[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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