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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blake J. v. State of Alaska, Department of Health & Social Services, Office of Children's Services; Philip Kaufman; John Does 1-10; and Alexa J. (8/23/2024) sp-7710
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
BLAKE J., )
) Supreme Court No. S-18415
Appellant, )
) Superior Court No. 3AN-18-07727 CI
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) No. 7710 - August 23, 2024
OFFICE OF CHILDREN'S SERVICES; )
PHILIP KAUFMAN; JOHN DOES 1-10; )
and ALEXA J., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: Robert D. Stone, Law Office of Robert Stone,
LLC, Anchorage, for Appellant. Kimberly D. Rodgers,
Assistant Attorney General, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for Appellees State of Alaska,
Department of Health & Social Services, Office of
Children's Services and Philip Kaufman. No appearance by
Appellee Alexa J.
Before: Maassen, Chief Justice, and Borghesan, Henderson,
and Pate, Justices. [Carney, Justice, not participating.]
PATE, Justice.
----------------------- Page 2-----------------------
INTRODUCTION
A child in the custody of the Office of Children's Services (OCS) suffered
horrific abuse at the hands of his adoptive mother. Days before his 21st birthday, the
child filed a tort suit against OCS and his adoptive mother.
OCS moved to dismiss the lawsuit as untimely. The child opposed and
raised three reasons why the statute of limitations should not bar his complaint: (1) the
statute of limitations was tolled while he was in OCS custody until age 19, (2) collateral
estoppel should prevent OCS from arguing he was competent to file suit, and
(3) equitable tolling should apply. The superior court rejected these arguments and
concluded the child's suit was untimely. Seeing no error, we affirm the superior court.
FACTS AND PROCEEDINGS
A. Facts
In 1999, when Blake J. was approximately two years old, he was
adjudicated a child in need of aid and placed in OCS custody.1 After a series of foster
care placements, OCS placed Blake and his older sister in foster care with Alexa J. in
2003. Alexa subsequently adopted both of them in 2004, when Blake was 6 years old.
At the time of Blake's adoption, Alexa had already adopted five other children. When
Blake was 13, OCS removed him from Alexa's custody and returned him to foster care
as a result of horrific abuse in the home.
The conditions Blake endured while in Alexa's custody were described by
one expert witness as torture. Alexa neglected, abused, and routinely denied food to
Blake and his siblings. Alexa also administered unnecessary antipsychotic drugs and
effectively held the children out of school. Blake has been diagnosed with post-
traumatic stress disorder arising from the abuse and neglect he endured. Alexa was
subsequently convicted of two counts of first-degree child endangerment.
1 We use pseudonyms for the child and the adoptive mother to protect the
child's privacy.
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After he was removed from Alexa's custody in 2011 and until the age of
19, Blake remained in OCS custody in several foster placements. Between 2011 and
2014, Blake's sister and several of the other children Alexa had adopted sued OCS,
alleging the agency failed to investigate before placing the children with Alexa and
failed to follow up on reports of abuse. Both Blake's biological mother and his OCS
caseworker encouraged him to participate in the lawsuit. Although Blake was informed
of the deadline to file suit and briefly agreed on multiple occasions to join the suit, he
never did so. After Blake turned 18 he retained his own attorney who informed Blake's
siblings' counsel that he "intend[ed] to file a lawsuit against the [OCS], making many
of the same arguments" the siblings raised. Meanwhile, the siblings' lawsuit settled in
2018 without Blake's participation.
Although Blake turned 18 on July 2, 2015, he remained in OCS custody
for another year until his 19th birthday. After age 19, the child's consent is required for
OCS to retain custody,2 and Blake did not consent. OCS thus petitioned to appoint a
conservator to manage his finances and a limited guardian to manage Blake's housing
and benefits. At this point, Blake was employed full time, planning to finish high
school, and living in an extended housing program offered by OCS. OCS explained
that it sought a guardian to assist Blake in securing housing "as he transitions to
independence as an adult and out of OCS custody."
