Ethel Maxine Phillips v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_______________________ ELEVENTH CIRCUIT
AUGUST 10, 2001
No. 01-10730 THOMAS K. KAHN
CLERK
Non-Argument Calendar
_______________________

D. C. Docket No. 00-02534-CV-GET-1

ETHEL MAXINE PHILLIPS, individually
and as surviving spouse and authorized
representative of the estate of Walter
Kenneth Phillips, deceased,

Plaintiff-Appellant,
versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 10, 2001)

Before DUBINA, HULL and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:
 In this appeal we decide whether Georgia’s renewal statute, O.C.G.A § 9-2-

61, applies to extend the limitation period in 28 U.S.C. § 2401(b) for causes of

action brought under the Federal Tort Claims Act. We hold that it does not.

I. Background

On April 9, 1999, Appellant Ethel Phillips filed a claim with the Department

of Veterans Affairs, alleging negligence and medical malpractice arising out of the

care and treatment of her deceased husband at the Atlanta Veterans Administration

Medical Center. The claim was administratively denied on November 10, 1999.

On January 3, 2000, Phillips filed suit against the United States in district court

pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401,

2671-2680. Phillips voluntarily dismissed that lawsuit without prejudice on April

4, 2000. On September 28, 2000, Philips filed the instant action, alleging claims

similar to those asserted in the January 3 action.

Subsequently, the United States moved to dismiss the action for lack of

jurisdiction because it had been untimely filed under 28 U.S.C. § 2401(b). That

section provides:

A tort claim against the United States shall be forever barred unless it

is presented in writing to the appropriate Federal agency within two

years after such claim accrues or unless action is begun within six

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 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). It is undisputed that under section 2401(b), a tort claim must

be presented to the appropriate federal agency within two years after the claim

accrues and the lawsuit must be commenced within six months after the receipt of

a final agency decision. See Dyniewicz v. United States, 742 F.2d 484, 485 (9th

Cir. 1984); Schuler v. United States, 628 F.2d 199, 201 (D.C. Cir. 1980).

In response to the United States’ motion to dismiss, Phillips conceded that

she had commenced the current action more than ten months after receiving notice

of the final administrative decision from the Department of Veterans Affairs. She

argued, however, that Georgia’s renewal statute, O.C.G.A. § 9-2-61–which permits

the re-filing of a dismissed action within six months without regard to

limitation–operated to extend the time for filing.1 Phillips asserted that because she

1
O.C.G.A. § 9-2-61(a) provides in relevant part:

When any case has been commenced in either a state or federal court within the
applicable statute of limitation and the plaintiff discontinues or dismisses the
same, it may be recommenced in a court of this state or in a federal court either
within the original applicable period of limitations or within six months after the
discontinuance or dismissal, whichever is later . . . .

O.C.G.A. § 9-2-61(a).

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filed her first action within six months of the administrative decision, she satisfied

the statute of limitations in 28 U.S.C. § 2401(b), and that under O.C.G.A. § 9-2-61

she was authorized to dismiss the initial action and re-file it within six months from

the date of dismissal.

The district court disagreed and found that the Georgia renewal statute does

not alter the time limitations imposed by the 28 U.S. § 2401(b) for claims brought

under the FTCA. It also found that Phillip’s action did not fall within the class of

cases for which a federal statute of limitations is equitably tolled. Accordingly, the

court granted the United States’ motion to dismiss based on the untimeliness of

Phillips’s complaint.

II. Discussion

Phillips contends that the district court erred in finding that the Georgia

renewal statute does not operate to extend the time for filing a claim under the

FTCA.2 Phillips’s contention raises a question of law, which we review de novo.

See Atlantic Land & Improvement Co. v. United States, 790 F.2d. 853, 857 (11th

Cir. 1986).

It is well established that the FTCA is a specific waiver of the sovereign

immunity of the United States and must be strictly construed. See United States v.

2
Phillips does not challenge the district court’s finding regarding equitable tolling.

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Kubrick, 444 U.S. 111, 117-18 (1979). By enacting the FTCA time limitation

period, 28 U.S.C. 2401(b), the United States has placed a condition on that waiver.

“[L]imitations and conditions upon which the Government consents to be sued

must be strictly observed and exceptions thereto are not to be implied.” Lehman v.

