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Gallardo v. United States

United States Court of Appeals, Ninth Circuit

April 15, 2014

MARITZA GALLARDO, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee

Argued and Submitted, Pasadena, California: January 8, 2014.

Page 861

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-05013-JFW-PJW. John F. Walter, District Judge, Presiding.

Randall Jonathan Paulson (argued), Law Offices of Randall J. Paulson, Santa Ana, California, for Plaintiff-Appellant.

Adam C. Jed (argued) and Mark B. Stern, United States Department of Justice, Washington, D.C.; Donald W. Yoo, Office of the United States Attorney, Los Angeles, California, for Defendant-Appellee.

Before: William A. Fletcher, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges. Opinion by Judge W. Fletcher.

OPINION

Page 862

W. FLETCHER, Circuit Judge:

Plaintiff Maritza Gallardo appeals from the district court's dismissal of her Federal Tort Claims Act (" FTCA" ) action against the United States as time-barred. Gallardo's claim arose out of an alleged sexual assault committed by a sergeant in the U.S. Marine Corps (" the Corps" ) while he was on a recruitment detail at her middle school. Gallardo did not file an administrative claim for negligence against the Corps until four years after the assault. The FTCA's statute of limitations is two years unless tolled. 28 U.S.C. § 2401(b).

While this appeal was pending, we decided Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013) (en banc), holding that equitable tolling of the statute of limitations is available in FTCA actions. See id. at 1033. We overruled Marley v. United States, 567 F.3d 1030, 1038 (9th Cir. 2009), which held that equitable tolling is unavailable. In light of this change in the law, we vacate the district court's dismissal of Gallardo's FTCA claim and remand for that court to determine whether equitable tolling is appropriate in the circumstances of this case.

I. Background

A. Alleged Sexual Assault

The following narrative is based on allegations by Gallardo in her complaint and on statements by her mother, Maria Gallardo, in a declaration submitted to the district court in connection with its jurisdictional ruling under Federal Rule of Civil Procedure 12(b)(1). For present purposes, we assume the truth of these allegations and statements. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013).

In March 2006, middle-school student Maritza Gallardo met U.S. Marine Corps Sergeant Ross Curtis at a civilian youth disciplinary " boot camp." While Gallardo was at the camp, Curtis asked her for her Myspace address. After Gallardo left the camp, Curtis sent messages to her Myspace address between March and May, suggesting that they " ...


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