The doctrine of equitable tolling is a “drastic remedy” whereby a court may, under extraordinary circumstances, overlook a plaintiff’s failure to file their complaint within the statutorily allotted period of time. To sue the United States under the Federal Tort Claims Act, a plaintiff must, among other things, file their claim “within six months after the date of mailing . . . of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b).
In its opinion last week in Goldblatt v. Nat’l Credit Union Administration, a Second Circuit panel noted that, “[i]n this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA.” No. 11-4307-cv (2d Cir. Nov. 9, 2012) (unpublished). The court further noted that “[o]ther circuits are split on this issue. Compare Santos ex rel. Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009), with Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011), and In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011).”