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FTCAUAccording to the United States Supreme Court, the two-year and six-month time limits in section §2401(b) of the Federal Tort Claims Act (FTCA) “are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.”

Under the FTCA, “the United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages (28 U.S.C. §2674).”  The FTCA is a limited waiver of the United States’ immunity from tort liability and, therefore, the language of the Act is strictly construed.

Relevant to this summary update is the FTCA’s statute of limitations language which provides “a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented (28 U.S.C. §2401(b)).”

When the FTCA was adopted in 1946, claimants had only one year to file suit in federal district court from claim accrual (see Legislative Reorganization Act of 1946, ch. 753, 60 Stat. 812 (codified at 40 U.S.C. §§2, 33 and 40 (1986)). Originally, there was no requirement for claimants to first submit a tort claim to a federal agency before filing suit. However, where claimants did present a claim to a federal agency within one year of accrual, they had six months to file suit from whenever the claim was denied or withdrawn.

In 1949, the one year limitations period was extended to two years, but no changes were made to the six-month time period applicable to agency denials (see H.R. REP. NO. 81-276 (1949); S. REP. NO. 81-135 (1949); H.R. REP. NO. 80-1754 (1948).

In 1966, the FTCA was amended to include the presentment requirement (see 28 U.S.C. §2401(b)). Under the 1966 changes, an FTCA claimant had two years after accrual to present the claim to the appropriate agency for potential resolution (see 28 U.S.C. §§2401(b) and 2675(a)).

Before 1990, federal courts almost uniformly held that the FTCA’s two-year and six-month limitations periods were not subject to equitable tolling (see, e.g., Leonhard v. U.S., 833 F.2d 599 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981); Lien v. Beehner, 453 F.Supp. 604 (N.D.N.Y. 1978), Hoch v. Carter, 242 F.Supp. 863 (S.D.N.Y. 1965)).

Irwin v. Dept. of Veterans Affairs

The landscape changed in 1990, when the Supreme Court addressed equitable tolling in Irwin v. Department of Veterans Affairs (see 498 U.S. 89 (1990)). At issue in Irwin was whether the plaintiff could maintain a district court action for violation of Title VII of the Civil Rights Act of 1984 when he did not commence suit within 30 days after the issuance of a right-to-sue letter by the Equal Employment Opportunity Commission (EEOC). Specifically, the plaintiff alleged that, while his attorney received the right-to-sue letter on March 24, 1987, he did not receive the letter until he returned from travel outside of the country on April 10, 1987. In turn, he argued that the action was viable because he commenced suit within 30 days of April 10, 1987 and, moreover, that any error on his part may be excused under equitable tolling principles. The district court dismissed the complaint and the Court of Appeals for the Fifth Circuit affirmed (see 874 F.2d 1092 (1989)).

The Supreme Court granted certiorari to determine when the 30 day period under 42 U.S.C. §2000e-16(c) started running and to resolve a Circuit Court conflict over whether late-filed claims were jurisdictionally barred. The Court noted that “[t]ime requirements in lawsuits between private litigants are customarily subject to equitable tolling,” and that “we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver” of sovereign immunity. While the Court concluded that the plaintiff’s claim was properly dismissed (due to a “garden variety claim of excusable neglect”) it held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so.”

After Irwin, most courts held that FTCA limitations periods were not jurisdictional and could be equitably tolled (see, e.g., Kronisch v. U.S., 150 F.3d 12 (2d Cir. 1998); Hyatt v. U.S., 968 F.Supp. 96 (E.D.N.Y. 1997); Long v. Card, 882 F.Supp. 1285 (E.D.N.Y. 1995)).

U.S. v. Brockamp and U.S. v. Beggerly

The Supreme Court decisions in United States v. Brockamp (see 519 U.S. 347 (1997)) and United States v. Beggerly (see 524 U.S. 38 (1998)), cast doubt on the availability of equitable tolling in FTCA cases. In Brockamp, the Court rejected the plaintiff’s reliance upon Irwin, and held that Congress did not intend the equitable tolling doctrine to apply to §6511 of the Internal Revenue Code of 1986. In Beggerly, the Court also rejected the plaintiff’s reliance upon Irwin, and held that equitable tolling was not available in a suit brought pursuant to the Quiet Title Act.

