Gallardo v. United States

In pursuing a Federal Tort Claims Act (“FTCA”) action, a plaintiff’s claim accrues when she becomes aware of her injury and its cause, however, equitable tolling of the FTCA’s statute of limitations may be appropriate in some circumstances.

In the fall of 2008, in connection with an investigation regarding Curtis’s arrest for sexual assault of another minor, investigators found Maritza Gallardo’s contact information on the home computer of Ross Curtis, a Marine Corps sergeant. Gallardo was interviewed in her home and later subpoenaed to attend Curtis’s criminal trial. During that trial, Gallardo learned that in March 2006 Curtis had been court-martialed for sexually assaulting three female Marines. The result of the court-martial left Curtis assigned to recruitment detail. In May of 2010, Maritza Gallardo filed a Federal Tort Claims Act (“FTCA”) action against the United States in district court making an administrative claim of negligence. Gallardo alleged Ross Curtis, then a Marine Corps sergeant assigned to recruitment detail at Gallardo’s middle school, had sexually assaulted her in May of 2006. The district court dismissed Gallardo’s claim as time barred. The issue on appeal is whether equitable tolling is appropriate in this case. The FTCA’s statute of limitations is two years, absent tolling. The Ninth Circuit held that a claim accrues when a plaintiff is made aware of her injury and its immediate cause. The plaintiff need not be aware that her injury was the result of negligence at the time of accrual. However, the panel also held that equitable tolling of the statute of limitations may be appropriate. The panel vacated the district court’s holding that Gallardo’s claim is time-barred and remanded for determination regarding appropriateness of equitable tolling in this case. AFFIRMED in part, VACATED in part, and REMANDED.