Barnes v. United States

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH January 21, 2015
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

LARRY WAYNE BARNES, SR.;
LINDA SUE BARNES,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA;
No. 13-5014
JOHN DOE, sued as: John Does 1–30,
unknown individuals of the Tulsa
Police Department and/or BATF and
John Does 31–40, unknown
supervisors and/or policy makers for
the Tulsa Police Department and/or
BATF,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:12-CV-00469-HE-PJC)

Art Fleak, Tulsa, OK (J. Derek Ingle, E. Terrill Corley & Associates, Tulsa, OK,
and E. Anthony Mareshie, E. Anthony Mareshie, P.L.L.C., Tulsa, OK, with him
on the briefs), for Plaintiffs-Appellants.

Zakary Toomey, Civil Division, U.S. Department of Justice, Washington, D.C.
(Stuart F. Delery, James G. Touhey, Jr., and Lawrence Eiser, Civil Division, U.S.
Department of Justice, Washington, D.C., with him on the brief), for Defendants-
Appellees.

Before KELLY, GORSUCH, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.

Larry and Linda Barnes appeal from the dismissal of their Federal Tort

Claims Act (“FTCA”) suit. The district court dismissed the case for lack of

subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),

based on its finding that the Barneses’ claims were time-barred under the six-

month statute of limitations in 28 U.S.C. § 2401(b). The Barneses now seek

reversal of this order, arguing that the district court misinterpreted the statute of

limitations and further erred by failing to afford the Barneses the benefit of the

doctrines of relation back, equitable tolling, and equitable estoppel. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In August 2007, a federal grand jury of the United States District Court for

the Northern District of Oklahoma returned a two-count indictment against Larry

Barnes, charging him with crimes relating to the possession and distribution of

methamphetamine. 1 After a three-day trial, a jury convicted Mr. Barnes on both

1
In describing the factual background to this case, we rely in part on
the records from Mr. Barnes’s earlier criminal and civil cases, of which we take
judicial notice. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir.
2007) (“[W]e may exercise our discretion to take judicial notice of publicly-filed
records in our court and certain other courts concerning matters that bear directly
upon the disposition of the case at hand.”); St. Louis Baptist Temple, Inc. v.
(continued...)

2
counts, and Mr. Barnes was sentenced to sixty-six months’ incarceration on each

count, to run concurrently, as well as a lengthy period of supervised release.

While Mr. Barnes’s direct appeal was pending, the government acquired

evidence indicating that material testimony offered at trial by a Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“BATF”) special agent, an officer of

the Tulsa Police Department, and a confidential informant had been fabricated.

The government responded to the newly acquired evidence by asking the court to

vacate Mr. Barnes’s conviction, to dismiss the indictment against him, and to

release him from incarceration. On July 2, 2009, the district court entered an

order effectuating this request and directed the Bureau of Prisons to immediately

release Mr. Barnes.

Following his release, Mr. Barnes desired redress related to his prosecution

and imprisonment. He and his wife, Linda Barnes, began the process of seeking it

on May 20, 2010, by filing administrative tort claims with the BATF. About a

year later, on May 13, 2011, the Barneses filed a civil lawsuit against the BATF

in Oklahoma state court (“Lawsuit #1”), asserting various claims sounding in tort.

The BATF removed this suit to the United States District Court for the Northern

District of Oklahoma pursuant to 28 U.S.C. § 1442(a)(1), which permits “[t]he

1
(...continued)
FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate
circumstances, may take notice of proceedings in other courts, both within and
without the federal judicial system . . . .”).

3
United States or any agency thereof” to remove any “civil action or criminal

prosecution” against it to federal district court.

On September 23, 2011, less than two weeks after removing the case to

federal court, the BATF filed a motion to dismiss for lack of subject-matter

jurisdiction. The agency’s argument proceeded as follows: (1) because 28 U.S.C.

§ 1346(b) vests exclusive jurisdiction over FTCA suits in the federal district

courts; and (2) removal jurisdiction under 28 U.S.C. § 1442(a) is derivative and

cannot vest jurisdiction in a federal court where the state court had none; then (3)

the state court and, perforce, the district court, lacked jurisdiction to hear the

case.

On October 25, 2011, while the motion to dismiss Lawsuit #1 remained

pending before the district court, the BATF provided notice via certified mail to

the Barneses (through their counsel) of its formal denial of their administrative

claims. In apparent contemplation of 28 U.S.C. § 2401(b)’s statute of

limitations, 2 the BATF’s notice expressly informed the Barneses of a deadline for

filing any subsequent lawsuit: “If your clients are dissatisfied with this action, a

lawsuit must be filed in an appropriate United States district court not later than

2
The relevant statutory provision states, in pertinent part: “A tort
claim against the United States shall be forever barred . . . unless action is begun
within six months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was presented.” 28
U.S.C. § 2401(b).

4
six months after the date of the mailing of this notification.” Aplt. App. at 37

(Letter to J. Derek Ingle, Esq., from Eleaner R. Loos, Assoc. Chief Counsel,

Litig. Div., U.S. Dep’t of Justice, dated Oct. 24, 2011) (emphasis added).

Approximately five months later, on March 23, 2012, the district court granted

the BATF’s motion to dismiss Lawsuit #1 for lack of jurisdiction and dismissed

that case without prejudice. 3

On August 22, 2012, the Barneses filed their second lawsuit (“Lawsuit

#2”), the action now before us on appeal. Notably, this action was filed

approximately five months after the district court dismissed Lawsuit #1 and

nearly ten months after the BATF gave the Barneses notice of its formal denial of

their administrative claims. More specifically, with regard to the BATF’s formal

denial, the Barneses filed Lawsuit #2 nearly four months after the six-month

deadline (i.e., April 25, 2012) that the BATF communicated to the Barneses in the

formal denial.

The government filed a motion to dismiss Lawsuit #2 for lack of

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). This time, the

government argued that the Barneses’ claims were barred by the FTCA’s statute

3
Although the Barneses’ initial complaint had improperly named the
BATF as defendant instead of the United States, which the FTCA requires, see
Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1142 (10th Cir. 1999), the
amended complaint in Lawsuit #1 remedied this defect so that the district court’s
dismissal without prejudice regarded properly pleaded claims against the United
States.

5
of limitations, 28 U.S.C. § 2401(b), because by the time the Barneses filed

Lawsuit #2, the statute’s six-month limitations period had run.

