PASADENA, Calif. (CN) - The 9th Circuit seems likely to revive claims from a woman who says a Marine Corps sergeant sexually assaulted her when she was 13.
Martiza Gallardo's 2011 complaint describes an attempted rape that occurred when she was a 13-year-old student at a middle school in Hawaiian Gardens, Calif.
Gallardo had allegedly met Sgt. Ross Jay Curtis at a boot camp for at-risk teens in March 2006 where he was a volunteer drill instructor. Curtis began to send Gallardo messages to her email and Myspace accounts, asking her to "hang out" with him, according to the complaint.
She said she crossed paths with Curtis on May 26 of that same year while Curtis was staffing a recruitment booth at the middle school. Curtis, who was in uniform, allegedly offered to drive Gallardo and her friends home.
After dropping off her friends, Curtis drove Gallardo to a secluded spot where he allegedly molested her and tried to rape her in the back of his car. Gallardo says she resisted the assault and that Curtis stopped when she started to cry. Curtis allegedly then drove her home and told her not to tell anyone about the incident.
After prosecutors charged Curtis for having sex with a 15-year-old he met at a Whittier school, Gallardo took the stand in 2009 to testify against the then-24-year-old sergeant.
Gallardo and her mother allegedly learned through these proceedings that Curtis had been court-martialed in March 2006 for sexual assaulting three female marines at Camp Pendleton in San Diego County. She says the military had assigned Curtis to a recruitment office before discharging him in June 2006.
After he was convicted of two counts of lewd act upon a child, one count of sending harmful matter, one count of sexual penetration by a foreign object and two counts of oral copulation of a person under 16, Curtis was sentenced in December 2009 to 12 years and eight months in prison.
Gallardo sued the government over its failure to discharge Curtis, seeking $5 million in damages.
U.S. District Court Judge John Walter dismissed Gallardo's claims as time-barred, however, noting that Gallardo did not file an administrative claim until almost four years after the incident and "well beyond the two year statute of limitations."
At a hearing before a three-judge panel of the 9th Circuit on Wednesday, Gallardo's attorney Randall Paulson of Santa Ana demanded reversal asked the court to overturn Walter's ruling in light of the en banc 9th Circuit's recent ruling in Wong v. Beebe. In that case, the appeals court had found that the statute of limitations in a section of the Federal Tort Claims Act may be equitably tolled.
Paulson argued in a supplemental brief that Wong applied both to the six-month statute of limitations and the two-year period at issue in Gallardo's case.
"The court didn't delineate any difference between the two in its ruling," Paulson told the panel.
But U.S. Department of Justice attorney Adam Jed argued that, regardless of Wong, there were no factual allegations in Gallardo's complaint "to support the theory of equitable tolling."
"There's something especially strange about sending a case back to a District Court and basically saying to the district judge ... 'this needs to be done over,'" Jed argued.
The appellate panel nevertheless appeared to favor reviving Gallardo's case.
"The reality is, it's a whole new world," Judge Milan Smith said. "The field's changed. The rules have changed. So, you have to start the game over."
Judge William Fletcher noted that the government is defending a "miserable case."
"I'm sure, as you're well aware, that the military has a major problem on its hands with respect to sexual abuse and the disciplining of those who are sexual abusers," Fletcher said. "And what happened here, if the allegations in the complaint are true ... We have a sexual abuser and the command decide that he is a sexual abuser, and his punishment is he's sent out to deal with school children. Terrific. And then the predictable happens and he abuses this girl. And the government is now saying: 'Too bad, too late.' That's how I see this case."
Jed countered that "the fact that a plaintiff has alleged that the government did something inappropriate is not in and of itself the basis for equitable tolling."
The argument failed to sway Fletcher.
"I understand that," the judge said. "But I want to tell you, this is a miserable case for the government to be defending."
Judge Paul Watford joined Judge Smith and Judge Fletcher on the panel.
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