Charles W. Cooper v. United States, 442 F.2d 908 (7th Cir. 1971). · Go Syfert
Charles W. Cooper v. United States, 442 F.2d 908 (7th Cir. 1971). Cases Citing This Book View Copy Cite
“the continuing wrongful conduct of the defendant toward the claimant which establishes a status quo of continuing injury may also give rise to a continuing cause of action.”
73 citation events (25 in the last 25 years) across 23 distinct courts.
Strongest positive: Wright v. Anding (alaska, 2017-03-17) · Strongest negative: Jack Steele v. United States (ca7, 1979-06-12)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Top citers, strongest first. 30 distinct citers.
discussed Cited "but see" Jack Steele v. United States (2×) also: Cited "see"
7th Cir. · 1979 · signal: but see · confidence high
But see Cooper v. United States, 442 F.2d 908, 911 (7th Cir. 1971) (implying that the general rule is that the statute of limitation begins to run “at the first moment where a wrongful invasion of a protected interest might give rise to a cause of action” and that the discovery rule applies only “in certain instances” or due to “the specific circumstances of the case.”) The bulk of the cases applying the discovery rule cited by the parties are medical malpractice cases, and, as we note infra, are distinguishable from other personal injury claims on that basis.
discussed Cited as authority (verbatim quote) Wright v. Anding
Alaska · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
the continuing wrongful conduct of the defendant toward the claimant which establishes a status quo of continuing injury may also give rise to a continuing cause of action.
discussed Cited as authority (rule) Ayers v. United States Department of Defense
W.D. Va. · 2019 · confidence medium
In determining whether a continuing wrong exists, the “particular policies of the statute of limitations in question, as well the nature of the wrongful conduct and harm alleged, must all be considered.” Nat’l Advert. 947 F.2d at 1167 (citing Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971)).
discussed Cited as authority (rule) Provectus Biopharmaceuticals, Inc. v. Rsm US LLP
N.C. Bus. Ct. · 2018 · confidence medium
To determine whether the doctrine applies, courts consider “the particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged.” Id. (quoting Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971)).
discussed Cited as authority (rule) Bellwether Properties, LLC v. Duke Energy Indiana, LLC (2×)
Ind. Ct. App. · 2016 · confidence medium
In 1971, the Seventh Circuit held that “[i]n certain instances, the critical date [for the statute of limitations] is the point at which the injury becomes apparent.” Cooper v. U.S., 442 F.2d 908, 911 (7th Cir. 1971) (emphasis added).
discussed Cited as authority (rule) Robert K. Ward Living Trust ex rel. Schulz v. Peck
N.C. Ct. App. · 2013 · confidence medium
In order to determine whether a continuing violation exists, we examine the particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged, as set out in Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).
discussed Cited as authority (rule) Blythe v. Bell
N.C. Bus. Ct. · 2013 · confidence medium
To determine whether the doctrine applies, the court must consider “the particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged.” Williams, 357 N.C. at 179 , 581 S.E.2d at 423 (quoting Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971)). {68} Plaintiffs claim that Defendants’ continued refusal to recognize the contract between HBI and Drymax leads to the conclusion that every day is a new day in the relationship and a continuing abuse of that relationship adequate to apply the continuing wrong doctrine to their…
discussed Cited as authority (rule) Gross v. Max
N.D. Ind. · 2012 · confidence medium
In 1971, the Seventh Circuit held that “[i]n certain instances, the critical date [for the statute of limitations] is the point at which the injury becomes apparent.” Cooper v. U.S., 442 F.2d 908, 911 (7th Cir.1971) (emphasis added).
discussed Cited as authority (rule) Stratton v. Royal Bank of Canada
N.C. Ct. App. · 2011 · confidence medium
When a court determines whether the doctrine applies, it should consider “[t]he particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged.” Williams, 357 N.C. at 179 , 581 S.E.2d at 423 (quoting Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971)).
discussed Cited as authority (rule) Amward Homes, Inc. v. Town of Cary (2×)
N.C. Ct. App. · 2010 · confidence medium
In determining whether a plaintiff suffers from a continuing violation, we consider "`[t]he particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged[.]'" Id. (quoting Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971)).
discussed Cited as authority (rule) Babb v. Graham
N.C. Ct. App. · 2008 · confidence medium
In order to determine whether a continuing violation exists, we examine “ ‘[t]he particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged,’ as set out in Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).” Id.
discussed Cited as authority (rule) Williams v. Blue Cross Blue Shield of NC
N.C. · 2003 · confidence medium
To determine whether BCBSNC suffers from a continuing violation, we examine this case under a test that considers “[t]he particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged,” as set out in Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).
discussed Cited as authority (rule) Bailey v. International Brotherhood Of Boilermakers
7th Cir. · 1999 · confidence medium
Their briefs in opposition to the appellees' motions for summary judgment contained only the assertion that the statute of limitations should be tolled due to the "continuing wrongful acts" of the appellants, for which they cited Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971), as authority.
discussed Cited as authority (rule) Bailey v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 374
7th Cir. · 1999 · confidence medium