The district court agreed, finding the Barneses’ claims time-barred. It

rejected the Barneses’ arguments regarding the doctrines of relation back and

equitable estoppel, finding these doctrines inapplicable under the pleaded facts.

Finally, the court found that the Barneses’ claims were not saved by equitable

tolling, because “[t]he Tenth Circuit has repeatedly referred to the FTCA’s

timeliness requirement as being jurisdictional,” and thus, the statutory limitations

period was “not subject to equitable tolling.” Aplt. App. at 102 (Order, filed Jan.

14, 2013).

Based on these conclusions, the district court granted the government’s

motion and dismissed the Barneses’ claims with prejudice. The Barneses timely

filed this appeal, and we now exercise jurisdiction pursuant to 28 U.S.C. § 1291.

II

A

First, we conclude that the district court soundly analyzed whether Lawsuit

#2 was time-barred and properly determined that it was. Consequently, we find

that the Barneses’ action was properly dismissed as time-barred. See Jones v.

Bock, 549 U.S. 199, 215 (2007) (“If the allegations . . . show that relief is barred

by the applicable statute of limitations, the complaint is subject to dismissal for

failure to state a claim . . . .”); accord Vasquez Arroyo v. Starks, 589 F.3d 1091,

6
1096 (10th Cir. 2009).

1

In assessing the district court’s ruling that Lawsuit #2 was barred by the

statute of limitations, we turn first to the court’s interpretation and application of

the statute of limitations itself, which we review de novo. See Braxton v.

Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010).

We start by observing that the FTCA has both an administrative-exhaustion

requirement, set forth in 28 U.S.C. § 2675(a), and a statute of limitations, set

forth in 28 U.S.C. § 2401(b). Combined, these provisions act as chronological

bookends to an FTCA claim, marking both a date before which a claim may not

be filed and a date after which any filing is untimely.

The Barneses conflate these two distinct features of the statutory scheme

when they argue that compliance with the administrative-exhaustion requirement

under § 2675(a)’s “deemed denial” provision effectively exempted them from

§ 2401(b)’s six-month limitations period. To the contrary (as the district court

correctly found), the six-month limitations period in § 2401(b) is triggered by an

agency’s formal denial of a potential plaintiff’s administrative claims—

regardless of whether that plaintiff has filed a claim pursuant to § 2675(a)’s

“deemed denial” provision.

The administrative-exhaustion requirement applicable to FTCA claims

“bars claimants from bringing suit in federal court until they have exhausted their

7
administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993).

Section 2675(a) provides:

An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act
or omission of any employee of the Government while acting
within the scope of his office or employment, unless the claimant
shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the
agency in writing and sent by certified or registered mail. The
failure of an agency to make final disposition of a claim within
six months after it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim for
purposes of this section.

28 U.S.C. § 2675(a). In other words, to meet the threshold requirement of

administrative exhaustion, plaintiffs must either (1) have their administrative

claims finally denied by the relevant federal agency; or (2) if the agency fails to

act on their administrative claims within six months of presentment, they may

thereafter deem the claims (constructively) denied.

If § 2675(a)’s exhaustion requirement establishes a date before which a

claim cannot be filed, § 2401(b)’s limitations period establishes the date after

which any claim is barred. Recall, this provision states: “A tort claim against the

United States shall be forever barred unless . . . action is begun within six months

after the date of mailing, by certified or registered mail, of notice of final denial

of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). The

issue—one of first impression in this circuit—is simply how these two provisions

8
relate to one another.

To resolve this issue, we begin by looking at the statutory text. See First

Nat’l Bank of Durango v. Woods (In re Woods), 743 F.3d 689, 694 (10th Cir.

2014) (noting that statutory interpretation “must begin . . . with the language of

the statute itself” (internal quotation marks omitted)). In doing so, our analysis is

guided by the fact that, “[l]ike a waiver of [sovereign] immunity itself, which

must be unequivocally expressed[,] [the Supreme] Court has long decided that

limitations and conditions upon which the Government consents to be sued must

be strictly observed and exceptions thereto are not to be implied.” Franklin Sav.

Corp. v. United States (In re Franklin Sav. Corp.), 385 F.3d 1279, 1289–90 (10th

Cir. 2004) (third and fourth alterations in original) (quoting Lehman v. Nakshian,

453 U.S. 156, 160–61 (1981)) (internal quotation marks omitted). We bear in

mind, moreover, that “[s]tatutes of limitations . . . represent a pervasive

legislative judgment that it is unjust to fail to put the adversary on notice to

defend within a specified period of time and that the right to be free of stale

claims in time comes to prevail over the right to prosecute them.” Id. at 1291

(quoting United States v. Kubrick, 444 U.S. 111, 117 (1979)) (internal quotation

marks omitted).

Turning to the text, we ask whether § 2401(b)’s six-month statute of

limitations may operate to bar an FTCA claim that has been filed after exhaustion

pursuant to the “deemed denial” provision of § 2675(a). More specifically, the

9
question is whether, notwithstanding a plaintiff’s proper exercise of the option of

deeming an administrative claim denied, an agency still retains the ability to issue

a formal denial, thereby triggering § 2401(b)’s six-month statute of limitations

and barring the plaintiff’s claim, if tardy.

In textual terms, the Barneses’ best argument relates to the use in both

§ 2401(b) and § 2675(a) of the phrase “final denial.” They assert that because

there can only be one “final denial,” the use of this term in both provisions should

be read to imply that what is “deemed a final denial of the claim” under § 2675(a)

precludes a future “final denial of the claim” under § 2401(b). The fundamental

problem with this reading is that it ignores the express language in § 2675(a)

saying that an agency’s failure to act on a claim may be deemed a final denial

“for purposes of this section.” That is, the plain language of the statute suggests

that a deemed denial is final only for purposes of satisfying the exhaustion

requirement, and not for other purposes, such as satisfying a limitations period in

a different section of the statute. See Lehman v. United States, 154 F.3d 1010,

1014 (9th Cir. 1998) (noting that “a ‘deemed’ final denial under section 2675(a)

has no effect beyond what is stated in that section”); accord Ellison v. United

States, 531 F.3d 359, 363 (6th Cir. 2008).