The superior court held a hearing on both petitions in June 2016. In
advance of the hearing, both OCS and Blake agreed that the conservatorship and limited
guardianship were necessary. The court reviewed a neuropsychological evaluation that
concluded Blake had "highly impaired judgment abilities," was "incapable of
competitive employment," and was not capable of "making informed decisions
regarding his care or finances or legal issues." It also reviewed a court visitor's report,
2 See AS 47.10.100(a), .080(c).
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which likewise concluded that Blake had "limited social skills" and lacked the "skill set
to live independently or secure his own housing." The superior court granted both
petitions, finding Blake was "able to perform some, but not all, of the functions
necessary to care for himself," and appointed the Office of Public Advocacy as Blake's
conservator and partial guardian.
In August 2016, Blake formally withdrew his consent to OCS's legal
custody. He was formally released from OCS custody on August 23, 2016.
B. Proceedings
Blake, through his conservator, filed suit against OCS and Alexa on
June 29, 2018. This date was nearly three years after he turned 18, and nearly two years
after he left OCS custody. OCS moved to dismiss the complaint, arguing that Blake's
claims were barred by the two-year statute of limitations. OCS argued that the
complaint should have been filed no later than July 2, 2017, Blake's 20th birthday, and
was thus nearly a year late. Blake argued his complaint was timely because he did not
reach the age of majority until he was released from OCS custody in August 2016. He
also argued that he was mentally incompetent during the relevant period, that OCS
should be collaterally estopped from arguing otherwise, and that equitable tolling
should apply.
The superior court concluded that the complaint was untimely filed and
scheduled an evidentiary hearing to determine Blake's competency. Blake moved for
summary judgment, which was denied. After seven days of hearings and an additional
round of briefing on equitable tolling, the court granted OCS's motion to dismiss,
finding Blake had not demonstrated he was incompetent and that equitable tolling did
not apply. Instead, the court concluded Blake made a "deliberate decision not to sue"
and the statute of limitations had elapsed. The court entered a written order dismissing
the complaint and awarded attorney's fees to OCS.
Blake appeals.
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STANDARD OF REVIEW
"[W]e review de novo questions regarding the applicable statute of
3
limitations, the interpretation of that statute, and whether that statute bars a claim."
4
We likewise review de novo whether the elements of collateral estoppel are satisfied,
5 6
whether judicial estoppel is available , and whether equitable tolling is available.
DISCUSSION
Blake's tort claims are barred by the statute of limitations, which requires
such claims to be brought within two years.7 Although the statute of limitations was
tolled while Blake was a minor,8 more than two years elapsed between the date he
turned 18 and the date he filed his lawsuit. Blake raises a series of arguments for why
the statute of limitations should not bar his claims, including that his commitment to
OCS custody tolled the statute of limitations until age 19, that collateral estoppel barred
OCS from asserting he was competent to file suit, and that principles of equitable tolling
should excuse his failure to meet the deadline. For the reasons discussed below, we
reject these arguments and affirm the decision of the superior court.
3 Moffitt v. Moffitt, 341 P.3d 1102, 1104 (Alaska 2014) (alteration in
original) (quoting Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1271 (Alaska
2013)).
4 Lane v. Ballot, 330 P.3d 338, 341 (Alaska 2014) (citing Rapoport v.
Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990)).
5 Zwiacher v. Capstone Fam. Med. Clinic, LLC, 476 P.3d 1139, 1143
(Alaska 2020).
6 See Griffin v. Hemphill, 521 P.3d 584, 589 (Alaska 2022) (holding legal
standard used to determine when cause of action accrued is question of law); cf. Irby v.
Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1142-43 (Alaska 2009) (applying
equitable tolling); see also Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004) ("A
district court's decision whether to apply equitable tolling is generally reviewed for
abuse of discretion, but where the relevant facts are undisputed, review is de novo.").
7 AS 09.10.070(a).
8 See AS 09.10.140(a).
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A. An Extended Stay In Foster Care Does Not Toll The Statute Of
Limitations.
1. The extended foster care statute does not create an exception to
the generally applicable statute of limitations.
