claim accrued at the time of
Curtis’s assault. For example, in Hensley v. United States,
531 F.3d 1052 (9th Cir. 2008), we held that the plaintiffs’
claim against the United States resulting from an accident
involving a vehicle driven by a naval officer “accrued at the
time of the collision and not later when the Attorney General
certified that the [officer] was acting within the scope of his
federal employment at the time of the collision.” Id. at 1054.
“[A]s a general rule, ignorance of the involvement of
government employees is irrelevant to accrual of a federal
tort claim.” Id. at 1056. We wrote that Kubrick does not
allow for “delay[ing] accrual of a federal tort claim until
plaintiff knows or has reason to know of the culpability of
federal agents.” Id. (quoting Gibson v. United States,
781 F.2d 1334, 1344 (9th Cir. 1986)). We explained:
At the moment Eich [the naval officer] struck
Mrs. Hensley’s car with his own, the Hensleys
knew both the fact of the injury and its
immediate physical cause. The fact that Mrs.

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Hensley suffered an injury was immediately
apparent; the cause (a collision) was
immediately apparent; and even the identity
of the person who inflicted the injury (Eich)
was immediately apparent. Therefore, the
Hensleys’ claim accrued at the time of the
accident.
Hensley, 531 F.3d at 1057 (citation omitted).
Gallardo cannot distinguish her case from Hensley. She
emphasizes on appeal that “she could not have known or had
reason to suspect” that the Corps was “complicit” in her
injury “because the cause known at the time was [Curtis’s]
assault.” But, as we held in Hensley, “ignorance of the
involvement of United States employees is irrelevant.” Id. at
1057 (quoting Dyniewicz v. United States, 742 F.2d 484,
487 (9th Cir. 1984)). Here, Gallardo “knew both the fact of
the injury and its immediate physical cause,” id., in May
2006. Because Gallardo did not file her administrative claim
until four years later, the FTCA’s two-year statute of
limitations, absent tolling, had run.
B. Equitable Tolling
In the alternative, Gallardo argues that the statute of
limitations should be equitably tolled. The government
makes two arguments against equitable tolling.
First, it argues in a supplemental brief that Gallardo did
not argue equitable tolling in the district court and has
therefore waived this argument. In its answering brief, the
government had argued on the merits that equitable tolling
was not available under the FTCA. It contended that we had

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“overruled” Alvarez-Machain v. United States, 107 F.3d 696,
701 (9th Cir. 1996) (holding that equitable tolling is available
under the FTCA), in our 2009 decision in Marley, in which
we held that equitable tolling is not available in FTCA
actions. After the government’s answering brief was filed,
we overruled Marley, holding in Wong that equitable tolling
is available. The government then argued, for the first time,
that Gallardo had waived her equitable tolling argument by
not raising it in the district court. Because the government
failed to argue waiver in its answering brief, its waiver
argument is itself waived. See Clem v. Lomeli, 566 F.3d
1177, 1182 (9th Cir. 2009). Even if the government had not
“waived the waiver,” however, we would be inclined to hold
that Gallardo has not waived her equitable tolling argument.
See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986) (an
exception to waiver exists “when a new issue arises while
appeal is pending because of a change in law”). At the time
of the district court’s decision, Marley was still on the books.
It clearly held that our prior holding in Alvarez-Machain was
no longer good law. See Marley, 567 F.3d at 1037–38
(explaining that the holding in Alvarez-Machain “has no
precedential value”). Only after our en banc decision in
Wong did it become clear that Marley was not good law.
Second, the government argues that Wong does not
control because that case involved a different provision of the
FTCA’s statute of limitations. The statute imposes two
deadlines:
A tort claim against the United States shall be
forever barred unless it is presented in writing
to the appropriate Federal agency within two
years after such claim accrues or unless action
is begun within six months after the date of

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mailing . . . of notice of final denial of the
claim by the agency to which it was
presented.
28 U.S.C. § 2401(b) (emphasis added). The provision at
issue in Wong was the six-month time limit for filing suit
after agency denial of a claim. See 732 F.3d at 1033–34. The
applicable provision here is the two-year time limit for filing
a claim with the agency. Although these two provisions are
part of the same statutory subsection, the government
contends that our holding in Wong applies only to the sixmonth provision.
Our language and reasoning in Wong foreclose the
government’s argument. We repeatedly stated in Wong that
§ 2401(b) is nonjurisdictional and subject to equitable tolling,
without distinguishing between the six-month and two-year
provisions. See, e.g., id. at 1033 (“We hold that § 2401(b) is
not ‘jurisdictional,’ and that equitable tolling is available
under the circumstances presented in this case.”); id. at 1038
(“Several factors underlie our conclusion that § 2401(b) is
nonjurisdictional.”); id. at 1049 (“[N]othing in § 2401(b)
suggests that it is inconsistent with equitable tolling. To the
contrary, the FTCA goes out of its way in its efforts to treat
the United States the same as private tort defendants.”).
Conclusion
We hold that Wong’s conclusion that 28 U.S.C. § 2401(b)
is nonjurisdictional and subject to equitable tolling applies to
the entirety of that subsection. We therefore vacate the
district court’s decision holding that Gallardo’s FTCA claim

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is time-barred. We remand to the district court to consider
Gallardo’s equitable tolling argument in the first instance.
We otherwise affirm. Each side shall bear its own costs.
AFFIRMED in part, VACATED in part, and
REMANDED.