Ignoring this limiting language would lead to a bizarre result. Generally,

courts have concluded that § 2675(a) provides no independent limitation on when

plaintiffs may file in federal court after deeming their administrative claims

10
denied. 4 In other words, courts are virtually of one mind in ruling that (at least

until there has been a final denial by the relevant agency) there is no limit on

when a plaintiff may file a lawsuit predicated on a deemed denial. See, e.g.,

Ellison, 531 F.3d at 363 (noting that the statute does not restrict when a claimant

can exercise the “option to ‘deem’ a claim constructively denied,” though that

option “evaporates once the agency actually denies the claim”); Pascale v. United

States, 998 F.2d 186, 193 (3d Cir. 1993) (“[T]here is no limit . . . on a claimant’s

time to deem the claim denied.”); Taumby v. United States, 919 F.2d 69, 70 (8th

Cir. 1990) (“[T]here is no time limit for the filing of an FTCA action when an

administrative claim is deemed to be denied . . . .”); cf. Anderson ex rel. Anderson

v. United States, 803 F.2d 1520, 1522 (9th Cir. 1986) (“Six months after the

submission of the administrative claim, the claimant may either deem it denied

and file suit in district court at any time prior to final agency action or the

claimant may await final agency action and file suit within six months

thereafter.”).

Consequently, if the statutory provisions were read to prevent agencies

from triggering § 2401(b)’s six-month limitations period through final denial of

4
Though we have not specifically addressed this issue, it is not
contested here. Thus, for purposes of this appeal, we will assume without
deciding that, absent final agency action, plaintiffs ordinarily may deem their
administrative claims denied and file suit at any time after the six-month period
referred to in § 2675(a).

11
administrative FTCA claims after a “deemed denial,” then plaintiffs would

effectively have an indefinite statute of limitations for such claims. “[A] claimant

theoretically could file an action, voluntarily dismiss it, and then re-file years

later,” Lehman, 154 F.3d at 1015, if this were true. Such an indefinite limitations

period would be plainly contrary to § 2401(b)’s statutory objective of “requir[ing]

the reasonably diligent presentation of tort claims against the government.” Plaza

Speedway Inc. v. United States, 311 F.3d 1262, 1266 (10th Cir. 2002) (quoting

Arvayo v. United States, 766 F.2d 1416, 1418 (10th Cir. 1985)) (internal

quotation marks omitted).

We reject the Barneses’ implausible reading of § 2675(a) and § 2401(b) and

instead adopt the position that these two provisions act independently of one

another. In doing so, we join the Sixth Circuit in Ellison and the Ninth Circuit in

Lehman. Particularly persuasive is Lehman, which addressed a scenario strikingly

similar to the one before us. In that case, as in this one, the plaintiffs filed an

administrative tort claim with an agency (there, the U.S. Postal Service), and after

six months had elapsed, deemed the claim denied and filed a lawsuit. See

Lehman, 154 F.3d at 1012. As in the present case, the agency mailed its final

denial of the plaintiffs’ claim while the plaintiffs’ original lawsuit was still

pending and, as in the present case, the lawsuit was subsequently dismissed

without prejudice. See id.

As here, the Lehman plaintiffs subsequently refiled, but did so more than

12
six months after the final agency denial of their administrative claim, and the

district court dismissed the second lawsuit as untimely under § 2401(b). See 154

F.3d at 1012–13. Affirming the Lehman district court, the Ninth Circuit

explained:

Neither section 2401(b) nor section 2675(a) nor any other
provision of the FTCA contains anything to suggest that an
agency’s authority to issue a notice of final denial is terminated,
or even temporarily suspended, when a claimant brings an action
that is timely under section 2675(a). To the contrary, the
wording of sections 2401(b) and 2675(a) suggests that they are
functionally distinct. Section 2675(a) expressly states that a
claim may be deemed denied only “for purposes of this section.”
Thus, a “deemed” final denial under section 2675(a) has no effect
beyond what is stated in that section. . . .

Further, our reading of the statutes [i.e., § 2401(b) and § 2675(a)]
finds contextual support. Triggering the statute of limitations by
an actual denial after a claim has been “deemed” denied serves
an important function: It provides an agency with certainty that
it will not be subject to an action to establish liability after a
definite date. That function is particularly important under the
FTCA, because the statute contains no time limit for commencing
an action when an administrative claim has been deemed denied
under section 2675(a), in the absence of an actual denial.

Id. at 1014–15.

In Ellison, which differed factually from this case in that the plaintiff there

never filed a timely first action, the Sixth Circuit endorsed substantially the same

reading of § 2675(a) and § 2401(b) as the Ninth Circuit:

[E]ven if a claimant somehow could deem a claim constructively
denied “any time [ ]after” six months of agency dormancy
(notwithstanding later agency action), that power would trigger
only a claimant’s option to initiate a claim and would have no

13
 bearing on when the Act bars the filing of a claim. Section
2675(a) allows a party to deem a claim constructively denied
only “for the purposes of [that] section,” a section that
determines nothing more than when a claim may “be instituted”
in the district court. In a different section, the Act “forever
bar[s]” a court claim “unless action is begun within six months
after . . . notice of final denial of the claim by the agency.” 28
U.S.C. § 2401(b).

531 F.3d at 363 (second, third, and fourth alterations in original) (omission in

original).

Our own independent reading of the text of § 2675(a) and § 2401(b)

comports with the analyses of this issue found in Lehman and Ellison. In a

nutshell, § 2675(a) articulates an administrative-exhaustion requirement that

dictates when a potential plaintiff’s opportunity to initiate a claim begins; it has

no bearing on the point at which that opportunity ceases. To the extent that

§ 2675(a) permits a party to “deem” an administrative claim denied, the statute

makes clear that this constitutes a “final denial” only for purposes of determining

whether the administrative-exhaustion requirement is satisfied, i.e., whether it is

still too early to file a claim.

By contrast, § 2401(b) describes the time at which it is too late to file. The

six-month window described by this provision opens only upon the

“mailing . . . of notice of final denial of the claim by the agency to which it was

presented.” 28 U.S.C. § 2401(b) (emphasis added). Ordinarily, this means that,

regardless of whether plaintiffs have already “deemed” their administrative claims

14
denied and commenced a suit against the government under the FTCA, a formal

denial of those claims triggers the six-month limitations period described in

§ 2401(b).

