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Wong v. Beebe

United States Court of Appeals, Ninth Circuit

October 9, 2013

KWAI FUN WONG; Wu-Wei Tien Tao Association, Plaintiffs-Appellants,
David V. BEEBE, a former Immigration and Naturalization Service (nka Department of Homeland Security) Official; United States of America, Defendants-Appellees.

Argued and Submitted En Banc March 20, 2013.

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[Copyrighted Material Omitted]

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Thomas Martin Steenson (argued), Tom Steenson, Portland, OR; Beth Creighton, Creighton & Rose, Portland, OR, for Plaintiffs-Appellants.

Anne Murphy (argued), James George Bartolotto, and Barbara L. Herwig, Attorneys, United States Department of Justice, Civil Division, Washington, D.C.; R. Joseph Sher, Assistant United States Attorney, Alexandria, VA, for Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon, Robert E. Jones, Senior District Judge, Presiding. D.C. No. 3:01-cv-00718-JO.


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Opinion by Judge BERZON; Concurrence by Chief Judge KOZINSKI; Dissent by Judge TASHIMA; Dissent by Judge BEA.


BERZON, Circuit Judge:

We agreed to hear this case en banc to clarify whether the statute of limitations in 28 U.S.C. § 2401(b) of the Federal Tort Claims Act (" FTCA" ) may be equitably tolled. We hold that § 2401(b) is not " jurisdictional," and that equitable tolling is available under the circumstances presented in this case.


A. Statutory Background

The FTCA contains three timing rules that govern when a plaintiff may file a claim against the United States in the district court: First, 28 U.S.C. § 2675(a) establishes an administrative exhaustion requirement, which states that " [a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency." Section 2675 further provides that " [t]he failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim." Id.

Second, one statute of limitations in § 2401(b) sets a two-year deadline within which a claimant must present his claim " to the appropriate Federal agency ... after such claim accrues." Id. § 2401(b); see United States v. Kubrick, 444 U.S. 111, 119-21, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

Finally, § 2401(b) also establishes a second limitations period— that " [a] tort claim against the United States shall be forever barred ... unless action is begun within six months after the ... final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b).

With this statutory framework in mind, we turn to the procedural history of this case, the material facts of which are not in dispute.

B. Facts

More than a decade ago, Kwai Fun Wong (" Wong" ) and Wu Wei Tien Tao Association (" the Association" ), a religious organization, sued the United States and several Immigration and Naturalization Service (" INS" ) officials for claims arising out of Wong's detention. See Wong v. INS (Wong I), 373 F.3d 952 (9th Cir.2004); Wong v. Beebe (Wong II), 381 Fed.Appx. 715 (9th Cir.2010) (per curiam). The only remaining claim is one under the FTCA, alleging negligence against the United States based on the conditions of her confinement.

Wong and the Association filed their original complaint in the district court on May 18, 2001. That same day, Wong filed her negligence claim with the INS pursuant to the FTCA's administrative exhaustion requirement, 28 U.S.C. § 2675(a). Under § 2675(a), Wong was required to wait six months— until November 19, 2001— or until the INS denied the claim, before filing her negligence claim in the district court. See 28 U.S.C. §§ 1346(b)(1), 2675(a).

On November 14, 2001, Wong filed a motion in the district court seeking leave to file a Second Amended Complaint adding the negligence claim " on or after November 20, 2001" — i.e., after the six-month waiting period required under § 2675(a) had expired. The INS issued a written decision denying Wong's administrative claim on December 3, 2001.

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At that point, Wong had until June 3, 2002, to file her negligence claim in the district court. Here is why: Pursuant to § 2675(a), Wong was prohibited from filing her claim in the district court until after she presented it to the INS and the INS " finally decided [the claim] ... in writing and sent [it] by certified or registered mail." 28 U.S.C. § 2675(a). Alternatively, § 2675(a) gave Wong the option to treat the INS's " failure ... to make final disposition of [her] claim within six months after it [was] filed" as the " final denial of the claim." Id. Wong attempted to exercise that option when she filed her motion in the district court seeking leave to file her amended complaint " on or after November 20, 2001" — six months after she filed her claim with the INS. Had her motion been granted, then, pursuant to § 2401(b), Wong would have had six months— until May 20, 2002— to file her amended complaint with the added FTCA claim in the district court. See id. § 2401(b). As noted, however, the INS denied Wong's claim on December 3, 2001, thereby starting anew the clock on the six-months limitations period in § 2401(b). Thus, the relevant deadline for filing Wong's claim in the district court was June 3, 2002. See Lehman v. United States, 154 F.3d 1010, 1015 (9th Cir.1998).

