                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


              Argued September 8, 1997 Decided January 9, 1998 


                                 No. 96-7039


                           Harriet Hunter-Boykin, 

                                  Appellant


                                      v.


                      The George Washington University, 

                                   Appellee


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 94cv00039)


     John P. Racin argued the cause and filed the briefs for 
appellant.

     Walter A. Smith, Jr. argued the cause for appellee.  Robert 
B. Cave and Mark J. Larson were on the brief.  Peter W. 
Tredick entered an appearance.



     Before:  Edwards, Chief Judge, Wald and Garland, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Garland.

     Concurring Opinion filed by Chief Judge Edwards.

     Garland, Circuit Judge:  The summary judgment motion at 
issue in this case should have turned on the reasonable 
interpretation of the phrase "to toll the running of any statute 
of limitations period," as used in a letter agreement between 
the plaintiff and defendant.  Rather than determine whether 
a reasonable juror could have read the phrase as the plaintiff 
did, however, the court below applied a set of legal rules that 
it thought required the phrase to be read as the defendant 
urged.  Because we conclude that the wrong rules were 
applied, and because a reasonable juror could have read the 
phrase as the plaintiff read it, we reverse the grant of 
summary judgment against her.

                                      I


     The plaintiff in this case, Dr. Harriet Hunter-Boykin, is an 
African American woman whom the defendant, The George 
Washington University ("GW"), hired as an Assistant Profes-
sor of Secondary Education on August 2, 1990.  On July 19, 
1993, Hunter-Boykin's attorney wrote to GW, advising the 
university that she was considering suing it for racial discrim-
ination.  The letter alleged that GW had discriminated 
against Hunter-Boykin in her original appointment by not 
offering her a tenure-track, higher-paid position that it of-
fered a white applicant at the same time.  Joint Appendix 
("J.A.") 73-75.

     According to the parties' calculations, a three-year statute 
of limitations governed Hunter-Boykin's contemplated suit 
under 42 U.S.C. s 1981, and that period would expire on 
August 2, 1993, three years from the date of her original 
appointment.  In order to provide breathing room in which to 
conduct settlement negotiations, the parties entered into an 
agreement "to toll the running of any statute of limitations 
period."  The agreement, drafted by counsel for GW, was in 



the form of a letter from GW's counsel to Hunter-Boykin's 
counsel.  Dated July 22, 1993, and signed by both attorneys, 
the letter stated:  "This will confirm that we have agreed ... 
to toll the running of any statute of limitations period applica-
ble to any purported claims ... beginning on the date of this 
letter through September 7, 1993."  J.A. 76.

     The parties agree that on the date of this letter agreement, 
July 22, 1993, Dr. Hunter-Boykin still had eleven days left 
before the statute of limitations would otherwise have run on 
her contemplated lawsuit.  Thereafter, they entered into five 
additional and virtually identical letter agreements, changing 
only the beginning and ending dates of the time period during 
which the statute of limitations was "toll[ed]."  The last letter 
was dated December 17, 1993, and continued the tolling 
"through January 7, 1994."  J.A. 81.

     On January 4, 1994, counsel for GW notified Hunter-
Boykin that GW had rejected her discrimination claims.  He 
warned that if she followed through on her threat of litiga-
tion, the University would defend its interests "with vigor."  
J.A. 137.  Undeterred, Hunter-Boykin filed suit on January 
10, 1994, three days after the end of the tolling period 
mentioned in the letter.

     True to its word, GW did defend, and with vigor.  It moved 
for summary judgment, asserting that the plaintiff had filed 
her complaint three days too late.  Hunter-Boykin disagreed, 
arguing that to "toll" the statute of limitations means to 
"suspend" it.  Since she had eleven days left to sue on the 
date the statute was first suspended, Hunter-Boykin contend-
ed that she had eleven days left to file her complaint when 
the last period of suspension ended on January 7, 1994.  She 
was not late, she said; she had eight days to spare.