Blake first argues that the statute of limitations was tolled while he was in
OCS custody between the ages of 18 and 19, a period we refer to as extended foster
care. As a general rule, tort claims must be "commenced within two years of the accrual
of the cause of action."9 This limit ensures that plaintiffs pursue their claims promptly
10
and avoids the injustices that may result from the delayed prosecution of stale claims.
When a cause of action accrues while a person is under the age of majority, the statute
of limitations is tolled until that person reaches the age of majority.11 The age of
majority is defined by statute as 18,12 but the statute recognizes that other statutes may
create a different age of majority applicable to specific situations or activities.13 Blake
argues that the extended foster care statute, AS 47.10.080, is one such statute.
We cannot agree. By its own terms, AS 47.10.080 says nothing about the
age of majority. The statute only provides that a court may order a child "committed to
the department" for a period of time "not to extend past the date the child becomes 19
years of age."14 Blake suggests that the use of the term "child" in the statute is sufficient
9 AS 09.10.070(a).
10 See Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1143 (Alaska
2009).
11 AS 09.10.140(a); see, e.g., Hanson v. Kake Tribal Corp., 939 P.2d 1320,
1325-26 (Alaska 1997) (tolling statute of limitations for minors).
12 AS 25.20.010. We have previously held that this statute defines the age
of majority for purposes of the statute of limitations. See Fields v. Fairbanks N. Star
Borough, 818 P.2d 658, 659 (Alaska 1991).
13 AS 25.20.010 (providing age of majority is 18 "except as otherwise
provided by statute"); see Allam v. State, 830 P.2d 435, 437-38 (Alaska App. 1992).
14 AS 47.10.080(c)(1).
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to show that anyone subject to OCS custody between age 18 and age 19 has not reached
the age of majority for purposes of tolling the statute of limitations. But the age-of-
majority statute applies "except as otherwise provided by statute."15 Statutes creating
an exception do so explicitly, either by referring to the age of majority or by setting a
specific age at which certain rights and duties attach.16 The use of the term "child" in
AS 47.10.080, without more, is not sufficient to create a statutory exception to the age
of majority established in AS 25.20.010.
2. OCS's obligations under AS 47.10.084 do not create an
exception to the statute of limitations.
Blake next relies on AS 47.10.084, which defines OCS's obligations to
children in its custody, to argue that the statute of limitations must be tolled during the
period a child is in OCS custody. Blake notes that an 18-year-old in extended foster
care remains in a "relationship of legal custody" with OCS,17 which imposes certain
obligations on OCS. Blake argues that these obligations are inconsistent with the rights
of adulthood, concluding that an 18-year-old who remains in the legal custody of OCS
has not reached the age of majority.
The text and structure of AS 47.10.084 demonstrate that OCS's
responsibilities to obtain legal representation and make significant legal decisions for a
18
child in its custody terminate once the child reaches the ordinary age of majority, even
if that child remains in OCS custody past age 18. The statute contains three relevant
subsections: .084(a), which defines the responsibilities of OCS for children in its
custody; .084(b), which describes the possible powers of a court-appointed guardian;
15 AS 25.20.010.
16 See, e.g., AS 04.16.050(a) (setting drinking age at 21);
AS 11.61.220(a)(3) (criminalizing possession of firearms by minors under 16);
AS 25.20.020 (providing person who is legally married reaches age of majority).
17 AS 47.10.084(a).
18 AS 25.20.010.
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and .084(c), which defines the residual rights of parents. OCS assumes the rights and
responsibilities of .084(b) and .084(c) only "[w]hen parental rights have been
19
terminated, or there are no living parents."