After Brockamp and Beggerly, courts took a number of approaches to equitable tolling. Some appear to have altogether ignored the decisions, while others distinguished the FTCA from the statutes at issue in Brockamp and Beggerly, or crafted case-specific justifications to keep equitable tolling alive. Regardless, doubt remained.

U.S. v. Wong

On April 22, 2015, the Supreme Court issued a seminal decision in United States v. Kwai Fun Wong (575 U.S. __ (2015)). In sum, equitable tolling is alive and well in FTCA cases.

Two cases were before the Court in Wong. In the first (U.S. v. Wong), the plaintiff alleged that she was falsely imprisoned for five days by the Immigration and Naturalization Service (INS). On May 18, 2001, she timely presented an administrative tort claim to the INS. That same day, she also filed suit in district court asserting various non-FTCA claims against the Government arising out of the same misconduct.

Perhaps anticipating that her claim would be denied by the INS, the plaintiff moved in mid-November of 2001 to amend the complaint to include her FTCA claims. INS denied her claim on December 3, 2001. Thus, under the FTCA, Wong had until June 3, 2002 to file an FTCA action in federal court.

On April 5, 2002, a Magistrate Judge recommended granting leave to amend, but the district court did not adopt the Magistrate’s recommendation until June 25, 2002 – twenty-two (22) days after expiration of the FTCA’s six-month deadline. An amended complaint was filed on August 13, 2002. The Government moved to dismiss the FTCA claim on the ground that it was filed late. Initially, the district court rejected the motion, recognizing equitable tolling for the time between the Magistrate’s recommendation and the district court’s order.

Several years later, the Government moved for reconsideration relying upon Marley v. U.S. (567 F.3d 1030 (9th Cir. 2009)), and argued that the 2401(b) six-month time-period was jurisdictional and not subject to equitable tolling. The district court dismissed the plaintiff’s claim, but the Ninth Circuit heard the case en banc, holding that the six-month time limit was not jurisdictional and that equitable tolling was available (see Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013)).

In the second case (U.S. v. June), the plaintiff filed a wrongful death action against the State of Arizona for the 2005 death of Andrew Booth, who was killed in a collision that occurred after his car crossed through a cable median barrier. Years into the state court litigation, the plaintiff learned that the Federal Highway Administration (FHWA) had approved installation of the barrier despite knowledge that the barrier had not been crash tested.

In 2010, the plaintiff presented a tort claim to the FHWA. After the claim was denied, the plaintiff filed suit in district court and argued that equitable tolling should apply because the Government concealed the absence of crash testing. The district court dismissed the action as untimely under the FTCA’s two-year bar, but the Ninth Circuit reversed in light of its recent decision in Wong v. Beebe (see 732 F.3d 1030 (9th Cir. 2013)).

The Supreme Court granted certiorari in both cases (see 573 U.S. __ (2014)), to resolve a Circuit Court split about whether courts may equitably toll §2401(b)’s two-year and six-month time limits (compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability Litigation, 646 F.3d 185 (5th Cir. 2011) (tolling unavailable), with Arteaga v. U.S., 711 F.3d 828 (7th Cir. 2013 (tolling available).

The Court’s analysis in Wong began with a review of Irwin including, specifically, the notion of the “rebuttable presumption” of equitable tolling. “One way to meet that burden – and the way the Government pursued here – is to show that Congress made the time bar at issue jurisdictional. Where that is so, a litigant’s failure to comply with the bar deprives a court of all authority to hear a case. Hence, a court must enforce the limitation even if the other party has waived any timeliness objection . . . [a]nd, more crucially here, a court must do so even if equitable considerations would support extending the prescribed time period.”

Noting that the “Government must clear a high bar to establish that a statute of limitations is jurisdictional,” and that “most time bars are nonjursdictional,” the Court held that in order for a deadline to be jurisdictional, Congress “must do something special, beyond setting a exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit the court from tolling it.” In the case of the FTCA, “Congress did nothing of that kind.”