2

Having clarified the operation of § 2401(b), it is a fairly straightforward

matter to conclude that the Barneses’ Lawsuit #2 was untimely. The Barneses

filed their administrative claims on May 20, 2010. A year later, the agency had

not yet acted on their claims, so the Barneses invoked § 2675(a), “deemed” their

claims denied for purposes of exhaustion, and filed Lawsuit #1 on May 13, 2011.

While Lawsuit #1 was still pending, the BATF formally denied the Barneses’

claims, effective October 25, 2011, triggering the six-month statute of limitations

period of § 2401(b), which would expire on April 25, 2012.

On March 23, 2012, the district court granted the government’s pending

motion to dismiss Lawsuit #1. Although the Barneses at this point had roughly a

month remaining in which to refile within the statute of limitations, they did not

do so. Instead, they waited until August 22, 2012, to file Lawsuit #2—viz., nearly

four months after the statute of limitations had run. It is plain from this

chronology of events that the district court correctly ruled that, “absent some

basis for avoiding the FTCA’s limitations period, [the Barneses’] claims [in

Lawsuit #2 were] time-barred.” Aplt. App. at 100.

15
 3

The Barneses disagree, arguing that Lawsuit #2 is actually timely because it

relates back to Lawsuit #1 under Federal Rule of Civil Procedure 15(c). That is,

under their view, the filing date of Lawsuit #1 should be deemed the operative

date for the FTCA limitations analysis. Specifically, as relevant here, “[a]n

amendment to a pleading relates back to the date of the original pleading

when . . . the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B); accord Full Life Hospice, LLC v.

Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). We review the district court’s

ruling on the relation-back doctrine de novo. See Garrett v. Fleming, 362 F.3d

692, 695 (10th Cir. 2004).

We may dispose of the Barneses’ relation-back argument in summary

fashion; by its plain terms, the rule is inapposite. As the district court ably

explained, the doctrine of relation back “applies to an amendment to a pleading in

the same action.” Aplt. App. at 100 (emphasis added); see Marsh v. Soares, 223

F.3d 1217, 1219 (10th Cir. 2000) (“[A] separately filed claim, as opposed to an

amendment or a supplementary pleading, does not relate back to a previously

filed claim.” (alteration in original) (quoting Benge v. United States, 17 F.3d

1286, 1288 (10th Cir. 1994)) (internal quotation marks omitted)); accord

Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 2001). In light of the

16
Barneses’ concession that Lawsuit #2 “was refiled rather than one where their

claim was asserted through amendment,” Aplt. Opening Br. at 29, we are hard-

pressed to endorse the idea that the relation-back doctrine applies here. The

district court did not abuse its discretion in rejecting the Barneses’ relation-back

challenge.

Therefore, the Barneses’ instant action is time-barred under § 2401(b).

B

With some circumspection, we ultimately conclude that the district court

was correct in determining that, under our precedent, the ineluctable consequence

of the Barneses’ action being time-barred was that the court lacked subject-matter

jurisdiction. The district court therefore properly dismissed the action under

Federal Rule of Civil Procedure 12(b)(1).

The government cites to a number of cases indicating that this court “has

repeatedly held that ‘[a]s a threshold matter, timeliness is one of the conditions of

the government’s waiver of sovereign immunity under the FTCA,’” and,

accordingly, “[a federal] court lacks subject matter jurisdiction to proceed under

the FTCA if a plaintiff fails to satisfy the FTCA’s timing requirements set forth in

§ 2401(b).” Aplee. Br. at 18–19 (alterations in original) (quoting Harvey v.

United States, 685 F.3d 939, 947 (10th Cir. 2012)) (internal quotation marks

omitted). For many years, our cases have indeed reflected precisely this view.

See, e.g., Harvey, 685 F.3d at 947; In re Franklin Sav. Corp., 385 F.3d at 1287;

17
see also Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003) (“[I]f a

litigant does not satisfy the timing requirement of § 2401(b), the district court

must dismiss for lack of subject matter jurisdiction.” (citing Casias v. United

States, 532 F.2d 1339, 1340 n.1 (10th Cir. 1976))).

We must acknowledge, however, that our decisions in this area have not

involved rigorous analysis. 5 In light of significant developments in the Supreme

Court’s jurisdictional jurisprudence, we question whether our caselaw accurately

reflects the current state of the law. See, e.g., Gregory C. Sisk, The Continuing

Drift of Federal Sovereign Immunity Jurisprudence, 50 Wm. & Mary L. Rev. 517,

553 (2008) (“[F]or nearly two decades, the Supreme Court has repeatedly turned

aside the government’s insistence that time limitations should be treated as

jurisdictional conditions on the waiver of sovereign immunity.”); id. at 559

5
Harvey, for example, simply recites (without analysis) language from
In re Franklin Savings Corp. to the effect that because “timeliness ‘is one of the
conditions of the government’s waiver of sovereign immunity under the FTCA,’”
it is a jurisdictional prerequisite to suit. 685 F.3d at 947 (quoting In re Franklin
Sav. Corp., 385 F.3d at 1287). In re Franklin Savings Corp. itself provides no
greater elaboration, simply stating the same conclusion, supported by a citation to
our 2003 opinion in Dahl. See 385 F.3d at 1287. Dahl reflects more of the same,
explaining briefly that § 2401(b) is a condition on the government’s waiver of
sovereign immunity and, “[t]hus, if a litigant does not satisfy the timing
requirement of § 2401(b), the district court must dismiss for lack of subject
matter jurisdiction.” 319 F.3d at 1228 (citing Casias, 532 F.2d at 1340 n.1). Our
decision in Casias is apparently the first case in which we described § 2401(b)’s
statute of limitations as jurisdictional. It also engages in no analysis whatsoever,
simply referring to the jurisdictional nature of the limitations provision in a
footnote that cites a Ninth Circuit case, Caton v. United States, 495 F.2d 635 (9th
Cir. 1974). See Casias, 532 F.2d at 1340 n.1.

18
(“[T]he statute of limitations governing FTCA claims, which is not included

within the general section waiving sovereign immunity and simultaneously

conferring district court jurisdiction, presumably would not be given a

jurisdictional read and would not constitute a nonwaivable constraint on judicial

authority.” (footnotes omitted)). In particular, we are given pause by the Court’s

seminal decisions in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990),

and Sebelius v. Auburn Regional Medical Center, --- U.S. ----, 133 S. Ct. 817

(2013).

