                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2005

Hedges v. USA
Precedential or Non-Precedential: Precedential

Docket No. 03-4395




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                                 PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     _________

                         No: 03-4395
                          _________

                       DEAN HEDGES,
                            Appellant

                                v.

           UNITED STATES OF AMERICA;
    ENVIRONMENTAL MOORINGS INTERNATIONAL


              On Appeal from the District Court
                     for the Virgin Islands
                    (D.C. No. 00-cv-00003)
         District Judge: Honorable Raymond L. Finch


                  Argued December 13, 2004

     Before: SLOVITER, FUENTES, and GREENBERG,
                     Circuit Judges.

                    (Filed: April 15, 2005)


K. Glenda Cameron (Argued)
Law Office of Rohn & Cameron
Christiansted, St. Croix
U.S.V.I. 00820

      Attorney for Appellant

Michelle Delemarre (Argued)
United States Department of Justice
Washington, D.C. 20044
       Attorney for Appellee


                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        Appellant Dean Hedges, whose sailboat was destroyed by
heavy seas after it was moored at the Virgin Islands National
Park, appeals from the District Court’s dismissal of his admiralty
claim against the United States for lack of subject matter
jurisdiction. We must decide whether equitable tolling is
applicable to save Hedges’ claim. The District Court for the
Virgin Islands had jurisdiction under the Suits in Admiralty Act
(“SAA”), 46 U.S.C. §§ 741-752; this court has jurisdiction from
the District Court’s final order pursuant to 28 U.S.C. § 1291.

                                I.
       On December 12, 1996, Hedges’ boat broke free from its
Virgin Islands National Park (“VINP”) mooring and drifted onto
nearby rocks, where it was destroyed. The painter line on the
mooring, which was manufactured by Environmental Moorings
International (“EMI”), appeared to have chaffed and come apart
under harsh weather conditions. Hedge’s boat was uninsured.

        Shortly after the incident, Hedges sought advice from
several Park Service employees regarding the proper avenue to
pursue a claim against the United States. Hedges first contacted
Mary Morris, the National Park Service (“NPS”) Concessions
Officer in St. Thomas, Virgin Islands, who had issued Hedges’
permit to enter the VINP. He claims that Morris advised him to
file a claim pursuant to the Federal Tort Claims Act (“FTCA”),
and then mailed him a standard claim form (“SF-95"). Hedges
then contacted Department of Interior (“DOI”) Attorney Patricia
Cortelyou-Hamilton, who responded by letter dated January 14,
1997:

       Enclosed per your request, please find a copy of
       Standard Form 95. The completed form along

                                2
       with copies of all supporting documentation,
       should be sent to: Ms. Linda Giles [the Safety &
       Health Manager for the National Park Service] . . .
       Inquiries can be directed to the undersigned . . . .

App. at 108. Next, Hedges claims to have contacted Linda Giles
who confirmed that a FTCA claim, filed on a SF-95 form, was
the proper avenue for obtaining relief. Finally, Hedges
contacted VINP Service Superintendent Francis Peliter who, on
February 6, 1997, sent a letter to Hedges that read in its entirety:
“I received your fax dated January 17, 1997 on February 3, 1997.
I have asked Mrs. Mary Morris and Keith Watson of my staff to
work with you on these issues.” App. at 104.

       On December 11, 1998, Hedges, proceeding pro se,1 filed
an administrative claim under the FTCA claiming property
damage of $77,445.83. His claim also alleged personal injury
damages of $15,000 due to a period of depression, allegedly
brought on by the loss of his boat. On October 7, 1999 the DOI
denied his claim. The Field Solicitor first reasoned that Hedges
had alleged a maritime tort, a cause of action cognizable under
the SAA, not the FTCA, and that under the comparative
negligence regime for claims sounding in admiralty, Hedges did
not have a meritorious claim. He concluded that whereas the
United States “excercised [sic] reasonable care to make the
mooring and the painter line safe,” Hedges acted negligently by
leaving his boat unattended during harsh weather conditions.
App. 41-47.