Blake points to the provisions of AS 47.10.084(a), which assign OCS "the
responsibility of physical care and control of the child" and "the right and responsibility
to make decisions of financial significance," and suggests that these provisions mean
children in OCS custody "lack all indicia of majority."20 The text of AS 47.10.084(a)
lends some credibility to Blake's argument. But our precedents require us to read
statutes harmoniously,21 giving effect to every word and provision,22 and presuming a
given word bears the same meaning throughout.23 And we cannot embrace Blake's
reading of AS 47.10.084(a) in light of the explicit language in AS 47.10.084(b) about
"obtaining representation for the child in legal actions, and making decisions of legal
or financial significance concerning the child." Reading the reference to "decisions of
financial significance" in .084(a) to subsume all decisions of legal significance would
render meaningless the separate reference to decisions of legal significance in .084(b).
Instead, the explicit reference to these powers in .084(b) suggests that they are not
24
conveyed by implication in .084(a).
19 AS 47.10.084(a).
20
Id.
21 Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 528 (Alaska 1993).
22 See Kodiak Island Borough v. Roe, 63 P.3d 1009, 1014 n.16 (Alaska
2003) (citing Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).
23 Forrer v. State, 471 P.3d 569, 585 (Alaska 2020).
24 See Alaska State Comm'n for Hum. Rts. v. Anderson, 426 P.3d 956, 964
n.34 (Alaska 2018) ("[W]here certain things are designated in a statute, 'all omissions
should be understood as exclusions.' " (quoting Croft v. Pan Alaska Trucking, Inc., 820
P.2d 1064, 1066 (Alaska 1991))).
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Blake next argues that the responsibilities outlined in AS 47.10.084(b) and
(c) also apply to children who remain in the legal custody of OCS past the age of 18.
These responsibilities include obligations for OCS to "obtain[] representation for the
child in legal actions" and make "decisions of legal . . . significance," duties that appear
25
inconsistent with the child's ability to competently decide whether to file suit.
OCS is a creature of statute, and its rights and responsibilities therefore
must be defined by statute.26 Parental rights, by contrast, include all of the rights not
explicitly committed to OCS.27 The use of the term "residual" in .084(c) suggests that
28
this category of parental rights includes all rights that are not interrupted by .084(a).
Accordingly, both .084(b) and .084(c) state that the list of powers therein is not
29
exhaustive, a disclaimer that does not appear in .084(a).
The right to make "decisions of legal . . . significance" and the
responsibility to "obtain[] representation for the child in legal actions" appear only in
.084(b), not .084(c). But the open-ended nature of parental rights, the language of both
25 AS 47.10.084(b).
26 See McDaniel v. Cory, 631 P.2d 82, 88 (Alaska 1981) ("Administrative
agencies . . . are creatures of statute and therefore must find within the statute the
authority for the exercise of any power they claim.").
27 See Diana H. v. Rubin, 171 P.3d 200, 204 (Ariz. App. 2007) (noting that
term "residual" indicates that "the legislature intended that parents would retain those
rights not expressly acquired by [the state child welfare agency]").
28 See Residue, BLACK 'S LAW DICTIONARY (12th ed. 2024) ("Something
that is left over after a part is removed or disposed of; a remainder."); Residual, id. ("A
leftover quantity; a remainder."); see also In re J.P., 648 P.2d 1364, 1366 n.1 (Utah
1982) (defining "residual parental rights" in Utah law as including inheritance rights,
right to determine child's religious affiliation, and right to sue for wrongful death of
minor child).
29 AS 47.10.084(b) (explaining that rights and responsibilities of guardian
"may include, but are not limited to," listed rights and responsibilities);
AS 47.10.084(c) (stating that residual parental rights "may include, but are not limited
to," listed rights and responsibilities).
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clauses confirming they are not exhaustive lists, and the provision of .084(a) stating
OCS only assumes these obligations "[w]hen parental rights have been terminated" all
suggest .084(b) and .084(c) provide overlapping lists of residual parental rights, all of
which pass to the child once he reaches the age of majority.30 This reading is confirmed
by a generally applicable statute providing that the right to bring a legal action, like
other residual parental rights, ordinarily passes from parent to child once the child
reaches the age of majority.31 As the general age of majority statute applies to children
in extended foster care,32 these powers thus pass to children who remain in OCS custody
past the age of 18.
