PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE ...

preclude equitable tolling as it did in the FCRA. We reach this
conclusion because Congress structured the two statutes
differently. Thus, while Congress placed the FCRA’s exception
to the limitations provision within the same sentence as the
general limitations provision connected by “except,” 15 U.S.C.
§ 1681p (1994 ed.), in contrast it placed the FTCA’s savings
clause providing that certain claims filed within two years with
the wrong agency are timely in a section distinct from the
limitations provision. 28 U.S.C. §§ 2679(d)(5); 2401(b). The
placement of the separate statutory savings provision does not
suggest that Congress intended it to preclude equitable tolling,
which the Supreme Court has presumed and held to apply in
actions against the United States, Irwin, 498 U.S. at 95-96, 111
S.Ct. at 458; see also Hughes, 263 F.3d at 278; Hedges, 404
F.3d at 748; Ingram, 443 F.3d at 960-61, particularly in an area
of law where equitable concerns may be greater. TRW, 534
U.S. at 27, 122 S.Ct. at 446-47 (distinguishing claim in that
case, private action against a credit agency under FCRA, from
medical malpractice claims).
The Government also argues that equitably tolling the
statute of limitations would render the FTCA’s savings clause
“insignificant, if not wholly superfluous.” See id. at 31, 122
S.Ct. at 449. But we reject this argument because the savings
clause is applicable in cases in which equitable tolling would not
be. For example, the FTCA’s savings clause lacks any due
diligence requirement and thus encompasses a “garden-variety
claim of excusable neglect,” a situation in which equitable
tolling would not apply. See Irwin, 498 U.S. at 96, 111 S.Ct. at
458.
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