[00:00:16] Speaker 01:
May it please the court, Catherine Owens for Appellant Sophia Johnson.

[00:00:22] Speaker 01:
And I'd like to reserve three minutes for rebuttal, please.

[00:00:26] Speaker 01:
The issue raised on this appeal is very simple and straightforward.

[00:00:31] Speaker 01:
And the question is, did the district court misapply the doctrine of equitable tolling to Sophia Johnson's claims?

[00:00:41] Speaker 01:
And the answer is yes.

[00:00:50] Speaker ?:
by looking at what the district court said.

[00:01:15] Speaker 01:
The standard for review for equitable tolling is for abuse of discretion.

[00:01:19] Speaker 01:
And the court has held that when there is a legal error or a misapplication of the law,

[00:02:46] Speaker 05:
to figure out if that's the interpretation, why would he have dismissed?

[00:02:52] Speaker 01:
Because, Your Honor, if you look at his first order to dismiss the original complaint at Excerpt of Record, page 19, he says in no uncertain terms, quote, here, Ms.

[00:03:03] Speaker 01:
Johnson must show that equitable tolling applies from August 16, 2012 to May 14, 2018.

[00:03:11] Speaker 01:
That's the date she filed her claim.

[00:03:14] Speaker 01:
Equitable tolling pauses the statute of limitations.

[00:03:18] Speaker 01:
It stops the clock.

[00:03:19] Speaker 01:
So that meant, as Your Honor just pointed out, that she had two years from the time equitable tolling ceased to file her claim.

[00:03:27] Speaker 01:
It does not mean that she had to demonstrate that the elements of equitable tolling were established up until the day she

[00:04:19] Speaker 01:
Equal tolling applies to her claims after June 14th, 2016, the day she was issued the passport and May 10th, 2018, the day that the immigration court entered its order.

[00:04:49] Speaker 04:
And it's not, this is a math problem.

[00:04:52] Speaker 04:
And I think people make mistakes, and I think the judge just made a mistake here.

[00:04:57] Speaker 04:
So then, if there was a mistake, what does the Court of Appeals do?

[00:05:01] Speaker 04:
Should it just go back to the district court to correct the error that I suspect will be corrected when it goes back?

[00:05:07] Speaker 01:
I think the court should reverse the order and remand for further proceedings to correctly apply equitable tolling to her claims.

[00:05:46] Speaker 05:
There is no bright line rule that's- Well, have you ever looked at those cases?

[00:05:51] Speaker 05:
It looks pretty bright line to me.

[00:05:53] Speaker 01:
I did look at those cases.

[00:05:55] Speaker 01:
Johnson versus Henderson and Lorena versus US Department of State, I believe, are the cases you're referencing.

[00:06:00] Speaker 01:
Is that correct?

[00:06:01] Speaker 01:
If you read those cases, it's very clear that in those cases, the litigant was claiming, well, I didn't know what the applicable filing deadline was.

[00:06:14] Speaker 01:
apply.

[00:06:15] Speaker 01:
And the court said, hey, you had a lawyer, you had constructive notice of the filing deadline.

[00:06:21] Speaker 01:
That's not an excuse.

[00:06:23] Speaker 01:
The facts here are far more egregious.

[00:06:25] Speaker 01:
And I'd also like to point out that the Ninth Circuit has also found that ineffective assistance of counsel could also serve as a basis for actual tolling, which would negate the notion that there's this bright line rule.

[00:06:37] Speaker 01:
And that's Lopez versus INS, 184, F3, 1097.

[00:06:46] Speaker 05:
Did the government really argue that those cases would control here?

[00:06:51] Speaker 01:
Yes, the government absolutely did.

[00:06:53] Speaker 05:
Well, it argued that those cases, given those cases, it seems to be sure that that's what the district court was suggesting.

[00:07:25] Speaker 01:
For example, if you go at the top of page 17, I'm sorry, if you start at the bottom of page 15, the government argues, as to Johnson's allegations of false arrest and imprisonment in IIED, the district court found that those claims accrued around August 2010.

[00:07:40] Speaker 01:
But even if Johnson could establish equitable tolling after 2010, tolling ceased at the very latest once she retained counsel in 2015.

[00:07:48] Speaker 01:
The only way I can interpret that is that the government's arguing that once she got an attorney,

[00:08:08] Speaker 01:
by counsel and guess when that was the day she got a US passport and that's further supported by the fact that the court states in no uncertain terms that she was required to show tolling after June 14th 2016 and that she had to also show tolling up until the day she filed her claim that's absurd to

[00:08:47] Speaker 05:
one more time based on the case law and determine this so that I know what he said because I've certainly read through his stuff and I'm not sure what he said.