On April 5, 2002, more than five months after Wong filed her motion seeking leave to amend, the magistrate judge issued Findings and Recommendations (" F & R" ) recommending that Wong be permitted to file an amended complaint adding her FTCA claim. The district court did not issue an order adopting the F & R until June 25, 2002, three weeks after the six-month filing deadline had expired.

Wong did file an amended complaint on August 13, 2002, which included the FTCA claim. The district court, relying on Marley v. United States, 567 F.3d 1030, 1038 (9th Cir.2009), held that § 2401(b) was " jurisdictional," and that equitable tolling was therefore not available to excuse Wong's untimely filing of her claim. The district court dismissed Wong's FTCA claim for lack of jurisdiction. This appeal followed.


A. Applicability of Equitable Tolling to FTCA Claims

1. General Background

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), sets forth the " general rule ... govern[ing] the applicability of equitable tolling in suits against the Government." Id. at 95, 111 S.Ct. 453. That case considered whether the " rule of equitable tolling" applied to an untimely Title VII claim brought against the government. Id. at 94-95, 111 S.Ct. 453. Noting that " [t]ime requirements in lawsuits between private litigants are customarily subject to equitable tolling," Irwin held that " the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id. at 95-96, 111 S.Ct. 453 (internal quotation marks omitted).

Irwin's " general rule" is not without exception. Some statutes of limitation are " more absolute," and do not permit " court[s] to consider whether certain equitable considerations warrant extending a limitations period." John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). " As convenient shorthand, the Court has sometimes referred to the time limits in such statutes as ‘ jurisdictional.’ " Id. at 134, 128 S.Ct. 750 (citing Bowles v. Russell, 551 U.S. 205, 210, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)).

The " jurisdiction" terminology used in the government-defendant equitable

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tolling context can, however, be misleading. In a series of recent cases, the Supreme Court has " pressed a stricter distinction between truly jurisdictional rules, which govern ‘ a court's adjudicatory authority,’ and nonjurisdictional ‘ claim-processing rules,’ which do not." Gonzalez v. Thaler, __ U.S. __, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (quoting Kontrick v. Ryan, 540 U.S. 443, 454-55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (emphasis added)). This distinction is critical for present purposes, because, while courts " [have] no authority to create equitable exceptions to jurisdictional requirements," Bowles, 551 U.S. at 214, 127 S.Ct. 2360, nonjurisdictional claim-processing requirements remain " subject to [ Irwin's ] rebuttable presumption in favor of equitable tolling." Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted).

Applying these principles to the particular statute of limitations here, our case law has come to contradictory results. Alvarez-Machain v. United States (Alvarez-Machain I), 107 F.3d 696, 701 (9th Cir.1996), held that " [e]quitable tolling is available for FTCA claims in the appropriate circumstances." Twelve years later, Marley held precisely the opposite, stating " that the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, equitable doctrines that otherwise could excuse a claimant's untimely filing do not apply." [1]567 F.3d at 1032; see also Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011) (applying Marley ).

We agreed to hear this case to resolve the conflict between Alvarez-Machain I and Marley. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc). Doing so, we join with several other circuits in concluding that § 2401(b) is subject to equitable tolling. See Arteaga v. United States, 711 F.3d 828, 832-33 (7th Cir.2013); Santos ex rel. Beato v. United States, 559 F.3d 189, 194-98 (3d Cir.2009); Perez v. United States, 167 F.3d 913, 916-17 (5th Cir.1999).

2. Jurisdictional vs. Nonjurisdictional Claim-Processing Rules

As a threshold matter, we must decide whether § 2401(b) is a " jurisdictional" rule, to which equitable doctrines cannot apply, or a nonjurisdictional " claim-processing rule" subject to Irwin's presumption in favor of equitable tolling. Both Alvarez-Machain I and Marley were decided without the benefit of the Supreme Court's most recent decisions clarifying the difference between these two categories. Accordingly, before turning to § 2401(b) itself, we discuss the Court's efforts in recent years to " bring some discipline" to the " jurisdictional" label. See Henderson ex rel. Henderson v. Shinseki, __ U.S. __, 131 S.Ct. 1197, 1202-03, 179 L.Ed.2d 159 (2011); see also Gonzalez, 132 S.Ct. at 648.

