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Case 1:07-cv-20648-CMA Document 145 Entered on FLSD Docket 03/24/2008 Page 1 of 20


Miami Division

CASE NO. 07-20648-CIV-ALTONAGA/Turnoff





DAMIOUN COLE, in his individual capacity,
CHARLES JENKINS, in his individual capacity,
ANTONIO ECHEVERRIA, in his individual capacity,
ISIAH W. POLLOCK, III, in his individual capacity,
JOHN DOES 1-10, in their individual capacities,





Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 7.5.B of the Local
Rules of the Southern District of Florida, Plaintiff files her Response in Opposition to United
States’ Motion for Summary Judgment (the “Motion”). [D.E. 128]. Plaintiff is simultaneously
filing her response to the government’s Statement of Uncontested Material Facts. [D.E. 129].
The discovery cutoff in this case is March 28, 2008 and several key depositions are scheduled for
March 24, 25, 27 and 28, 2008. Plaintiff reserves her right to file an amended response to the
government’s Motion and Statement of Undisputed Facts to incorporate new evidence. Despite
the fact that several key depositions have not occurred, Plaintiff believes it important to file this
Response prior to the parties’ March 26, 2008 Mediation.
The government’s only argument in its Motion is that this Court lacks subject matter
jurisdiction because Plaintiff’s administrative complaint was not filed within two-years of the
date of the incident giving rise to this lawsuit. This argument fails for two fundamental and
independent reasons. But both of these independent arguments rest on the fact that the two-year
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statute of limitations in 28 U.S.C. § 2401(b) is a non-jurisdictional statute of limitation that must

be plead as an affirmative defense and is subject to equitable tolling.
First, the government did not plead the statute of limitations as an affirmative defense in
its Answer. [D.E. 18 to Case No. 07-22655]. The government’s failure to do so constitutes an
irreversible waiver of the argument.
Second, applying the doctrine of equitable tolling (which the government concedes is
available), this Court should treat Plaintiff’s administrative claim as being timely filed. S.R.,
who was normally housed at FCI – Danbury, was transferred to FDC – Miami on four occasions,
each time to testify on behalf of or cooperate with the government. See Exhibit A. Despite
documented complaints of sexual abuse in December 2003 and March 2004 made under oath to
BOP officials and at least one letter from U.S. District Judge Malcolm Howard in late 2003 or
early 2004, the government took its time investigating – Lt. Echeverria and Officer Jenkins were
finally interviewed by the FBI in February 2005 – only to conclude the investigation without
taking any remedial or prophylactic action. See Exhibits A, B & C. While S.R. waited for the
government to protect her, S.R. was vaginally and anally raped by a BOP official while she was
housed in solitary confinement. See Exhibit A. Although the government turned a blind eye to
S.R. when she complained and when she was raped by Damioun Cole, the government delighted
at the fact that it could use her as a witness in its prosecution of Cole for having sexual relations
with a different federal inmate at FDC – Miami. See Exhibits A, G, H & I. In sum, when S.R.
said something beneficial to the government, it found her entirely credible and believable and
had no problem using her to put several people in federal prison, but when she said something
critical of the government, it wrote her off as mentally ill and failed to conduct even a basic
investigation which would have prevented her rape. Given this disgusting government
misconduct, prohibiting S.R. from seeking redress here would be the very definition of manifest
injustice. 1
For these reasons, the Motion must be denied. 2

S.R. incorporates her Response to the United States’ Statement of Uncontested Facts, as well as its exhibits.
As a preliminary matter, the government wholly misstates the standard for summary judgment by asserting
that: “Because the Plaintiff will bear the burden of proof at trial to demonstrate the merits of her claim, at the
summary judgment stage, she must show that there is no genuine issue of material fact as to every element of her
claim.” Motion, p. 4. As the Court knows, it is exactly the opposite. See John Morrell & Co. v. Royal Caribbean
Cruises, Ltd., --- F. Supp. 2d ---; 2008 WL 400244, *3 (S.D. Fla. Feb. 8, 2008) (Altonaga, J.) (explaining the
standard and noting that it is the moving party’s burden to prove the absence of genuine issues of material fact).

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Memorandum of Law

It is often said that the Federal Tort Claims Act, 28 U.S.C. § 1346, (“FTCA”) can be a
“trap for the unwary,” but actually it is quite manageable once the various statutes are properly
analyzed and put in their respective places. Like many other statutes, the FTCA is a
Congressional waiver of sovereign immunity that permits claimants to sue the government in tort
under the same circumstances that would allow a claimant to sue a private defendant. Id.
First, the claimant must file an administrative complaint with the appropriate federal
agency pursuant to § 2675. It is clearly established that the administrative prerequisite outlined
in § 2675 is jurisdictional, and the failure to file a claim prevents the district court from hearing
the claim and prevents the government from waiving the requirement. See McNeil v. United
States, 508 U.S. 106, 113 (1993) (but noting that “some procedural rules must give way because
of the unique circumstance of incarceration.”).
Second, the administrative claim has a two-year statute of limitations provided in 28
U.S.C. § 2401(b). The FTCA’s statute of limitation is not contained within § 2675 – it is a
separate statute that outlines the timing of filing claims before federal agencies and filing
lawsuits in district courts. Some courts have improvidently combined § 2675 and § 2401 into a
single “super-statute” mandating that all administrative claims must be filed within two-years for
the district court to have jurisdiction, but these courts are wrong. 3 The government’s Motion
perpetuates this confusion.
As detailed below, the two-year statute of limitation contained in § 2401(b) is not
jurisdictional, but rather is a garden variety statute of limitation that must be pled as an
affirmative defense (which was not done here) and is capable of being equitably tolled (which is
justified here).

For example, in Jones v. United States, 2007 WL 4557211, *6 (M.D. Fla. Dec. 21, 2007), the district court
incorrectly held that “However, ‘a federal court may not exercise jurisdiction over a suit under the FTCA unless the
claimant first files an administrative claim with the appropriate agency’ within two years from the time the claim
accrues. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 2006) (citing 28 U.S.C. § 2675(a) and 28 U.S.C. §
2401(b).” Despite Jones’ cite to Suarez, the fact is that the Eleventh Circuit’s opinion in Suarez makes absolutely
no mention of § 2401(b). The district court simply combined citations to different statutes and cases. Section
2401(b) and § 2675 are two distinct statutes and must be treated accordingly. See Hyatt v. United States, 968
F.Supp. 96, 100 (E.D.N.Y. 1997) (expressly recognizing that the two statutes are separate and distinct and must be
analyzed accordingly).