Our interpretation of the relevant statutes also aligns with the purpose of
33
extended foster care: offering a structured and supportive transition to adulthood.
Residual parental rights, including the authority to make decisions about major medical
treatment, military enlistment, and lawsuits,34 pass to the child at the age of majority,
as do certain powers like the capacity to enter into contracts. OCS remains responsible
under AS 47.10.084(a) for providing food, shelter, education, and medical care while
the child in extended foster care learns to navigate these adult responsibilities.
Although our reading of the statute bars Blake's tort claim in this case, it
ultimately affirms the legislature's goal, expressed in the extended foster care statutes,
of enabling young adults in extended foster care to make crucial decisions about their
lives. Allowing these young adults to progressively assume adult responsibilities, while
30 Cf. 4 Alaska Administrative Code 52.590 (providing all children
committed to OCS custody are entitled to appointment of surrogate parent in
educational matters at ages 3-17, but only at ages 18-21 if "adjudicated incompetent").
31 See AS 09.15.010.
32 See supra Part IV.A.1.
33 See Foster Care Independence Act of 1999, Pub. L. No. 106-169, § 101,
113 Stat. 1822, 1823.
34 See AS 47.10.084(b)-(c).
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maintaining OCS's responsibilities to ensure certain needs are met, allows children in
extended foster care additional time to develop the skills and relationships necessary
for adulthood. This system also ensures that children do not abruptly and automatically
lose OCS services at age 18.
3. The Alaska Constitution does not require that claims be tolled
during extended foster care.
Finally, Blake contends that allowing the statute of limitations to run
during extended foster care would unconstitutionally impair access to the courts. We
have previously stated "that the due process clause of the Alaska Constitution contains
within it a 'right of access' to the courts."35 But this right is "ordinarily implicated only
when a legislative enactment or governmental action erects a direct and
36
'insurmountable barrier' in front of the courthouse doors."
No such insurmountable barrier existed here. Blake was aware of the
potential claims and deadlines and retained counsel in anticipation of filing suit.
Further, his sister was able to file suit against OCS despite being in extended foster care.
While we have previously observed that "having parents or guardians who are unwilling
or unable to timely file suit is not something a minor can overcome," we reached that
conclusion because 10-year-old children cannot be expected to retain counsel or file
suit on their own.37 Here, Blake retained counsel after turning 18, but failed to file suit
because he was preoccupied with school, work, and family issues, and because Blake
was uncertain how the statute of limitations applied to children in OCS custody. While
these types of barriers to filing may practically deter many litigants from filing, they
35 Sands ex rel. Sands v. Green, 156 P.3d 1130, 1134 (Alaska 2007) (quoting
Bush v. Reid, 516 P.2d 1215, 1217-20 (Alaska 1973)).
36 Id. (quoting Varilek v. City of Houston, 104 P.3d 849, 853-55 (Alaska
2004)).
37 Id. at 1134-35.
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are not the sort of direct, insurmountable barriers created by the government that would
constitute an unconstitutional impairment of access to the courts.
B. OCS Is Not Estopped From Arguing Blake Is Competent.
At trial, Blake unsuccessfully argued that the statute of limitations should
have been tolled because he was incompetent. Blake does not challenge the superior
court's factual finding that he was competent during the relevant period. On appeal, he
argues OCS should be estopped from arguing he was competent because it previously
took the opposite position when it petitioned to appoint a guardian for him.
Alternatively, if the test for collateral estoppel is not met, Blake suggests OCS should
nonetheless be judicially estopped from asserting inconsistent positions on his
competency. We conclude that collateral estoppel is not available here because the
competency standard in a conservatorship and partial guardianship proceeding is
different from the standard of competence necessary to file suit. Judicial estoppel is
likewise unavailable because OCS's positions were not inconsistent.
1. The test for collateral estoppel is not met.
Collateral estoppel "bars the relitigation of issues actually determined" in
a prior proceeding.38 Four factors must be met for collateral estoppel to apply: (1) the
party against whom the preclusion is employed must have been a party to or in privity
with a party to the first action; (2) the issue must be identical to the issue decided in the
first action; (3) the issue must have been resolved in the first action by a final judgment
on the merits; and (4) the determination of the issue must have been essential to the
39
final judgment.