Further, the Court stated that “2401(b)’s text speaks only to a claim’s timeliness, not to a court’s power. It states that a tort claim against the United States shall be forever barred unless it is presented to the agency within two years . . . or unless action is begun within six months of the agency’s denial of the claim. That is mundane statute-of-limitations language, saying only what every time bar, by definition, must: that after a certain time a claim is barred. The language is mandatory – “shall” be barred – but (as just noted) this is true of most such statutes, and we have consistently found it of no consequence.”

In closing, Justice Kagan noted “[a]nd so we wind up back where we started, with Irwin’s “general rule” that equitable tolling is available in suits against the Government. The justification the Government offers for departing from that principle fails: Section 2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.”

A dissent authored by Justice Alito, and joined by Chief Justice Roberts, and Justices Scalia and Thomas, noted that the FTCA’s filing deadlines are jurisdictional because the Act states that untimely claims “shall be forever barred” and this is not generally understood to mean “should be allowed sometimes.”

Michael A. Bottar is a member of Bottar Leone, PLLC, where his practice is limited to the pursuit of medical malpractice, wrongful death, workplace accident and other complex personal injury actions, with a focus on claims arising out of birth injuries, stroke, governmental negligence and biomedical product liability.  He also an adjunct professor at Syracuse University College of Law, authors the Civil Practice chapter of the Syracuse Law Review’s Survey on New York Law, and is a member of the board of directors of the New York State Academy of Trial Lawyers.

Bottar Leone, PLLC has decades of experience investigating and pursuing claims for injured patients, workers, motorists, and consumers.  To speak with us about a potential medical malpractice or birth injury claim, please contact the Firm by telephone, email, or click here to submit an online contact form.

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According to an internal audit conducted by the U.S. Environmental Protection Agency’s Office of the Inspector General titled “EPA’s Alternative Asbestos Control Method Experiments Lacked Effective Oversight and Threatened Human Health,” asbestos removal experiments conducted by the EPA for more than a decade threatened both human health and the environment.

The OIG report, which was released on September 25, 2014, provides that experiments conducted between 2004 and 2012 to study alternative methods to demolish building containing asbestos may have exposed workers and the public to harm. Included in the OIG report are conclusions that the EPA used its enforcement discretion to ignore violations of environmental law, and that the EPA’s research lacked appropriate oversight and research goals.

If the AACM experiments caused harm, the government may be liable for damages under the Federal Tort Claims Act (FTCA). Basic information about the FTCA can be found in a previous post titled “Suing the Government For Negligence Under the Federal Tort Claims Act.”
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According to an FDA announcement titled “Mars Chocolate North America Issues Allergy Alert Voluntary Recall On Undeclared Peanut Butter In M&M’s® Brand Milk Chocolate Theater Box,” there may be unlabeled allergens in two Mars brand products. Specifically, Twix Brand Unwrapped Bites Stand Up Pouch and its M&M’s Brand Milk Chocolate Theater Box.

On September 5, 2014, Mars Chocolate recalled its Twix Brand Unwrapped Bites Stand Up Pouch for reportedly containing undeclared peanuts and egg. Specifically, the affected product is Twix Unwrapped Bites in a 7 ounce, metallized golden package, with code date 421BA4GA60 and an expiration date of 03/2015. This lot was shipped and distributed to customers’ warehouses in Indiana, Texas, Oregon, Tennessee, and Connecticut, which then redistribute products for retail sale nationwide.

Mars Chocolate North America recalled the second product, the M&M Brand Milk Chocolate Theater Box, on September 19. The affected M&M’s boxes contain peanut butter M&M’s inside an M&M’s Brand Milk Chocolate Theater Box. The affected M&M’s theater boxes are 3.40 ounce brown, 3 inch by 6.5 inch cardboard boxes stamped on the right-hand side panel with a lot number and best before date. The affected boxes are identified by UPC #40000294764, and were shipped and distributed to several states, including New York, between May 8 and July 1, 2014.