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A. Per Supreme Court -- Section 2401(b) is an Affirmative Defense

The Supreme Court ruled in Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95-96 (1990)
that Congressional waivers of sovereign immunity are presumed to include the availability of
equitable tolling. There, a federal employee late-filed a Title VII employment discrimination
lawsuit against her employer, the federal government. Id. at 90-91. The district court granted the
government’s motion to dismiss for lack of jurisdiction and the Fifth Circuit affirmed expressly
holding that the time limit is jurisdictional. Id. The Court granted certiorari “to resolve the
Circuit conflict over whether late-filed claims are jurisdictionally barred.” Id. (emphasis added).
But Chief Justice Rehnquist, instead of limiting the ruling to Title VII claims against the federal
government, broadly noted that, “We think that this case affords us an opportunity to adopt a
more general rule to govern the applicability of equitable tolling in suits against the
government.” Id. at 95.
The Court in Irwin then concluded that:
Once Congress has made such a waiver [of sovereign immunity], we think that
making the rule of equitable tolling applicable to suits against the Government, in
the same way that it is applicable to private suits, amounts to little, if any,
broadening of the congressional waiver. Such a principle is likely to be a realistic
assessment of legislative intent as well as a practically useful principle of
interpretation. We therefore hold that the same rebuttable presumption of
equitable tolling applicable to suits against private defendants should also apply to
suits against the United States. Congress, of course, may provide otherwise if it
wishes to do.

Id. The Court ultimately affirmed because it concluded that equitable tolling should not apply
under the facts in Irwin, but unequivocally ruled that equitable tolling is available and the time
limits provided in waivers of sovereign immunity are presumed non-jurisdictional. 4
Similarly, in the Schmidt trilogy of cases, the Supreme Court implicitly held that the
FTCA’s two-year statute of limitation in § 2401(b) is not jurisdictional, but rather is an
affirmative defense. In Schmidt v. United States, 901 F. 2d 680, 683 (8th Cir. 1990), the Eighth
Circuit affirmed a district court dismissal of a late-filed FTCA claim and held that § 2401(b) “is
a jurisdictional requirement.” The claimant petitioned for writ of certiorari during the same term

In a similar action against the federal government, the Federal Circuit recently concluded (after a lengthy
and detailed analysis) that “We have interpreted [Irwin and its progeny] to mean that ‘absent a clear contrary intent
of Congress to limit jurisdiction created by a particular statute,’ we will apply the presumption [in favor of equitable
tolling].” Kirkendall v. Dep’t of the Army, 479 F.3d 830, 836 (Fed. Cir. 2007) (tolling statute of limitations in favor
of plaintiff/claimant) (emphasis in original).

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of the Court’s Irwin decision, and in accepting the case, the Supreme Court wrote in a one-
sentence ruling that “the judgment [of the Eighth Circuit] is vacated and the case is remanded to
the [Eighth Circuit] for further consideration in light of Irwin v. Dep’t of Veteran Affairs, 489
U.S. 89 (1990).” 498 U.S. 1077 (1991).
On remand, the Eighth Circuit reversed the district court order dismissing the case and
correctly held that § 2401(b), in light of Irwin, is not jurisdictional. See Schmidt v. United States,
933 F. 2d 639 (8th Cir. 1991). The Eighth Circuit, in a particularly well-reasoned opinion worth
citing at length, noted that:
Necessary to this expressed holding [in Irwin] is an implied holding that strict
compliance with the statute of limitations is not a jurisdictional prerequisite to
suing the government. If the statute of limitations were jurisdictional, the court
would have no power to consider tolling it. Prior to Irwin, the circuits divided
over the question whether statutes of limitation on suits against the government
were absolute jurisdictional limits. The Supreme Court in Irwin stated that it
“granted certiorari . . . to resolve the Circuit conflict over whether late-filed
claims are jurisdictionally barred.” This court’s holding in Schmidt was premised
on the assumed jurisdictional nature of the FTCA’s statute of limitations. We
held that the district court had properly required the Schmidts to establish subject
matter jurisdiction, and that their failure to do so required a dismissal under Fed.
R. Civ. P. 12(b)(1). The effect of Irwin’s implicit holding is to remove the burden
. . . from the Schmidts. Because the FTCA’s statute of limitation is not
jurisdictional, failure to comply with it is merely an affirmative defense which the
defendant has the burden of establishing.

Id. at 640 (reversing for trial). 5 Given the procedural posture and history of the Schmidt cases
(including the fact that the government did not seek certiorari review of Schmidt II), it is clear
that the Supreme Court considers § 2401(b)’s two-year statute of limitations to be non-
jurisdictional. 6 The issue is settled. 7

The Eleventh Circuit, in applying equitable tolling in a Truth in Lending Act case also recognized that a
jurisdictional statute of limitations and equitable tolling are simply two sides of the same coin. See Ellis v. General
Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998) (reversing the “district court [that erroneously]
concluded that TILA was a jurisdictional statute and that the [plaintiff’s] claim was therefore time-barred.”).
The Supreme Court recently held that the failure to comply with the Prison Litigation Reform Act’s
exhaustion requirements is merely an affirmative defense. See Jones v. Bock, 127 S.Ct. 910, 914 (2007) (“Our legal
system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are
fairly handled according to law.”).
The government relies in part on United States v. Kubrick, 444 U.S. 111, 113 (1979), which considered
what date triggers the two-year statute of limitations in a FTCA medical malpractice action. The Court did not
consider whether § 2401(b) was jurisdictional and subject to equitable tolling. It merely held that the triggering date
is the date upon which a claimant was “aware of his injury and its probable cause.” Id. at 118. But assuming,
arguendo, that Kubrick held § 2401(b) to be jurisdictional, the government failed to inform this Court that Irwin
overruled Kubrick. See, e.g., Rendon v. United States, 2003 WL 21976068 (E.D. Pa. June 18, 2003) (recognizing

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B. Most Circuit Courts Agree that Section 2401(b) is Not Jurisdictional