     Defendant GW replied that, under District of Columbia 
law, private parties cannot agree to "suspend" the statute of 
limitations.  A defendant can, however, agree to "waive" its 
right to assert a limitations defense for a discrete period.  
That, GW asserted, is what it did:  it agreed not to assert its 
limitations defense if a complaint were filed during successive 
periods ending with the period defined in the last letter.  See 



GW Summ. J. Reply Br. at 1, 5 (J.A. 122, 126).  Moreover, 
GW argued, the scope of a waiver must be "absolutely clear 
and unequivocal."  Because "the mere use of the word 'toll' 
plainly does not show the University's clear and unequivocal 
intent to waive its defense beyond January 7," GW asserted 
that Hunter-Boykin's complaint was time-barred.  Id. at 5 
(J.A. 126) (emphasis in original).

     GW's motion for summary judgment was referred to a 
magistrate judge pursuant to 28 U.S.C. s 636(b)(1) and Local 
Rule 504.  The magistrate agreed with the parties' determi-
nation of the applicable limitations period and agreed that on 
July 22, 1993, when the parties entered into their first tolling 
agreement, Hunter-Boykin had eleven days left in which to 
sue.  Magistrate's Opinion ("Mag. Op.") at 5-6 (J.A. 155-56).  
Accepting much of GW's argument, however, the magistrate 
concluded that Hunter-Boykin had filed three days too late, 
and recommended that the district court grant the universi-
ty's motion for summary judgment.  Id. at 10-11 (J.A. 160-
61).  The court adopted the magistrate judge's report in its 
entirety and dismissed Hunter-Boykin's complaint with prej-
udice.  J.A. 201-02.

                                      II


     We review the district court's grant of summary judgment 
de novo.  Jackson v. Finnegan, Henderson, Farabow, Garrett 
& Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).  The question 
to be decided on a motion for summary judgment is "whether 
a fair-minded jury could return a verdict for the plaintiff on 
the evidence presented."  Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 252 (1986).  In a matter involving a contract, 
summary judgment is appropriate where the agreement "ad-
mits of only one reasonable interpretation."  United Mine 
Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 
473 (D.C. Cir. 1993).

     In deciding this case, the magistrate judge did not ask 
whether Hunter-Boykin's interpretation of "toll" as meaning 
"suspend" was reasonable.  Instead, he first applied a rule 
that, "[i]n the absence of a specific tolling statute, disputing 



parties cannot by mutual agreement interrupt or suspend the 
running of a statute of limitations."  Mag. Op. at 6 (J.A. 156).  
As there is no specific provision in the District of Columbia 
Code "that authorizes the parties to an action to suspend or 
defer the running of the statute of limitations," the magis-
trate held that "[s]uch an interpretation is contrary to the 
District of Columbia statute and should be rejected by this 
court."  Id. at 7-8 (J.A. 157-58).  However, although he 
determined that parties could not suspend the running of the 
statute of limitations, the magistrate agreed with GW that a 
defendant could "waive" its right to assert an affirmative 
defense.  He therefore interpreted the agreement as a "waiv-
er"--the only interpretation he regarded as lawful.  Id. at 8 
(J.A. 158).

     Second, in interpreting the scope of the waiver, the magis-
trate again did not ask what a reasonable juror could find.  
Instead, he held that because the waiver stated a specific time 
period, he was "not prepared to enlarge that period absent 
persuasive evidence that defendant intended a date different 
from the date stated."  Id.  Finding such "persuasive evi-
dence" lacking, the magistrate judge concluded that GW had 
waived its statute of limitations defense only until January 7, 
1994.  Id.

     Because the magistrate's view of what the letter agreement 
meant clearly was colored by the two legal lenses he thought 
he was bound to employ, we consider the validity of those 
legal rules first.  We then turn to the reasonable meaning of 
the agreement itself.

                                     III


     The first legal rule applied below--that in the absence of a 
specific authorizing statute, private parties cannot suspend 
the running of the statute of limitations--turns the usual rule 
of construction on its head.  The usual rule is that "in the 
absence of a controlling statute to the contrary, the parties to 
a ... potential lawsuit may, by agreement, modify a statuto-



ry period of limitation."  54 C.J.S. Limitations of Actions 
s 25, at 56 (1987) (emphasis added).1  The usual rule is quite 
sensible, since a limitations defense is merely a "personal 
privilege," of which a party may choose not to avail itself.  
See Atchison & Keller, Inc. v. Taylor, 51 A.2d 297, 297 (D.C. 
1947);  see also Feldman v. Gogos, 628 A.2d 103, 104 (D.C. 
1993).  If individuals can give up considerably more impor-
tant protections--including their Fifth Amendment rights in a 
criminal case--what reason could there be to deny them the 
ability to extend a civil statute of limitations?  Indeed, this 
court asked itself just that question, and concluded that there 
was no satisfactory answer, in the course of deciding that a 
defendant can waive the protection of the statute of limita-
tions in a criminal prosecution.  See United States v. Wilson, 
26 F.3d 142, 155 (D.C. Cir. 1994).