People with allergies to peanuts and egg run the risk of serious or life-threatening allergic reactions if they consume these products and may have a product liability claim against the manufacturer for damages caused by improper labeling.
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Yesterday, two people were killed and one was critically injured after a FedEx delivery truck collided with a car around 4:30 p.m. in the town of Granby, New York. Granby is located in Oswego County, approximately 25 miles northwest of Syracuse.

Multiple news reports provide that the FedEx delivery truck was traveling east on State Route 3 between County Route 8 and Rathburn Road, when it crossed over into the westbound lane and collided with a 2013 Honda Civic. The force of the crash caused both vehicles to leave the roadway and come to rest partially submerged in a nearby pond.

Why the accident occurred is under investigation. “The cause for a motor vehicle accident can be complicated,” said Syracuse injury lawyer Michael A. Bottar. “To determine fault, we review all potential causes for a crash, including driver error, roadway defects and equipment malfunction or failure.”

According to the Federal Motor Carrier Safety Administration website, FedEx drivers were involved in 1170 crashes between September 30, 2012 and September 30, 2014. Thirty-one (31) of the crashes involved fatalities.
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According to a article titled “Syracuse Jury Awards Injured Roofer $2 Million For Fall From Binghamton Dorm Project,” on October 26, 2012, a Syracuse jury deliberated for more than three hours before awarding David Stauber $2,007,658 for injuries he sustained in June of 2010. Mr. Stauber was represented by Syracuse construction accident lawyer Aaron Ryder, of Bottar Leone, PLLC.

In June of 2010, Mr. Stauber was employed by Apple Roofing. He was installing a roof at a Binghamton University dormitory project when, suddenly and without notice, the platform from which he was working collapsed and he fell approximately 60 feet to the ground. The central New York scaffolding accident caused a traumatic brain injury and other orthopedic injuries.

Before trial, the general contractor, LeChase Construction, conceded liability for the accident. During the week long damages trial, Ryder called a number of the plaintiff’s treating physicians who testified that he sustained a brain injury with sequela including post-traumatic stress disorder, as well as a severe elbow injury. Representing LeChase, attorney Lisa Coppola from the 35 attorney law firm of Rupp Base Pfalzgraf Cunningham & Coppola, LLC, argued that Mr. Stauber sustained minor and temporary injuries as a result of the five story fall.

Four months before trial – when Mr. Stauber was represented by a TV law firm – LeChase offered $300,000 to settle the case. Mr. Stauber discharged the TV law firm and retained Bottar Leone, PLLC to prosecute his case to verdict.

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In 1946, the Federal Tort Claims Act (“FCTA”) was passed. The FTCA permits citizens to file a lawsuit against the United States for negligence. Government employees can make mistakes in countless ways. Examples of government negligence include VA medical malpractice, postal vehicle collisions, and air traffic controller mistakes.

The FTCA, 28 U.S.C. 1346(b), 2401(b) and 2671-2680, constitutes a limited waiver by the United States of its sovereign immunity” and allows for a tort suit against the United States under specified circumstances. Under the FTCA, a private citizen may sue for injuries 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 in accordance with the law of the place where the act or omission occurred. Under the FTCA, sovereign immunity is waived if a claim meets six requirements (1) brought against the United States, (2) for money damages, (3) for injury to or loss of property, or personal injury, or death, (4) caused by the negligent or wrongful act or omission of any employee of the Government, (5) while acting within the scope of his or her office or employment, and (6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

The general public and many lawyers do not know that a lawsuit against the Government cannot proceed unless an administrative claim is submitted to the appropriate federal agency within two (2) years of claim “accrual.” “Accrual” is a legal term of art that should be defined by an attorney. If an agency denies the claim, or does not respond to the claim within 6 months, a lawsuit may be filed.

Identifying the relevant agency, determining what information to present, and where/how to preset it can be complicated. Indeed, the particulars of a federal tort claim formed the basis of an 84 page guide recently published by Syracuse personal injury lawyer Michael A. Bottar, titled “A Desktop Guide to Federal Tort Claims Within the United States Court of Appeals for the Second Circuit.”