[00:08:59] Speaker 01:
I think this court should reverse and remand for further proceedings so that he can apply the doctrine of Admiral Toling correctly to Sophia Johnson's claims.

[00:09:10] Speaker 01:
Anything else?

[00:09:12] Speaker 01:
The government also

[00:09:25] Speaker 01:
that I would submit it would be inappropriate for this panel to weigh in for the first time on appeal.

[00:09:31] Speaker 01:
Why?

[00:09:32] Speaker 01:
Because for one, we're at the motion to dismiss stage.

[00:09:37] Speaker 01:
This is a highly fact-intensive inquiry.

[00:09:40] Speaker 01:
This is an issue that the district court didn't even get to give an opinion on.

[00:09:43] Speaker 01:
It's also an issue that's frankly intertwined with the merits of the case and is not appropriate for dismissal at the motion to dismiss stage.

[00:10:24] Speaker 02:
on appeal is based on the misconception

[00:10:57] Speaker 05:
the facts outlined there, and then her statement made it look like that's what the district court was suggesting.

[00:11:06] Speaker 02:
Your Honor, so Ms.

[00:11:07] Speaker 02:
Johnson's support for her position is based on isolated reading of the court's first order.

[00:11:12] Speaker 02:
Even if the first order was ambiguous, the court makes it very clear in its subsequent order that Ms.

[00:11:18] Speaker 02:
Johnson failed to establish equitable tolling.

[00:11:21] Speaker 02:
And reading the, reading Ms.

[00:11:24] Speaker ?:
But didn't the court in its second

[00:11:47] Speaker 02:
which is the district court's second order dismissing the first amended complaint where the court states, the court previously held that Ms.

[00:11:57] Speaker 02:
Johnson's claims are time barred and equitable tolling does not apply.

[00:12:01] Speaker 02:
But even if the first order is ambiguous, the court...

[00:12:11] Speaker 05:
didn't apply.

[00:12:12] Speaker 05:
Why go through all that language about they've made the first, they've made the first element of equitable tolling, they've made the second element of equitable tolling, all to say there's no equitable tolling?

[00:12:47] Speaker 02:
Davis makes it very clear that if somebody pursues their rights diligently up to a certain point, they're required to show that they pursued their rights diligently before, during, and after the existence of the extraordinary circumstance.

[00:13:03] Speaker 02:
What the court was suggesting in that after she received her passport, she was here in the United States without legal disability, is that after that...

[00:13:29] Speaker 05:
I disagree, Your Honor.

[00:13:46] Speaker 02:
is by applying the stop time rule.

[00:13:48] Speaker 02:
You're basically saying that at June of 2016, that's when the clock started and she was automatically entitled to two years.

[00:13:56] Speaker 02:
That's not the case.

[00:13:57] Speaker 02:
This court in Smith v. Davis rejected the stop time rule and said, no, she must establish that she pursued equitable tolling after the extraordinary circumstance was removed.

[00:14:09] Speaker 02:
And that's what the court was saying when it said, once she was here in the United States, she had

[00:14:21] Speaker 05:
given your argument, if it doesn't even have to start until she gets a passport, what does she have to do after that point to make your argument or to destroy your argument?

[00:14:34] Speaker 02:
I don't know what she can do.

[00:14:36] Speaker 02:
That's a separate issue.

[00:14:37] Speaker 02:
Now we're talking about when the claim accrued.

[00:14:40] Speaker 02:
So we can't – we have to talk about them.

[00:14:42] Speaker 02:
They're two separate issues.

[00:14:43] Speaker 02:
So if you're saying that her claim accrued and

[00:14:53] Speaker 02:
on June 4th of 2016.

[00:14:55] Speaker 02:
And so if her claim did in fact accrue on June 4th of 2016, yes, then she would have had two years.

[00:15:02] Speaker 02:
But the district court rejected that finding.

[00:15:04] Speaker 02:
And there is no supporting case law that Ms.

[00:15:06] Speaker 02:
Johnson has cited that would support that position.

[00:15:10] Speaker 02:
In fact, the government, in its motion to dismiss the first amended complaint, cited authority that suggests that you would not start the clock when somebody receives their pass

[00:15:22] Speaker 02:
proceedings were terminated.

[00:15:25] Speaker 02:
And I can point to the cases.

[00:15:27] Speaker 02:
There's Aplon versus United States and Eastern District cases.

[00:15:31] Speaker 02:
I wish the judge would have been that clear.

[00:15:36] Speaker 02:
Your Honor, I think... I mean, if you didn't write the order, I know it wouldn't be the way it is, but I wish the judge were that clear because I don't get what the judge

[00:15:47] Speaker ?:
you're suggesting.