     Neither the magistrate, nor GW, cite any precedent from 
the District of Columbia for the proposition that specific 
statutory authority is required to permit private parties to 
agree to suspend a statute of limitations--and we have found 
none.  Instead, the magistrate cited five opinions decided 
under the laws of other states.  Four of those five did not 
involve the validity of private tolling agreements,2 and the 

__________
     1  In the context of an agreement to shorten a limitations period, 
the Supreme Court stated the rule as follows:  "[I]t is well estab-
lished that, in the absence of a controlling statute to the contrary, a 
provision in a contract may validly limit, between the parties, the 
time for bringing an action on such contract to a period less than 
that prescribed in the general statute of limitations, provided that 
the shorter period itself shall be a reasonable period."  Order of 
United Commercial Travelers v. Wolfe, 331 U.S. 586, 608 (1947).  
Here, neither party contends that the length of the period proposed 
by its opponent is itself unreasonable.

     2  Instead, they involved the applicability of judge-made doc-
trines like equitable estoppel.  See City of Bedford v. James Leffel 
& Co., 558 F.2d 216 (4th Cir. 1977); Neal v. Laclede Gas Co., 517 
S.W. 2d 716 (Mo. Ct. App. 1974); Glenn v. Morelos, 555 A.2d 1064 
(Md. Ct. Spec. App. 1989); Leonard v. Eskew, 731 S.W.2d 124 (Tex. 
App. 1987).



fifth is also readily distinguishable.3

     This court, on the other hand, has interpreted an agree-
ment between two parties as effectively extending the District 
of Columbia statute of limitations.  In Noel v. Baskin, the 
limitations period on the payment of a note had been running 
for almost two years when the debtor entered into an agree-
ment to waive the statute, "in consideration of the holders' 
agreeing to postpone action until after [September 2, 1935]."  
131 F.2d 231, 231-32 (D.C. Cir. 1942).  The Noel court 
interpreted the agreement as meaning that the lender had 
agreed to refrain from suit until that date, and that after that 
date passed, the three-year "statute would begin to run 
[anew]."  Id. at 232.  GW asserts that Noel stands only for 
the narrow proposition that parties may agree on the date 
upon which an action will be deemed to accrue.  But it is 
difficult to see the practical difference between this proposi-
tion and the "suspension" view argued by Hunter-Boykin--
except that agreeing on a new accrual date gives the plaintiff 
even more time to sue than would agreeing on a "suspension," 
because it restarts the limitations clock from zero.

     Numerous other courts also have applied the usual rule 
that, in the absence of a legislative indication to the contrary, 
agreements to extend the statute of limitations are permitted 
without specific statutory authorization.  In Aiken v. Burnet, 
for example, the Supreme Court upheld a waiver of the 
statute of limitations in a taxpayer suit against the Internal 
Revenue Service, rejecting the argument that, prior to the 
enactment of a specific authorizing statute, the IRS lacked 
authority to accept waivers:  "While Section 250(d) first speci-

__________
     3  Willow Tree Investments, Inc. v. Wilhelm, 465 N.W.2d 849 
(Iowa 1991), involved an agreement to extend the maturity date of a 
mortgage note, which the Iowa Supreme Court rejected solely on 
the ground that the agreement was not recorded as expressly 
required by an Iowa statute.  A recent Maryland opinion, cited by 
GW, also does not hold that parties may not agree to suspend the 
statute of limitations;  it merely holds that they did not do so in that 
case.  See Hartford Accident & Indem. Co. v. Scarlett Harbor 
Assocs., 674 A.2d 106, 123 (Md. Ct. Spec. App. 1996), aff'd on other 
grounds, 695 A.2d 153 (Md. 1997).



fied that a waiver be in writing and signed by the Commis-
sioner, there was nothing in that section which invalidated 
waivers made prior to its enactment or limited the effect of 
such instruments on the limitations therein imposed."  282 
U.S. 277, 281 (1930).  See also United States v. Curtiss 
Aeroplane Co., 147 F.2d 639, 640-41 (2d Cir. 1945) (L. Hand, 
J.).