The consequences of labeling a particular statutory requirement " jurisdictional" are " drastic." Gonzalez, 132 S.Ct. at 648. A court's " [s]ubject-matter jurisdiction can never be waived or forfeited,"

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" objections [to the court's jurisdiction] may be resurrected at any point in the litigation," and courts are obligated to consider sua sponte requirements that " go[ ] to subject-matter jurisdiction." Id.; see also Henderson, 131 S.Ct. at 1202; Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir.2009).

The Court has clarified in recent years that the term " ‘ [j]urisdiction[al]’ refers to a court's adjudicatory authority ... [and] properly applies only to prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) implicating that authority." Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (emphasis added) (internal quotation marks and citation omitted). Under this narrow interpretation, the term " jurisdictional" " refers [only] to a tribunal's power to hear a case." Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009) (internal quotation marks omitted). So-called " claim-processing rules," by contrast, " are rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson, 131 S.Ct. at 1203.

" To ward off profligate use of the term ‘ jurisdiction,’ [the Court has] adopted a ‘ readily administrable bright line’ for determining whether to classify a statutory limitation as jurisdictional." Sebelius v. Auburn Reg'l Med. Ctr., __ U.S. __, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). Specifically, courts must now ask " whether Congress has ‘ clearly state[d]’ that the rule is jurisdictional; absent such a clear statement ... ‘ courts should treat the restriction as nonjurisdictional in character.’ " Id. (quoting Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235). Congress need not " incant magic words in order to speak clearly." Id. Rather, courts are to review a statute's language, " context, and relevant historical treatment" to determine whether Congress clearly intended a statutory restriction to be jurisdictional. Reed Elsevier, Inc., 559 U.S. at 166, 130 S.Ct. 1237.

Applying this bright-line rule in a spate of recent cases, the Court has held nonjurisdictional various statutory limitations on the substantive coverage of statutes or the procedures for enforcing them. See, e.g., Union Pac. R.R., 558 U.S. at 81-82, 130 S.Ct. 584 (holding not jurisdictional a Railway Labor Act procedural rule requiring proof of a prearbitration settlement conference); Reed Elsevier, 559 U.S. at 164-66, 130 S.Ct. 1237 (holding not jurisdictional the Copyright Act registration requirement); Gonzalez, 132 S.Ct. at 648-52 (holding not jurisdictional certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ) requiring issuance of a certificate of appealability indicating which specific issues sufficiently implicate the denial of a constitutional right); but see Bowles, 551 U.S. at 209-10, 127 S.Ct. 2360 (holding jurisdictional a time limit for filing a notice of appeal in a civil case under 28 U.S.C. § 2107(c)).

As the issue here pertains to a statute of limitations, the Court's recent decisions applying the " clear statement" rule to statutory time limits are particularly instructive. Henderson held that " a veteran's failure to file a notice of appeal within the 120-day period" required under 38 U.S.C. § 7266(a) " should [not] be regarded as having ‘ jurisdictional’ consequences." 131 S.Ct. at 1200. Canvassing the Court's recent case law discussing jurisdictional versus nonjurisdictional rules, Henderson explained that " [f]iling deadlines ... are

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quintessential claim-processing rules." Id. at 1203 (emphasis added). " [E]ven if important and mandatory," such rules, " should not be given the jurisdictional brand." Id.

Turning to the text of § 7266, Henderson emphasized that the relevant provision " ‘ does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [Veterans Court].’ " Id. at 1204 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (alteration in original)). Although " § 7266 is cast in mandatory language" — providing that a claimant " shall file a notice of appeal ... within 120 days" — Henderson " rejected the notion that ‘ all mandatory prescriptions, however emphatic, are ... properly typed jurisdictional.’ " Id. at 1204-05 (quoting Union Pac. R.R., 558 U.S. at 81, 130 S.Ct. 584) (emphasis added). Indeed, as Henderson noted, Congress placed § 7266 " in a subchapter entitled ‘ Procedure,’ " and not in the " Organization and Jurisdiction" subchapter of the statute, which " suggests Congress regarded the 120-day limit as a claim-processing rule." Id. Henderson therefore found no clear statement indicating that § 7266 was " jurisdictional." Id. ; see also Holland, 130 S.Ct. at 2560 (holding not jurisdictional AEDPA's statute of limitations in 28 U.S.C. § 2244(d)).