        On November 6, 1999, Hedges wrote a letter to the DOI
protesting the denial of his claim, arguing that he did have a
colorable cause of action under the FTCA, and emphasizing that
it was impractical for him to hire an attorney because attorney
costs would likely be more than the value of his boat. On
November 19, 1999, the DOI issued a second denial of Hedges’



       1
       Hedges did testify however that he had an attorney, Nancy
D’Anna, assisting him for the first nine to ten months after his boat
was destroyed. Hedges is now represented by counsel on appeal.

                                 3
claim. Hedges once again protested this denial by submitting
several letters and making several phone calls to the DOI. On
January 25, 2000, the DOI issued its final denial of Hedges’
administrative claim, stating that “[w]e have carefully examined
the facts of your case and must deny your claim under both the
Federal Tort Claims Act and under the Suits in Admiralty Act.”
App. at 57.

       On January 5, 2000, before he had received the final
denial of his claim from the DOI, Hedges filed a complaint
against the United States and EMI in the District Court of the
United States Virgin Islands, St. Croix Division, alleging
diversity jurisdiction under 28 U.S.C. § 1332. On January 19,
2000, Hedges amended his complaint to assert a claim under the
FTCA.

        On March 24, 2000, the United States filed a Fed. R. Civ.
P. 12(b)(1) Motion to Dismiss for lack of subject matter
jurisdiction. The Government argued that the SAA provides the
exclusive jurisdiction for maritime tort claims against the United
States, see T.J. Falgout Boats, Inc. v. United States, 508 F.2d
855 (9th Cir. 1974), cert. denied, 421 U.S. 1000 (1975), and that
the two-year statutory limitations period under the SAA had
lapsed. In his Opposition to the Motion to Dismiss, Hedges both
moved to amend his complaint to plead jurisdiction under the
SAA and argued that the statute of limitations should be
equitably tolled because he had been “induced” by National Park
Service personnel to “abstain from filing in [District] Court until
after pursuing [an] administrative claim with the Federal Tort
Claims Act.” App. at 37.

        After successive motions, and an oral hearing at which
Hedges testified, the District Court entered a memorandum
opinion granting the United States’ Motion to Dismiss. The
Court held that the statute of limitations in the SAA was a
jurisdictional prerequisite to suit, and that even if equitable
tolling were applicable, it was unwarranted in the present case.
Hedges and EMI then settled, and Hedges filed a timely notice
of appeal from the District Court’s June 30, 2003 order
dismissing his action.

                                 4
                                 II.
        The applicable statute provides that suits in admiralty
against the United States must be brought “within two years after
the cause of action arises,” 46 U.S.C. § 745. An action arises on
the date of injury. McMahon v. United States, 342 U.S. 25, 27
(1951); Bovell v. United States Dep’t of Defense, 735 F.2d 755,
756 (3d Cir. 1984). Hedges concedes that his complaint,
submitted on January 5, 2000 and amended on May 25, 2000,
was filed after the statutory period expired. He argues, however,
that the time in which he erroneously pursued an administrative
claim under the FTCA should be excluded under the doctrine of
equitable tolling and that the District Court erred by failing to do
so.

        We must first consider whether the doctrine of equitable
tolling is available to suits brought pursuant to the SAA. If the
two-year limitations period in the SAA is a jurisdictional
mandate, equitable tolling would not be available. See Miller v.
New Jersey State Dep’t. of Corrections, 145 F.3d 616, 617-18
(3d Cir. 1998) (“[W]hen a time limitation is considered
jurisdictional, it cannot be modified and non-compliance is an
absolute bar.”); Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1387 (3d Cir.1994) (“Where the filing
requirements are considered ‘jurisdictional,’ non-compliance
bars an action regardless of the equities in a given case.”); see
also Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997)
(stating that exhaustion requirement of Title VII not
jurisdictional and therefore subject to equitable tolling).

        In Bovell, we stated that “[t]he Supreme Court has
construed the SAA statute of limitations, 46 U.S.C. § 745, as a
jurisdictional prerequisite to the waiver of sovereign immunity
contained in the SAA.” 735 F.2d at 756 (citing McMahon v.
United States, 342 U.S. 25, 27 (1951)). Accordingly, we held
that the two-year limitations period of the SAA could not be
tolled for the period of time that a plaintiff erroneously pursued
administrative relief under the FTCA. We stated that even if
equitable tolling may apply to § 745 in “appropriate
circumstances . . . the latitude which has allowed tolling of
statutes of limitations under certain other statutory schemes, . . .

