Helen D. Kelley and John E. Kelley v. United States of America, Ruth Semko (1978)

Cf. Kelley v. United States, 568 F.2d 259, 262 (2d Cir. 1978), holding that “the Government could not lull plaintiffs into a false sense of security by waiting until plaintiffs’ time to file an administrative claim had expired and thereupon move to be substituted and to dismiss.” The Government here is not open to such a charge.

Staple v. United States, 740 F.2d 766, 768 (9th Cir.1984); Kelley v. United States, 568 F.2d 259, 266 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978); see L.

Kelley v. United States, 568 F.2d 259, 265-66 (2d Cir.1978).

We do not decide the case on that basis, cf. Kelley v. United States, 568 F.2d 259, 262 (2d Cir.) ("the Government [sh]ould not lull plaintiffs into a false sense of security by waiting until plaintiffs' time to file an administrative claim ha[s] expired and thereupon move ... to dismiss [the action]"), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), because our holding is based firmly upon our interpretation of the applicable statutes.

We do not decide the case on that basis, cf. Kelley v. United States, 568 F.2d 259, 262 (2d Cir.) (“the Government [shjould not lull plaintiffs into a false sense of security by waiting until plaintiffs’ time to file an administrative claim ha[s] expired and thereupon move . . to dismiss [the action]”), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), because our holding is based firmly upon our interpretation of the applicable statutes.

The statute of limitations under the FTCA commences to run from the date of accrual and does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee. 29 The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled. 6 In the case at bar, however, t…

The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled. 6 In the case at bar, however, there is no evidence that the government stalled the discovery process or otherwise blocked plaintiffs from obtaining information within the limitations period.

The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitation, the statute is tolled. 6 In the case at bar, however, there is no evidence that the government stalled the discovery process or otherwise blocked plaintiffs from obtaining information within the limitation period.

Kubrick, Baker, Wilkinson and Henderson, I believe, stand for the proposition that a cause of action accrues once the existence of an injury and its cause are known, and the statute of limitation under the FTCA will not be tolled until a plaintiff learns that an alleged tort-feasor is a federal employee. 46 The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), that when the governme…

Va., Inc. v. Messer, 263 Va. 435 , 559 S.E.2d 704, 707 (2002)). 7 With regard to the Government’s purported fraudulent concealment of the cause of Plaintiffs’ injuries, it is true that “when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled.” Gould v. U.S. Dep’t of Health & Human Servs., 905 F.2d 738 , 745 (4th Cir.1990) (citing Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 1…

Furthermore, had Gibbons made the reverse mistake, by assuming that defendants were not government employees when in fact they were, and timely filed his claim in state court but failed to exhaust his administrative remedies within the prescribed time period, federal law would toll the statute of limitations based on his timely initial filing in the wrong forum. 28 U.S.C. '§ 2679(d)(5); Kelley v. United States, 568 F.2d 259, 265-68 (2d Cir.1978).

The Fourth Circuit relied on the Second Circuit in reaching its decision: The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled.

The Fourth Circuit relied on the Second Circuit in reaching its decision: The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled.

See, Staple v. United States, 740 F.2d 766, 768 (9th Cir.1984); Kelley v. United States, 568 F.2d 259, 264 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978).

See Rheams v. Bankston, Wright & Greenhill, 756 F.Supp. 1004 (W.D.Tex. 1991); Streeper v. U.S., 1988 WL 71316 (E.D.Pa.1988); Brennan v. Fatata, 78 Misc.2d 966, 967 , 359 N.Y.S.2d 91, 92 (1974) (“It is implicit in the statute that if the defendants do not turn over their suit papers or if the Attorney General does not certify to their being in the scope of Federal employment, the State action continues against the defendants personally.”); cited with approval in Kelley v. Uni…

Plaintiffs also rely on the fact that the allegations in their administrative claim are identical to the allegations in their Second Claim for Relief in plaintiffs’ Amended Complaint and cite Kelley v. United States, 568 F.2d 259, 268 (2d Cir.1977) in support of this argument.

The courts should not lose sight, however, of the broadly remedial purposes the Act was intended to serve, and at least one court has taken the position, “[t]hat the Act ends the immunity defense does not furnish a ground for niggardly interpretation . . .” Kelley v. United States, 568 F.2d 259, 262 (2d Cir. 1978), cert. denied,-U.S.-, 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978); see also Kielwien v. United States, 540 F.2d 676, 681 (4th Cir. 1976), cert. denied 429 U.S. 979 , 97 S…

Accord Kelly v. United States, 568 F.2d 259, 268 (2d Cir.1978) (dictum) (action started in state court against a federal employee is “prompt and complete notice of the claim” to the government).

See Kelley v. United States, 568 F.2d 259 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978); Van Lieu v. United States, 542 F.Supp. 862 (N.D.N.Y.1982); Harris v. Burris Chemical, Inc., 490 F.Supp. 968 (N.D.Ga.1980).

See Kelley v. United States, 568 F.2d 259 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978).

See id. at 265-68 .

See Kelley v. U.S., 568 F.2d 259, 266-68 (2d Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978) (filing of state suit within two years of tort suffices to give federal agency notice of administrative claim); see also Wollman v. Gross, 646 F.2d 1306, 1307 (8th Cir.), cert. denied, 454 U.S. 893 , 102 S.Ct. 389 , 70 L.Ed.2d 207 (1981) (Lay, Bright, McMillan & Arnold, JJ.; dissenting from the denial of rehearing en banc) (the filing of a suit against the in…

See Kelley v. United States, 568 F.2d 259, 264 (2d Cir.), cert. denied, 439 U.S. 830 (1978) (“Section 2675(a) requires an administrative filing before an action is ‘instituted upon a claim against the United States.’ It does not in terms apply to an action already instituted and removed and which is, upon removal, ‘deemed a tort action brought against the United States.’”).

See id. at 265-68 .

See Kelley v. United States, 568 F.2d 259, 262 (2nd Cir.1978).

See Kelley v. United States, 568 F.2d 259, 264 (2d Cir.1978); Harris v. Burris Chem.

Compare Kelley v. United States, 568 F.2d 259, 262 (2d Cir. 1978).

See Kelley v. United States, 568 F.2d 259, 268 (2d Cir.) (a removed case was to continue to judgment unless it was found on a pretrial motion that the employee was acting beyond the scope of his employment), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978).

See, e.g., Kelley v. United States, 568 F.2d 259 (2d Cir. 1978).” That footnote further interjects that the plaintiff in Kelley did file their state claim “within two years of the accident.” Lien , at 606 n.2.

See Kelley v. United States, 568 F.2d 259, 265 (2nd Cir.), cert. denied, 439 U.S. 830 , 99 S.Ct. 106 , 58 L.Ed.2d 124 (1978).