More recently, Auburn Regional Medical Center considered whether the Medicare Act's 180-day statutory deadline for filing an administrative appeal challenging Medicare reimbursements is jurisdictional. 133 S.Ct. at 821. The Court held that it is not. " Key to our decision," the Court explained, is that " filing deadlines ordinarily are not jurisdictional; indeed, we have described them as ‘ quintessential claim-processing rules.’ " Id. at 825 (quoting Henderson, 131 S.Ct. at 1203).

Auburn Regional Medical Center went on to reject the notion that the 180-day limit was " jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions." Id. at 825. Nor was it significant in Auburn Regional Medical Center that Congress " expressly made ... other time limits in the Medicare Act" nonjurisdictional. Id. (emphasis added). Structural considerations such as these did not provide a " clear statement" that Congress intended the 180-day limit to be jurisdictional. The limitations provision was therefore " most sensibly characterized as a nonjurisdictional prescription." Id. at 826.

Finally, we applied a similar analysis in a recent en banc case addressing whether the exhaustion-of-remedies requirement of the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1415( l ), is jurisdictional. See Payne v. Peninsula Sch. Dist., 653 F.3d 863 (2011) (en banc). Based on the Supreme Court's recent line of cases " clarifying the difference between provisions limiting our subject matter jurisdiction, which cannot be waived ..., and ‘ claims processing provisions,’ " we concluded that § 1415( l ) is not jurisdictional for three reasons. Id. at 867-69 (citing cases).

First, " we observe[d] that nothing in § 1415 mentions the jurisdiction of the federal courts." Id. at 869. " Second, nothing in the relevant jurisdictional statutes requires exhaustion under the IDEA." Id. at 870. " Without clearer instruction from Congress," we declined to " infer" a jurisdictional exhaustion-of-remedies requirement. Id. " Finally, we [could] find no reason why § 1415( l ) should be read to make exhaustion a prerequisite to the exercise of federal subject matter jurisdiction." Id. To the contrary, we suggested that there were " many good reasons why" § 1415( l ) should not qualify as jurisdictional. Most notably, determining whether a plaintiff had exhausted her remedies

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is an " inexact science," subject to various " fact-specific" questions such as whether exhaustion would be futile. Id. Thus, we summarized, § 1415( l ) is not jurisdictional, as it " is not clearly labeled jurisdictional, is not located in a jurisdiction-granting provision, and admits of congressionally authorized exceptions." Id. at 870-71 (quoting Reed Elsevier, 559 U.S. at 166, 130 S.Ct. 1237); see also Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 979 (9th Cir.2012) (holding that an employee's status as a plan " participant" is an element of his ERISA claim, not a jurisdictional limitation).

3. § 2401(b) Is Not Jurisdictional

Marley stated that " [r]esolution of the present case ... [first] depends on how to categorize the six-month filing deadline of § 2401(b)" — as a " jurisdictional" requirement or as a nonjurisdictional " claim-processing rule." 567 F.3d at 1035. That is true, but only in the asymmetrical sense that if the deadline is jurisdictional, it cannot be tolled; as will appear, even if it is not jurisdictional, tolling may still be precluded by a sufficiently clear congressional expression of that restriction. We hold that § 2401(b) falls squarely in the claim-processing category, and so overrule Marley's contrary conclusion.

Several factors underlie our conclusion that § 2401(b) is nonjurisdictional.

a. Language

First, by its terms, § 2401(b) provides only that " [a] tort claim against the United States shall be forever barred unless ... action is begun within six months" of mailing of notice of the final agency denial. 28 U.S.C. § 2401(b). That statement " does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [federal courts]." Henderson, 131 S.Ct. at 1204; see also Payne, 653 F.3d at 869-70. Rather, § 2401(b) merely states what is ordinarily true of statutory filing deadlines: once the limitations period ends, whether extended by the application of tolling principles or not, a plaintiff is " forever barred" from presenting his claim to the relevant adjudicatory body. See Kubrick, 444 U.S. at 117, 100 S.Ct. 352.