                                  5
is usually not applied to statutes waving sovereign immunity.”
Bovell, 735 F.2d at 757. We concluded that no tolling was
warranted under the circumstances of that case.

       Bovell, however, was decided before the Supreme
Court’s decision in Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89 (1990), which held that statutes of limitations governing
actions against the United States are subject to “the same
rebuttable presumption of equitable tolling applicable to suits
against private defendants.” Id. at 96; see also United States v.
Beggerly, 524 U.S. 38 (1998); United States v. Brockamp, 519
U.S. 347 (1997).

        In Irwin, the Supreme Court addressed the issue of
whether equitable tolling applied to a Title VII claim filed after
the thirty-day statutory limitations period. The Court stated that:

       Once Congress has made such a waiver [of
       sovereign immunity], we think that making the rule
       of equitable tolling applicable to suits against the
       Government, in the same way that it is applicable
       to private suits, amounts to little, if any,
       broadening of the congressional waiver. . . . We
       therefore hold that the same rebuttable
       presumption of equitable tolling applicable to suits
       against private defendants should also apply to
       suits against the United States. Congress, of
       course, may provide otherwise if it wishes to do so.

498 U.S. 89, 95-96. In articulating this “general rule to govern
the applicability of equitable tolling in suits against the
Government,” the Court expressed its intent to break with the
past practice of deciding “each case on an ad hoc basis.” Id. at
95. The Court has subsequently described the proper inquiry as
follows: “Is there good reason to believe that Congress did not
want the equitable tolling doctrine to apply?” Brockcamp, 519
U.S. at 350 (emphasis in original).

       Consistent with the broad language in Irwin, the federal
courts have held that equitable tolling is applicable to a wide

                                 6
range of cases against the Government, in addition to those
under Title VII. See, e.g., Hughes v. United States, 263 F.3d
272, 278 (3d Cir. 2001) (applying equitable tolling to Federal
Tort Claims Act); Long v. Frank, 22 F.3d 54, 58 (2d Cir. 1994)
(stating that equitable tolling applies to Age Discrimination in
Employment Act), cert. denied, 513 U.S. 1128 (1995); Nunnally
v. MacCausland, 996 F.2d 1, 3-4 (1st Cir. 1993) (applying
equitable tolling to the Civil Service Reform Act).

        Several courts of appeals have reached the same legal
issue before us and have held that the two-year limitations period
in the SAA is not jurisdictional. See, e.g., Wilson v. United
States Gov’t, 23 F.3d 559 (1st Cir. 1994) (stating that the
doctrine of equitable tolling applies to § 745); Raziano v.
United States, 999 F.2d 1539, 1540-41 (11th Cir. 1993) (same);
Favorite v. Marine Pers. & Provisioning, Inc., 955 F.2d 382, 389
(5th Cir. 1992) (same). In a recent post-Irwin decision, a judge
of the Eastern District of Pennsylvania stated that “under the
broad language of Irwin, the two-year bar of the Suits in
Admiralty Act can no longer be considered to be jurisdictional as
it had previously been interpreted.” Arthur v. United States, 299
F. Supp. 2d 431, 434 (E.D. Pa. 2003) (declining to follow Bovell
precedent). That decision was justified under the Supreme
Court’s holding in Irwin and we too hold that the limitations
period in the SAA is not jurisdictional, and therefore subject to
equitable tolling.

       In Beggerly and Brockamp, the Supreme Court set forth
several factors that courts should consider in determining
whether to rebut the Irwin presumption. They are: 1) whether
equity is already incorporated into the statute; 2) the length of
the limitations period; 3) the substantive area of law; 4) the
statutory language of the limitations period; 5) the availability of
other explicit exceptions; and 6) the potential administrative
burden of equitable tolling. See generally United States v.
Beggerly, 524 U.S. 38 (1998); United States v. Brockamp, 519
U.S. 347 (1977).

        In Beggerly, the Supreme Court held that equitable tolling
is not available in a suit brought pursuant to the Quiet Title Act.

