In my torts class, last week we discussed defense based on a statute of limitations. This week we will discuss the Federal Torts Claims Act. This post relates to both.
As reported in Circuit Splits:
The doctrine of equitable tolling is a “drastic remedy” which allows a court, under extraordinary circumstances, to overlook a plaintiff’s failure to file a complaint within the statutorily allotted period of time. Under the Federal Tort Claims Act this period of time is “six months after the date of mailing . . . of final denial of the claim by the agency to which it was presented.” However, there is a split among jurisdictions as to whether the remedy of "equitable tolling" is available for plaintiffs who fail to file in time.
This question is back in the news because last week the Court of Appeals for the Second Circuit issued an opinion in Goldblatt v. Nat’l Credit Union Administration holding that, “[i]n this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA.” The court further noted that “[o]ther circuits are split on this issue. Compare Santos ex rel. Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009), with Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011), and In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011).”
As with all other cases where the circuit courts are divided, there is a chance the Supreme Court might take an appeal to resolve the split.