                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            APR 3 2017
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


CARL WEST,                                       No. 13-16909

              Plaintiff - Appellant,             D.C. No. 2:13-cv-00304-GMS

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA; JOE
GORDWIN, an FBI agent,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                       Argued and Submitted January 6, 2016
                            San Francisco, California

Before:       KOZINSKI, O’SCANNLAIN and MCKEOWN,** Circuit Judges.


      At the time West filed his complaint, he had not yet presented his FTCA

claims to the appropriate government agency. See 28 U.S.C. § 2675(a). The


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
        Following argument in this case, Judge McKeown was drawn to replace
Judge Noonan.
                                                                               page 2
district court thus found that it lacked jurisdiction over these claims. Concluding

that exhaustion of Counts 4, 7 and 10 would be futile because the two-year FTCA

filing deadline had passed, see 28 U.S.C. § 2401(b), the district court dismissed

those claims with prejudice. But, while West’s appeal was pending, the Supreme

Court confirmed that plaintiffs may seek equitable tolling of claims against the

United States under the FTCA. United States v. Wong, 135 S. Ct. 1625, 1638

(2015). At oral argument before us, West’s counsel represented that West has now

presented his claims to the appropriate agency.

      The district court also found that Counts 7, 9 and 10 failed to state a claim

and thus dismissed Count 9 with prejudice as well. Because West had not yet

exhausted administrative remedies, the district court did not have jurisdiction to

resolve those claims on the merits. See Munns v. Kerry, 782 F.3d 402, 413 (9th

Cir. 2015). We therefore reverse the dismissal with prejudice of Counts 4, 7, 9 and

10 so that West may refile and seek equitable tolling of those claims. We address

the rest of West’s claims in a concurrently filed opinion.


      REVERSED.