                                 7
Beggerly, 524 U.S. at 48-49 (Stevens, J., concurring). The Quiet
Title Act includes a twelve-year limitations period, which begins
to run from the date the plaintiff or his or her predecessor in
interest knew or should have known of the claim of the United
States. 28 U.S.C. §2409a. The Court reasoned that by
incorporating a “knew or should have known” standard into the
limitations period, Congress “has already effectively allowed for
equitable tolling,” and therefore no further tolling is justified.
Id. at 48. In contrast, the limitations period in the SAA does not
incorporate equitable considerations. The Supreme Court held
in McMahon that the statute of limitations in the SAA begins to
run on the date of injury. 342 U.S. at 27. Therefore, there is no
basis for inferring that Congress has pre-empted equitable tolling
by incorporating equitable considerations into the SAA’s statute
of limitations.

        The presumption favoring equitable tolling is stronger
when the limitations period is short. In Beggerly, the Supreme
Court stated that the twelve-year limitations period in the Quiet
Title Act was “unusually generous.” 524 U.S. at 48. By contrast,
the limitations period in the SAA is two years. We have
previously held that a limitations period of this length is not so
“generous” as to preclude equitable extension. See Hughes v.
United States, 263 F.3d 272, 278 (3d Cir. 2001) (holding that the
two-year limitations period in the FTCA is subject to equitable
tolling).

       The Supreme Court has also considered the nature of the
substantive cause of action when determining whether to apply
equitable principles to suits against the Government; indeed the
basis of Irwin’s “rebuttable presumption,” was that the law
should provide equal treatment to private and Government
defendants. 498 U.S. at 95-96. In Brockamp, the Court held that
the limitations period for filing tax refund claims could not be
tolled because “[t]ax law, after all, is not normally characterized
by case-specific exceptions reflecting individualized equities.”
See Brockcamp, 519 U.S. at 352. Furthermore, a claim for a tax
refund can only be brought against the Government, and not
against a private party. See, e.g., Webb v. United States, 66 F.3d
691, 697 (4th Cir. 1995). Tort claims, by contrast, can be

                                 8
brought against private parties; in addition an action in tort
requires the court to examine individual equities and balancing
of case-specific facts. See Page Keeton et al., Prosser & Keeton
on the Law of Torts 19 (5th ed. 1984) (“Tort law is
overwhelmingly common law, developed in case by case
decision making by courts.”). Because actions in admiralty are
based in principles of tort, we see no reason why the limitations
period in the SAA should not be subject to equitable tolling in an
appropriate case.

        We examine next the form of the statutory language used
in setting forth the statute of limitations. The Irwin Court made
clear that equitable tolling applied not only to the permissive
language in Title VII, (“[w]ithin thirty days of receipt of notice
of final action taken by . . . the Equal Employment Opportunity
Commission . . . an employee . . . may file a civil action . . .”) see
42 U.S.C. § 2000e-16(c), but also to the mandatory language in
28 U.S.C. § 2501 (“every claim . . . shall be barred unless the
petition . . . is filed . . . within six years. . . .”). Irwin, 498 U.S.
at 94-95. Moreover, we recently decided in Hughes that the
language of the FTCA that “a tort claim against the United
States shall be forever barred unless it is presented . . . within
two years after such claim accrues . . .,” 28 U.S.C. § 2401, is not
jurisdictional. 263 F.3d at 278. Similarly, there is nothing in the
language of the SAA (stating that “[s]uits as herein authorized
may be brought only within two years after the cause of action
arises . . .” 46 U.S.C. § 745), that ties the limitations period to
the court’s subject matter jurisdiction.

        Finally, we consider the administrative burden on the
Government. In Brockcamp, the Court found that the
administrative burden of allowing equitable tolling to tax refund
claims could overburden the IRS due to the millions of claims
filed each year. Brockcamp, 519 U.S. at 352-53. The
Government does not suggest that the number of claims filed
under the SAA is of the same order of magnitude.

        After examining the factors considered in Beggerly and
Brockcamp we conclude that the presumption that equitable
tolling applies to § 745 of the SAA is not rebutted.

                                   9
Accordingly, based on the Supreme Court’s recent decisions in
Irwin, Brockcamp, and Beggerly, we hold that our prior holding
in Bovell is no longer good law.2

        It follows from the above discussion that the District
Court erred (albeit by following our prior, now outdated
precedent of Bovell) by evaluating the Government’s Motion to
Dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction, rather than under Fed. R. Civ. P. 12(b)(6) for failure
to state a claim upon which relief can be granted. See Robinson
v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (holding that
Government’s Motion to Dismiss for failure to file Title VII
complaint within non-jurisdictional thirty day statutory period
should be treated under Rule 12(b)(6)).

