Bette Bennett v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BETTE BENNETT, No. 21-35941

Plaintiff-Appellee,

D.C. No.

v. 3:20-cv-05382-

BHS

UNITED STATES OF AMERICA,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted July 7, 2022

Seattle, Washington

Filed August 11, 2022

Before: Richard R. Clifton and Patrick J. Bumatay, Circuit

Judges, and Richard Seeborg, * District Judge.

Opinion by Judge Seeborg

*

The Honorable Richard Seeborg, Chief United States District

Judge for the Northern District of California, sitting by designation.

2 BENNETT V. UNITED STATES

SUMMARY **

Federal Tort Claims Act / Statute of Repose

The panel reversed the district court’s order holding that

plaintiff Bette Bennett’s Federal Tort Claims Act (“FTCA”)

action was not subject to dismissal for having been filed

outside the applicable state statute of repose; and remanded

for further proceedings to determine the constitutionality of

the statute of repose under Washington’s state constitution.

Bennett brought suit alleging medical malpractice by

government physicians at Naval Hospital Bremerton in the

state of Washington. Bennett first submitted a timely

administrative claim to the Navy under the FTCA, which

was denied. She filed her complaint in the Western District

of Washington within six months thereafter, as required by

the FTCA. The Government sought dismissal on grounds

that Bennett’s claim had been extinguished by a Washington

statute of repose, Wash. Rev. Code § 4.16.350, which

prohibits the filing of professional negligence claims against

health care providers more than eight years after the act or

omission that allegedly caused injury. Because Bennett’s

alleged injury from a 2009 medical procedure was not

diagnosed until 2017, both her tort claim filed in 2018, and

this action filed in 2020, were outside the eight-year period

of the statute of repose, even though the claim was timely

under the FTCA’s requirement that tort claims be filed

within two years of “accrual.” The district court held that

applying the statute of repose here would conflict with

federal law, and therefore, the FTCA statute of limitations

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BENNETT V. UNITED STATES 3

preempted Section 4.16.350. The district court concluded

that Bennett’s suit was timely filed and denied the

Government’s motion to dismiss.

The panel held that the only question at issue was

whether the FTCA’s statute of limitations supplanted the

eight-year statute of repose embodied in the latter clause of

Section 4.16.350. The U.S. Supreme Court addressed a

similar question in a parallel context in CTS Corp. v.

Waldburger, 573 U.S. 1, 3-4 (2014). CTS explained the

consequences of the distinction between a statute of

limitation and a statute of repose. A statute of repose “is not

related to the accrual of any cause of action,” but instead

“mandates that there shall be no cause of action beyond a

certain point, even if no cause of action has yet accrued.” Id.

at 16. Here, Bennett concedes that the eight-year limit in

Section 4.16.350 is a statute of repose, and that it represents

substantive law of the state of Washington. The panel held

that because there was no contradictory statute of repose in

the FTCA, and the FTCA generally applied the substantive

law “of the place where the omission occurred,” it followed

that Section 4.16.350 applied to Bennett’s claims and

precluded them. The acts and/or omissions forming the basis

of Bennett’s claims occurred in February 2009, and the

effect of the statute of repose arose eight years later in

February 2017. At that point, even though Bennett’s claim

had not yet accrued, she had no cause of action. In addition,

under the FTCA, there was no waiver of sovereign immunity

because there were no “circumstances where the United

States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. § 1346(b)(1).

The panel rejected Bennett’s contention that state

statutes of repose do not apply to claims under the FTCA.

4 BENNETT V. UNITED STATES

The panel also rejected Bennett’s argument that the FTCA

preempted state statutes of repose that were supposedly

“inconsistent” with the timing provisions in the FTCA,

where, as here, they preclude a claim that the FTCA would

not. The panel held that there was no impermissible

inconsistency where statutes of limitation and statutes of

repose serve overlapping, but ultimately different purposes.

COUNSEL

Daniel Tenny (argued) and Mark B. Stern, Appellate Staff;

Nicholas W. Brown, United States Attorney; Brian M.

Boynton, Acting Assistant Attorney General; Civil Division,

United States Department of Justice, Washington, D.C.; for

Defendant-Appellant.

Darrin E. Bailey (argued), Bailey Onsager PC. Seattle,

Washington, for Plaintiff-Appellee.

