Marine Assault Case Revived in 9th Circuit

(CN) - The government may yet face allegations that the Marine Corps let a known sex offender volunteer at a middle school where he allegedly preyed on a 13-year-old girl, the 9th Circuit found Tuesday.

Martiza Gallardo says former Marine Sgt. Ross Curtis attempted to rape her in his car when she was 13 and a student at a middle school in Hawaiian Gardens, Calif.

She says she met the 24-year-old in March 2006 at a "boot camp" for at-risk youth, where Curtis was a volunteer. He allegedly asked Gallardo for her Myspace address and later contacted her and asked her to "hang out." After Curtis visited Gallardo's school for career day in May 2006, he allegedly lured her into his car and tried to rape her but stopped when she started to cry.

Police arrested Curtis, now no longer in the military, for sexually assaulting a 15-year-old from Whittier about two years later. Investigators pulled Gallardo into the case after finding Curtis' old Myspace messages to her.

Shortly after testifying at Curtis' criminal trial in 2009, Gallardo says she found out that, just two months before he allegedly assaulted her, Curtis had been court-martialed for sexually assaulting three female members of the Marine Corps, and had been assigned to recruitment detail pending a discharge.

Alleging negligence, Gallardo filed an unsuccessful administrative claim with the Marine Corps and the Department of Defense in 2010. She then filed a federal complaint that U.S. District Judge John Walter in Los Angeles dismissed after finding that Gallardo had missed the two-year deadline for claims under the Federal Tort Claims Act (FTCA).

On appeal in the 9th Circuit, Gallardo argued that she had met the deadline because she only found out about Walter's history as a sexual predator in 2009.

While the federal appeals court disagreed on that point, finding instead that the clock had started with the alleged assault in 2006, it remanded the case for a hearing on whether the statute of limitations should be postponed, or, "equitably tolled."

Arguing that equitable tolling was available in an FTCA action would have been a nonstarter in the 9th Circuit before October 2013 when an the en banc court decided Wong v. Beebe.

Setting new precedent, the hotly divided 11-judge panel found that the statute of limitations did not bar an FTCA claim brought by Kwai Fun Wong, matriarch of the Tao Heritage and spiritual leader of the Wu-Wei Tien Tao Association.

That panel found that act's deadline could be postponed because it was a procedural rule rather than a "jurisdictional rule" that involved a court's power to hear a case.

The three-judge panel in Gallardo's case vacated dismissal and remanded "to consider Gallardo's equitable tolling argument in the first instance."

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