        “In a Rule 12(b)(6) motion, the court evaluates the merits
of the claims by accepting all allegations in the complaint as
true, viewing them in the light most favorable to the plaintiffs,
and determining whether they state a claim as a matter of law.”
Gould Elec. Inc. v. United States, 220 F.3d 169, 178 (3d Cir.
2000). The defendant bears the burden of showing that no claim
has been presented. See Kehr Packages, Inc. v. Fidelcor, Inc.,
926 F.2d 1406, 1409 (3d Cir.1991).

        In contrast, the standard to be applied to a Rule 12(b)(1)
motion is much more demanding. “When subject matter
jurisdiction is challenged under Rule 12(b)(1), the plaintiff must
bear the burden of persuasion.” Kehr Packages, Inc., 926 F.2d at
1409. Furthermore, the district court may not presume the
truthfulness of plaintiff’s allegations, but rather must “evaluat[e]
for itself the merits of [the] jurisdictional claims.” Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).



       2
        We are aware of only one decision to the contrary. In a
pre-Irwin Ninth Circuit decision, Smith v. United States, 873 F.2d
218, 221 (9th Cir. 1989), the court held that “a federal court cannot
extend § 745 [of the SAA] for any reason.” Smith is still good law
in the Ninth Circuit, however we are unaware of any opportunity
the Ninth Circuit has had to revisit the issue following Irwin.

                                 10
        Despite the District Court’s erroneous application of the
much more stringent Rule 12(b)(1) standard in this case, we
need not reverse the District Court’s dismissal if, “‘apply[ing]
the same test the district court should have utilized initially,’
plaintiff is not entitled as a matter of law to equitable tolling.”
Robinson, 107 F.3d at 1022 (citing Colgan v. Fisher Scientific
Co., 935 F.2d 1407, 1413 (3d Cir. 1991) cert. denied, 502 U.S.
941 (1991)).

                                 III.
        As a preliminary matter, Hedges argues for the first time
on appeal that the court should apply a discovery rule to § 745 of
the SAA. In other words, he contends that the two-year
limitations period of the SAA should not begin to run until
September 10, 1997, the date on which he claims to have
discovered that the Government’s negligence---in the use and
maintenance of the mooring line---was the proximate cause of
his injury. Not only has this argument been waived, Gass v.
Virgin Islands Telephone Corp., 311 F.3d 237, 246 (3d Cir.
2002), but it is without merit. The Supreme Court explicitly held
that the limitations period under the SAA begins to run on the
date of injury. McMahon v. United States, 342 U.S. 25, 27
(1951). Furthermore, even were we to apply a discovery rule,
Hedges’ complaint in the District Court was filed on January 5,
2000, more than two years after Hedges claims to have
discovered the Government’s negligence. Thus, we turn our
attention to the sole remaining issue: whether Hedges is entitled
to equitable tolling on the facts of this case.

        Equitable tolling applies when a plaintiff has “been
prevented from filing in a timely manner due to sufficiently
inequitable circumstances.” Seitzinger v. Reading Hosp. & Med.
Ctr., 165 F.3d 236, 240 (3d Cir. 1999). This occurs “(1) where
the defendant has actively misled the plaintiff respecting the
plaintiff’s cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or her
rights; or (3) where the plaintiff has timely asserted his or her
rights mistakenly in the wrong forum.” See Robinson, 107 F.3d
at 1022 (applying this test in a Title VII action against the

                                 11
Government).3 The plaintiff, however must “exercise due
diligence in preserving his claim.” Irwin, 498 U.S. at 96.
Equitable tolling is an extraordinary remedy which should be
extended only sparingly. Id.; see also Barren by Barren v.
United States, 839 F.2d 987, 992 (3d Cir. 1988) (“limitations
periods must be strictly construed”).

