Dunlap v. United States of America

Filing 53

ORDER: granting defendant's motion for summary judgment 36 again; the Clerk shall enter judgment in favor of defendant and against plaintiff. Signed by Senior Judge Frederick J Martone on 3/14/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rhett B. Dunlap,
Plaintiff,

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vs.

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United States,
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Defendant.
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No. CV 11-1360-PHX-FJM
ORDER

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Our Order of February 11, 2016 (doc. 50) outlined the prior proceedings in this case

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demonstrating that all that remained was the entry of an order affirming the prior grant of

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summary judment. We, nevertheless, gave the parties an opportunity to be heard by inviting

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memoranda. We now have before us plaintiff’s Response (doc. 51) and defendant’s

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Memorandum (doc. 52).

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Our Order (doc. 50) noted that United States v. Wong, 135 S. Ct. 1625 (2015) affirmed our

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prior Order of Feb. 15, 2012 (doc. 14) that a statute of limitations defense in a Federal Tort

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Claims Act case is just a claims processing rule, and does not deprive the court of subject

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matter jurisdiction and for that reason equitable tolling is available. Order of Feb. 11, 2016

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at 1 (doc. 50). After all, a statute of limitations is an affirmative defense, which if not raised,

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is waived. In contrast, subject matter jurisdiction is not waivable.

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This case, thus, is not like the other cases before the circuit which deprived the plaintiffs

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of the opportunity to demonstrate equitable tolling. Here, plaintiff alleged in his complaint

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that equitable tolling applied. First Amended Complaint at 4 (doc. 5). And in his Response

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to the government’s motion to dismiss plaintiff contended that “this Court must consider

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equitable tolling.” Plaintiff’s Response and Opposition [to the] Motion to Dismiss at 3 (doc.

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12). The government argued that Marley v. United States, 567 F.3d1030 (9th Cir. 2009)

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characterized the statute of limitations as jurisdictional and thus equitable tolling was

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unavailable. We squarely rejected the government’s argument and demonstrated that the

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Supreme Court’s more recent cases plainly showed that the statute of limitations was just a

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claims processing rule and did not go to jurisdiction. Order of Feb. 16, 2012 at 3-7 (doc. 14).

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Plaintiff here, unlike those in the other cases before the circuit, prevailed on the

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jurisdictional point and was given a full and fair opportunity to address the merits of

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equitable tolling. The government then filed a motion for summary judgment limited to the

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equitable tolling defense (doc. 34). Astonishingly, after prevailing on the underlying legal

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issue, plaintiff abandoned equitable tolling in its response to the motion for summary

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judgment and instead argued that the case was timely for an unrelated reason. Plaintiff’s

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Response at 13 (doc. 38) (“Plaintiffs do not rely on the principles of accrual, equitable tolling

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or equitable estoppel. This action is timely under §2401(b)’s six month rule.”). We rejected

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the §2401(b) contention and granted the government’s motion for summary judgment on

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equitable tolling, noting that plaintiff waived the issue. Order of Aug. 23, 2012 at 2 n.2 (doc.

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41). Rule 56, Fed. R. Civ. P. required plaintiff to produce his evidence on the issue of

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equitable tolling at that time or judgment would be granted against him. That is precisely

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what happened here.

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Yet plaintiff now seeks a second bite at the apple, frivolously contending in its

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“Response” (doc. 51) that we “lacked legal authority to equitably toll Plaintiff’s claims.”

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Response at 4. Plaintiff cannot now walk backward on its position. Once the court rules on

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an issue, a party is not free to ignore it. Our approach carefully showed why the circuit

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ruling (Marley) upon which the government relied and which the plaintiff had opposed had

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been eroded by a series of Supreme Court cases admonishing the circuits to carefully

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distinguish between claims processing rules and subject matter jurisdiction. A party cannot
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litigate an issue, prevail upon it, and then contend otherwise. Doctrines of claim preclusion,

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issue preclusion and law of the case are calculated to prevent such mischief.

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Plaintiff contends that the circuit must have remanded to relitigate the equitable tolling

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issue. But the circuit has said no such thing. It is more plausible to conclude that the form

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of the circuit’s remand order tracked those entered in cases in which Wong would afford a

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party an equitable defense that was precluded by the court below. But here, plaintiff was not

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precluded by this court from raising his equitable tolling issue. Plaintiff prevailed on the

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Wong issue. Thus, remand for further consideration consistent with Wong simply required

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us to evaluate all prior proceedings to ensure plaintiff had a full and fair opportunity to

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litigate the issue of equitable tolling. It is clear that he did. Plaintiff abandoned the issue

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when he was required under Rule 56 to come forth with facts supporting his claim of

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equitable tolling.

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Because plaintiff failed to controvert the government’s facts on the issue of equitable

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tolling, it is ORDERED GRANTING defendant’s motion for summary judgment again.

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(Doc. 36). The clerk shall enter judgment in favor of defendant and against plaintiff.

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DATED this 14th day of March, 2016.

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