In Irwin, the Court recognized that 42 U.S.C. § 2000e-16(c)’s filing

deadline for Title VII claims “is a condition to the waiver of sovereign immunity

and thus must be strictly construed.” 498 U.S. at 94. However, the Court also

noted that “previous cases dealing with the effect of time limits in suits against

the Government ha[d] not been entirely consistent” and had left “open the general

question whether principles of equitable tolling, waiver, and estoppel apply

against the Government when it involves a statutory filing deadline.” Id.

Irwin’s acknowledgment of this open question is significant because such

doctrines as equitable tolling and equitable estoppel ordinarily would not apply if

statutory filing deadlines are jurisdictional. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 121 (2002) (contrasting “jurisdictional prerequisite[s] to

filing” with “requirement[s] subject to waiver, estoppel, and equitable tolling”);

accord Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Thus, at

19
least arguably, the question that Irwin recognized as open was whether statutory

filing deadlines in suits against the government are jurisdictional. See Sisk,

supra, at 554 (“Because the Supreme Court ‘has no authority to create equitable

exceptions to jurisdictional requirements,’ the Court’s presumptive allowance of

equitable tolling of statutes of limitations on claims against the government

removes such provisions from the category of jurisdictional commands.” (footnote

omitted) (quoting Bowles v. Russell, 551 U.S. 205, 214 (2007))).

Notably, the Court clarified that where Congress has created a waiver of

sovereign immunity, filing deadlines related to the waiver are presumptively

subject to such doctrines as equitable tolling:

Once Congress has made such a waiver, we think that making the
rule of equitable tolling applicable to suits against the
Government . . . amounts to little, if any, broadening of the
congressional waiver. . . . 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 so.

Irwin, 498 U.S. at 95–96.

In the FTCA context, Irwin has caused some courts—including our sister

circuits—to seriously question and, in some instances, discard their previous view

that § 2401(b)’s limitations provisions are jurisdictional. See, e.g., Hughes v.

United States, 263 F.3d 272, 278 (3d Cir. 2001) (relying on Irwin and noting that

“the FTCA’s statute of limitations is not jurisdictional”); Glarner v. U.S. Dep’t of

20
Veterans Admin., 30 F.3d 697, 701 (6th Cir. 1994) (“[T]he VA 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.”); see also State v. Sharafeldin, 854 A.2d 1208, 1217 (Md. 2004)

(“Most of the lower Federal courts have given credence to that language [of

Irwin], however, have shifted their previously-held view, and have applied

equitable tolling principles to untimely claims made to the administrative agency

or to untimely lawsuits after denial of the claim.”); Jacob Damrill, Note, Waves of

Change Towards a More Unified Approach: Equitable Tolling and the Federal

Torts Claims Act, 50 Tulsa L. Rev. 271, 276 (2014) (“Prior to Irwin, federal

courts consistently and unanimously held that equitable tolling did not apply to

the FTCA because section 2401(b)’s two-year limitations provision was a

jurisdictional bar to untimely claims. In the wake of Irwin, federal courts

reversed course and immediately began to apply equitable tolling to [the] FTCA

two-year limitation period.” (italics added) (footnotes omitted)). 6

6
Indeed, one commentator has gone so far as to assert that “every
court of appeals to address the question has concluded or suggested that the
FTCA provision is not jurisdictional and instead falls within the presumption of
Irwin v. Department of Veterans Affairs—that statutes of limitations in federal
government cases are subject to equitable tolling.” Sisk, supra, at 559 (italics
added) (footnote omitted). However, we are cautious of such broad statements
and decline to undertake here a precise jurisprudential headcount regarding the
positions of the various courts with respect to the jurisdictional status vel non of
§ 2401(b) and the related issue of equitable tolling. As suggested in text infra,
the courts’ holdings after Irwin are not uniform and reflect some confusion, even
(continued...)

21
 In Auburn Regional, in 2013, the Court adopted a new analytical framework

for assessing whether statutory conditions on lawsuits against the United States

were jurisdictional. The Court recognized that through a series of cases it had

“‘tried . . . to bring some discipline to the use’ of the term ‘jurisdiction.’” Auburn

Reg’l, 133 S. Ct. at 824 (quoting Henderson ex rel. Henderson v. Shinseki, 562

U.S. 428, 131 S. Ct. 1197, 1202 (2011)). In these opinions the Court had, in

particular, explained time and again that statutes of limitations are not

always—and, indeed, presumptively are not—jurisdictional. The touchstone

standard laid out in these cases “for determining whether to classify a statutory

limitation as jurisdictional” is a “readily administrable bright line” rule. Id.

(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)) (internal quotation

marks omitted); see also Utah ex rel. Utah Dep’t of Envtl. Quality v. U.S. EPA,

765 F.3d 1257, 1258 (10th Cir. 2014) (“Filing deadlines can be jurisdictional or

non[-]jurisdictional. To decide which deadlines are jurisdictional, we apply a

‘bright-line’ rule.”).

Fundamentally, this framework “focuses on Congress’s stated intention.”

Utah, 765 F.3d at 1258; see Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,

1157 (10th Cir. 2013) (en banc) (Gorsuch, J., concurring) (“T[he] rule requires us

6
(...continued)
within circuits, regarding these issues. It is clear, however, that Irwin caused
several courts to rethink their historical position that the FTCA’s limitations
provisions are jurisdictional.

22
to ‘inquire whether Congress has clearly stated that the rule is jurisdictional;

absent such a clear statement . . . courts should treat the restriction as

nonjurisdictional in character.’” (omission in original) (quoting Auburn Reg’l,

133 S. Ct. at 824)), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., --- U.S. -

---, 134 S. Ct. 2751 (2014).

In applying this bright-line test, “we focus on the legal character of the

deadline, as shown through its text, context, and historical treatment.” Utah, 765

F.3d at 1258; see Hobby Lobby Stores, Inc., 723 F.3d at 1158 (Gorsuch, J.,

concurring) (“In addition to [consulting the] statutory text, we may when

necessary consider as well ‘context, including [the Supreme] Court’s

interpretation of similar provisions in many years past.’” (second alteration in

original) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010))).

