Barr v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 19 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ANCEL BARR, deceased, by and
through his wife and next of kin,
BEVERLY BARR,
Plaintiff-Appellant, No. 98-7164
v. (D.C. 98-CV-200-P)
(Eastern District of Oklahoma)
UNITED STATES OF AMERICA,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Ms. Barr appeals, on behalf of her deceased husband, the district court's
grant of summary judgment to the United States in her Federal Tort Claims Act
(FTCA) case for her failure to timely file her complaint. We affirm.
Ms. Barr filed an administrative claim under the FTCA in February, 1997.
When no action had been taken on her administrative claim after six months, she
filed a lawsuit in the Eastern District of Oklahoma on August 22, 1997. The
agency dismissed Ms. Barr's administrative claim on October 22, 1997. Ms. Barr
subsequently voluntarily dismissed her pending lawsuit on February 13, 1998.
She re-filed her lawsuit on April 27, 1998. Under the FTCA, however, a plaintiff
must file a tort claim “within six months after the date of mailing . . . of notice of
final denial of the claim by the agency to which it was presented.” 28 U.S.C.
§2401(b). As her second lawsuit was filed on April 27, 1998, it was filed more
than six months after the October 22, 1997 notice of final denial of her
administrative claim by the agency.
Ms. Barr argues, however, that equitable tolling should apply for the
period during which her first complaint was pending such that her second
complaint should be deemed to have been timely filed. We review a grant of
summary judgment de novo, applying the same legal standard as the district
court. See Sundance Assocs., Inc. v. Reno , 139 F.3d 804, 807 (10th Cir. 1998).
We affirm for substantially the same reasons as stated by the district court
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in its order dated October 19, 1998. Ms. Barr cannot relate the untimely filing
date of her second complaint back to the timely filing date of her first complaint:
“a separately filed claim, as opposed to an amendment or a supplementary
pleading, does not relate back to a previously filed claim.” Benge v. United
States , 17 F.3d 1286, 1288 (10th Cir. 1994). Further, equitable tolling could not
apply to toll the period during which her prior complaint was pending when there
is no evidence that her original pleading was in any way “defective” or that she
had “been induced or tricked by [her] adversary's conduct into allowing the filing
deadline to pass.” See Irwin v. Veterans Admin. , 498 U.S. 89, 95-96 (1990).
Therefore, we AFFIRM the decision of the district court.
Entered for the Court,
Robert H. Henry
Circuit Judge
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