     The defendant purports to see an important distinction 
between a "suspension" and a "waiver" of a statute of limita-
tions.  We do not, at least as the parties use the words in this 
case.  Even if we were to accept (as GW argues) that the 
word "waiver" refers only to an agreement not to assert a 
limitations defense during a fixed period, any agreement to 
"suspend" could readily be reworded as an agreement to 
"waive" for the fixed period of the suspension plus whatever 
time remained on the limitations clock.  Here, for example, 
instead of agreeing to "suspend" the statute of limitations 
until January 7, 1994, the parties could simply have agreed to 
"waive" it through January 18 (January 7 plus eleven days).  
We see no reason for the law to prohibit the former while 
permitting the latter.

     In support of the magistrate's opinion, GW makes a further 
argument that the magistrate did not make:  the District of 
Columbia Code is not simply silent on the question of private 
agreements to extend the statute of limitations;  it affirma-
tively prohibits them.  The provision of the code in question 
states:

     "Except as otherwise specifically provided for by law, 
     actions for the following purposes may not be brought 
     after the expiration of the period specified below from 
     the time the right to maintain the action accrues:

          ....

          (8) for which a limitation is not otherwise specially 
              provided

          --3 years...."

D.C. Code s 12-301 (West 1997) (emphasis added).  GW 
argues that the italicized phrase "plainly prevents private 
parties from agreeing whenever they wish to literally suspend 



or interrupt a limitations period set by statute."  GW Br. at 
12.

     One problem with this argument is that, if we were to read 
the statute as GW urges, its own position that waivers are 
permitted while suspensions are prohibited would be untena-
ble.  The statute mentions neither "suspensions" nor "waiv-
ers."  It simply states that, except as otherwise provided by 
law, actions "may not be brought" after the expiration of the 
limitations period.  Since a waiver also permits an "action to 
be brought" after the expiration of the limitations period, the 
statute provides no ground to distinguish between the two.  
Yet, GW insists that the waiver it says it agreed to in this 
case, which it concedes would permit a suit to be brought 
more than three years after the cause of action accrued, is 
lawful.4

     But there is no reason to read the statute as GW urges, 
and every reason not to do so.  The most straightforward 
reading of the italicized phrase is that it was not intended to 
refer to private tolling agreements at all, but rather was 
intended to refer to other provisions of the D.C. Code that 
contain limitations periods for causes of action not listed in 
s 12-301--so that it is clear those provisions take precedence 
over the three-year "catch-all" of s 12-301(8).5  This reading 
also has the virtue of being the one that Congress has 
indicated it intended.  In reporting on the proposed addition 

__________
     4  See GW Br. at 20 n.14.  GW's only response is to argue that 
"except as otherwise specifically provided for by law" refers to case 
as well as statutory law, and that although this court permitted a 
"waiver" of the statute of limitations in Noel, no District of Colum-
bia court "specifically" has permitted a "suspension" of a statute of 
limitations.  As noted in the preceding text, this misconstrues our 
opinion in Noel.

     5  Such provisions include:  D.C. Code s 36-314 (one-year period 
for filing workers' compensation claims); D.C. Code s 20-903 (six-
month period for filing claims against estate); D.C. Code s 12-309 
(six-month period for filing notice of claim for action seeking 
unliquidated damages against D.C. government); D.C. Code 
s 1-1105 (one-year period for action to recover costs of labor and 
materials and ninety-day period for filing notice of claim).



of the phrase in 1963, the Senate Judiciary Committee gave 
this reason for its insertion:  "The exception at the beginning 
of this section is inserted to make it clear that a limitation for 
a particular type of action found in any other provision of law 
would take precedence over the general limitations of this 
section."  S. Rep. No. 88-743, at 71-72 (1963).  See also D.C. 
Code Encycl. s 12-301 (West 1966) (Revision Note).  Hence, 
there is no reason to read the phrase as any kind of reference 
to private tolling agreements.