In light of Irwin and Schmidt, the Third, Fifth, Sixth, Seventh, Eight, Ninth, and D.C.
Circuits have all ruled as a matter of law that § 2401(b) is not jurisdictional, but rather is an
affirmative defense that must be plead and proved by the government. See Hughes v. United
States, 263 F. 3d 272, 278 (3rd Cir. 2001) (“Thus, the FTCA’s statute of limitations is not
jurisdictional. Failure to comply with the statute is an affirmative defense which the defendant
has the burden of establishing.”); Perez v. United States, 167 F. 3d 913, 916-917 (5th Cir. 1999)
(noting that § 2401(b) “is a garden variety limitations provision” that is not jurisdictional and is
subject to equitable tolling); Glarner v. United States, 30 F. 3d 697, 701 (6th Cir. 1994) (noting
that “the [United States] first argues that the doctrine of equitable tolling cannot apply to §
2401(b) because the latter is a jurisdictional statute of limitations that cannot be equitably tolled.
This assertion is incorrect. . . Thus, in accord with Schmidt, § 2401(b) can be equitably tolled.”);
Frey v. E.P.A., 270 F.3d 1129, 1135-36 (7th Cir. 2001) (noting that, in light of Irwin, the court
needs to revisit the jurisdictional nature of Congressional waivers of sovereign immunity);
Bakula v. United States, 854 F.2d 201, 204 (7th Cir. 1988) (holding, in a pre-Irwin case, that “the
district court erred as a matter of law in holding that the interplay of § 2401(b) and 28 C.F.R. §
14.2(b)(1) does not authorize any exceptions to the FTCA's two-year filing deadline….”);
Schmidt II, 933 F.2d at 640 (8th Cir. 1991); Alvarez-Machain v. United States, 107 F.3d 696, 701
(9th Cir. 1997) (citing Irwin and holding that “Nothing in the FTCA indicates that Congress
intended for equitable tolling not to apply. Hence, equitable tolling is available for FTCA claims
in the appropriate circumstances; and the circumstances of this case are highly appropriate for
tolling.”); Norman v. United States, 467 F. 3d 773, 775-776 (D.C. Cir. 2006) (citing Irwin and
“assuming without deciding” that equitable tolling is applicable to FTCA claims). 8 No court has

that Irwin and its Third Circuit progeny, Hughes, contradicts the Kubrick decision); Hyatt v. United States, 968
F.Supp. 96, 100 (E.D.N.Y. 1997) (expressly noting that the Second Circuit’s earlier precedent holding § 2401(b)
jurisdictional was overruled by Irwin and its progeny).
The First Circuit has, confusingly, sometimes held § 2401(b) jurisdictional. See Gonzalez v. United States,
284 F. 3d 281, 288 (1st 2002) (“This Court has repeatedly held that compliance with [§ 2401(b)] is a jurisdictional
prerequisite to suit that cannot be waived.”). Despite this recent opinion, which, almost purposefully, makes no
reference to Irwin or Schmidt, the First Circuit held in the years immediately following Irwin that, “In light of Irwin,
the district court’s refusal to entertain plaintiff’s tolling argument [pursuant to § 2401(b)] was erroneous.” Casenave
v. United States, 991 F.2d 11, 13, n. 2 (1st Cir. 1993). The First Circuit assumed in Casenave that equitable tolling
was available under § 2401(b), but that it was not appropriate under the circumstances. Plaintiff has no explanation
for this inconsistency.
Similarly, the Fourth Circuit initially considered, but ultimately declined, applying equitable tolling under §
2401(b) in Muth v. United States, 1 F.3d 246, 249-51 (4th Cir. 1993) (without citing Irwin or its progeny), only to

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expressly held that § 2401(b) is jurisdictional and is never, under any circumstance, subject to
equitable tolling. 9
In Perez, the Fifth Circuit gave two strong reasons supporting the non-jurisdictional
nature of § 2401(b):
First, Section 2401 is a garden variety limitations provision, without the attention
to detail in [other more complicated waivers of sovereign immunity]. . . Second,
allowing equitable tolling would not create an administrative nightmare for the
FTCA regime, which encompasses far fewer claims than might be filed against
the [IRS]. Thus, where the principles of equitable tolling would ordinarily apply,
such tolling should be allowed in an FTCA case.

167 F. 3d at 917. Thus, because Congress has not spoken and because treating § 2401(b) like
any other statute of limitation makes sense, the statute is not jurisdictional.
C. The Eleventh Circuit has Never Properly and Directly Considered the Non-
Jurisdictional Nature of Section 2401(b) in Light of Irwin and Schmidt

In a recent unreported decision, the Eleventh Circuit noted in dicta and in a footnote that
“the two-year deadline [in the FTCA] is mandatory and jurisdictional, [citing Burchfield v.
United States, 168 F. 3d 1252, 1254-55 (11th Cir. 1999)], and even if the deadline was subject to
equitable tolling, [plaintiff] has not demonstrated extraordinary circumstances justifying such
tolling.” Martinez v. Minnis, 2007 WL 4275511, *2, n. 4 (11th Cir. Dec. 7, 2007) (unreported). 10
Unfortunately, the Eleventh Circuit’s reference to its own decision in Burchfield is
misplaced. There, a medical malpractice claimant timely completed a Standard Form 95, but the
allegations contained in the complaint were, according the district court, too vague as to satisfy §
2675’s presentment requirement. Burchfield, 168 F. 3d at 1253. The Eleventh Circuit reversed

hold in Kokotis v. U.S.P.S., 223 F.3d 275, 287 (4th Cir. 2000) that § 2401(b) is jurisdictional. Again, Plaintiff has
no explanation for this apparent inconsistency.
The Second Circuit has not addressed the issue since Irwin, but two district courts within the Second
Circuit have held that § 2401(b) is not jurisdictional and is subject to equitable tolling. See Casey v. United States,
161 F. Supp. 2d 86, 93-95 (D. Conn. 2001) (noting the Second Circuit’s silence on the issue and applying equitable
tolling in favor of claimant); Hyatt, 968 F. Supp. at 100 (same, citing Irwin and its progeny in other circuit courts).
The Tenth Circuit’s § 2401(b) jurisprudence is particularly convoluted. See Pipkin v. United States, 951 F.
2d 272, 275 (10th Cir. 1991) (citing Irwin and noting that equitable tolling might be available under the FTCA);
Dahl v. United States, 319 F. 3d 1226, 1228 (10th Cir. 2003) (noting that “if a litigant does not satisfy the timing
requirement of §2401(b), the district court must dismiss for lack of subject matter jurisdiction” by citing its own
1976 case and purposefully making no mention of Irwin or its progeny). But at least one district court within the
Tenth Circuit recognized the lack of clear guidance and held that “Given these decisions [from the Tenth Circuit],
this Court cannot say that the Tenth Circuit would hold that equitable tolling is never available….” Martinez v.
United States, 2006 WL 3746708, *5 (D. Colo. Dec. 18, 2006).
If the Eleventh Circuit actually held that § 2401(b) is jurisdictional, then its passing reference to equitable
tolling only serves to confuse practitioners and was completely unnecessary.