There is a limited amount of time to file appropriate documents to protect your rights. To determine whether you have a case against the Government, contact Bottar Leone, PLLC, to speak with a New York Federal Tort Claims Act attorney.

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According to, Goodyear Tire & Rubber Company has recalled approximately 41,000 tires manufactured in 2009. The recall covers Wrangler Silent Armor tire sizes LT235/80R17 LRE, LT325/60R18 LRE, LT275/70R18 LRE, LT265/70R17 LRE, LT245/75R17 LRE and LT285/70R17 LRD.

Apparently, some of the tires may experience partial tread area separation. In its letter to the National Highway Traffic Safety Administration, Goodyear said that “[u]se of these tires in severe conditions could result in partial tread separation which could lead to vehicle damage or a motor vehicle crash.”

If a tire’s tread were to separate while the vehicle was in motion, there could be a blow-out or loss of control, followed by injury to the vehicle’s occupants. If this happened in the State of New York, an injured driver passenger may have a claim against the manufacturer. This type of claim, for a dangerous or defective product, is known as a product liability lawsuit.
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Every parent’s worst nightmare occurred on February 16, 2012, in Burlington County, New Jersey, approximately two hours south of New York City.

According to, at around 8:05 a.m. that morning, a school bus being operated by a new driver was struck by a Mack truck. Apparently, the bus had stopped for a stop sign and was inching out around an environmental sight-line obstruction to visualize oncoming traffic. Several kindergarten through 6th grade children were critically injured and one was killed. According to reports, the Mack truck that struck the bus was overloaded with asphalt at the time of the crash.

“Determining who is responsible for this accident will not be simple,” said Syracuse personal injury lawyer Michael Bottar, of Bottar Leone, PLLC. Unlike the routine fender-bender car accident, when a crash involves a school bus and a commercial vehicle, there are other factors at play, such as driver training, distractions, vehicle momentum and equipment maintenance. Additional variables include blind spots and difficulty seeing around an environmental obstacle such as a tree, bush, or hill. This is known as a sight-line obstruction. Sometimes an accident like this is are caused by a series of failures, such as inattentive drivers, over-weight vehicles, lack of appropriate safety equipment, and poor roadway maintenance. “I imagine the National Transportation Safety Board will investigate this matter,” Bottar added.

Bottar Leone, PLLC has decades of experience investigating complex bus and truck accidents, including tour bus crashes and accidents on the New York State Thruway. Contact us to learn about your rights.

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Moments ago, a ceiling inside of the University/Snow Building, located at 120 East Washington Street, collapsed onto Steven Pallotta, a 25 year old construction worker who was on the 9th floor. According to a article titled “Worker Removed From 9th Floor of University Building After Ceiling Collapses“, the worker was severely injured. The cause of the ceiling collapse is unknown at this time.

“I happened to be driving by the building minutes after the ceiling collapsed,” said Syracuse construction accident lawyer Michael A. Bottar, Esq., of Bottar Leone, PLLC. “From the outside, you would never know that renovations were underway inside of the this 100 year old building. I’m sure OSHA will investigate what happened.”

New York State has special laws that protect construction workers injured on the job. Those safety laws, known as Labor Laws, hold property owners and general contractors liable for injuries in certain circumstances, including during construction, demolition and renovation. New York’s Labor Laws may provide an injured worker and his or her family compensation in addition to benefits from Workers’ Compensation.

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According to, on December 20, 2010, a stairway collapsed inside of a home located on Oswego Street in Syracuse, New York. Apparently, two people were walking down the staircase when it gave way. The individuals fell approximately ten feet and were injured.

At the present time, the cause of the stairway collapse is unknown. “We have investigated a number of stairway collapse cases,” said Syracuse accident lawyer Michael A. Bottar, of Bottar Leone, PLLC, a New York personal injury law firm.

Staircases can fail for any number of reasons, including improper design, shoddy construction, and/or poor maintenance. “Generally, we send an expert to the scene of a stairway collapse shortly after the incident to preserve evidence and identify why the failure occurred,” Bottar added.

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