Missed the FTCA's 2-Year Deadline? Why That Isn't Always the End of Your Case

Last Updated: September 8, 2026

Most veterans and families who miss the Federal Tort Claims Act's two-year deadline assume the case is simply over. In nearly every case, that assumption is correct — but the Supreme Court has said it is not automatically correct, and the difference matters enormously to anyone standing on the wrong side of that deadline.

Is the FTCA's Two-Year Deadline Ever Not Fatal?

Sometimes, yes. In United States v. Kwai Fun Wong, 575 U.S. 402 (2015), the Supreme Court held that the FTCA's filing deadlines in 28 U.S.C. § 2401(b) are not jurisdictional — meaning they are ordinary limitations periods that can, in narrow circumstances, be paused through a doctrine called equitable tolling. That is different from saying a missed deadline is usually forgiven. It almost never is. But "almost never" is not the same as "never," and claimants who assume the latter can walk away from a claim that a court might actually still hear.

What Does "Jurisdictional" Actually Mean, and Why Does It Matter Here?

A "jurisdictional" deadline defines the outer boundary of a court's power to hear a case at all. If a deadline is jurisdictional, a court cannot excuse a late filing for any reason — not hardship, not government misconduct, not anything — because the court never had authority to act on the claim in the first place. An ordinary statute of limitations is different: it is a defense the government can raise, but one that, like most limitations defenses, can in rare cases be paused by equitable principles.

Before Wong, several federal courts had treated § 2401(b)'s two-year presentment deadline and six-month suit deadline as jurisdictional, closing the door on tolling arguments entirely. The Supreme Court rejected that reading.

What Did the Supreme Court Actually Decide in Kwai Fun Wong?

Writing for the Court, Justice Kagan held that "[s]ection 2401(b) is not a jurisdictional requirement" and that "the time limits in the FTCA are just time limits, nothing more." The Court reasoned that § 2401(b) "reads like an ordinary, run-of-the-mill statute of limitations" — it tells a claimant what they must do and by when, but nothing in its text "speak[s] in jurisdictional terms or refer[s] in any way to the jurisdiction of the district courts." The Court also noted that Congress placed the FTCA's jurisdictional grant in a separate provision, 28 U.S.C. § 1346(b)(1), rather than folding the filing deadlines into it — structural evidence that Congress did not intend the deadlines themselves to be jurisdictional.

The practical result: both the two-year administrative-presentment deadline and the six-month deadline to sue after a denial are subject to equitable tolling, at least in principle.

What Does It Take to Actually Qualify for Equitable Tolling?

This is the part most secondhand summaries of Wong leave out, and it is the part that matters most to anyone relying on this doctrine. The Supreme Court has applied a strict, two-part test to equitable tolling claims — most directly, in the FTCA context, in Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250 (2016). A claimant must show:

1. That they pursued their rights diligently, and
2. That some extraordinary circumstance — beyond their control — stood in their way of meeting the deadline.

The Supreme Court in Menominee was explicit that these are two separate, mandatory elements, not a flexible balancing test, and that "the second prong of the equitable tolling test is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond its control."

Why Equitable Tolling Rarely Saves a Missed FTCA Deadline

Menominee itself shows how high the bar sits. The tribe in that case argued that it reasonably relied on a separate, ongoing class-action lawsuit and mistakenly believed it did not need to present its own claim before the deadline ran. The Supreme Court rejected that argument, holding that the tribe's "mistaken reliance" on another party's litigation "was not an obstacle beyond its control" — the tribe had the ability to present its own claim the entire time and simply did not. The Court described this as "a garden variety claim of excusable neglect" and "a simple 'miscalculation'" — not the kind of extraordinary circumstance the doctrine requires.

That distinction is the one that trips up FTCA claimants most often. A claimant's own confusion about the deadline, a belief that an ongoing VA disability appeal paused the FTCA clock, or a mistaken assumption that more time was available generally will not qualify — those are the claimant's own errors, not obstacles imposed from outside. Courts have historically reserved equitable tolling for situations genuinely beyond a claimant's control, and expecting it to rescue an ordinary missed deadline is expecting the exception to swallow the rule.

How Is This Different From the Discovery Rule?

It is important not to confuse equitable tolling with accrual — when the two-year clock starts running in the first place. Under United States v. Kubrick, 444 U.S. 111 (1979), an FTCA claim accrues, and the clock starts, "when the plaintiff knows both the existence and the cause of his injury" — not later, when the plaintiff also realizes that the conduct causing the injury may have been negligent. Our FTCA statute of limitations guide covers how that discovery rule works and walks through common accrual scenarios.