“Statutes that speak clearly to ‘the courts’ statutory or constitutional power to

adjudicate the case’ must of course be treated as jurisdictional and given their full

effect,” Hobby Lobby Stores, Inc., 723 F.3d at 1157–58 (Gorsuch, J., concurring)

(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)), “[b]ut

statutes that speak to the rights or obligations of parties to a lawsuit establish

‘claim-processing rules,’” and “should not be treated as ‘jurisdictional

prescriptions,’” id. at 1158 (quoting Reed Elsevier, 559 U.S. at 161).

Our research has unearthed three decisions of our sister circuits that have

addressed the jurisdictional status vel non of the FTCA’s limitations provisions

23
(specifically, § 2401(b)) since Auburn Regional. 7 In two of those decisions,

separate circuits—the Ninth (en banc) and the Seventh—concluded, in explicit

reliance on Auburn Regional, that the limitations provisions were not

jurisdictional. See Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1047 (9th Cir. 2013)

(en banc) (“In short, nothing in the text, context, or purpose of § 2401(b) clearly

indicates that the FTCA’s six-month limitations period implicates the district

7
Although we have not applied Auburn Regional’s bright-line rubric
in the FTCA context, we have employed it in other settings. For example, in
United States v. McGaughy, 670 F.3d 1149 (10th Cir. 2012), we applied the test
to the fourteen-day time limit in Federal Rule of Criminal Procedure 35(a).
There, we noted that “[t]o be jurisdictional, the restriction on the court’s authority
not only must be specified by Congress—it must also express a clear
Congressional intent to be jurisdictional,” and wrote that the Supreme Court’s
decision in Gonzalez v. Thaler, --- U.S. ----, 132 S. Ct. 641 (2012), “suggests
courts must look to a restriction’s ‘textual, contextual, and historical backdrop.’”
McGaughy, 670 F.3d at 1156 (quoting Gonzalez, 132 S. Ct. at 652 n.8). The
statutory provision underpinning Rule 35(a) used overtly jurisdictional language.
It provided that “[t]he court may not modify a term of imprisonment once it has
been imposed except that . . . the court may modify an imposed term of
imprisonment to the extent otherwise expressly permitted by . . . Rule 35.” 18
U.S.C. § 3582(c)(1)(B) (emphases added). Accordingly, we held that Rule
35(a)’s deadline was “given jurisdictional force by the very provision authorizing
courts to correct errors.” McGaughy, 670 F.3d at 1158. Similarly, in Emann v.
Latture (In re Latture), 605 F.3d 830 (10th Cir. 2010), we concluded that Federal
Rule of Bankruptcy Procedure 8002(a)’s time limit for filing an appeal in a
bankruptcy matter was jurisdictional largely because the statutory provision
imposing this time limit, 28 U.S.C. § 158(c)(2), was “located in the same section
[of the statute] granting . . . jurisdiction to hear appeals.” 605 F.3d at 837. Most
recently, in Utah ex rel. Utah Department of Environmental Quality v. U.S. EPA,
we applied the bright-line rule in concluding that the sixty-day deadline for filing
a petition for judicial review under the Clean Air Act is a jurisdictional limit. See
765 F.3d at 1258. Citing Auburn Regional, we examined “the textual, contextual,
and historical treatment” of the statutory deadline and concluded that all of these
factors supported that conclusion. Utah, 765 F.3d at 1262.

24
courts’ adjudicatory authority. We therefore hold that § 2401(b) is a

nonjurisdictional claim-processing rule subject to the presumption in favor of

equitable tolling . . . .”), cert. granted, --- U.S. ----, 134 S. Ct. 2873 (2014);

Arteaga v. United States, 711 F.3d 828, 833 (7th Cir. 2013) (“With regard to the

Federal Tort Claims Act, the presumption that the deadline for exhausting

remedies is not jurisdictional, far from being rebutted by clear statutory language,

is confirmed by such language . . . . [W]e think the answer is that [the FTCA

statute of limitations] can be tolled—and we doubt that the contrary approach has

survived the Supreme Court’s decision in the Auburn Regional Medical Center

case.” (citations omitted)).

And in the third decision, in light of Auburn Regional and its progeny, the

First Circuit has cast doubt on the correctness of its caselaw that has concluded

that § 2401(b)’s limitations provisions are jurisdictional. Specifically, the First

Circuit acknowledged that it had “previously opined that the FTCA’s timeliness

requirements are jurisdictional.” Sanchez v. United States, 740 F.3d 47, 54 (1st

Cir.), cert. denied, --- U.S. ----, 135 S. Ct. 54 (2014). However, surveying the

post-Auburn Regional jurisprudential landscape, the court stated as follows: “The

Supreme Court’s most recent guidance on what is ‘jurisdictional’ suggests that we

may have erred in presuming that subject matter jurisdiction hinged on

compliance with the FTCA’s deadlines for presenting claims.” Id.

Thus, in light of Irwin and Auburn Regional, we harbor some reservations

25
regarding whether our existing precedent relating to the jurisdictional status vel

non of § 2401(b)’s time limitations is good law. However, “[w]e are bound by

the precedent of prior panels absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th

Cir. 1993) (per curiam) (emphasis added); see, e.g., Berry v. Stevinson Chevrolet,

74 F.3d 980, 985 (10th Cir. 1996) (noting that, “[a]bsent an intervening Supreme

Court or en banc decision justifying such action, we lack the power to overrule

[prior Tenth Circuit precedent]” (emphasis added)). With due respect for existing

precedent, we cannot conclude that the collective message of Irwin and Auburn

Regional is so indisputable and pellucid in the FTCA context that it constitutes

intervening (i.e., superseding) law that would permit us to hold (without en banc

consideration) that § 2401(b)’s limitations provisions—and, in particular, the six-

month provision—are nonjurisdictional.

Neither Irwin nor Auburn Regional involved § 2401(b), nor did these cases

construe its terms. Furthermore, if the judicial reception of Irwin and the related

Supreme Court cases that followed on its heels is any indication, we can be

confident of at least one thing: the collective direction of Irwin and Auburn

Regional is likely to be the subject of judicial debate and confusion in the FTCA

context. In this regard, we note that Irwin and the related cases of the Court

issued relatively soon thereafter have even generated intra-circuit inconsistencies.