Nakshian, 453 U.S. 156, 161(1981). Generally, therefore, “a court looks to state

law to define the time limitation applicable to a federal claim only when ‘Congress

has failed to provide a statute of limitations for a federal cause of action.’” Pipkin

v. United States Postal Serv., 951 F.2d 272, 275 (10th Cir. 1991) (citing Lampf,

Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991)). For claims

brought under the FTCA, Congress has expressly stated the applicable limitation

period. See 28 U.S.C. 2401(b); see also Pipkin, 951 F.2d at 275. Moreover,

“[s]ection 2401(b) . . . is the balance struck by Congress in the context of tort

claims against the Government; and we are not free to construe it so as to defeat its

obvious purpose, which is to encourage the prompt presentation of claims.”

Kubrick, 444 U.S. at 117. Therefore, in construing the FTCA’s statute of

limitations, “we should not take it upon ourselves to extend the waiver beyond that

which Congress intended.” Id. at 117-18.

Although this court has never addressed the applicability of the Georgia

renewal statute on claims brought under the FTCA, we did address a similar issue

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in Mendiola v. United States, 401 F.2d 695 (5th Cir. 1968).3 In Mendiola, we

rejected the incorporation of a state tolling provision into section 2401(b) on the

basis that the accrual of a cause of action under section 2401(b) is a matter of

federal law. See id. at 697. Accordingly, we concluded that the two-year statute of

limitations under section 2401(b) began to accrue when the plaintiff was injured,

regardless of a provision under state law that tolled the state statute of limitations

pending termination of the plaintiff’s workmen’s compensation suit. See id.

Phillips argues that the Georgia renewal statute is different than the state

tolling provision at issue in Mendiola and thus should be applied to the FTCA

limitation period. Specifically, Phillips contends that, unlike the tolling provision

in Mendolia, the Georgia renewal statute does not act to toll the accrual of a cause

of action. Rather, plaintiffs are still required to comply with the FTCA time limit

restrictions when they initially file suit. It is only after a complaint is timely filed

and then voluntarily dismissed that the Georgia renewal statute provides a six-

month grace period in which to re-file the complaint. See O.C.G.A. § 9-2-61.

In our estimation, Phillips’s attempt to distinguish Mendiola disregards a

policy concern that is essential to the holding in Mendiola. In Mendiola, the court

3
Under Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
court is bound by cases decided by the former Fifth Circuit before October 1, 1981.

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explained that the need for uniformity was the reason for not incorporating state

tolling provisions into section 2401(b):

Obviously, if the various states’ rules could severally determine when

a claim accrued against the Government under Section 2401(b), the

uniformity which Congress sought by enacting that section would be,

for all practical purposes, a goal impossible of attainment. Differing

state rules as to when a tort claim accrues would necessarily produce

diverse decisions as to the effect of Section 2401(b). The mere

alteration by a state of its rule as to the accrual of a particular claim

would alter Section 2401(b) just as effectively as if Congress itself

had formally amended that section. The incorporation of diverse state

tolling provisions into section 2401(b) would undermine the uniform

application of the two-year period for filing suit just as effectively as

would incorporation of state law for the accrual of a cause of action.

Mendiola, 401 F.2d at 697-98 (citation and internal quotation marks omitted).

Here, if we were to apply Georgia’s renewal statute to the FTCA statute of

limitation, the limitation period expressly set by Congress would be extended for

those plaintiffs who previously had filed within the time period but subsequently

had dismissed their action. Therefore, we believe that the incorporation of diverse

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state renewal provisions into section 2401(b) would undermine the uniform

application of that section’s six-month time limitation “just as effectively as would

the incorporation of state law for the accrual of a cause of action.” Id.

Accordingly, we follow the direction of the Tenth Circuit in Pipkin v. United

States Postal Serv., 951 F.2d 272, 274-75 (10th Cir. 1991) and hold that O.C.G.A §

9-2-61 is not applicable to extend the FTCA limitation period. See id. (holding

that similar statute under Oklahoma law did not enlarge section 2401(b)’s six-

month limitation period). Because Phillips did not file the present action within six

months after she received notice that her claims had been administratively denied,

the district court did not err by dismissing her claims.

AFFIRMED.

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