Their briefs in opposition to the appellees’ motions for summary judgment contained only the assertion that the statute of limitations should be tolled due to the “continuing wrongful acts” of the appellants, for which they cited Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971), as authority.
discussed Cited as authority (rule) Meadows v. Union Carbide Corp.
N.D. Ill. · 1989 · confidence medium
And in Gross , the Eighth Circuit determined that a series of acts by the federal government which wrongfully denied the plaintiff farmer, participation in a feed grain program constituted a continuing tort. 676 F.2d at 300 (citing Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971)).
cited Cited as authority (rule) Eli Lilly & Co. v. Environmental Protection Agency
S.D. Ind. · 1985 · confidence medium
Cooper v. United States, 442 F.2d 908, 911 (7th Cir. 1971).
cited Cited as authority (rule) Ray Lewis v. Local Union No. 100 of the Laborers' International Union of North America, Afl- CIO
7th Cir. · 1984 · confidence medium
Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971).
discussed Cited as authority (rule) William J. Davis, Inc. v. Young
D.C. · 1980 · confidence medium
Some courts have also labeled wage violations “continuing.” See Macklin v. Spector Freight Sys., Inc., 156 U.S.App.D.C. 69 , 84-86 n. 30, 478 F.2d 979 , 994-96 n. 30 (1973); Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973); Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971); Friedman v. United States, supra at 384.
discussed Cited as authority (rule) Rebecca I. De Witt v. United States (2×)
7th Cir. · 1979 · confidence medium
We may expect under this rule for courts to spend as much time trying to determine when the statute of limitations began to run as with the merits of a claim. 27 As laudable as concern may be for claimants with possible meritorious claims, even though negligent in their timely prosecution, I believe that flexibility should be restrained by remembering that the statutory waiver of sovereign immunity 2 is to be liberally construed, not in favor of claimants, but "in favor of repose for the United States." Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971). 28 In Quinton the court noted t…
cited Cited as authority (rule) Harper v. Union Savings Ass'n
N.D. Ohio · 1977 · confidence medium
Cooper v. United States, 442 F.2d 908, 911 (7 Cir. 1971) observes: 4 .
discussed Cited as authority (rule) Tyminski v. United States
3rd Cir. · 1973 · confidence medium
And for purposes of medical malpractice suits under the Federal Tort Claims Act these courts have determined that the two-year limitations period does not begin to run until “the claimant [has] discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based.” Quinton v. United States, 304 F.2d supra, at 235; see Urie v. Thompson, 337 U.S. 163, 169 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949); Cooper v. United States, 442 F.2d 908, 911 (7th Cir. 1971); Toal v. United States, 438 F.2d 222, 224-225 (2d Cir. 1971);…
discussed Cited as authority (rule) ca3 1973
3rd Cir. · 1973 · confidence medium
And for purposes of medical malpractice suits under the Federal Tort Claims Act these courts have determined that the two-year limitations period does not begin to run until "the claimant [has] discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based." Quinton v. United States, 304 F.2d supra, at 235; see Urie v. Thompson, 337 U.S. 163, 169 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949); Cooper v. United States, 442 F.2d 908, 911 (7th Cir. 1971); Toal v. United States, 438 F.2d 222, 224-225 (2d Cir. 1971); Ash…
cited Cited as authority (rule) Accardi v. United States
S.D.N.Y. · 1973 · signal: cf. · confidence medium
Cf. Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971) ; Kossick v. United States, 330 F.2d 933, 936 (2d Cir. 1964). 6 .
cited Cited "see" Spencer v. Town of Chapel Hill
M.D.N.C. · 2003 · signal: see · confidence high
See Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971).
discussed Cited "see" John C. Gross v. United States (2×)
8th Cir. · 1982 · signal: see · confidence high
See Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971) (continuing wrongful conduct may give rise to a continuing cause of action).
cited Cited "see" Burleigh House Condominium, Inc. v. Buchwald
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Cooper v. United States, 7th Cir.1971, 442 F.2d 908 .
cited Cited "see" ca5 1972
5th Cir. · 1972 · signal: see · confidence high
See Cooper v. United States, 7th Cir. 1971, 442 F.2d 908 .
cited Cited "see" United States v. One 1961 Red Chevrolet Impala Sedan, Serial No. 11837A177369
5th Cir. · 1972 · signal: see · confidence high
See Cooper v. United States, 7th Cir. 1971, 442 F.2d 908 .
discussed Cited "see, e.g." Darrell R. Page v. United States
D.C. Cir. · 1984 · signal: see also · confidence medium
See also Cooper v. United States, 442 F.2d 908, 912 (7th Cir.1971) (“[t]he continuing wrongful conduct of the defendant toward the claimant which establishes a status quo of continuing injury may also give rise to a continuing cause of action"). 35 .
discussed Cited "see, e.g." Angulo v. the Levy Co.
N.D. Ill. · 1983 · signal: see, e.g. · confidence low
See, e.g., Cooper v. United States, 442 F.2d 908 (7th Cir.1971); Marcus v. National Investment Life Insurance Co., 422 F.2d 626 (7th Cir.1970); Baker v. F & F Investment, 420 F.2d 1191 (7th Cir.1970); and Clark v. Universal Builders, 409 F.Supp. 1274 (N.D.Ill.1976).
Charles W. COOPER, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee
18104, 18716.
Court of Appeals for the Seventh Circuit.
May 20, 1971.
442 F.2d 908
Anna R. Lavin, Chicago, Ill., for plaintiff-appellant., William J. Bauer, U. S. Atty., Robert B. Schaefer, Asst. U. S. Atty., Chicago, Ill., for defendant-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.
Swygert, Castle, Cummings.
Cited by 46 opinions  |  Published
CUMMINGS, Circuit Judge.