Notably, although the exact language differs, § 2401(b) is the same in its lack of a reference to jurisdiction as the general, non-tort statute of limitations contained in § 2401(a), which establishes a six-year filing deadline for " every civil action commenced against the United States." 28 U.S.C. § 2401(a). And Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 770 (9th Cir.1997), held subsection (a) nonjurisdictional, emphasizing that it " does not speak of jurisdiction, but erects only a procedural bar." [2]

Contrary to the government's assertion, § 2401(b) does not contain such unusually emphatic language that we may infer congressional intent to limit the adjudicatory authority of the federal courts from that language. We have held on prior occasions that statutes of limitations containing the phrase " forever barred" are subject to equitable tolling. For example, the 1955 Clayton Act Amendments provided that any action to enforce a right under §§ 15, 15a, and 15c of the Act " shall be forever barred unless commenced within four years after the cause of action accrued." 15 U.S.C. § 15b (emphasis added); see also Pub.L. No. 137, 69 Stat. 283 (1955).

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Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 396-407 (9th Cir.1980), determined that § 15b could be equitably tolled. See also Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1060-61 (9th Cir.2012) (discussing tolling under § 15b); cf. Rotella v. Wood, 528 U.S. 549, 561, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (indicating that equitable tolling may be available for civil claims brought under the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), which applies the same four-year statute of limitations in 15 U.S.C. § 15b).

Likewise, the 1947 amendments to the Fair Labor Standards Act (" FLSA" )— which were enacted on the heels of the FTCA— provided that every action under the FLSA " shall be forever barred unless commenced within two years after the cause of action accrued" 29 U.S.C. § 255(a) (emphasis added); see also Pub.L. No. 40, § 6(b), 61 Stat. 84, 88 (1947). Partlow v. Jewish Orphans' Home of Southern California, 645 F.2d 757, 760-61 (9th Cir.1981), abrogated on other grounds by Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989), held that this statute of limitations could be equitably tolled.

In various other statutes enacted in the mid-twentieth century, Congress included limitations provisions " forever barr[ing]" untimely claims. See, e.g., Automobile Dealer Franchise Act of 1956, 84 Pub.L. No. 1026, § 3, 70 Stat. 1125 (1956), codified at 15 U.S.C. § 1223 (" Any action brought pursuant to this Act shall be forever barred unless commenced within three years after the cause of action shall have accrued." ) (emphasis added); National Traffic and Motor Vehicle Safety Act of 1966, Pub.L. No. 89-563, § 111(b), 80 Stat. 718, 725 (1966), as amended by Pub.L. No. 103-272, 108 Stat. 745 (1994) (" Any action brought pursuant to this section shall be forever barred unless commenced within three years after the cause of action shall have accrued." ) (emphasis added); Agricultural Fair Practices Act of 1967, Pub.L. No. 90-288, § 6(a), 82 Stat. 93, 95 (1967), codified at 7 U.S.C. § 2305(c) (same); National Mobile Home Construction and Safety Standards Act of 1974, Pub.L. No. 93-383, § 613, 88 Stat. 633, 707 (1974), codified at 42 U.S.C. § 5412(b) (same). Viewed against this backdrop, § 2401(b)'s " forever barred" language appears to be more a vestige of mid-twentieth-century congressional drafting conventions than a " clear statement" of Congress's intent to include a jurisdictional filing deadline in the FTCA.

Moreover, even if one does read the " forever barred" language in § 2401(b) as an especially emphatic limitation on FTCA claims, the Supreme Court's recent line of cases clarifying the jurisdictional/nonjurisdictional distinction make plain that not all " ‘ mandatory prescriptions, however emphatic, are ... properly typed jurisdictional.’ " Henderson, 131 S.Ct. at 1205 (quoting Union Pac. R.R., 558 U.S. at 81, 130 S.Ct. 584) (emphasis added); see also Gonzalez, 132 S.Ct. at 651; Kontrick, 540 U.S. at 454, 124 S.Ct. 906. And nothing in the text of § 2401(b) suggests that it is anything other than a straightforward filing deadline— a " quintessential claim-processing rule [ ]." Henderson, 131 S.Ct. at 1203.

