Despite a four-year delay by the victim in filing suit, the Marine Corps must face claims that it allowed a known sex offender to volunteer at a middle school where he assaulted a 13-year-old girl, a federal appeals court ruled.
The 9th U.S. Circuit Court of Appeals sent the case back to the U.S. District Judge John Walter in Los Angeles to determine if the two-year deadline for filing an action should be postponed in this case.
Prior to 2013, a lawsuit alleging a Federal Tort Claims Act violation, brought more than two years after the event, would have been impossible. But the 9th Circuit, in a dividied 11-judge en banc ruling found the act’s deadline could be postponed, known as equitable tolling, because it was a procedural rule and within a judge’s power to hear the case.
In 2006, Martiza Gallardo was 13-years-old and a middle school student in Hawaiian Gardens, Calif. when Marine Sgt. Ross Curtis, then 24, lured her to his car after a career day at school and attempted to rape her, according to the court. Prior to that, Curtis, who had met Gallardo at another school event, contacted her Myspace account and left messages.
Two years after the attack, police arrested Curtis, who by then was a civilian, for sexual assault on another minor. They found the Myspace messages to Gallardo while searching his computer. Gallardo was interviewed and eventually she and her mother testified at his criminal trial.
During the trial Gallardo’s mother learned from a female Marine Corps member that Curtis had assaulted her but her superiors took no action against him after she reported the assault.
She also learned that two months before her daughter’s assault, Curtis had been court-martialed for sexually assaulting three female Marines. After the court-martial he was assigned to recruitment detail until his scheduled discharge in June 2006, according to the court.
Gallardo argued that she did not learn of the other sexual assaults until 2009 and thus was within the deadline when she sued in 2010. The appeals court disagreed.
But instead the court relied on the changed precedent that allowed for tolling of the two-year deadline to file.
Judge William Fletcher ordered the case back to the district court “to consider Gallardo’s equitable tolling argument in the first instance.”
Joining Fletcher were Judges Milan Smith and Paul Watford.
Case: Gallardo v. U.S., No. 12-55255