Equitable tolling is a different question that only comes up after the clock has already started under Kubrick: it asks whether something extraordinary, and outside the claimant's control, justifies pausing a clock that was already running. Confusing the two can cost a claimant an argument they actually have — someone who genuinely did not yet know the cause of their injury has an accrual argument under Kubrick, not a tolling argument under Wong, and the two are proven with different facts.

There is at least one place in FTCA practice where Congress built a narrow, statutory version of this same idea directly into the text rather than leaving it to case-by-case equitable tolling: 28 U.S.C. § 2679(d)(5) deems certain claims timely presented when a suit against an individual federal employee is dismissed and the claimant presents an administrative claim within 60 days. We cover that scenario, and how it interacts with the Westfall Act's defendant-substitution rule, in our guide to suing a VA doctor personally.

What Should You Do If You Think You Missed the Deadline?

• Do not assume the case is over, but do not assume it is saved, either. Whether equitable tolling is even available depends on facts specific to your situation, and the government will contest it.
• Document what actually happened, in detail, as soon as possible. If something genuinely outside your control prevented a timely filing — not confusion about the rules, but an external obstacle — write down dates, what happened, and any evidence of it while your memory is fresh.
• File now, and raise timeliness as a separate issue. Presenting an administrative claim immediately, even if you believe the deadline has passed, preserves your position and starts the clock on any dispute about timeliness — waiting longer only makes an already difficult argument harder.
• Get the accrual date right before assuming you are even late. Many claimants believe they are past the two-year deadline when, under Kubrick's discovery rule, their claim has not yet accrued at all. That is worth ruling out first.

Does Equitable Tolling Affect Whether You Have a Claim at All?

No. Wong and Menominee are about timing — whether a court can hear an otherwise late claim — not about the merits of the underlying malpractice claim, and not about whether the FTCA applies to your situation in the first place. A claim can clear every timeliness hurdle and still fail on the merits, and a claim can be barred entirely for reasons that have nothing to do with deadlines — most notably the Feres doctrine, which bars claims for injuries incident to active-duty military service regardless of when they are filed. Our Feres Doctrine explainer covers that separate bar in detail.

Frequently Asked Questions

Does missing the FTCA's two-year deadline always end my case? In the great majority of cases, yes. Kwai Fun Wong established that the deadline is not jurisdictional and can, in narrow circumstances, be equitably tolled — but the Supreme Court in Menominee made clear that tolling requires both diligence and an extraordinary circumstance beyond the claimant's control. Ordinary confusion or mistaken assumptions about the deadline generally will not qualify.

What counts as an "extraordinary circumstance" for equitable tolling? Courts apply this narrowly, and it is decided case by case. The Supreme Court has rejected reliance on another party's separate litigation and a claimant's own mistaken belief about legal requirements as insufficient. It generally takes something genuinely outside the claimant's control and control of counsel — not a miscalculation.

Is equitable tolling the same as the discovery rule? No. The discovery rule, from United States v. Kubrick, determines when your claim accrues — when the two-year clock starts. Equitable tolling is a separate doctrine that can pause a clock that has already started, and only in extraordinary circumstances. Many claimants who believe they need tolling actually have an accrual argument instead.

Should I wait to see if equitable tolling applies to my situation before filing? No. Equitable tolling is an exception raised after the fact to excuse a late filing that has already happened — it is not a reason to delay a filing you can still make on time. If you believe you are close to or past a deadline, present your claim immediately.

Does an FTCA statute-of-limitations issue affect whether the Feres doctrine bars my claim? No, they are unrelated. Timeliness under § 2401(b) and the Feres doctrine's bar on claims incident to active-duty service are two independent gates a claim must clear, and clearing one does not resolve the other.

Related Articles

• FTCA Statute of Limitations → — how the two-year deadline and the discovery rule work in the more common accrual scenario
• Standard Form 95 (SF-95): How to File an FTCA Claim → — the administrative claim that must be presented within the deadline
• Can You Sue a VA Doctor Personally? The Westfall Act, Explained → — the § 2679(d)(5) statutory savings clause, a different route to a "timely presented" claim
• The Feres Doctrine Explained → — the separate active-duty bar that timeliness does not resolve
• Veterans Medical Malpractice & the FTCA → — our national FTCA practice overview

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only. Readers should contact their attorney to obtain advice concerning any legal matter.

The author, EJ Archuleta, J.D., is a 13-year federal practice lawyer. He is licensed to practice law in the courts of the State of Texas, is a member of the State Bar of Texas, and is admitted to the United States District Court for the Western District of Texas. He has helped hundreds of military service members, veterans, and their families receive compensation for injuries and wrongful death caused by the Department of Veterans Affairs.