Undeterred by the statute's silence as to whether the limitations period is jurisdictional (and by its placement in a section not directed at jurisdiction), Judge Bea offers a grand theory as to why § 2401(b) nonetheless clearly states a jurisdictional rule, positing that there are two types of statutes of limitations: " Plain Statutes of Limitations" and " Consequence Statutes of Limitations." Bea Dissent at 1063, 1065. The latter purportedly " provide mandatory consequences for failures to act according to their prescriptions," id. at 1066, and so

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" require the courts to respond in a certain way to a party's failure to timely act." Id. Judge Bea's dissent goes on to maintain that whenever a limitations provision states that a claim " shall be ... barred," or " forever barred," " Congress has spoken in jurisdictional terms" and the courts lack authority to adjudicate the claim— even if there is no mention of jurisdiction or placement in a jurisdiction provision. Id. at 1066-67.

Judge Bea's consequential language approach is not one that the Supreme Court has ever articulated or relied upon in determining whether a particular limitations provision is jurisdictional. Indeed, the Court criticized this approach in Irwin, noting that, " [a]n argument can undoubtedly be made that the ... language is more stringent ..., but we are not persuaded that the difference ... is enough to manifest a different congressional intent with respect to the availability of equitable tolling." 498 U.S. at 95, 111 S.Ct. 453. While the Court has held jurisdictional certain limitations provisions containing the phrase " shall be ... barred," it has never relied on the notion of " consequential" language to do so.[3] Instead, the Court has repeatedly eschewed a " magic words" approach to determining whether procedural requirements are jurisdictional, repeatedly taking a multifactor approach to the inquiry. See Reed Elsevier, 559 U.S. at 165, 130 S.Ct. 1237; Auburn Reg'l Med. Ctr., 133 S.Ct. at 824.

Beyond that observation, we shall bypass ruling on whether Judge Bea's " consequential" language theory is a helpful construct in some circumstances. As with most attempts to create rigid dichotomous categories, the trick is not in devising the categories but in placing various circumstances into one or the other category. Although, according to Judge Bea, a limitations provision containing " shall ... be barred" language " ‘ set[s] forth an inflexible rule requiring dismissal,’ " Bea Dissent at 1068 (quoting Holland, 130 S.Ct. at 2560), the words relied upon simply do not have that import.

First, as to the word " shall," the Court consistently has rejected arguments " seiz[ing] on the word ‘ shall’ " to suggest that " ‘ all mandatory prescriptions, however emphatic, are ... properly typed jurisdictional.’ " Gonzalez, 132 S.Ct. at 651 (quoting Henderson, 131 S.Ct. at 1205); see also Dolan v. United States, 560 U.S. 605, 130 S.Ct. 2533, 2539, 177 L.Ed.2d 108 (2010) (holding that a statute's use of the word " shall" alone does not render statutory deadline jurisdictional).

Second, § 2401(b) does not in terms order courts to do anything, including dismiss any untimely claim. Like the exhaustion-of-remedies requirement at issue in Payne, " neither the word ‘ courts' nor the word ‘ jurisdiction’ appears in [§ 2401(b) ]." Payne, 653 F.3d at 869. Instead, the phrase " shall be ... barred" is couched in the passive tense, and so could as well be directed to the plaintiff, barring him from filing the suit, as to the court, directing it to bar the filing. The " shall be ... barred" language of the six-month filing deadline therefore does not express " an inflexible rule requiring dismissal whenever

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its clock has run." Holland, 130 S.Ct. at 2560 (internal quotation marks omitted).