Plaintiff has appealed from the dismissal of two complaints brought under the Federal Tort Claims Act (28 U.S.C. § 1346(b) and ch. 171). The appeals were consolidated because of the nature of the subject matter of each complaint and the dispositions.

Complaint I, filed in April 1969, sought $250,000 damages for severe injuries suffered by plaintiff in 1967 while confined at the instance of the United States in the Du Page County Jail in Wheaton, Illinois. According to the complaint, the Government had caused plaintiff to be transferred from the Michigan State Penitentiary to the Du Page County Jail on May 4, 1967, in[*910] order to be a material witness in a case pending in the federal district court for the Northern District of Illinois. The complaint further alleged that due to the gross negligence of the Government, plaintiff was incarcerated in a place where he was beaten by other inmates on May 15, 1967. The complaint also charged that through the fault of the Government, plaintiff remained in that jail without any medical attention for one and one-half months after the beating.

On June 26, 1969, the Government moved to dismiss the complaint on the ground that plaintiff had not exhausted his administrative remedy as required by 28 U.S.C. § 2675(a). [1] That motion was granted, and the district court dismissed the complaint “with prejudice.” Plaintiff filed his appeal from that judgment on October 31,1969.

In January 1970, during the pendency of the appeal from the dismissal of Complaint I, plaintiff filed a second complaint against the United States, seeking $25,000 damages. Complaint II also alleged that the Government had taken custody of plaintiff in the spring of 1967 through issuance of a Writ of Ha-beas Corpus Ad Testificandum and had lodged him at the Du Page County Jail where he was beaten by inmates of that institution. Complaint II asserted that in September 1967 the Government obtained custody of plaintiff from state authorities [2] for the purpose of securing his testimony as a material witness. Plaintiff was again lodged at the Du Page County Jail until January or February 1968 without medical treatment for the injuries sustained by his earlier beating. Complaint II claimed that the Government negligently failed to provide medical treatment during that period of time, resulting in aggravation of pre-ex-isting “brain damage and mentality defects” and requiring plaintiff to “expend great sums of money upon his release on his teeth repair and nose treatment.” Plaintiff also alleged that he had forwarded a claim for these damages to the Attorney General of the United States in accordance with 28 U.S.C. § 2675(a) on September 24, 1969, but had received no response.

On April 6, 1970, the Government moved for the dismissal of Complaint II, and on July 15, 1970, the district court granted that motion on the grounds that it was barred as res judicata by the earlier dismissal of Complaint I and that plaintiff had failed to comply with the limitation on actions against the United States set forth in 28 U.S.C. § 2401(b). [3] Plaintiff also appealed from that dismissal order and the two cases were consolidated for oral argument.

I

Although plaintiff originally appealed from both dismissals, at oral argument[*911] plaintiff’s counsel expressly abandoned his appeal from the dismissal of Complaint I. Plaintiff at that time conceded that the dismissal of that suit for failure to comply with the administrative remedy provision of Section 2675(a) was proper. [4] Accordingly, that appeal is hereby dismissed. Capannelli v. Grane, 105 U.S.App.D.C. 244, 266 F.2d 445 (1959).

II

Plaintiff nevertheless urges this Court to reverse the dismissal of Complaint II. At the outset, we note that this action itself was prematurely instituted and could properly be dismissed in light of Section 2675(a) (note 1 supra). Plaintiff’s second complaint reveals that the filing of a claim with the “appropriate” administrative agency occurred on or about September 24, 1969. This action was brought in the district court within four months of that date without any final disposition by that agency. Hence plaintiff still did not comply with the statutory condition to suit against the United States.