     In United States v. Insurance Co. of N. Am. ("INA"), this 
circuit was called upon to decide a case under a federal 
statute of limitations quite similar to s 12-301.  See 83 F.3d 
1507 (D.C. Cir. 1996).  The federal statute stated that, "ex-
cept as otherwise provided by Congress, every action for 
money damages brought by the United States ... founded 
upon any contract ... shall be barred unless the complaint is 
filed within six years after the right of action accrues...."  
28 U.S.C. s 2415(a).  One day short of the six years, the 
parties had entered into an agreement to "toll" this statute of 
limitations.  Giving effect to that agreement, this court per-
mitted the United States to file suit almost six months after 
the statute of limitations would otherwise have run.  See 83 
F.3d at 1509-11.  We see no reason why similar effect may 
not be given, under s 12-301, to the agreement at issue in 
this case.

                                      IV


     Even if District of Columbia law does permit an agreement 
to suspend a statute of limitations, GW argues that another 
rule bars courts from giving effect to such an agreement, 
"unless it is demonstrated by unequivocal evidence."  GW 
Br. at 20 (emphasis added).  This argument appears to have 
swayed the magistrate judge, who said he was unprepared to 
read the letter agreement as Hunter-Boykin urged, "absent 
persuasive evidence."  Mag. Op. at 8 (J.A. 158) (emphasis 
added).

     These formulations, however, are similar to the one the 
Supreme Court rejected in Liberty Lobby as inappropriate 



for deciding a summary judgment motion in the usual civil 
case.  "The judge must ask himself," the Court said, "not 
whether he thinks the evidence unmistakably favors one side 
or the other, but whether a fair-minded jury could return a 
verdict for the plaintiff on the evidence presented."  477 U.S. 
at 252 (emphasis added).  Liberty Lobby did note that the 
inquiry on a motion for summary judgment necessarily impli-
cates the substantive evidentiary standard of proof that would 
apply at the trial on the merits.  Hence, although in the "run-
of-the-mill" civil case the judge should ask "whether reason-
able jurors could find by a preponderance of the evidence that 
the plaintiff is entitled to a verdict," the test is different 
where the substantive evidentiary burden is higher.  Id.  For 
example, in a libel case where the First Amendment man-
dates a "clear and convincing" standard, the judge must 
determine whether a reasonable juror could conclude that the 
plaintiff has shown actual malice "with convincing clarity."  
Id.  GW's implicit argument, therefore, must be that this is 
not a run-of-the-mill case, but rather that District of Colum-
bia law requires a heightened burden of proof to establish a 
waiver of the statute of limitations:  a burden of demonstrat-
ing "unequivocal" evidence.

     The authority GW relies on to establish such a heightened 
burden is this court's own opinion in Noel v. Baskin.   But 
this misreads Noel.  The Noel court said that it would not 
read an agreement between the parties as creating an "indefi-
nite" waiver of the statute of limitations, unless that purpose 
were "expressed in unequivocal terms."  131 F.2d at 232.  
"[I]n the absence of specific language making [the waiver] 
perpetual," the court said, it should be held to operate only 
for a reasonable time."  Id.  See also Munter v. Lankford, 
232 F.2d 373, 374 (D.C. Cir. 1956) ("[I]n Noel v. Baskin ... 
this court ruled that unless a waiver of the statute ... is 
specifically stated to be perpetual, it should be held to operate 
only for a reasonable time.").  Hunter-Boykin does not con-
tend that the tolling agreement here should be construed as 



an "indefinite" or "perpetual" waiver.  Hence, Noel's stan-
dard of proof has no application to this case.6 

                                      V 


     Because the magistrate judge employed two incorrect legal 
rules, he granted summary judgment against the plaintiff 
without determining that no reasonable juror could read the 
letter agreement as she did.  Nor did GW explicitly argue for 
such a determination in the briefs it filed in this court or 
below.  While asserting that the rules required the court to 
accept its reading as a matter of law, GW appeared to 
concede that Hunter-Boykin's reading was at least "one usual 
and customary meaning."  GW Br. at 21.  See also id. at 10, 
21, 23 & n.22, 24.

     At oral argument, however, GW took a much harder line.  
It argued not only that its interpretation of the letter agree-
ment was required legally, but that no reasonable person 
could interpret it as plaintiff did.  We find this view surpris-
ing.  We expect that justices of the Supreme Court, judges of 
this and other courts, and the heirs and assigns of Mr. Black 
and other law dictionary authors, also would regard it so, 
since all have used the word "toll" in the same manner as 
Hunter-Boykin.  And it is particularly appropriate in this 
case to look to usage by judges and law dictionaries in order 
to divine the meaning of "toll," since it is a term of art among 
lawyers, and since it was used in a letter written from one 
lawyer to another.