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and held that the claimant’s allegations contained within his Form 95 were sufficient to satisfy
his administrative prerequisites. Id. at 1257. The Burchfield decision makes absolutely no
reference – not in passing, not in dicta – to § 2401(b)’s two-year statute of limitation, and thus,
has no bearing on this case (or Martinez for that matter). 11 The Eleventh Circuit has not ruled,
post-Irwin, that § 2401(b)’s two-year statute of limitations is jurisdictional.
In fact, in Justice v. United States, 6 F.3d 1474, 1478 (11th Cir. 1993), the Eleventh
Circuit all but expressly held §. 2401(b) non-jurisdictional. There, the court considered whether
the statute of limitations in tort suits against the government under the Public Vessels Act and
Suits in Admiralty Act is jurisdictional, or whether equitable tolling is available. Id. The court
correctly applied Irwin and held that Congress did not expressly foreclose the possibility of
equitable tolling. Id. In embracing Irwin, it expressly rejected the government’s position that
“because the acts waive federal sovereign immunity, courts should construe their time-bar
provisions strictly against all plaintiffs.” Id. Tort suits against the government under the FTCA
are identical to tort suits against the government for negligence by United States owned vessels
under the PVA and SAA. The statutes are indistinguishable and thus, § 2401(b) is also a non-
jurisdictional statute of limitation.
The Justice decision is consistent with other Eleventh Circuit precedent. For example,
Eleventh Circuit expressly acknowledged that the two-year statute of limitations provided for in
the Suits in Admiralty Act, 46 U.S.C.App. § 745, was not jurisdictional and could be equitably
tolled under the proper circumstances. See Raziano v. United States, 999 F.2d 1539, 1541 (11th
Cir. 1993) (acknowledging Irwin and its general applicability to waivers of sovereign immunity);
see also First Alabama Bank, N.A. v. United States, 981 F.2d 1226, 1228 (11th Cir. 1993) (citing
Irwin and “assum[ing] arguendo that the statute of limitations governing tax refund suits, 26
U.S.C. § 6532(a)(1), may be equitably tolled.”).
In Stanfill v. United States, 43 F. Supp. 2d 1304, 1308 (M.D. Ala. 1999), the Middle
District of Alabama, which obviously falls within the Eleventh Circuit’s appellate jurisdiction,
correctly held that § 2401(b) is not jurisdictional and can be equitably tolled. There, the district
court cited numerous federal courts that have interpreted Irwin to hold that § 2401(b) is not
jurisdictional, and then noted that “Congressional intent determines whether equitable tolling is

The Seventh Circuit called into question the Eleventh Circuit’s decision in Burchfield in light of Irwin and
the Eleventh Circuit’s omission of any reference to it. See Frey v. E.P.A., 270 F.3d 1129, 1135-36 (7th Cir. 2001).

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available for claims brought under statutes allowing suit against the government . . . The scant
evidence of congressional intent on which [the government] rel[ies] simply is insufficient to
rebut the presumption that equitable tolling should apply to . . . the FTCA.” Id.; see also Casey
v. United States, 161 F. Supp. 2d 86, 93-95 (D. Conn. 2001) (applying equitable tolling based in
part on the district court’s decision in Stanfill); Foster v. United States, 858 F. Supp. 1157, 1163
(M.D. Fla. 1994) (assuming arguendo that § 2401(b) could be equitably tolled, but refusing to
apply it to that case).
In support of its Motion, the government cites only one Eleventh Circuit case –
Campagnoni v. United States, 173 F.3d 1369 (11th Cir. 1997) – for the proposition that
“plaintiff’s failure to file an administrative tort claim within the two year statute of limitations
time frame divests the court of jurisdiction…” Motion, p. 7. But the government’s sole reliance
on Campagnoni is woefully misplaced. Campagnoni was a wrongful levy suit brought against
the IRS pursuant to 26 U.S.C. § 7426. Id. at 1370. It was not a FTCA action. The court made
no reference to Irwin or its progeny or the FTCA. It simply noted in dicta, and in a footnote, that
“the court does not have subject matter jurisdiction over a suit against the United States that is
barred by the statute of limitations.” Id. at n.3. But the court’s blanket dictum is in direct
contradiction to Irwin and the dozens of federal court decisions favoring equitable tolling and
rejecting the government’s jurisdictional argument. More importantly, it contradicts its own
earlier decisions in Justice, Raziano and First Alabama Bank. 12 See also Ellis v. Gen. Motors
Acceptance Corp., 160 F. 3d 703, 706 (11th Cir. 1998) (“Unless Congress states otherwise,
equitable tolling should be read into every federal statute of limitations.”).
In sum, § 2401(b) is not jurisdictional. It is a statute of limitations and must be pleaded
and treated like any other statute of limitations. 13