A more fundamental defect is apparent which leads us to concur in the dismissal of Complaint II. That complaint asserts a cause of action arising from the alleged failure of the Government to provide reasonable medical and dental care during plaintiff’s second incarceration at the Du Page County Jail. Cf., e. g., Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957). Closer scrutiny of the allegations in light of the prior complaint reveals that the Government’s “non-feasance” during the period covered by Complaint II was simply a continuation of its earlier failure to supply medical care during plaintiff’s stay at the Du Page County Jail following his incurral of injuries. Plaintiff alleged only the “aggravation” of disabilities previously existing and the need for corrective treatment of his nose and teeth upon release. No intervening ailments or maladies were alleged, nor did plaintiff charge that his May 1967 injuries created chronic disorders requiring continuing palliatives. In short, any actionable wrong committed by governmental dereliction occurred in May and June 1967 at the time of the initial refusal to give medical attention to plaintiff in the wake of his May 15th beating. Assuming the allegations of Complaint I to have been true, plaintiff’s cause of action accrued when the Government’s wrongful refusal to give such care became apparent to plaintiff at that time. Any subsequent “aggravation” is simply attributable to the continuation of that wrong during the remainder of his incarceration, whether interrupted or not.

Plaintiff contends that the continuing refusal of the Government to grant treatment amounted to a continuous tor-tious interference with his interest in physical health. He claims that for purposes of determining the passage of time under Section 2401(b), the cause of action did not “accrue” at the earliest opportunity for suit but only upon plaintiff’s discharge from the custodial relationship which imposed the duty of care upon the Government.

It is true that the statute of limitations does not always begin to run at the first moment where a wrongful invasion of a protected interest might give rise to a cause of action. In such cases, the specific circumstances of the case may lead the court to suspend operation of the statute and effectively toll its passage by postponing or continuing its inception. See generally Developments in the Law — Statutes of Limitations, 63 Harv.L.Rev. 1177, 1200-1207 (1950). In certain instances, the critical date is the point at which the injury becomes apparent. Thus in malpractice suits the statute of limitations generally begins to run when “the claimant [has] discovered or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice. Quinton v. United States, 304 F.2d 234, 240 (5th[*912] Cir. 1962).” Toal v. United States, 438 F.2d 222, 224 (2d Cir. 1971). The continuation of a special relationship offering the possibility of correction of the injury may postpone that date further. Kossick v. United States, 330 F.2d 933, 936 (2d Cir. 1964), certiorari denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (dictum); but cf. Ashley v. United States, 413 F.2d 490, 493 (9th Cir. 1969). The continuing wrongful conduct of the defendant toward the claimant which establishes a status quo of continuing injury may also give rise to a continuing cause of action. Cf. Baker v. F & F Investment, 420 F.2d 1191, 1200 (7th Cir. 1970), certiorari denied, 400 U.S. 821, 91 S.Ct. 42, 27 L.Ed.2d 49.

But the existence of even a continuing relationship does not insure that a cause of action should be deemed continuous for purposes of computing the limitations period. The particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged, must all be considered. Courts have held that Section 2401(b) should be liberally construed in favor of repose for the United States. Thus courts have refused to toll the statute of limitations for minority (e. g., Pittman v. United States, 341 F.2d 739 (9th Cir. 1965)) or pending the outcome of a workman’s compensation suit in state courts (Mendiola v. United States, 401 F.2d 695 (5th Cir. 1968); see also Ashley v. United States, 413 F.2d 490, 493 (9th Cir. 1969). We too conclude that plaintiff’s “cause of action” accrued at the time when he knew or should have known that no treatment was to be forthcoming. This, of course, occurred well over two years before the September 24, 1969, filing of his complaint with the administrative agency pursuant to Sections 2675(a) and 2401(b).

Even if the limitations period for the wrong complained of began as late as the termination of plaintiff’s relationship with the Government (cf. Philadelphia National Bank v. United States, 411 F.2d 747 (5th Cir. 1969), the two-year period commenced running on his June 29, 1967, release from the Du Page County Jail to the Illinois state authorities. His return to that jail in September 1967 neither renewed his original claim nor created a new cause of action.

The remaining complaint thus fails to state an independent cause of action accruing within two years prior to the filing of the necessary administrative complaint. Accordingly, Complaint II was properly dismissed.

In No. 18104 the appeal from the dismissal of Complaint I is dismissed, and in No. 18716 the judgment of the district court dismissing Complaint II is affirmed.

1

. Section 2675(a) provides as follows:

“An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent be certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.”
2

. At that time, plaintiff was being housed in the Illinois State Penitentiary.

3

. Section 2401 (b) provides :

“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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”
4

. See, e. g., Peterson v. United States, 428 F.2d 368 (8th Cir. 1970).