Minister’s Strip-Search Case Heads to High Court

     WASHINGTON (CN) – The Supreme Court on Monday agreed to decide whether a statute of limitations bars tort claims brought by a Tien Tao minister, the matriarch of the Tao Heritage.
     In answering that question in the negative last year, the en banc 9th Circuit found the statute of limitations in 28 U.S.C. § 2401(b) of the Federal Tort Claims Act 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 ruling revived allegations against the Immigration and Naturalization Service over its strip search of Kwai Fun Wong, the matriarch of the Tao Heritage and spiritual leader of the Wu-Wei Tien Tao Association.
     The agency had arrested Wong, a citizen of the United Kingdom who has taken vows of vegetarianism and celibacy, in 1999 after she left the United States for 18 days to attend the funeral of her spiritual predecessor.
     Prior to her five-day arrest, Wong had lived in Oregon on a visitor visa. She claimed she was strip-searched twice, once in the presence of a male jailer, and denied vegetarian meals.
     Wong filed her first complaint in 2001, and her case has gone to the 9th Circuit over the years. U.S. District Judge Robert Jones ruled that the final remaining issue, Wong’s FTCA claim, had been filed outside the statute of limitations and that FTCA claims cannot be tolled under 9th Circuit precedent.
     The 9th Circuit eventually decided to reconsider the issue before a full, en banc panel of judges to “clarify whether the statute of limitations in 28 U.S.C. § 2401(b) of the FTCA may be equitably tolled.”
     In a nearly 100-page ruling published this past October, a split panel found that it can be in certain circumstances.
     As a “non-jurisdictional” or procedural rule, as opposed to a “jurisdictional rule” that involves a court’s power to hear a case, the FTCA’s six-month statute of limitations can be tolled, the panel found. In doing so the majority tossed its 2009 holding to the contrary in Marley v. United States.
     “In short, nothing in the text, context, or purpose of § 2401(b) clearly indicates that the FTCA’s six-month limitations period implicates the district courts’ adjudicatory authority,” Judge Marsha Berzon wrote for the majority. “We therefore hold that § 2401(b) is a non-jurisdictional claim-processing rule subject to the presumption in favor of equitable tolling, and so overrule Marley’s contrary holding.”
     In the case at hand, the panel found that “Wong’s circumstances easily justify equitable tolling,” as her alleged untimeliness was clearly a lower court’s fault.
     “Wong’s claim was untimely because it was not filed within the six-month window running from December 3, 2001-the date on which the INS denied Wong’s administrative claim-to June 3, 2002,” Berzon wrote. “That result was not the consequence of any fault or lack of due diligence on Wong’s part. If anything, Wong took special care in exercising due diligence: Wong first sought leave to file her amended complaint ‘on or after November 20, 2001,’ which was, at the time that request was filed, the first day following exhaustion of her administrative remedies on which Wong would have been permitted to file her claim in the district court.”
     In a concurrence, Chief Judge Alex Kozinski disagreed that the statute of limitations in the FTCA could be tolled, agreeing with two dissenting judges that it was jurisdictional.
     Kozinski nevertheless argued that the court should have treated Wong’s reply memorandum as a motion and thus avoided the issue altogether.
     “After all, had the district court acted on her motion within the section 2401(b) six-month period, she wouldn’t be in this fix,” Kozinski wrote. “But the court took more than seven months to act on this routine motion-a delay Wong didn’t cause and couldn’t have foreseen. The government suggests that, instead of waiting for the district court to act on her motion, Wong should have refiled it. Yeah, right. How many litigants have the nerve to vex a federal judge with a clone motion while the original is still pending? Bad things can happen to those who twist the tiger’s tail.”
     Judge Carlos Bea was joined by Judge A. Wallace Tashima in a dissent that argued against tolling.
     “The majority opinion permits courts, for equitable reasons, to extend the time in which a tort action can be begun against the Government, after the obligatory administrative claim has been filed and denied,” Bea wrote. “Because I believe Congress clearly expressed its intent that 28 U.S.C. § 2401(b) would limit the jurisdiction of federal courts by providing that tort claims ‘shall be forever barred’ unless action is begun within the six-month period following denial of the administrative claim by the concerned agency, with no exceptions, I respectfully dissent.”
     In granting the United States a writ of certiorari Monday, the Supreme Court followed its custom of not issuing any comment.
     The Supreme Court also granted certiorari Monday for the government in another case that the 9th Circuit revived in light of Wong v. Beebe.
     That case involves tort claims filed by Marlene June as conservator for A.K.B. The 9th Circuit revived the case on Dec. 24 in an unpublished decision.

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