Enigmatically, the court then affirmed the district court’s ruling that equitable tolling should not apply
under the circumstances of the case. Compagnoni, 173 F. 3d at 1371. If § 2401(b) is in fact jurisdictional, then
equitable tolling is unavailable under all circumstances.
Florida’s statute of limitations for suits against the government, Fla. Stat. § 768.28, is virtually identical to
§ 2401(b). Both are non-jurisdictional statute of limitations. See, e.g, Machules v. Dep’t of Admin., 523 So. 2d 1132
(Fla. 1988) (applying equitable tolling to revive dismissed claim brought by wrongfully released state employee);
Watson v. Brevard Cty. Clerk of the Cir. Ct., 937 So. 2d 1264, 1265 (Fla. 5th DCA 2006) (“the statutory deadline . .
. is not jurisdictional . . . therefore, the doctrine of equitable tolling can be applied to extend an administrative filing
deadline.”); Sellers v. Miami-Dade County Sch. Bd., 788 So. 2d 1086, 1088 (Fla. 3d DCA 2001) (noting that the
statute of limitation for suits against the state or political subdivisions may be equitably tolled); S.A.P. v. Florida,
704 So. 2d 583, 584 (Fla. 1st DCA 1997) (same). Although federal tolling cases are far more persuasive, the
Supreme Court has held that “we have generally referred to state law for tolling rules, just as we have for the length

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It is hornbook law that statutes of limitation must be pled specifically as an affirmative

defense pursuant to Fed. R. Civ. P. 8(c), and the government’s failure to so plead constitutes a
waiver of the defense. See Day v. Liberty Nat’l Life Ins. Co., 122 F.3d 1012, 1015 (11th Cir.
1997) (“The statute of limitations is an affirmative defense which must be specifically pled.”);
E.E.O.C. v. White & Son Enterprises, 881 F. 3d 1006, 1009 (11th Cir. 1989) (same); In re Pugh,
202 B.R. 792, 795-96 (M.D. Fla. 1996) (noting that the bankruptcy code’s statute of limitation is
not jurisdictional, and thus must be specifically pled or its waived).
The D.C. Circuit specifically held in a suit against the government that “Rule 8(c) means
what is says: affirmative defenses must be raised in a responsive pleading, not a dispositive
motion.” Harris v. Dep’t of Veterans Affairs, 126 F. 3d 339, 341 (D.C. Cir. 1997) (holding that
an affirmative defense can never be raised for the first time in a dispositive motion); see also
Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1158 (2d Cir. 1968) (reversing district court for
granting leave to amend to add a statute of limitations defense too far along in the litigation). In
both Harris and Paetz v. United States, 795 F. 2d 1533, 1536 (11th Cir. 1986), the government’s
failure to affirmatively plead the defense of statute of limitations constituted a waiver of the
defense. The government is not entitled to any special deference in its pleading requirements.
See also Day v. McDonough, 547 U.S. 198, 205 (2006) (holding in a habeas proceeding that “a
statute of limitations defense . . . is not ‘jurisdictional’….”).
In Hyatt v. United States, 968 F.Supp. 96, 100 (E.D.N.Y. 1997), the district court held in
a similar FTCA action that § 2401(b)’s statute of limitations defense must be raised in the
government’s initial response, either as an affirmative defense in its answer or in a motion to
dismiss, or it is waived. There, the government moved, unsuccessfully, to dismiss the FTCA
action pursuant to § 2401(b)’s statute of limitations. Id. at 112 (finding in favor of the plaintiff
on equitable tolling and awarding him $297,000 for 29 days of false imprisonment).
The procedural history of this case further warrants rejection of the government’s statute
of limitations defense. On June 22, 2007, the government filed a motion to dismiss for lack of
subject matter jurisdiction under § 2675. [D.E. 32]. Plaintiff’s counsel, recognizing the issue as

of statutes of limitation.” Wallace v. Kato, 127 S. Ct. 1091, 1098 (2007) (applying Illinois tolling cases in a 42
U.S.C. § 1983 case).

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an officer of the Court, confessed error in her July 2, 2007 response memorandum. [D.E. 34].
Plaintiff assumed that the government would object to the motion being granted without
prejudice because, purportedly, any re-filed complaint would automatically be dismissed for lack
of subject matter jurisdiction under § 2401(b) and Fed. R. Civ. P. 12(b)(1). Specifically, in
paragraphs 7-12 of her response, Plaintiff anticipated the government’s argument and attempted
to preempt it by citing several cases applying equitable tolling to § 2401(b). [D.E. 34]. In
essence, Plaintiff invited the government to raise the issue eight months ago, which would have
potentially avoided protracted, costly and unnecessary litigation. This Court even ordered the
government to file a Reply, which is otherwise optional in this jurisdiction. [D.E. 35]. But in its
Reply, the government, rather than argue the futility of any re-filed complaint, simply argued
that any discussion of equitable tolling would be premature. [D.E. 41]. By doing so, the
government conceded that § 2401(b) is not jurisdictional and, under the right circumstances, is
subject to equitable tolling. On December 7, 2007, the government filed its Answer to the newly
filed complaint. Plaintiff assumed again that the government would move to dismiss the
complaint pursuant to Fed. R. Civ. P. 12(b)(1) rather than Answer. Again the government
essentially conceded the non-jurisdictional nature of § 2401(b), but failed to raise any statute of
limitations defense in its Answer.
Under the circumstances, the government’s failure to raise a statute of limitations defense
in its Answer is inexcusable and it should not be permitted to amend its Answer on the eve of
trial. Plaintiff has not taken a single deposition that she noticed, in part, because she believed
that if she could overcome the jurisdictional issue regarding § 2401(b) (which is a purely legal
argument requiring no evidence), she would not also have to prove equitable tolling in light of
the government’s waiver. Furthermore, the government has stonewalled its own production of
documents in this case. See Plaintiff’s Motion to Compel [D.E. 89] and Cross-Motion to Compel
[D.E. 136]. Plaintiff has been irreversibly prejudiced by the government’s waiver. Accordingly,
the defense is waived and this Motion should be denied.