BENNETT V. UNITED STATES 5

OPINION

SEEBORG, District Judge:

This interlocutory appeal presents the question of

whether the claims presentation timing requirements of the

Federal Tort Claims Act (FTCA) override a state statute of

repose. While there is no dispute that the FTCA’s timing

provisions act as a statute of limitations that supersedes any

state statute of limitations, courts have not uniformly agreed

on whether those provisions also override state statutes of

repose. Because the better reading of the FTCA is that it

incorporates and applies state laws that serve as statutes of

repose rather than overriding them, we reverse the trial

court’s determination that this action was not subject to

dismissal for having been filed outside the applicable statute

of repose. We remand for further proceedings to determine

the constitutionality of the statute under Washington’s state

constitution.

I.

Plaintiff Bette Bennett brought suit alleging medical

malpractice by government physicians at Naval Hospital

Bremerton, in the state of Washington. Bennett had first

submitted a timely administrative claim to the Navy under

the FTCA, which was denied. She filed her complaint in the

Western District of Washington within six months

thereafter, as required by the FTCA. See 28 U.S.C.

§ 2401(b).

The Government sought dismissal on grounds that

Bennett’s claim nevertheless had been extinguished by a

Washington statute of repose, Wash. Rev. Code § 4.16.350

(Section 4.16.350), which prohibits the filing of professional

negligence claims against health care providers more than

6 BENNETT V. UNITED STATES

eight years after the act or omission that allegedly caused

injury. Because Bennett’s alleged injury from a 2009

medical procedure was not diagnosed until 2017, both her

tort claim filed in 2018 and this action filed in 2020 were

well outside the eight-year period of the statute of repose,

even though, under the FTCA’s requirement that tort claims

be filed within two years of “accrual,” the claim was timely.

The Government contends that because the Washington

statute of repose applies, and the FTCA waives sovereign

immunity only “under circumstances where the United

States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred,” 28 U.S.C. § 1346(b)(1), the district

court lacked subject matter jurisdiction and should have

granted the motion to dismiss. Bennett insists the FTCA

preempts or otherwise overrides the Washington statute of

repose, but does not contest that if it does apply, the FTCA’s

waiver of sovereign immunity would be ineffective in this

case, and dismissal for lack of jurisdiction would be

appropriate, unless she prevails on her alternate contention

that the statute of repose in Section 4.16.350 is

unconstitutional under the Washington state constitution. 1

The complaint alleges Bennett is the civilian wife of a

Navy service member. In May of 2009, Bennett underwent

sinus surgery at Naval Hospital Bremerton to treat her

chronic sinusitis. A week later, Bennett experienced

significant bleeding from her nose and was taken to the naval

hospital emergency room by ambulance. The on-call ENT

physician placed nasal packing into Bennett’s nasal cavity.

When the doctor inserted the packing, Bennett heard a noise

1

That question is not presented by this appeal. Its status is discussed

further below.

BENNETT V. UNITED STATES 7

that sounded like cracking, felt acute pain, and passed out.

Bennett was then rushed to the operating room to control her

ongoing nosebleed under anesthesia. Bennett was

discharged soon thereafter, but returned to the hospital a few

days later to have the nasal packing removed.

Bennett subsequently developed a complex constellation

of symptoms including migraines, malaise, light sensitivity,

memory loss, and other neurocognitive impairments. She

saw a series of neurologists and other specialists who were

unable to diagnose the cause of her symptoms.

In August of 2017, Bennett was treated by a

neuropsychologist who found that she suffered deficits

consistent with a traumatic brain injury. Bennett was then

referred to the University of Washington Medical Center to

see a specialist in brain injuries. In December of 2017, the

specialist diagnosed Bennett as suffering from a traumatic

brain injury to her prefrontal cortex, caused by the nasal pack

insertion in 2009.

In August of 2018, Bennett filed her administrative claim

with the Navy, as required by the FTCA. See 28 U.S.C.

§ 2675(a). The Navy denied the claim in October of 2019,

finding that the Navy health care providers had met the

applicable standard of care and that the alleged damages did

not result from the act or omission of any United States

employee. Bennett filed this action within the six-month

deadline of the FTCA.

The Government moved to dismiss for lack of subject

matter jurisdiction, arguing that Washington’s statute of

repose applicable to professional negligence claims against

health care providers, Section 4.16.350, barred Bennett’s

claims. The court initially deferred ruling on the merits of

the motion, instead certifying to the Washington Supreme

8 BENNETT V. UNITED STATES

Court two questions related to whether Section 4.16.350 is

constitutional under the state constitution.