         Hedges, a pro se litigant during the relevant limitations
period, actively sought the advice of Government representatives
regarding the proper legal avenues to pursue his claim. Several
officials in the DOI and NPS advised him to file an
administrative claim under the FTCA, and provided him with
SF-95 forms to pursue such an action. Relying on these
representations, including a correspondence with DOI attorney
Patricia Cortelyou-Hamilton, Hedges timely initiated an
administrative action within the two-year limitations period of
the FTCA—albeit on the last day of the period. By the time this
claim was denied by the DOI, the two-year limitations period of
the SAA, which governed his claim, had lapsed. Hedges argues
that his reliance on the Government’s advice justifies equitable
tolling in the present case.

        In Bovell, we stated that “it has generally been agreed that
the statute of limitations in maritime actions is not tolled pending
resolution of administrative claims erroneously filed pursuant to
the FTCA.” Bovell, 735 F.2d at 757. Though Bovell was



       3
         Irwin stated that “[b]ecause the time limits imposed by
Congress in a suit against the Government involve a waiver of
sovereign immunity, it is evident that no more favorable tolling
doctrine may be employed against the Government than is
employed in suits between private litigants.” 498 U.S. at 96. Thus,
the Supreme Court left open the possibility that federal courts
could apply a more rigid equitable tolling standard to suits against
the Government, than to suits against private litigants. This court
has declined to do so, applying the same standard in both instances.
Compare Robinson, 107 F.3d at 1022 (involving a Title VII action
against the Navy) with Seitzinger, 165 F.3d at 240 (involving a
Title VII action against a private employer).

                                12
decided prior to Irwin, several other circuits ruling after the
Irwin decision have adopted an identical rule. See Ayers v.
United States, 277 F.3d 821, 828 (6th Cir. 2002) (“It is well-
established that the filing of an administrative claim under the
FTCA will not toll the limitations period for an action under the
SAA.”); Rashidi v. Am. President Lines, 96 F.3d 124, 127 (5th
Cir. 1996) (stating that “the mere filing of an administrative
claim does not toll limitations” period under the SAA); see also
Raziano v. United States, 999 F.2d 1539 (11th Cir. 1993)
(holding that the two-year limitations period in the SAA is not
tolled during negotiations with the Government). Balancing the
equities in the present case, we are not persuaded to deviate from
these precedents.

        While the Government did inform Hedges that he should
pursue an administrative claim under the FTCA, we do not find
that this advice was “actively misleading.” As reflected in the
DOI’s October 7, 1999 and January 25, 2000 letter response to
Hedges’ administrative complaint, the DOI evaluated Hedges’
damages claim not only under the FTCA but also under the
SAA. Furthermore, the stated reason for denial of relief was not
a procedural bar, as Hedges implies, but rather a decision on the
merits. The January 25, 2000 letter stated, “[w]e have carefully
examined the facts of your case and must deny your claim under
both the Federal Tort Claims Act and under the Suits in
Admiralty Act.” App. at 57. Thus, informing Hedges to pursue
an administrative claim in the first instance was not erroneous
nor futile advice. Indeed, the record reflects at least one instance
where the NPS reimbursed an individual who filed an
administrative tort claim against the Government, claiming that
his sailing vessel was severely damaged as a result of a defective
mooring within the Virgin Islands National Park.

        Further, and more importantly, there is no record
evidence, nor does Hedges contend, that Government officials
advised Hedges that he did not have a judicial remedy, or should
not pursue one in addition to his administrative claim. Hedges
cites no cases for the proposition that the Government has an
affirmative duty to inform litigants, including pro se litigants,
that they have viable judicial, as well as administrative remedies.

                                13
Indeed, cases point in the opposite direction. See Ammer v.
United States, 881 F. Supp. 1007 (D. Md. 1994) (holding that
equitable tolling should not extend the two-year limitations
period in the SAA despite plaintiff’s claims that he was induced
by the Government into allowing the limitations period to expire
because the coast guard had provided him with SF-95 forms that
mention the FTCA but not the SAA); Cf. Pliler v. Ford, 542 U.S.
225, 124 S. Ct. 2441, 2446 (2004) (holding that district courts
are not required to give pro se habeas petitions advice regarding
stay and abeyance procedures). We are unwilling to place such a
responsibility on the Government which has inquiries from
millions of individuals each year.

