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Torts and Personal Injury Law Center
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Statutes of Limitations
12/14/2008 4:13:50 PM EST
Thomas H. Clarke, Jr.
Ninth Circuit holds that the 6-month FTCA requirement for the filing of a claim is jurisdictional; no equitable estoppel or tolling is permitted
Partner, Ropers Majeski Kohn & Bentley

Plaintiff received treatment for cancer at a hospital; he alleged that he experienced complications resulting in physical injury. He filed a timely administrative tort claim with the U.S. Department of Veterans Affairs, which denied the claim. Plaintiff thereafter filed a timely complaint under the Federal Tort Claims Act (FTCA), but voluntarily dismissed it after his lawyers withdrew from representing him. Plaintiff thereafter filed a second complaint under the FTCA. The District Court dismissed the complaint because it was filed beyond the six-month statute of limitations prescribed by 28 U.S.C.S. § 2401(b). In Marley v. United States, 2008 App. LEXIS 24693 (9th Cir.: 12/8/08) the Ninth Circuit affirmed the District Court’s decision. The Court held that the statute of limitations in § 2401(b) was jurisdictional and, consequently, the doctrines of equitable estoppel and equitable tolling that might have otherwise excused plaintiff’s late filing did not apply. This ruling is of critical importance to anyone filing a claim against the Unlike many State government tort claim laws, which allow for consideration of equitable estoppel or tolling, the Federal law is now deemed jurisdictional. A claim must be filed within six months, period.

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