__________
     6  GW also cites the maxim that courts "will strictly enforce 
statutes of limitations and will narrowly construe any exceptions to 
the statute."  GW Br. at 14 & n.5.  Even if this were the law of the 
District, we would not regard GW's construction of the agreement 
as any "narrower" or "stricter" than Hunter-Boykin's construction.  
Moreover, as noted in the following section, Hunter-Boykin's con-
struction is so much more reasonable than GW's that we would hold 
for her even if we applied the maxim against her.  The one maxim 
that does seem appropriate here is that "ambiguity in a contract 
should be resolved against the drafter," Cole v. Burns, 105 F.3d 
1465, 1486 (D.C. Cir. 1997).  In this case, the drafter was GW. 
Hunter-Boykin, however, does not need the benefit of this or any 
other maxim to prevail on this appeal.



     We begin with the Supreme Court.  In Chardon v. Soto, 
the Court noted that "[t]his opinion uses the word 'tolling' to 
mean that during the relevant period, the statute of limita-
tions ceases to run."  462 U.S. 650, 652 n.1 (1983).  It then 
went on to explain that " 'tolling effect' refers to the method 
of calculating the amount of time available to file suit after 
tolling has ended," and noted that there were several possible 
"tolling effects."  One, the Court said, was that the "statute 
of limitations might merely be suspended; if so, the plaintiff 
must file within the amount of time left in the limitations 
period."  Id.  This, of course, is precisely the "tolling effect" 
for which Hunter-Boykin argues.  Another, the Court said, 
was that the "limitations period is renewed [and] the plaintiff 
has the benefit of a new period as long as the original."  Id.  
As we have pointed out above, this was the impact of the 
agreement on a new accrual date in Noel.  And finally, 
Chardon noted, "[i]t is also possible to establish a fixed period 
... during which the plaintiff may file suit, without regard to 
the length of the original limitations period or the amount of 
time left when tolling began."  Id.  This is the possibility for 
which GW argues.  It was, however, the one possibility for 
which no one argued in Chardon.  Compare id. at 661 (court 
of appeals correctly applied "Puerto Rican rule that, after 
tolling comes to an end, the statute of limitations begins to 
run anew"), with id. at 665-66 (Rehnquist, J., dissenting) 
(court should have applied federal tolling rule for class ac-
tions, which provides that tolling "suspends the running of a 
statute of limitations").

     We move next to this court.  In Detweiler v. Pena, we 
described the "tolling" provision of the Soldiers' and Sailors' 
Civil Relief Act as "suspend[ing]" the statute of limitations 
during a service member's period of active service.  See 38 
F.3d 591, 593 (D.C. Cir. 1994).  In United States v. Wilson, 
we explained that the effect of a waiver that "tolled" the 
criminal statute of limitations for ninety days was to extend 
the statute by that amount.  See 26 F.3d 142, 156 & n.10 
(D.C. Cir. 1994).  And, as noted above, in INA we again 
effectively interpreted a tolling agreement in the manner 
Hunter-Boykin urges here.  See 83 F.3d at 1510.  Other 



courts, too numerous to list, also have interpreted the word 
"toll" as meaning "suspend" or its equivalent.  See, e.g., 
Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1070 (7th Cir. 
1978) ("Tolling, strictly speaking, is concerned ... with the 
circumstances in which the running of the limitations period 
may be suspended.");  United States v. Neill, 952 F. Supp. 
831, 833 (D.D.C. 1996) (request for foreign evidence "tolled" 
the statute of limitations by "suspend[ing]" it until the foreign 
country took action on the request);  Clark v. Milan, 847 
F. Supp. 409, 421 & n.26 (S.D. W. Va. 1994) (describing 
"tolling agreement" as "suspending" the statute of limita-
tions).