[00:15:49] Speaker 05:
I believe that the bottom line is and in that instance isn't it logical for me to send this back to the judge and say okay judge let's let's let's redo this

[00:16:14] Speaker 02:
I disagree, Your Honor.

[00:16:15] Speaker 02:
I think the court's order was very clear.

[00:16:17] Speaker 02:
The court's second order states four separate times that Ms.

[00:16:21] Speaker 02:
Johnson did not establish equitable tolling.

[00:16:23] Speaker 04:
The court also cites the Holland, which was... If you're correct and we send it back to the district court...

[00:16:35] Speaker 02:
I think there is a harm in terms of finality.

[00:16:39] Speaker 02:
The whole point of the statute of limitations and the issues here that are presented is that there should be finality to this case.

[00:16:46] Speaker 02:
I think the court's already- But finality can happen.

[00:16:48] Speaker 05:
Finality can happen after a DJ tells me what the devil he was really saying.

[00:16:56] Speaker 02:
Again, Your Honor, I believe that the

[00:17:13] Speaker 05:
is it that I'm going to grant that these are timely filed?

[00:17:18] Speaker 05:
What would you do then?

[00:17:19] Speaker 05:
That's good finality, but the government loses.

[00:17:24] Speaker 02:
In this particular case, the court's orders were very clear.

[00:17:27] Speaker 02:
And they were, in construing it in the way that Ms.

[00:17:31] Speaker 02:
Johnson wants it construed, is inconsistent with this court's precedent in Smith v. Davis.

[00:17:37] Speaker 02:
The court's order needs to be construed consistent with its own precedent, and in doing so,

[00:17:43] Speaker 02:
would find that the district court did not find that she pursued her rights diligently after she was here without legal disability.

[00:17:51] Speaker 02:
And because she did not do so, she did not establish equitable tolling and therefore her claim to her time bar.

[00:17:57] Speaker 05:
Do you argue any place in your brief and do you argue here today?

[00:18:17] Speaker 02:
So the authority that the government cited had to do with when she retained counsel, that tolling ceased.

[00:18:24] Speaker 02:
That was a factor to be considered.

[00:18:27] Speaker 02:
Smith v. Davis does make it very clear that you must look at all the circumstances.

[00:18:32] Speaker 02:
And that's where then the court points to the fact that she did not pursue her rights diligently after she was here in the United States, had her passport,

[00:18:42] Speaker 02:
Smith V. Davis makes it very clear that you must show reasonable diligence up until the point of filing.

[00:18:49] Speaker 02:
She did not do that.

[00:18:51] Speaker 02:
And because of that, her claims are time barred.

[00:19:13] Speaker 02:
were that she did establish equitable tolling or that her claims were not time-barred, the claims independently flail on the discretionary function exception.

[00:19:23] Speaker 05:
And you, of course, agree that the district court never got to that.

[00:19:28] Speaker 05:
And don't you think that is an issue best

[00:19:50] Speaker 02:
includes all of the documents that would support a finding of discretionary function.

[00:19:55] Speaker 02:
And this court in our day, our table rupees has already held that negligence investigations with respect

[00:20:20] Speaker 02:
So in the government's answering brief, we did cite to authority that indicates that if the issue was raised at the district court, the circuit court can consider the arguments that were raised at the district court level for the first time on appeal.

[00:20:54] Speaker 03:
If an issue wasn't covered in the opening brief that would be gone.

[00:21:02] Speaker 03:
It would be waived.

[00:21:07] Speaker 02:
So, Your Honor, we were in the answering brief we did, Ms.

[00:21:12] Speaker 02:
Johnson.

[00:21:16] Speaker 02:
in her opening brief, but because the government did raise it at the district court level, we raised it again in our in our answering brief and asked the court to consider it.

[00:21:28] Speaker 02:
That's correct.

[00:21:32] Speaker 05:
Thank you.

[00:21:34] Speaker 02:
Thank you so much.

[00:21:49] Speaker 01:
I know there was some discussion with the government about, you know, what does equitable tolling require?

[00:21:55] Speaker 01:
And I just want to remind the court on page 18

[00:22:25] Speaker 01:
by appellant on page 11 of the reply brief.

[00:22:28] Speaker 01:
But if you look at that case, the court was explaining that equal tolling is a flexible doctrine.

[00:22:34] Speaker 01:
It's meant to be applied in a case by case basis, and that you're supposed to look at all the circumstances.

[00:22:42] Speaker 01:
Putting that aside, I also want to point out that the government also made some argument about when the claims accrued in the first instance.

[00:22:52] Speaker 01:
this this court and finally I just want to state that you know it's our position that as your honor pointed out that it seems pretty clear the court did find that the elements of equitable tolling were established up to a certain point and to the extent this panel believes the order is unclear we submit that the case should be remanded and that the court basically apply equitable tolling