Compare, e.g., Perez v. United States, 167 F.3d 913, 915–16 (5th Cir. 1999)

26
(holding § 2401(b)’s limitations provisions nonjurisdictional after observing that

Irwin “undid the old rule that equitable tolling was never available against the

government, and thus placed the jurisdictional nature of the FTCA statute of

limitations into doubt”), Glarner, 30 F.3d at 701 (holding on behalf of the Sixth

Circuit that the FTCA’s limitations provisions are not jurisdictional and subject to

equitable tolling), and Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991)

(“Because the FTCA’s statute of limitations is not jurisdictional, failure to

comply with it is merely an affirmative defense which the defendant has the

burden of establishing.”), with Jackson v. United States, 751 F.3d 712, 719 (6th

Cir. 2014) (citing Glarner and noting that “whether the time limitations in the

FTCA are jurisdictional in nature” is an issue that “has prompted some variance

within this circuit,” and noting that it “need not decide the issue of whether the

time limitations in the FTCA are jurisdictional in nature”), In re FEMA Trailer

Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189, 191 (5th Cir. 2011) (per

curiam) (without citing Irwin or Perez, holding that “[t]he FTCA’s statute of

limitations is jurisdictional” and that the plaintiff’s claim thus “should not be

equitably tolled”), and T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961

(8th Cir. 2006) (distinguishing but not clearly overruling Schmidt in concluding

that “there is no inconsistency between viewing compliance with the statute of

limitations as a jurisdictional prerequisite and applying the rule of equitable

tolling”). In short, “[n]ot all of the Federal courts” in Irwin’s wake have taken

27
the same approach on the jurisdictional question. Sharafeldin, 854 A.2d at 1217;

see id. at 1217–18 & n.6 (collecting cases). 8

Thus, we ultimately adhere to our existing precedent and hold that the

district court properly dismissed the Barneses’ FTCA lawsuit on jurisdictional

grounds after correctly determining that the action was time-barred.

C

Because the six-month statute of limitations is jurisdictional, the Barneses

cannot, as a matter of law, avail themselves of the doctrines of equitable estoppel

or equitable tolling in seeking to excuse the otherwise tardy lawsuit. See, e.g.,

Nat’l R.R. Passenger Corp., 536 U.S. at 121; Zipes, 455 U.S. at 393. However,

like the district court, we feel constrained to observe that, even if these doctrines

were available to the Barneses, they could secure no relief under them. “We

review the district court’s refusal to apply the doctrine of equitable estoppel for

abuse of discretion.” Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc., 573

F.3d 947, 957 (10th Cir. 2009) (quoting Spaulding v. United Transp. Union, 279

F.3d 901, 911 (10th Cir. 2002)) (internal quotation marks omitted). Likewise,

“[w]e review the district court’s refusal to apply equitable tolling for an abuse of

8
We are cognizant in any event that the Supreme Court has granted
certiorari in the Ninth Circuit’s Kwai Fun Wong case, where the question
presented relates to whether the FTCA’s limitations provisions are jurisdictional.
See Resp’t Br., United States v. Kwai Fun Wong, No. 13-1074, 2014 WL
5804278, at i (Nov. 4, 2014) (“Is the six-month limit for filing suit under the
Federal Tort Claims Act, 28 U.S.C. § 2401(b), jurisdictional?”). Presumably, the
Court will shed some light on the matter.

28
discretion.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004)

(quoting Garrett, 362 F.3d at 695).

1

The “doctrine[ ] of equitable estoppel . . . may bar a defendant from

enforcing a statute of limitation when its own deception prevented a reasonably

diligent plaintiff from bringing a timely claim.” Auburn Reg’l, 133 S. Ct. at 830

(Sotomayor, J., concurring). However, “winning an equitable estoppel argument

against the government is a tough business.” Wade Pediatrics v. Dep’t of Health

& Human Servs., 567 F.3d 1202, 1206 (10th Cir. 2009). In this circuit, four basic

elements are necessary to obtain equitable estoppel against the government:

(1) the party to be estopped must know the facts; (2) he must
intend that his conduct will be acted upon or must so act that the
party asserting the estoppel has the right to believe that it was so
intended; (3) the latter must be ignorant of the true facts; and (4)
he must rely on the former’s conduct to his injury.

Tsosie v. United States, 452 F.3d 1161, 1166 (10th Cir. 2006) (quoting Lurch v.

United States, 719 F.2d 333, 341 (10th Cir. 1983)) (internal quotation marks

omitted).

In addition to these four basic elements, we have required plaintiffs to

make a showing of “affirmative misconduct” on the part of the government. See

Wade Pediatrics, 567 F.3d at 1206; Tsosie, 452 F.3d at 1166. We need not

address each of the four elements at length, because in any event, the Barneses

have patently failed to establish “affirmative misconduct” by the government

29
here. In this regard, even if we were to assume that the government failed to

clearly indicate its intention to invoke § 2401(b)’s six-month statute of

limitations, and that the Barneses relied upon this failure in electing not to file

Lawsuit #2 earlier, the Barneses have not even alleged, let alone made any

showing, that the government’s failure was an act of “affirmative misconduct.” 9

Consequently, the district court did not abuse its discretion in rebuffing the

Barneses’ equitable-estoppel argument.

2

We now turn to the Barneses’ argument that the statute of limitations in this

case should have been equitably tolled. The district court, operating on the belief

that the timeliness requirement was jurisdictional, found that tolling was

unavailable. However, it noted in the alternative that even “if the doctrine of

equitable tolling was applicable, the court would still find plaintiffs’ claims time-

barred.” Aplt. App. at 102–03. We agree with the district court that the

9
At most, the Barneses accuse the government of being sloppy with
language. However, the undisputed text of the letter the BATF sent the Barneses
denying their administrative claims referred directly to the sixth-month limitation:
“If you[ ] . . . are dissatisfied with this action, a lawsuit must be filed in an
appropriate United States district court not later than six months after the date of
the mailing of this notification.” Aplt. App. at 37. Nevertheless, the Barneses
argue that this letter was unclear, complaining that “[i]f the [government]
intended the Appellants to have ‘originated’ or ‘instituted[,’] and not merely
‘filed’ an action, . . . they . . . could have used those words expressly enumerating
a first-time commencement.” Aplt. Opening Br. at 28. In light of the Barneses’
failure to allege any affirmative misconduct on the part of the government,
advancing this grievance cannot secure them relief.

30
Barneses’ claims here would be time-barred even assuming the availability of

equitable tolling.

