The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before the Court is plaintiff John D. Norman's Motion to Reconsider and Reinstate his civil action for damages under the Federal Tort Claims Act ("FTCA"). Because the Court is persuaded that reinstatement would ultimately be futile given plaintiff's failure to exhaust his FTCA administrative remedies within the congressionally mandated limitations period, plaintiff's motion will be DENIED. See Lepkowski v. United State Dep't of Treasury, 804 F.2d 1310, 1314 (D.C. Cir. 1986)(motions for relief from judgment under Rule 60(b) are not to be granted where movant fails to demonstrate an underlying meritorious claim or defense).
On December 22, 2003, plaintiff brought suit in the Superior Court for the District of Columbia against Earnest Edward Howe and the Erie Insurance Company, arising out of a motor vehicle-pedestrian accident on January 4, 2001. A few months after filing suit, it was revealed that defendant Howe was operating the vehicle within the scope of his employment with the United States Environmental Protection Agency at the time of the accident. As a result, defendant removed the action to this Court, and the United States was substituted as the proper defendant under the FTCA. See 28 U.S.C. § 2679(d)(2).*fn1 The United States then moved to dismiss the suit as jurisdictionally barred by the filing requirements of the FTCA, which mandate that a claimant present an administrative claim to the appropriate federal agency within two years of the alleged wrongdoing. See 28 U.S.C. §§ 2401(b), 2675. Before the motion could be decided on the merits, however, plaintiff unexpectedly failed to meet a filing deadline and did not appear at a scheduled status conference. The Court consequently dismissed plaintiff's complaint without prejudice, subject to the filing of a motion to reconsider and reinstate the complaint for good cause shown.
A. Relief from Judgment under Rule 60(b)
Federal Rule of Civil Procedure 60(b)(1) provides that a court may relieve a party from an adverse judgment based on "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1); see Lepkowski, 804 F.2d at 1311. Plaintiff's counsel avers that his firm is unfamiliar with the Electronic Case Filing ("ECF") system used by this Court, and apparently failed to receive e-mail notification of the status conference. Under the circumstances, and in light of the risk of prejudice to plaintiff should this Court not reach the merits of his case, the Court considers counsel's explanation to be excusable neglect within the meaning of the Rule. Accordingly, the Court will reinstate the case if plaintiff is able to demonstrate an underlying meritorious claim. See Lepkowski, 804 F.2d at 1314. Defendant's motion to dismiss was fully briefed at the time the case was dismissed. The remainder of this opinion, therefore, focuses on the merits of plaintiff's underlying claim.
B. The Federal Tort Claims Act
The FTCA, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b) and 2671-80, waives the United States' sovereign immunity with regard to various types of tort claims, and is the exclusive remedy in personal injury cases arising from the negligence of federal employees acting within the scope of their employment. 28 U.S.C. § 2679(b)(1); see United States v. Kubrick, 444 U.S. 111, 117 (1979). The Act requires plaintiffs to exhaust their administrative remedies by first presenting their claims to the appropriate federal agency before instituting a civil action, see 28 U.S.C. § 2675(a), and contains a two-year statute of limitations, which provides that
[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues ....
28 U.S.C. § 2401(b). In 1988, Congress amended the FTCA through passage of the Westfall Act to provide some relief for plaintiffs where the United States is unexpectedly substituted as a party defendant and the case is dismissed for failure to exhaust administrative remedies. The amendments provide those plaintiffs an additional sixty days to file an administrative claim with the appropriate agency as long as the original lawsuit was commenced within the two year time period allowed for filing a claim. See 28 U.S.C. § 2679(d)(5).*fn2
In this case, plaintiff filed suit in Superior Court two years and eleven months after his cause of action accrued. Therefore, the amendments embodied in section 2679 are unavailable for purposes of maintaining suit against the United States. Despite the statutory language, plaintiff argues that it would be unfair to hold him to the FTCA's two-year deadline because he filed within the District of Columbia's three-year statute of limitations, and he did not discover that defendant was a federal employee until it was too late. The Second Circuit has recognized precisely this dilemma, observing that "the Westfall Act provides no salve" where the federal statute of limitations is shorter than the state statute, and a plaintiff (reasonably thinking that he has a state law claim) brings suit within the state statute-of-limitations window but outside the federal one. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 84 (2d Cir. 2005)(noting that it may be "unjust" to treat such a timely state suit as federally barred). The Celestine court suggested that fairness may require the equitable tolling of the FTCA statute of limitations where there are federal-state disparities in statutes of limitations and where the FTCA suit was "brought originally in state court by plaintiffs who were unaware that the named tortfeasor was acting as an agent of the United States." Id. Accordingly, this Court will explore whether equitable tolling of the FTCA's two-year statute of limitations may be justified in this case.
Until recently, the D.C. Circuit treated the time limit for suing the government as "a jurisdictional condition attached to the government's waiver of sovereign immunity," and therefore not subject to equitable tolling. See, e.g., Spannaus v. United States Dep't of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987) (finding, in a FOIA case, that the six-year statute of limitations in § 2401(a) was "jurisdictional," and "as such must be strictly construed"). However, in 1990, the Supreme Court announced that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990)(rejecting the Fifth Circuit's jurisdictional reading of Title ...