Because the district court had not yet ruled on whether

the FTCA precluded application of Section 4.16.350, the

Washington Supreme Court declined “as a matter of comity”

to answer the certified questions. The district court then took

up the Government’s motion to dismiss again, ultimately

holding that applying the statute of repose here would

conflict with federal law, and that therefore the FTCA statute

of limitations preempts Section 4.16.350. The court

concluded Bennett’s suit was thus timely filed, and denied

the Government’s motion to dismiss.

The district court certified its ruling for interlocutory

review and this court’s motions panel granted permission to

appeal. 2 We have jurisdiction pursuant to 28 U.S.C.

§ 1292(b) and review de novo the district court’s denial of

the motion to dismiss. Reese v. BP Expl. (Alaska) Inc.,

643 F.3d 681, 690 (9th Cir. 2011).

II.

The FTCA provides a limited waiver of the

Government’s sovereign immunity for tort claims. See

28 U.S.C. §§ 1346(b)(1), 2671–2680. With certain

exceptions not implicated here, the United States may be

2

Although deference is given to the ruling of the motions panel, we

have an independent duty to confirm that jurisdiction is proper. Kuehner

v. Dickinson & Co., 84 F.3d 316, 318–19 (9th Cir. 1996). Interlocutory

review is proper here because there plainly is “a controlling question of

law as to which there is substantial ground for difference of opinion” and

“an immediate appeal from the order may materially advance the

ultimate termination of the litigation.” 28 U.S.C. § 1292(b). No party

suggests otherwise.

BENNETT V. UNITED STATES 9

held liable in tort for the actions or omissions of its

employees “under circumstances where the United States, if

a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.” Id. § 1346(b)(1); see also id. § 2674

(United States is liable “in the same manner and to the same

extent as a private individual under like circumstances”).

The FTCA thus incorporates substantive state law as

federal law to determine liability. The FTCA, however,

establishes its own administrative claim procedure and

statute of limitations provisions that apply uniformly in all

states. See Poindexter v. United States, 647 F.2d 34, 36–37

(9th Cir. 1981) (“It is long settled, however, that the statute

of limitations in the FTCA, 28 U.S.C. § 2401, governs in

FTCA actions, even when the state period of limitations is

longer or shorter.” (citations omitted)).

The FTCA 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 addition,

claims are barred “unless action is begun within six months”

of the date the relevant agency denies the claim. Id.

Claimants cannot file actions in court until the agency has

finally denied their claims, except that they are entitled to

“deem[]” the agency’s “failure . . . to make final disposition

of a claim within six months after it is filed” to be “a final

denial” at any time after the six months has elapsed. Id.,

§ 2675(a).

Under the FTCA, a claim for medical malpractice does

not accrue “until a plaintiff knows of both the existence of

an injury and its cause.” Hensley v. United States, 531 F.3d

1052, 1056 (9th Cir. 2008) (citing United States v. Kubrick,

444 U.S. 111, 122–23 (1979)). Here, there is no dispute that

10 BENNETT V. UNITED STATES

Bennett’s claim did not accrue before December of 2017,

when she was first diagnosed with a traumatic brain injury

to her prefrontal cortex, purportedly caused by the nasal pack

insertion in 2009. Her tort claim filed with the Navy in 2018

was well within the two-year time period provided by

§ 2401(b), and she filed this action within the requisite six-

month period after that claim was denied. Accordingly, all

agree that Bennett complied with the procedural and timing

requirements specified in the FTCA, and that those

requirements apply in lieu of any Washington state law

statute of limitations that might otherwise apply.

Section 4.16.350 is, in fact, what has sometimes been

referred to as a “bifurcated” or “hybrid” statute—it includes

both a statute of limitations and a statute of repose. See

Augutis v. United States, 732 F.3d 749, 752 (7th Cir. 2013)

(noting Illinois courts referred to the state statute as

“bifurcated”); Bagley v. United States, 215 F. Supp. 3d 831,

835 (D. Neb. 2016) (referring to a “hybrid statute,”

containing both a one-year statute of limitations and a

“three-year repose period”).

Section 4.16.350 provides, in pertinent part, that

[a]ny civil action for damages for injury

occurring as a result of health care . . . based

upon alleged professional negligence shall be

commenced within three years of the act or

omission alleged to have caused the injury or

condition, or one year of the time the patient

or his or her representative discovered or

reasonably should have discovered that the

injury or condition was caused by said act or

omission, whichever period expires later,

except that in no event shall an action be

BENNETT V. UNITED STATES 11

commenced more than eight years after said

act or omission . . . . 3

Under the statute of limitation portion of Section

4.16.350, had Bennett been suing a private sector medical

provider, her lawsuit, filed more than two years after her

discovery that her injury was caused by the 2009 procedure,

would have been barred as untimely under Washington state

law. 4 Again, however, it is well-settled that the FTCA

supplants state statute of limitations, and that part of Section

4.16.350 is undeniably not in play.