Third, the word " forever" in § 2401(b) cannot supply the missing link with regard to declaration of an inflexible rule. See Bea Dissent at 1068-69. The word " forever" is most commonly understood as one focusing on time, not on scope or degree of flexibility in a static time frame. See Webster's New International Dictionary of the English Language 990 (2d ed.1940) (defining " forever" to mean " [f]or a limitless time or endless ages; everlastingly; eternally," and " [a]t all times; always; incessantly" ); Oxford English Dictionary (2013) (defining " forever" to mean " [a]lways, at all times; in all cases ... [t]hroughout all time, eternally; throughout all past or all future time; perpetually" ). As such, the term " forever" is most naturally read to emphasize that an untimely FTCA claim, once barred, is precluded permanently, not temporarily or until some later event occurs. A claimant therefore cannot refile the claim, nor may the time bar be lifted once it is imposed. So understood, the term " forever" does have a function in the statute, just not the one Judge Bea posits.[4] Thus, as the Fifth Circuit observed, " the use of the words ‘ forever barred’ [in § 2401(b) ] is irrelevant to equitable tolling, which properly conceived does not resuscitate stale claims, but rather prevents them from becoming stale in the first place." [5] Perez, 167 F.3d at 916.

In sum, nothing in the language of § 2401(b)— including the term " shall ... be barred," and the word " forever" — supplies a " clear statement" that Congress intended the six-month filing deadline to be jurisdictional. [6]

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b. Placement

The " context" surrounding § 2401(b) likewise does not " clearly" indicate Congress's intent to " rank" this provision as jurisdictional. Auburn Reg'l Med. Ctr., 133 S.Ct. at 824.

The jurisdiction-granting provision of the FTCA is located at 28 U.S.C. § 1346(b)(1) and provides that " [s]ubject to the provisions of chapter 171 of this title, the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States ... under circumstances where the United States, if a private person, would be liable to the claimant." Section 1346(b)(1) makes no mention of the six-month filing deadline in § 2401(b). Furthermore, while § 1346(b)(1) does cross-reference " the provisions of chapter 171," it does not cross-reference § 2401(b), which is located in chapter 161, not chapter 171. Thus, the FTCA's statute of limitations " is located in a provision separate from [the provision] granting federal courts subject-matter jurisdiction over [FTCA] claims." Reed Elsevier, 559 U.S. at 164, 130 S.Ct. 1237 (internal quotation marks omitted); see also Henderson, 131 S.Ct. at 1205.

Further, even if § 1326(b) did mention the six-month filing deadline in § 2401(b), the Court's recent guidance on this subject indicates that an otherwise nonjurisdictional rule's location within a statutory scheme does not automatically transform the rule into a jurisdictional prerequisite. Thus, a rule " does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions." Auburn Reg'l Med. Ctr., 133 S.Ct. at 825; see also Gonzalez, 132 S.Ct. at 651.

Not satisfied with the plain language of § 1346(b), the government looks elsewhere for a " clear statement" of § 2401(b)'s jurisdictional import: the legislative history of the FTCA. According to the government, " [t]he FTCA's limitations provision is found outside of chapter 171 only as a happenstance of recodification." In his dissent, Judge Tashima likewise relies on the earlier version of the FTCA to conclude that " Congress provided a clear statement [that the FTCA's limitations provision was jurisdictional] when enacting the provision in 1946," and that statement remains clear today. Tashima Dissent at 1059.

In the first place, and dispositively, it is improper to consider legislative history in this instance. " [T]he authoritative statement is the statutory text, not the legislative history or any other extrinsic material." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Consequently, " when the statute's language is plain, the sole function of the courts— at least where the disposition required by the text is not absurd— is to enforce it according to its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)) (internal quotation marks omitted). The current statutory language of § 1326(b), the FTCA jurisdictional provision, cross-references other provisions of the FTCA but not the chapter containing the limitations provision,

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§ 2401(b). There is no ambiguity whatever in this regard; chapter 171 is not, and does not include, chapter 161, period.[7]

Secondly, even if we were to consider the FTCA's legislative history, we could find no " clear statement" as to jurisdiction. See Exxon Mobil, 545 U.S. at 568-69, 125 S.Ct. 2611. Congress first enacted the FTCA in 1946 as Title IV of the Legislative Reorganization Act (" 1946 Act" ). See Pub.L. No. 79-601, tit. IV, 60 Stat. 812, 842-47 (1946). The provisions of the FTCA were codified in chapter 20 of Title 28 of the United States Code. See 28 U.S.C. §§ 921-46 (1946).[8] As originally codified, the FTCA's grant of jurisdiction read:

Subject to the provisions of this chapter, the United States district court for the district court wherein the plaintiff is resident or wherein the act or omission complained of occurred ... shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only ... on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred.
id. Id ...

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