Equitable tolling, as its name implies, is about equity, fundamental fairness and justice.
See, e.g., Burnett v. N.Y. Central R. Co., 380 U.S. 424, 428 (1965) (“This policy of repose
[statutes of limitations], designed to protect defendants, is frequently outweighed, however,
where the interests of justice require vindication of the plaintiff's rights.”); Bailey v. Glover, 88

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U.S. (21 Wall.) 343, 347 (1874) (noting that where a party injured by another’s fraudulent
conduct “remains in ignorance of it without any fault or want of diligence or care on his part, the
bar of the statute does not begin to run until the fraud is discovered….”); Ellis, 160 F. 3d at 706
(“Equitable tolling is the doctrine under which plaintiffs may sue after the statutory time period
has expired if they have been prevented from doing so due to inequitable circumstances.”);
Peterson v. United States, 2007 WL 2120309, *7 (M.D. Fla. July 23, 2007) (Fawsett, J.)
(applying equitable tolling to prevent “miscarriage of justice.”); De Luca v. Chertoff, 2007 WL
2083602, *4 (S.D. Fla. July 18, 2007) (Cohn, J.) (“In essence, equitable tolling is reserved for
plaintiffs whose delays in filing are reasonable and justified under the circumstances.”); Stanfill,
43 F. Supp. 2d at 1311 (noting that § 2401(b) “does not exist to reward the United States for deft
legal maneuvering.”).
Plaintiff concedes that it should be the exception, not the norm, but the doctrine remains
in important part of Anglo-American jurisprudence and should apply as justice so requires. As
Judge Huck recently held in applying the doctrine in Booth v. Carnival Corp., 510 F. Supp. 2d
985, 989 (S.D. Fla. 2007), “the Supreme Court, in fashioning its equitable tolling theory, noted
that the limitations policy, designed for potential defendants’ protection, is often outweighed
where the interests of justice require that plaintiff have his day in court to resolve his claim on
the merits.” (emphasis added).
“The Eleventh Circuit has held that equitable tolling is appropriate where the defendant
misleads the plaintiff into allowing the statute of limitations to lapse, where the plaintiff has no
reasonable way of discovering the wrong perpetrated against her during the statutory period, or
where the plaintiff timely files a technically defective pleading but acts with proper diligence in
prosecuting her claim.” Pendlebury v. Starbucks Coffee Co., --- F. Supp. 3d ---; 2008 WL
700174, *3 (S.D. Fla. Mar. 13, 2008) (Marra, J.) (citing Justice, 6. F.3d at 1479) (emphasis
added); see also Spottsville v. Terry, 476 F.3d 1241, 1246 (11th Cir. 2007) (“equitable tolling
may be warranted when a government official has misled a petitioner.”). Here, Plaintiff was
reasonably led to believe by numerous government officials that she did all she could to remedy
her situation. This is exactly why equitable tolling should be and is available under the FTCA.

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A. Several Federal Courts have Equitably Tolled § 2401(b) with Facts far less
Compelling than the Facts Here

The Middle District of Alabama in Stanfill applied equitable tolling in a FTCA medical
malpractice action where “the government was put on notice” of the claim within the two-year
period. 43 F. Supp. 2d at 1311. Here, the BOP (i.e., the appropriate government agency under
the FTCA) was put on actual notice in December 2003 of Plaintiff’s complaints about being
sexually abused by co-defendants Officer Pollock, Lt. Echeverria and Officer Jenkins. See
Exhibits A, B, C & D. The government was put on actual notice in 2005 of Plaintiff’s
complaints about being vaginally and anally raped by Officer Cole in or about June 2004. See
Exhibit E. It is not as if, out of the blue, Plaintiff decided to file an administrative claim in April
2007 for something that occurred a few years earlier without ever informing the BOP prior to the
April 2007 claim. The BOP cannot seriously assert that it was surprised by Plaintiff’s claim and
lawsuit or that it is in way prejudiced by the late filing.
In Casey v. United States, 161 F. Supp. 2d 86, 89 (D.Conn. 2001), the district court
applied equitable tolling in another FTCA medical malpractice action, in part, because, “At no
point during these discussions [between patient/plaintiff and agency/defendant employee] with
the plaintiff did any VA employee tell him how to file a claim against the government, provide
the proper forms to him, or direct him to available resources to help him file suit against the
government.” The court reached this conclusion even though “Plaintiff admitted that he did not
ask for this information during those conversations.” Id. The court in Casey was also persuaded
by the fact that “the government has complete notice of the facts and circumstances surrounding
plaintiff’s surgeries and subsequent discharge from the hospital well within two years of that
discharge,” even though the claimant’s Standard Form 95 was filed after the two-year period
expired. Id. at 94. In concluding that the agency breached its duty to provide claimant with a
Form 95 and otherwise advise claimant how to file suit against the government, the court held
that “the lack of adequate notice provides an additional ground to toll the statute of limitations
until the date plaintiff became aware of the filing requirement.” Id. at 96.
One aspect of Casey is virtually identical to the facts here. There, the claimant had
numerous discussions with several agency employees about what he perceived to be negligent
medical care. The district court noted that “given plaintiff’s history of working with VA benefits
counselors in preparing claim forms, the Court finds that it was reasonable for plaintiff to believe

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that he was following a proper course of action in filing his malpractice claim.” Casey, 161 F.
Supp. 2d at 96. This is exactly what occurred here. Plaintiff had numerous discussions with
BOP and FBI officials over a two-year period about the sexual abuse and rape. See Exhibits A,
B, C, D & E. She signed multiple affidavits attesting to the abuse. See Exhibit B. She agreed to
provide testimony on the government’s behalf against Damioun Cole. See Exhibit I. She was
working through the system, as she should. Accordingly, it was reasonable for S.R. to believe
that she was following a proper course of action in filing her claim against the government. See
Exhibits A, J, K & L.
Even though “[e]quitable tolling . . . does not require any misconduct on the part of the
defendant,” Stanfill, 43 F. Supp. 2d at 1309 (citing Browning v. AT&T Paradyne, 120 F.3d 222,
226 (11th Cir. 1997), it is evident that the government did engage in misconduct here. Despite
having actual knowledge that S.R. complained of sexual abuse and rape by government officials,
and despite the fact that S.R. wanted something to be done about it, the government’s response
was, essentially, that S.R. did all that she could to redress the issue. At no point did anyone
suggest, in any way, that Plaintiff contact a lawyer or that Plaintiff could or should file an
administrative claim. See Exhibit A. Given the manner in which her claims were handled by the
U.S.A.O. and the BOP, it was reasonable for Plaintiff to assume that nothing else could be done.
See also Bartus v. United States, 930 F. Supp. 679, 682 (D. Mass. 1996) (“A claimant need not
necessarily show affirmative misconduct to avoid himself of equitable tolling; rather, he must
show that a failure to meet a filing deadline was, in a phrase, out of his hands.”); Machules, 523
So. 2d at 1134 (“equitable tolling . . . does not require active deception or employer misconduct,
but focuses rather on the employee with a reasonably prudent regard for his rights.”).
B. Under the Circumstances, the Government had an Affirmative Obligation to
Inform Plaintiff of her Rights and Responsibilities under the FTCA

