10th Circuit holds Federal Tort Claim Act statute of limitations still jurisdictional; that actual knowledge or the reasonable person standard can prove a statement against interest and issues one other published opinion.
Brigham Young University J. Reuben Clark Law School
Barnes filed a federal tort claim action in state court. This was dismissed for lack of subject matter jurisdiction. The government issued a rejection of Barnes’ administrative claim arising out of the same facts. He filed a new lawsuit more than six months after the rejection and the district court dismissed for lack of subject matter jurisdiction this time based on the six months statute of limitations in 28 USC 2401(B). The panel, with one member concurring in result, affirmed. It held that the 2401 limitation period applies whenever the government issues a rejection and that another section, 28 USC 2675(a) merely sets out the earliest date a lawsuit can be field. The majority held that recent United States Supreme Court decisions which suggest that equitable tolling is available for statutes of limitation do not change 10th Circuit precedent that the 2401 period is jurisdictional noting that the circuits are split on the issue. The majority finally noted that even if the limitation period could be tolled, that would not happen here as Barnes’ attorney mistakenly thought there was more time to file which has been rejected as a ground for tolling by the Supreme Court.
Lozado sought to introduce statements of his brother in law claiming ownership of ammunition at his trial for gun and ammunition possession by a felon. The district court excluded the statements. The panel affirmed. It held a statement against interest can be proved either by actual knowledge the statement exposes the speaker to criminal liability or when such evidence is unavailable, by proof that a reasonable person would know the statement placed him in jeopardy of criminal liability. The panel held there was no abuse of discretion in ruling the statements were not against interest as there was no evidence offered that prosecutions for possession of ammunition by drug addicts happened often enough to put a reasonable person on notice claiming ownership would subject them to criminal liability and thus no reason to believe the statement was against interest. The panel also held there was insufficient corroboration here given there was no other evidence of ownership by the brother in law, the close relationship between Lozado and his brother in law and various inconsistencies in the statement the brother in law made to police.
Berres appealed the denial of motions to dismiss and suppress statements. The panel affirmed. It held his motion to dismiss the charge for possessing an unregistered flash bang device was properly denied because the device could have been registered by the manufacturer and thus there is no due process violation. The panel held the two convictions for possessing a destructive dive based on cord and powder were proper because 26 USC 5845 applies to parts that be combined into a device and there were two powder containers and thus two potential devices. The panel finally held that the motion to suppress was properly denied as Berres was not in custody when he was interviewed because he was in the hospital at his request, was not retrained in any way and only one officer was present for most of the interview which Berres never sought to end. .