Thus, the only question is whether the FTCA’s statute of

limitations also supplants the eight-year statute of repose

embodied in the latter clause of Section 4.16.350. The

Supreme Court has addressed a strikingly similar question in

a parallel context. In CTS Corp. v. Waldburger, 573 U.S. 1,

3–4 (2014), the Court confronted a provision in the

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as

amended, 42 U.S.C. § 9601 et seq., that by its terms

3

The statute goes on to provide for tolling in the event of “proof of

fraud, intentional concealment, or the presence of a foreign body not

intended to have a therapeutic or diagnostic purpose or effect.” While a

general feature of statutes of repose is that they are not subject to

ordinary equitable tolling, there is no suggestion that this provision

precludes the eight-year limit in Section 4.16.350 from qualifying as a

true statute of repose, nor is there any indication that part of the statute

is implicated here.

4

Of course, had Bennett not been constrained by the FTCA, she

presumably would have filed suit around the time she instead filed her

tort claim, and it would have in fact been timely under the statute of

limitation portion of Section 4.16.350.

12 BENNETT V. UNITED STATES

preempts statutes of limitations applicable to state law tort

actions in certain circumstances. See 42 U.S.C. § 9658.

CTS explains:

Section 9658 applies to statutes of limitations

governing actions for personal injury or

property damage arising from the release of a

hazardous substance, pollutant, or

contaminant into the environment. Section

9658 adopts what is known as the discovery

rule. Under this framework, statutes of

limitations in covered actions begin to run

when a plaintiff discovers, or reasonably

should have discovered, that the harm in

question was caused by the contaminant. A

person who is exposed to a toxic contaminant

may not develop or show signs of resulting

injury for many years, and so Congress

enacted § 9658 out of concern for long

latency periods.

573 U.S. at 4.

The opinion then describes the issue before the Court: “It

is undoubted that the discovery rule in § 9658 pre-empts

state statutes of limitations that are in conflict with its terms.

The question presented in this case is whether § 9658 also

pre-empts state statutes of repose.” Id. While § 9658 of

CERCLA does not function identically to the statute of

limitations in the FTCA, the differences are not significant

BENNETT V. UNITED STATES 13

to the dichotomy between statutes of limitation and statutes

of repose. 5

The CTS court lays out that dichotomy:

Statutes of limitations and statutes of repose

both are mechanisms used to limit the

temporal extent or duration of liability for

tortious acts. Both types of statute can

operate to bar a plaintiff’s suit, and in each

instance time is the controlling factor. There

is considerable common ground in the

policies underlying the two types of statute.

But the time periods specified are measured

from different points, and the statutes seek to

attain different purposes and objectives.

573 U.S. at 7.

Specifically, the CTS court explains, a statute of

limitation ordinarily creates a time limit for suing in a civil

case, based on the date when the claim accrued. Id. A statute

of repose, in contrast, “puts an outer limit on the right to

bring a civil action. That limit is measured not from the date

5

Section 9658 of CERCLA does not replace state statutes of

limitation wholesale the way the FTCA does. Instead, it merely provides

that the accrual rules will be governed by the federal statutes, while the

state statutes continue to govern other aspects of the timing requirements.

42 U.S.C. § 9658(a)(1) (“[I]f the applicable limitations period for such

action (as specified in the State statute of limitations or under common

law) provides a commencement date which is earlier than the federally

required commencement date, such period shall commence at the

federally required commencement date in lieu of the date specified in

such State statute.”); Id. § 9658 (a)(2) (“Except as provided in paragraph

(1), the statute of limitations established under State law shall apply

. . . .”).

14 BENNETT V. UNITED STATES

on which the claim accrues but instead from the date of the

last culpable act or omission of the defendant.” Id. at 8.

While statutes of limitation and statutes of repose both

“encourage plaintiffs to bring actions in a timely manner,

and for many of the same reasons,” the emphasis is different.

Id. at 9–10. “Statutes of repose effect a legislative judgment

that a defendant should ‘be free from liability after the

legislatively determined period of time.’” Id. (citations

omitted).