The government breached its affirmative obligation to inform Plaintiff of her rights and
remedies under the FTCA, including its administrative remedies when she put it on notice of
sexual abuse and when she cooperated in the prosecution of the government employee who raped
her. This obligation arises under both federal regulation and common law.
i. BOP Regulations Mandate Disclosure of its Administrative Remedies
and FTCA Procedures

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The BOP’s own regulations require its employees to assist, in good faith, with inmates
regarding complaints about prison conditions – this includes specifically referring inmates to
FTCA filing procedures. The BOP response to Plaintiff’s complaints was anything but “good
Prior to filing an FTCA action, inmates must “first present an issue of concern informally
to staff…” 28 C.F.R. § 542.13. Under BOP regulations and the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e, they must then make several successive appeals to higher
authorities within the BOP until they get the relief sought (or they run out of appeals). Inmates
must be informed of the PLRA’s complex administrative remedy program during the period
when they are seeking redress. I.e., if informal resolution is unsuccessful, an inmate must be told
about “the next step.” This continues until there is no “next step,” in which case inmates are
supposed to be told that they may file suit in district court under the FTCA. See Bolton v. United
States, 347 F. Supp. 2d 1218, 1220-21 (N.D. Fla. 2004) (Hinkle, C.J.) (“The Bureau’s own
regulations make clear that, when [inmate] reached the point at which she had prevailed and had
recovered all available relief other than an award of damages, the appropriate next step was not
further pursuit of the administrative process, but instead a reference to the statutory procedures
leading to the filing of a lawsuit [under the FTCA]….”). BOP’s own administrative remedy
program mandates that it inform inmates of the BOP’s own FTCA regulations. See 28 C.F.R. §
542.10(c) (“If an inmate raises an issue in a request or appeal that cannot be resolved through the
Administrative Remedy Program, the Bureau will refer the inmate to the appropriate statutorily-
mandated procedures [28 C.F.R. § 543.30].”) (emphasis added).
The BOP’s own FTCA regulations (which are written like “frequently asked questions”
for inmates) make absolutely no mention of Standard Form 95 or the two-year statute of
limitation. See 28 C.F.R. §§ 543.30-.32. They also make no mention of the PLRA or its
administrative exhaustion requirements. These regulations, therefore, are both legally deficient
and misleading. See, e.g., Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (“when prison
officials prevent inmates from using the administrative process detailed in the CFR, the process
that exists on paper becomes unavailable in reality. Thus . . . when prison officials fail to
provide inmates with the forms necessary to file an administrative grievance, administrative
remedies are not ‘available.’”) (emphasis added). The undisputed evidence is that, despite
cooperating extensively with the government, no government official ever discussed

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administrative remedies, the FTCA or the potential for a civil lawsuit. See also Pliler v. Ford,
542 U.S. 225, 231 (2004) (recognizing that federal administrative regulations are inherently
complex and that “the details of federal habeas procedure and calculating statutes of limitations
are tasks normally and properly performed by trained counsel as a matter of course.”).
ii. The Government Voluntary Undertook Assisting Plaintiff, but its
Assistance was Grossly Negligent

Applying common law tort principles, it is clear that the government voluntarily
undertook to help Plaintiff with respect to her claims of sexual abuse and rape, but, by failing to
properly notify her of the administrative and FTCA procedures, was grossly negligent. Florida
law, like all common law jurisdictions premised upon Anglo-American jurisprudence, requires
that a person who voluntarily or gratuitously undertakes a duty to do so non-negligently. See,
e.g., Goldberg v. Florida Power & Light Co., 899 So. 2d 1105, 1111 (Fla. 2005) (“One who
undertakes an action assumes the duty to perform the action non-negligently.”); Horton v.
Freeman, 917 So. 2d 1064, 1066 (Fla. 4th DCA 2006) (“It is axiomatic that an action undertaken
for the benefit of another, even gratuitously, must be performed in accordance with an obligation
to exercise reasonable care.”). The duty arises from multiple sources, including “legislative
enactments or administration regulations” or “the general facts of the case.” Id. at 1110. The
“general facts of the case” here show that Plaintiff complained to and cooperated extensively
with the government, but the government failed to reasonably assist her by failing to provide
instructions, assistance and forms relating to her claims. 14 In essence, the government’s
assistance was “negligent.”
C. Plaintiff Acted with Due Diligence to Pursue her Claims
Plaintiff’s administrative claim should be deemed timely filed because she acted with all
deliberate speed in pursuing her claims and because at no point did she sleep on her rights. This
is not a case where “evidence has been lost, memories have faded, and witnesses have
disappeared.” Justice, 6 F.3d at 1479 (explaining the policy underlying statutes of limitation). 15

The Supreme Court recently reaffirmed that when plaintiffs file claims with the government, it is the
substance of the claims and the plaintiffs’ intent that prevail over procedural defects. See Federal Express Corp. v.
Holowecki, 128 S.Ct. 1147 (2008) (strongly criticizing the EEOC for not informing claimants who filed “intake
questionnaires” that they must also file distinct “charges of discrimination” to satisfy their administrative
requirements). Once a prospective claimant raised concerns to the EEOC, the EEOC had an affirmative obligation
to provide him with the proper forms and assistance. Id.
The government has not identified any lost evidence, impaired memories, or dead witnesses who are crucial
or even marginally relevant to its defense and it is not even alleging prejudice. On the contrary, the government has