The second factor is not satisfied here because the issues in the two actions
are not identical. Specifically, there is a difference between the standards for capacity
38 Allstate Ins. Co. v. Kenick , 435 P.3d 938, 944 (Alaska 2019) (quoting
Latham v. Palin , 251 P.3d 341, 344 (Alaska 2011)).
39 Id.
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to sue and for appointment of a conservator/partial guardian. Alaska Statute 13.26.201
provides that "[a]n incapacitated person for whom a guardian has been appointed is not
presumed to be incompetent and retains all legal and civil rights except those that have
been expressly limited by court order or have been specifically granted to the guardian
by the court." Alaska Statute 13.26.316(c) lists the powers and duties of a full guardian,
including responsibility for "the initiation of court action." Here, however, OCS sought
only a conservatorship and partial guardianship over housing. The trial court's order
noted Blake's "incapacity" to manage his finances or housing, but as AS 13.26.201
makes clear, incapacity is not incompetency. Nothing in the order indicates that the
court made any findings about Blake's competency to file suit, and OCS is therefore
not estopped from arguing he was competent to sue.
In any event, the third and fourth factors are also not satisfied because
40
there was no final judgment on the merits on this issue in the prior proceeding.
Instead, the parties agreed to appoint a conservator and partial guardian. No express
findings about Blake's competency to initiate legal proceedings were made at any point.
2. The test for judicial estoppel is not met.
Judicial estoppel offers an avenue to estoppel where the elements of
collateral estoppel are not all present, but estoppel is nonetheless justified to prevent a
party from taking "clearly inconsistent" positions.41 But OCS's positions here are not
clearly inconsistent because, as discussed above, the standards for capacity to sue and
40 See In re Adoption of A.F.M., 15 P.3d 258, 268-69 (Alaska 2001)
(explaining collateral estoppel requires issue be raised, submitted to court for
determination, and determined). An issue is not "actually litigated if it is the subject of
a stipulation between the parties," unless the parties clearly intended the stipulation to
be binding in a future proceeding. RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. e
(AM. L. INST . 1982); see Nelson v. Jones, 787 P.2d 1031, 1036 & n.4 (Alaska 1990).
That rare exception is not applicable here.
41 See Zwiacher v. Capstone Fam. Med. Clinic, LLC, 476 P.3d 1139, 1143
(Alaska 2020) (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)).
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for appointment of a conservator are different. OCS's stipulation to the need for a
conservator and partial guardian over housing did not commit it to a position on Blake's
competency to initiate legal proceedings.
C. Equitable Tolling Does Not Apply.
Finally, Blake argues that the "extraordinary circumstances" of his case
justify application of the doctrine of equitable tolling. This doctrine "looks only to the
claimant's circumstances" to determine whether equity justifies tolling the statute of
limitations.42 We have thus far recognized equitable tolling only "when a plaintiff has
multiple legal remedies available" and chooses to pursue one alternative remedy that
proves unavailing.43 The superior court applied this standard and concluded equitable
tolling did not apply to Blake's circumstances.
A handful of other jurisdictions employ a broad conception of equitable
tolling that applies "where extraordinary circumstances outside the plaintiff's control
make it impossible for the plaintiff to timely assert his or her claim."44 This broader
conception of equitable tolling requires showing both that the litigant has diligently
sought to vindicate his rights and that circumstances "made it impossible to file on
time."45 The first element asks whether the plaintiff was " 'without any fault' in
42 Kaiser v. Umialik Ins., 108 P.3d 876, 880 (Alaska 2005).
43 Solomon v. Interior Reg'l Hous. Auth., 140 P.3d 882, 884 (Alaska 2006)
(quoting Gudenau & Co. v. Sweeney Ins., 736 P.2d 763, 768 (Alaska 1987)). Under
these circumstances, the limitations period for the second remedy is tolled while the
plaintiff pursues the first remedy. See Park v. Spayd, 509 P.3d 1014, 1021-22 (Alaska
2022).