        There is also no evidence that the Government attempted
to prevent or discourage Hedges from obtaining legal counsel.
Simply stated, the Government did not induce or trick Hedges
into foregoing his judicial remedies by making any affirmative
misrepresentations regarding the proper avenues to pursue his
claim. See Ammer, 881 F. Supp. 1007; see also Robinson v.
Dalton, 107 F.3d 1018 (3d Cir. 1997) (holding that thirty-day
limitations period for filing Title VII administrative complaint
should not be tolled because pro se plaintiff relied on erroneous
advice of EEO counselor).

        Nor do we believe that Hedges has in “some
extraordinary way been . . . prevented from asserting his . . .
rights.” Id. at 1022. The only special circumstances identified
by Hedges are his pro se status and his contention that he
suffered from debilitating depression caused by the loss of his
boat. In McNeil v. United States, 508 U.S. 106 (1993), the
Supreme Court declined to provide equitable relief to a pro se
inmate whose FTCA claim was dismissed for failure to exhaust
his administrative remedies. The Court stated:

      Our rules of procedure are based on the
      assumption that litigation is normally conducted by
      lawyers. While we have insisted that the pleadings
      prepared by prisoners who do not have access to
      counsel be liberally construed, and have held that
      some procedural rules must give way because of

                               14
       the unique circumstance of incarceration, we have
       never suggested that procedural rules in ordinary
       civil litigation should be interpreted so as to excuse
       mistakes by those who proceed without counsel.
       As we have noted before, “in the long run
       experience teaches that strict adherence to the
       procedural requirements specified by the
       legislature is the best guarantee of evenhanded
       administration of the law.”

Id. at 113 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980)) (internal citations omitted); see also United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (stating that a pro se
plaintiff’s “misconception about the operation of the statue of
limitations” was “neither extraordinary nor a circumstance
external to his control” sufficient to warrant equitable tolling);
but see Shaver v. Corry Hiebert Corp., 936 F. Supp. 313, 317
(W.D. Pa. 1996) (stating that when a defendant “misleads a
complainant, particularly one who is without the benefit of
counsel, equitable tolling may be justified”). The same rationale
counsels against tolling the limitations period in the instant case,
where the statutory text of the SAA is clear and where Hedges
had the opportunity to retain counsel but chose not to do so.

       Hedges’ allegation that he suffered from severe
depression fares no better. We have held that mental
incompetence, even rising to the level of insanity, does not toll a
federal statute of limitations for claims against the Government.
See, e.g., Barren by Barren v. United States, 839 F.2d 987 (3d
Cir. 1988) (denying equitable tolling in a FTCA claim for mental
incompetence caused by Government’s negligence); Accardi v.
United States, 435 F.2d 1239, 1241 n.2 (3d Cir. 1970). It
follows that even taken in combination, Hedges’ pro se status
and depression do not justify equitable tolling.

       Finally, Hedges argues that the United States would not
be prejudiced by application of the equitable tolling doctrine
because it had notice of Hedges’ claim within the SAA’s two-
year limitations. We will accept Hedges’ argument that the
Government suffered no prejudice but lack of prejudice is not

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itself sufficient to warrant equitable tolling:

              Although absence of prejudice is a factor to
       be considered in determining whether the doctrine
       of equitable tolling should apply once a factor that
       might justify such tolling is identified, it is not an
       independent basis for invoking the doctrine and
       sanctioning deviations from established
       procedures.

               Procedural requirements established by
       Congress for gaining access to the federal courts
       are not to be disregarded by courts out of a vague
       sympathy for particular litigants. As we stated in
       Mohasco Corp. v. Silver, 447 U.S. 807, 826
       (1980), “[i]n the long run, experience teaches that
       strict adherence to the procedural requirements
       specified by the legislature is the best guarantee of
       evenhanded administration of the law.”

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152
(1984).

       Hedges’ failure to file a judicial action within the two-
year limitations period prescribed by the SAA is merely a
“garden variety claim of excusable neglect” to which we cannot
extend equitable relief. Irwin, 498 U.S. at 96. Diligent research
would likely have revealed not only the existence of an SAA
claim but also that the limitations period under the SAA would
not be tolled during the period in which he pursued an
administrative complaint. See Ayers, 227 F.3d at 829; Rashidi,
96 F.3d at 124.

                               IV.
        For the above reasons, we will affirm the judgment of the
District Court.




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