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Damioun Cole raped Plaintiff in or around June 2004. See Exhibits A, B, C, D, E & I. Plaintiff
technically had until June 2006 to file her administrative claim relating to Cole. She filed it on
April 2, 2007 – a mere 10 months late. Claims relating to Lt. Echeverria, Officer Jenkins and
Officer Pollock (which arose in 2003) were between 17 and 29 months late. Since her initial
complaints in December 2003, Plaintiff, at all times, actively pursued her claims to the best of
her abilities. She provided two affidavits to the BOP and offered to take a lie detection test. See
Exhibit B. She met with a private attorney while incarcerated. 16 She met with numerous FBI
agents. See Exhibits A, B & E. She cooperated with A.U.S.A. Alexander Soto with respect to
the government’s criminal prosecution of Cole. See Exhibit I. Upon her release from full
custody, in June 2006, she contacted a private attorney in her hometown of Raleigh, N.C. See
Exhibit J. That attorney immediately filed numerous FOIA requests to corroborate Plaintiff’s
extraordinary story of being raped in a federal prison. 17 Id. After reviewing the documents,
Plaintiff was referred by her Raleigh attorney to undersigned counsel. Id. Plaintiff again
followed up with additional FOIA requests and appeals. Id. On March 12, 2007, Plaintiff filed
her suit. Given her extraordinary claims (which suggest misconduct on the part of three
government agencies), Plaintiff’s counsel had to properly investigate the case and review FOIA
documents to comply with Rule 11’s pre-suit investigation requirement.
The government relies on only two cases to support its argument that Plaintiff slept on
her rights. First, in Justice, the Eleventh Circuit refused to equitably toll the statute of limitations
under the Suits in Admiralty Act because the plaintiff there admitted that the “district court
dismissed his original, timely-filed action solely as a result of excusable delays in complying
with the court’s discovery orders….” 6 F.3d at 1479. The court found it inexcusable that the
plaintiff “did not answer the district court’s standard interrogatories until fourteen months after
the order propounding them was entered . . . No requests for extensions of time were made.
Other court deadlines were ignored or overlooked.” Id. at 1480. To the contrary, Plaintiff here

“lost” or otherwise not produced documents that support Plaintiff’s claim. Plaintiff, not the government, is the one
The government alleges that, because Plaintiff met with a private attorney on August 10, 2005, there is no
basis to toll the statute of limitations. See Motion, p. 8. This precise argument was raised and rejected in Bartus v.
United States, 930 F. Supp. 679, 681-82 (D. Mass. 1996) (applying equitable tolling in FTCA action). In Bartus, the
plaintiff’s discussions with a private attorney, who declined the case, was evidence that plaintiff was actively
pursuing his case and was not sleeping on his rights. Id. The court further held that consulting with an attorney
does not “impute constructive knowledge of the FTCA’s administrative filing requirement to [plaintiff].” Id.
The BOP’s FOIA office took several months to provide even minimal documents. Had the BOP been
quicker, this matter would have been filed earlier.

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has vigorously prosecuted this action since its exception and, unlike the government, has
complied with all federal and local rules.
Second, Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002) is inapposite. There, the
First Circuit (which first reaffirmed its incorrect position that § 2401(b) jurisdictional) held that a
medical malpractice plaintiff could have learned of the injury and its potential cause on the very
day of the injury, and certainly within two years of the injury. Id. at 290. The court refused to
apply the “discovery rule” to toll the statute of limitations. Id. Here, Plaintiff is not alleging
medical malpractice and is not alleging that she was unaware of her injury until after the statute
expired. Plaintiff instead is alleging that she was mislead into reasonably believing that she was
doing and did all the she could to pursue her claim. Despite its ruling, the court in Gonzalez left
open the possibility that the government’s “silence or evasive[ness]” constituted affirmative
misconduct. Id. at 292 (“silence may constitute fraudulent concealment where a person, such as
a fiduciary, has a duty to disclose….”). Here, certainly Plaintiff’s jailers, as custodians, and the
government’s attorneys (who arguably “represented” Plaintiff in its various prosecutions), owed
her at least a minimal amount of “good faith” and “reasonable” assistance with her complaints
and claims. And as indicated above, the BOP violates its own rules and regulations regarding
disclosure of its administrative remedy program and the FTCA filing requirements.
The undisputed facts are that the government was on actual and continuous notice of
Plaintiff’s complaints of sexual assault, abuse and rape since December 2003. Since December
2003, Plaintiff did all she reasonably could to remedy the government’s tortious behavior. Under
these unique circumstances, equitable tolling is appropriate.

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Justice Holmes wrote that the path of the law is experience – experience drawn from
outside the law. The facts support S.R. having her day in court. For the reasons stated above,
Plaintiff requests that this Court deny the United States’ Motion for Summary Judgment.
Respectfully submitted,
___/s/ Matthew Sarelson_____
Matthew S. Sarelson, Esq.
Fla. Bar No. 888281
1401 Brickell Avenue, Suite 510
Miami, Florida 33131
800-421-9954 (fax)


Jeffrey T. Donner, Esq.

Fla. Bar No. 180122
19 West Flagler Street, Suite 907
Miami, Florida 33130
866.724.7814 (fax)
Counsel for Plaintiff

Case 1:07-cv-20648-CMA Document 145 Entered on FLSD Docket 03/24/2008 Page 20 of 20

I HEREBY CERTIFY that on March 24, 2008, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the forgoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronically Notices of Electronic Filing.

___/s/ Matthew Sarelson_________

Matthew S. Sarelson, Esq.

Service List
Case No. 07-20648-civ-ALTONAGA/Turnoff

Matthew S. Sarelson, Esq. Michael S. Pasano, Esq.

Fla. Bar No. 888281 Zuckerman Spaeder LLP
SARELSON, P.A. 201 S. Biscayne Blvd, Suite 900
1401 Brickell Avenue, Suite 510 Miami, Florida 33131
Miami, Florida 33131
305-379-0305 Counsel for Isiah W. Pollock III
800-421-9954 (fax) Jonathan H. Rosenthal, Esq.
Myles H. Malman, Esq.
Jeffrey T. Donner, Esq. Malman, Malman and Rosenthal, LP
Fla. Bar No. 180122 3107 Stirling Road, Suite 101
DONNER LAW FIRM PL Fort Lauderdale, Florida 33312-8500
19 West Flagler Street, Suite 907
Miami, Florida 33130 Counsel for Charles Jenkins
866.724.7814 (fax) Antonio Echevarria (via U.S. Mail) 9362 S.W. 163rd Court
Miami, Florida 33196
Miguel A. Fernandez, Esq. Pro Se
Isabel Muñoz-Acosta, Esq.
Assistant U.S. Attorney Damioun Cole (via U.S. Mail)
District of Puerto Rico 21055 N.W. 38th Avenue
Torre Chardon, Suite 1201 Miami, Florida 33054.
350 Carlos Chardon Street Pro Se
San Juan, Puerto Rico 00918
Counsel for the United States