44 Kaiser, 108 P.3d at 882 (quoting Abbott v. State, 979 P.2d 994, 998
(Alaska 1999)); see, e.g., Booth v. United States, 914 F.3d 1199, 1206-07 (9th Cir.
2019).
45 Doe v. Garland, 17 F.4th 941, 946 (9th Cir. 2021) (emphasis in original).
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pursuing his claim,"46 because the doctrine "is not available to avoid the consequence
of one's own negligence."47 The second element requires establishing circumstances
that are "both extraordinary and beyond [the litigant's] control" that made it impossible
to file on time.48 The threshold to trigger equitable tolling is "a very high bar," and this
doctrine "is reserved for rare cases."49 Any litigant thus "bears a heavy burden to show
50
that [he] is entitled to equitable tolling, 'lest the exceptions swallow the rule.' "
Alaska has "neither accepted nor rejected this theory of tolling."51 The
superior court briefly considered it in this case, but concluded that "the facts of this case
don't meet" the standard used by other jurisdictions. Blake argues that we should use
this case to adopt this theory of tolling. But even if we were to adopt this theory, it
would not apply in this case because neither prong has been satisfied.
The first prong requires showing that the litigant "has been pursuing his
rights diligently."52 While Blake argues he was "navigating a legal system fraught with
unanswered questions" about how the statute of limitations might apply to his
circumstances, and that "it is inequitable to hold this legal uncertainty against [him],"
the record shows that, after he turned 18, he had multiple conversations about filing a
lawsuit and even retained an attorney, but nevertheless waited over two years to file his
46 Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (quoting
FEC v. Williams, 104 F.3d 237, 240 (9th Cir. 1996)).
47 Hensley v. United States, 531 F.3d 1052, 1058 (9th Cir. 2008) (quoting
Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir. 1998)).
48 Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257
(2016) (emphasis in original).
49 Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014).
50 Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2015) (quoting Bills v.
Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)).
51 Kaiser v. Umialik Ins., 108 P.3d 876, 882 (Alaska 2005).
52 Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo , 544 U.S. 408, 418 (2005)).
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complaint. Blake explained that he was preoccupied with school, work, and family
issues, but this explanation does not excuse his obligation to diligently pursue his rights.
The second prong requires showing an "extraordinary circumstance" that
is both "the but-for and proximate cause of [the plaintiff's] untimeliness."53 While both
the horrific abuse he suffered and his placement in extended foster care from 18 to 19
were beyond Blake's control,54 these circumstances did not make it impossible for him
to timely file. Blake does not challenge the superior court's factual finding that he was
competent to file suit. And the record shows that Blake's sister was able to timely file
suit while she was in OCS custody, that Blake was aware of this lawsuit and encouraged
to join it, and that he retained an attorney to file a similar action. Blake has not shown
that OCS blocked any of his attempts to file suit or otherwise interfered with his ability
to file suit by the statutory deadline. Blake argues that "legal uncertainty" prevented
him from filing, but a plaintiff's (or his counsel's) uncertainty about the law does not,
without more, make it "impossible to file on time."55 The extraordinary circumstances
requirement is simply not met.
CONCLUSION
The judgment of the superior court is AFFIRMED.
53 Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001), rev'd en banc on other
grounds, 295 F.3d 1046 (9th Cir. 2002); see, e.g., Hanger v. Abbott, 73 U.S. (6 Wall.)
532, 539-40 (1867) (equitably tolling statutes of limitations during period of court
closure); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (stating equitable tolling
may apply in habeas action where prisoner was denied access to his legal file).
54 See AS 47.10.080(c)(1)(A) (allowing court to place child in extended
foster care on petition by OCS and after hearing).
55 Doe v. Garland, 17 F.4th 941, 946 (9th Cir. 2021) (emphasis in original);
cf. Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257-58 (2016)
(explaining mistaken inference about what law requires is insufficient to justify
equitable tolling).
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