     Black's Law Dictionary defines "toll" the same way.  Al-
though it lists two definitions, the one specifically applicable 
to statutes of limitations parallels Hunter-Boykin's definition:  
"To suspend or stop temporarily as the statute of limitations 
is tolled during the defendant's absence from the jurisdiction 
and during the plaintiff's minority."  Black's Law Dictionary 
1488 (6th ed. 1990).7  Ballentine's Law Dictionary is in ac-
cord.  See Ballentine's Law Dictionary 1282 (3d ed. 1969) 
("to suspend or interrupt the running of the statute of 
limitations").

     Notwithstanding the above, GW argues that its interpreta-
tion should triumph because the agreement between the 
parties was not simply to "toll" the statute of limitations, but 
to "toll the running of any statute of limitations."  The sixth 
edition of Black's Law Dictionary defines this phrase as "a 
metaphorical expression, by which it is meant that the time 
specified in the statute of limitations is considered as having 
passed and hence the action is barred."  Black's Law Dictio-
nary 1333 (6th ed. 1990) (emphasis added) (citing United 
States v. Markowitz, 34 F. Supp. 827, 829 (N.D. Cal. 1940)).  
Arguing that this establishes that the "running of the statute 
of limitations" means that the time has "passed" or "ex-

__________
     7  The other listed meaning is "to bar, defeat or take away," 
which GW asserts supports its view.  GW Br. at 21.  This is not the 
definition Black's specifically uses in connection with statutes of 
limitation, and in any event does not suggest that Black's other 
definition is an unreasonable one.



pire[d]," and is not just "passing," GW contends that we must 
conclude that on January 7, 1994, the statute of limitations for 
Hunter-Boykin's suit also had passed or expired.  GW Br. at 
22.

     Even if we were to accept the use to which GW has put Mr. 
Black's definition of "running",8 it surely is not the only 
reasonable definition of the term.  In fact, the case cited by 
Black's as the source for its definition actually stands for the 
opposite proposition, and supports Hunter-Boykin.  See 
United States v. Markowitz, 34 F. Supp. 827, 829-30 (N.D. 
Cal. 1940) (rejecting interpretation of "running" as meaning 
that "the statute of limitations is considered as having passed 
rather than as passing," and explaining that when the "sus-
pension" of "the running of the statutory period of limita-
tions" is over, "the statutory period ... commences to run 
again").  Other courts also have defined the term in a manner 
wholly consistent with the interpretation offered by Hunter-
Boykin.  See, e.g., United States v. Moyer, 308 
F. Supp. 754, 756 (W.D. Pa. 1968) ("The term 'running' is not 
synonymous with 'expiration,' and will be ascribed a meaning 
that connotes the passing of time during which a defense ... 
matures."), aff'd, 420 F.2d 375 (3d Cir. 1970).  And at one 
time, Black's itself defined "running" as meaning that the 
time was "passing," not that it had "passed."  See Black's 
Law Dictionary 1498 (4th ed. 1968).  Once again, the weight 
of authoritative usage is on Hunter-Boykin's side.

                                      VI


     We conclude that a reasonable juror could readily interpret 
the parties' tolling agreement in the manner suggested by 
Hunter-Boykin.  Because reasonableness is the appropriate 

__________
     8  We think the better way to interpret Black's definition is not 
as describing the effect of tolling a statute of limitations while it is 
running, but as describing the state of play after the statute of 
limitations has run, as in this sentence:  "After the running of the 
statute of limitations, the action is barred."  This also would 
reconcile Black's definition of "running" with its definition of 
"toll[ing]."



standard for summary judgment in this case, we reverse the 
grant of judgment against her and order reinstatement of the 
complaint.  Since Dr. Hunter-Boykin did not herself move 
for summary judgment, we do not consider the question 
whether any reasonable juror could have interpreted the 
tolling agreement in the manner urged by GW, and hence do 
not determine whether Hunter-Boykin would be entitled to a 
grant of summary judgment in her own favor.9

__________
     9  We also do not need to reach Hunter-Boykin's additional 
argument that, even if the letter agreement itself does not defeat 
the statute of limitations, GW should be equitably estopped from 
raising the statutory bar.




     Edwards, Chief Judge, concurring:  I concur in the court's 
reasoning and judgment, save on one point.  In my view, the 
disputed tolling agreement has only one reasonable interpre-
tation:  it suspended the running of the statute of limitations 
until the closing date named in the agreement, January 7, 
1994.  Thus, if Hunter-Boykin moves for summary judgment 
on remand, it appears that she should prevail as a matter of 
law on this point.

