Strip-Searched Minister Can Press Tort Case

(CN) - The 9th Circuit on Wednesday revived allegations that the Immigration and Naturalization Service improperly strip-searched a Tien Tao minister and denied her vegetarian meals.

A full, 11-judge panel of the federal appeals court found that Kwai Fun Wong's claim under the Federal Tort Claims Act (FTCA) is not barred by the statute of limitations.

Wong, a citizen of the United Kingdom, is Matriarch of the Tao Heritage and spiritual leader of the Wu-Wei Tien Tao Association, and has taken vows of vegetarianism and celibacy, according to the court.

Wong lived in Oregon on a visitor visa until 1999, when she left the U.S. to attend the funeral of her spiritual predecessor. She returned 18 days later and was arrested by the INS and held in a county jail for five days. She says she was stripped searched twice, once in the presence of a male jailer, and denied vegetarian meals.

Wong filed her first complaint in 2001, and since then the case has twice gone to the 9th Circuit. The case's sole remaining issue is Wong's FTCA claim, which U.S. District Judge Robert Jones ruled had been filed outside the statute of limitations. Jones further found that, under 9th Circuit precedent, FTCA claims cannot be tolled.

The appeals court agreed 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 Wednesday, 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," wrote Judge Marsha Berzon. "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.

However, he 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."

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