KWAI FUN WONG v. BEEBE

No. 10-36136.

732 F.3d 1030 (2013)

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

United States Court of Appeals, Ninth Circuit.

Filed October 9, 2013.


Attorney(s) appearing for the Case

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.

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


OPINION

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.

I. BACKGROUND

A. Statutory Background

The FTCA contains three timing rules that govern...

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