Most tort actions are governed by a three year statute of limitations. However, tort actions against the federal government are governed by the Federal Tort Claims Act (FTCA), which has a shorter statute of limitations. Examples of tort actions subject to the FTCA include medical malpractice actions against doctors who are federal employees, a negligence action following a motor vehicle accident caused by a federal employee (such as an FBI agent) or a negligence action for a slip and fall on federal property (such as a slip and fall at a post office). Under the FTCA, a plaintiff must present his claim to the appropriate federal agency within two years after the claim accrues. 28 U.S.C. § 2401(b). The plaintiff then has six months to file suit in federal court after the agency acts on the claim. Id.
Generally, if a plaintiff does not meet the deadline for filing his claim, then his claim will be dismissed. However, under the doctrine of equitable tolling, a statute of limitations will not bar a claim if the plaintiff, using due diligence, did not discover the injury until after the limitations period had expired.
Until recently, there was a debate in the federal circuit courts over whether equitable tolling applied to claims subject to the FTCA. On April 22, 2015, in a 5-4 decision, the United States Supreme Court held that the time limitations in the FTCA are subject to equitable tolling. United States v. Wong, 575 U.S. ___ (2015) (Wong.Slip.Op.). Following Wong, a plaintiff may proceed with his or her claim against the government even if he or she has missed the statute of limitations. However, the plaintiff must demonstrate that even with due diligence he or she did not discover the injury until after the limitations period has passed. This is a difficult standard. Thus, even after Wong, one must still be attuned to and follow the unique processes to file claims under the FTCA because equitable tolling is the exception and not the rule.