CTS further explains the consequences of the distinction

between a statute of limitation and a statute of repose. A

statute of repose “is not related to the accrual of any cause of

action.” 573 U.S. at 16 (citation omitted). “Rather, it

mandates that there shall be no cause of action beyond a

certain point, even if no cause of action has yet accrued.

Thus, a statute of repose can prohibit a cause of action from

coming into existence.” Id.

As additional support for this proposition, CTS cites

Hargett v. Holland, 337 N.C. 651, 654–655 (1994) (“A

statute of repose creates an additional element of the claim

itself which must be satisfied in order for the claim to be

maintained . . . . If the action is not brought within the

specified period, the plaintiff literally has no cause of

action.” (internal quotation marks omitted)). CTS then

summarizes, “A statute of repose can be said to define the

scope of the cause of action, and therefore the liability of the

defendant . . . . A statute of repose . . . may preclude an

alleged tortfeasor’s liability before a plaintiff is entitled to

sue, before an actionable harm ever occurs.” 573 U.S. at 16–

17.

Here, Bennett concedes that the eight-year limit in

Section 4.16.350 is a statute of repose, and that it represents

BENNETT V. UNITED STATES 15

substantive law of the state of Washington. As there is no

contradictory statute of repose in the FTCA, and the FTCA

generally applies the substantive law “of the place where the

act or omission occurred,” it follows that Section 4.16.350

applies to Bennett’s claims and precludes them. The acts

and/or omissions forming the basis of Bennett’s claims

occurred in February of 2009. The effect of the statute of

repose arose eight years later, in February of 2017. At that

point, even though Bennett’s claim had not accrued, had not

even come “into existence,” she “literally ha[d] no cause of

action.” CTS, 573 U.S. at 16–17.

Under otherwise identical circumstances including all

the same timing, had Bennett been treated by non-federal

physicians and health care providers, she would have no

viable claim. 6 Under the FTCA, therefore, there is no waiver

of sovereign immunity because these are not “circumstances

where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where

the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see

also Kubrick, 444 U.S. at 117–18 (“We should also have in

mind that the Act waives the immunity of the United States

and . . . we should not take it upon ourselves to extend the

waiver beyond that which Congress intended. Neither,

however, should we assume the authority to narrow the

waiver that Congress intended.”(citations omitted)).

There are scant circuit-level precedential decisions

addressing this question, but those that exist are in accord. In

Augutis, the Seventh Circuit concluded that because a state

statute of repose was a “substantive limitation on the tort of

medical malpractice,” it precluded a plaintiff from

6

Though, as noted above, the constitutionality of Section 4.16.350

under the Washington state constitution remains to be resolved.

16 BENNETT V. UNITED STATES

proceeding under the FTCA despite his compliance with its

claims and filing requirements. 732 F.3d at 754. While the

Augutis court additionally observed that the plaintiff in that

case could have complied with both the FTCA and the state

statute of repose (unlike Bennett, for whom the statute of

repose cut off the claim before accrual), the decision does

not appear to be dependent on that fact. See id. at 754–55.

In Anderson v. United States, 669 F.3d 161 (4th Cir.

2011), the Fourth Circuit observed that although

“substantive state law establishes—and circumscribes—

FTCA causes of action, federal law defines the limitations

period.” Id. at 164–65. Anderson went on to explain that

“[s]tate law may nevertheless speak to the timeliness of a

claim brought under the FTCA, because a state’s enactment

of a statute of repose ‘creates a substantive right in those

protected to be free from liability after a legislatively-

determined period of time.’” Id. (quoting First United

Methodist Church of Hyattsville v. U.S. Gypsum Co.,

882 F.2d 862, 866 (4th Cir. 1989)).

Anderson ultimately concluded that “[b]ecause statutes

of repose are substantive limitations on liability, an FTCA

claim does not lie against the United States where a statute

of repose would bar the action if brought against a private

person in state court.” Id. 7 Thus, the fact that the FTCA

7

Anderson then certified to the Court of Appeals of Maryland the

question of whether the statute before it in fact was a statute of repose.

Upon receiving the state court’s response that it was instead a statute of

limitations, the Fourth Circuit concluded the plaintiff’s FTCA claim was

not foreclosed. Anderson v. United States, 474 F. App’x 891, 892 (4th

Cir. 2012).

BENNETT V. UNITED STATES 17

supplants state statutes of limitations does not mean it

overrides state statutes of repose. 8

III.