The Supreme Court has recently reiterated that “the general purpose of

statutes of limitations [is] ‘to protect defendants against stale or unduly delayed

claims.’” Credit Suisse Sec. (USA) LLC v. Simmonds, --- U.S. ----, 132 S. Ct.

1414, 1420 (2012) (quoting John R. Sand & Gravel Co. v. United States, 552 U.S.

130, 133 (2008)). And, under “long-settled equitable-tolling principles[,]

‘[g]enerally, a litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstances stood in his way.’” Id. at 1419 (emphasis

omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court

has “held that ‘a garden variety claim of excusable neglect,’ such as a simple

‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant

equitable tolling.” Holland v. Florida, 560 U.S. 631, 651–52 (2010) (citations

omitted) (quoting Irwin, 498 U.S. at 96, and Lawrence v. Florida, 549 U.S. 327,

336 (2007)).

Furthermore, as particularly pertinent to these facts, in Pfannenstiel v.

Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d 1155 (10th Cir. 2007), we held

that equitable tolling was unavailable where a plaintiff had “ample

opportunity”—one month—to file a motion to vacate in a timely fashion, even

though “he had no way of knowing about” the grounds for this motion until two

31
months of the applicable three-month time limit had already elapsed. Id. at 1158;

see Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1247 (10th Cir. 2012)

(citing with approval D.C. Circuit precedent “den[ying] equitable tolling unless a

delay in notification ‘makes it impossible reasonably for the party to comply with

the filing statute’” (quoting Gardner v. FCC, 530 F.2d 1086, 1091 n.24 (D.C. Cir.

1976))).

Similarly, in Impact Energy Resources, we held that, where the plaintiffs

had more than eighty days in which to timely file their claims and did not claim

that the delay “meaningfully limited their ability to comply with the . . . statute of

limitations,” equitable tolling was unmerited. 693 F.3d at 1247–48. Indeed, we

noted that even forty-five days (the amount of time the plaintiffs claimed was

available to them) was “longer than the thirty days approved in Pfannenstiel.” Id.

at 1248.

In the present case, the district court explained why, in its view, equitable

tolling could not save the Barneses:

[The Barneses] had a month after the dismissal of their claims
against the government (until April 25, 2012) to refile their
claims, but instead waited until August 22, 2012, to file their
lawsuit, more than four months later. While plaintiffs may have
been unaware that the government would argue their claims were
untimely, they were aware, from the time the case was removed,
that the government had taken the position that the court lacked
subject matter jurisdiction over their FTCA claims. If plaintiffs
had researched the issue when it was first raised and proceeded
to dismiss and then refile their claims against the United States,
their claims would not have been barred.

32
Aplt. App. at 103. Reviewing this aspect of the court’s order, it is plain that the

district court did not abuse its discretion.

The Barneses essentially ask the court to toll the statute of limitations in

this case due to their misunderstanding of the law. They assail as “unfair[ ]” the

district court’s “suggest[ion] that the Appellants were being inattentive in

refiling” when they did, and they explain that “the Appellants had every reason to

believe there was no statute of limitation issue.” Aplt. Opening Br. at 22–23.

Such arguments amount to no more than a contention of excusable neglect, and

that is not good enough. See Holland, 560 U.S. at 651–52.

Significantly, the Barneses plainly failed to pursue their rights diligently, as

required by our caselaw. Just like the plaintiffs in Pfannenstiel and Impact

Energy Resources, the Barneses had ample opportunity in which to timely file,

but failed to do so. After Lawsuit #1 was dismissed without prejudice on March

23, 2012, they had more than thirty days (the threshold identified in Impact

Energy Resources, 693 F.3d at 1248) during which they could have refiled in

compliance with § 2401(b). Instead, they did not do so for five months. 10

10
We note, moreover, that the fact that the Barneses had only a month
in which to refile was a result of their own failure to take reasonably diligent
steps. As the district court noted, the Barneses knew as early as September 2011,
when Lawsuit #1 was removed to federal district court, that there was at least
potentially a jurisdictional issue with that first lawsuit due to their having filed in
state court. At any point thereafter, the Barneses could have voluntarily
dismissed their claim and refiled, thereby avoiding the entire problem now before
(continued...)

33
 The Barneses’ only response to any of this appears to be that they did not

believe there was any urgency to refile, based on their belief that, having deemed

their administrative claims denied and having filed Lawsuit #1, they were no

longer subject to any statute of limitations. But, as we have explained, this belief

reflects a wholly unjustified and unprecedented interpretation of § 2401(b)

and § 2675(a). Moreover, the BATF’s final denial of the Barneses’ administrative

claims in this case expressly advised the Barneses that they had six months

thereafter in which to file a lawsuit in an appropriate federal court, putting the

Barneses on notice that, whatever their own understanding of the law, the

government believed that the six-month statute of limitations began to run on

October 25, 2011.

In sum, the Barneses had at least a full month after the district court

dismissed Lawsuit #1 during which they could have timely refiled. They did not

do so, nor have they alleged any other extraordinary circumstances that would

have prevented them from doing so. Consequently, even if it were available to

them, the Barneses could have gained no succor from the equitable-tolling

doctrine. The district court thus did not abuse its discretion in refusing to toll the

statute of limitations on the Barneses’ claims.

10
(...continued)
us.

34
 III

For the reasons set forth above, the district court correctly held that the

Barneses’ claims in this matter were time-barred under the six-month statute of

limitations in 28 U.S.C. § 2401(b) and properly dismissed the action for lack of

subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). We

observe, however, that the district court dismissed the lawsuit with prejudice.

Jurisdictional dismissals ordinarily should be entered without prejudice. See

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[O]ur

prior, long-standing line of cases requir[es] that a dismissal for lack of

jurisdiction be without prejudice.”); Albert’s v. Smith’s Food & Drug Ctrs., Inc.,

356 F.3d 1242, 1249 (10th Cir. 2004) (“In cases where the district court has

determined that it lacks jurisdiction, dismissal of a claim must be without

prejudice.”). Accordingly, in our ultimate disposition, we remand to the district

court to correct the judgment by entering a without-prejudice dismissal.

IV

For the foregoing reasons, we AFFIRM the judgment of the district court

dismissing the Barneses’ action for lack of subject-matter jurisdiction. We

REMAND the case with instructions to the district court to enter a dismissal

without prejudice.

KELLY, Circuit Judge, concurs in the result.

35