To argue that her claims can go forward notwithstanding

that they did not accrue and were not filed—with the agency

or with the court—within the period provided by the statute

of repose, Bennett makes two interrelated arguments. First,

Bennett contends state statutes of repose simply do not apply

to claims under the FTCA. For this proposition, Bennett

relies predominately on an unpublished district court

decision which discussed a range of topics in addressing the

question of whether New Mexico’s statute of repose required

dismissal of the plaintiff’s complaint. See Romero v. United

States, 2018 WL 1363833 (D.N.M. Mar. 15, 2018).

8

At least two unpublished circuit decisions also reach the same

result. In Smith v. United States, 430 F. App’x 246 (5th Cir. 2011), the

Fifth Circuit had little trouble concluding that Texas’s ten-year statute of

repose in medical malpractice cases precluded an FTCA claim. The court

observed that for liability to attach under the FTCA, the conduct must be

actionable under state law where it occurred. Id. at 247. “Here, the law

of Texas controls because that is where Smith’s operation was performed

. . . . This is a statute of repose, which unlike a statute of limitation

creates a substantive right to be free of liability after the specified time.”

Id. (citation omitted). Similarly, in Huddleston v. United States, 485

F. App’x 744 (6th Cir. 2012), the court observed: “The statute of repose

is a substantive requirement, not just a procedural hurdle. Unlike a statute

of limitations, which eliminates the remedy available to plaintiffs,

Tennessee’s statute of repose extinguishes the cause of action itself.” Id.

at 745–46 (citations omitted). The court further stated, “[s]uch

substantive limitations apply to suits brought against the United States

under the FTCA, which permits liability only where the United States, if

a private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred . . . .” Id. at 746.

18 BENNETT V. UNITED STATES

The foundational premise of Romero is that the FTCA

provisions governing the timing and presentation of

administrative claims and its statute of limitations, somehow

preclude the potential applicability of any other rules

generally involving the subject of timing. See id. at *15–16.

The FTCA, however, unquestionably borrows substantive

state law on liability. Although not in the precise context of

the FTCA, the Supreme Court has made very clear that even

where a federal statute overrides state statutes of limitations,

it does not thereby also supplant state statutes of repose,

which may have timing aspects, but which ultimately go to

whether a substantive claim exists or not. See CTS, 573 U.S.

at 16–17.

Bennett next argues that the FTCA preempts state

statutes of repose that are supposedly “inconsistent” with the

timing provisions in the FTCA where, as here, they preclude

a claim that the FTCA would not. Again, however, there is

no impermissible inconsistency. Statutes of limitation and

statutes of repose serve overlapping, but ultimately different

purposes. States often enact schemes, as Washington did

here, where their own residents injured by private

individuals may find they have lost the right to pursue claims

as a result of a statute of repose, even before the injury was

manifest or the claim had accrued. The FTCA was not

intended to give individuals suing federal actors greater

substantive rights than they would have against private

defendants. The FTCA spells out in detail the statute of

limitations provisions that in some cases may give plaintiffs

more time to sue than in state court (or perhaps sometimes

less), but absent any similar provisions in the FTCA

rewriting the rules applicable to statutes of repose, such

statutes are incorporated, not preempted, as representing the

substantive law of the place where the act or omission

occurred.

BENNETT V. UNITED STATES 19

Bennett repeatedly insists that because the FTCA

expressly defines when claims accrue, it plainly was

“intended” to govern the timeliness of claims. Accrual,

however, is a concept that relates specifically to statutes of

limitation, and not to statutes of repose. So, if anything, the

FTCA’s focus on accrual demonstrates it is not intended to

supplant substantive state statutes of repose that affect

viability of claims without regard to when those claims

accrue. 9

IV.

On remand, the district court is left with the threshold

question of the constitutionality of Section 4.16.350 under

the Washington state constitution. Depending on the

outcome of that issue, this action may either be dismissed for

lack of jurisdiction or proceed to the merits of Bennett’s

claims.

REVERSED AND REMANDED.

9

Some district court cases cited by Bennett, including Romero and

Mamea v. United States, 2011 WL 4371712 (D. Haw. Sept. 16, 2011),

raise a policy concern that were a claim to accrue shortly before

expiration of a statute of repose, it arguably could skew or undermine the

administrative claims process. No such issue is presented here, where

Bennett was already outside the statute of repose before her claim

accrued. Whether some sort of equitable exception or different rule

might appropriately be applied in other circumstances is a question that

must await a case with such facts.