                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          MAR 25 1997
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk


SUSAN C. FARLAINO,

              Plaintiff-Appellant,
                                                         No. 95-4165
v.                                                     (Dist. Of Utah)
                                                   (D.C. No. 94-CV-833-B)
UNITED STATES OF AMERICA,

              Defendant-Appellee.




                           ORDER AND JUDGMENT *


Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.


      Susan Farlaino filed this action against the United States pursuant to the

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, for personal

injuries allegedly sustained as a result of medical care she received from various

military medical facilities. Specifically, Farlaino claimed that officers and

employees of the United States negligently placed or left foreign objects within

her breast and, as a result, she incurred medical expenses and loss of earnings and


      *
       This order and judgment is not binding precedent, except under the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.
suffered “a continuing injury of mind and body.” The district court granted the

United States' Motion to Dismiss or Alternatively For Summary Judgment on the

grounds that plaintiff failed to comply with the jurisdictional prerequisites of the

FTCA. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms.



                                  BACKGROUND

      Farlaino, was the dependent wife of an active army serviceman. [R. at 107]

Between September 1983 and February 1990, Farlaino sought and received

medical care from various military medical facilities for infections and abscesses

in her right breast. On February 12, 1990, Farlaino sought medical care outside

of the military medical system, undergoing exploratory surgery by a private

physician at Castleview Hospital in Price, Utah. It was during that procedure,

according to Farlaino, that her private physician discovered and removed several

foreign objects from her right breast.

      On January 31, 1992, Farlaino presented an administrative claim to the

United States Attorney's Office (USAO). On February 10, 1992, Farlaino

presented an administrative claim to the United States Department of Justice

(DOJ). Both claims alleged that an officer or employee of the United States

negligently placed or left a foreign object within Farlaino's breast.


                                          -2-
      On February 10, 1992, Assistant United States Attorney Joseph W.

Anderson wrote to Farlaino's counsel and advised him that the receipt of the

Standard Form 95 Claim for Damage by the USAO did not comply with the

jurisdictional requirements of the FTCA. In response, Farlaino presented an

administrative claim to the United States Department of the Army (the “Army”)

on February 24, 1992, setting forth the same claim which she asserted in the

administrative claims filed with the DOJ and USAO.

      On September 18, 1992, Farlaino filed a civil action in the district court

pursuant to the FTCA. Farlaino claimed that officers and employees of the

United States negligently placed or left foreign objects within her breast and, as a

result, she incurred medical expenses and loss of earnings and suffered injuries to

her mind and body. Approximately two months later, on November 23, 1992, the

Army denied Farlaino's administrative claim on two grounds: (1) her claim was

not presented to the Army within two years of the date on which it accrued; and

(2) because a lawsuit was pending, her claim was no longer amenable to

administrative settlement.

      After Farlaino failed to appear at a status conference scheduled by the

district court, failed to designate expert witnesses, failed to conduct discovery,

and failed to file any dispositive motions before the scheduled cut-off date, the

district court dismissed Farlaino’s complaint for failure to prosecute. On August


                                          -3-
24, 1994, approximately one year later, Farlaino filed a document entitled "Re-

filing of Complaint" under the same civil number as her original complaint. On

January 4, 1995, Farlaino then commenced this action by filing a document

entitled "Amended Complaint." The amended complaint contained the same

allegations that Farlaino's original complaint contained, that the United States

negligently placed or left foreign objects in Farlaino's breast. 1

      The United States filed a Motion to Dismiss or Alternatively For Summary

Judgment on the grounds that Farlaino's claims were barred by her failure to

present her administrative claim to the appropriate federal agency, the Department

of the Army, within two years after her claim accrued and by her failure to

commence this action within six months after notice of the final denial of her

administrative claim as required by the FTCA, 28 U.S.C. 2401(b). On August 8,

1995, the United States District Court for the District of Utah granted the United

States' motion. Farlaino appeals.




      1
         In addition, the Amended Complaint alleged that in September, 1983, Dr.
Antoine Jumell, an officer and employee of the United States, engaged in an
unauthorized touching or battery of Farlaino when he attempted to change
Farlaino's surgical dressing over her protests. Farlaino conceded at oral argument
before the district court that her claims of assault and battery were barred by the
statute of limitations. Accordingly, Farlaino has not appealed the district court's
dismissal of those claims.

                                           -4-
                                     ANALYSIS

      We review the grant of summary judgment de novo and apply the same

legal standard used by the district court under Fed. R. C. P. 56(c). Applied

Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.

1990). “Summary judgment is appropriate when there is no genuine dispute over

a material fact and the moving party is entitled to judgment as a matter of law.”

Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).

      It is beyond dispute that the United States is immune from suit unless it has

consented to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). It is

similarly well established that “‘the terms of [the United States’] consent to be

sued in any court define that court’s jurisdiction to entertain the suit.’” Id.

(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA

represents a waiver of the United States’ sovereign immunity and must, therefore,

be strictly construed. Pipkin v. United States Postal Service, 951 F.2d 272, 275

(10th Cir. 1991). One of the conditions of that waiver is the statute of limitations

set forth in 28 U.S.C. § 2401(b). United States v. Kubrick, 444 U.S. 111, 117-18

(1979). Section 2401(b) provides as follows:

            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 months after the date of mailing, by certified or registered

                                          -5-
      mail, of notice of final denial of the claim by the agency to which it
      was presented.

      The United States argues that Farlaino failed to comply with either

limitation period set out in § 2401(b). The United States notes that under §

2401(b), a claim is barred unless it is presented in writing “to the appropriate

Federal agency” within two years after the claim accrues. The Code of Federal

Regulations provides that the appropriate agency for purposes of § 2401(b) is the

“agency whose activities gave rise to the claim.” 28 C.F.R. § 14.2(b)(1).

Because Farlaino did not present her claim to the Army, the agency whose

activities gave rise to her claim, until more than two years after her claim

accrued, the United States argues that her action is barred by the first clause of §

2401(b).

      In response, Farlaino argues that the DOJ was obligated to transfer the

claim to the Army pursuant to 28 C.F.R. § 14.2(b)(1), which provides as follows:

      A claim shall be presented to the Federal agency whose activities
      gave rise to the claim. When a claim is presented to any other
      Federal agency, that agency shall transfer it forthwith to the
      appropriate agency, if the proper agency can be identified from the
      claim, and advise the claimant of the transfer. If transfer is not
      feasible, the claim shall be returned to the claimant. The fact of
      transfer shall not, in itself, preclude further transfer, return of the
      claim to the claimant or other appropriate disposition of the claim. A
      claim shall be presented as required by 28 U.S.C. [§] 2401(b) as of
      the date it is received by the appropriate agency.




                                          -6-
Because the DOJ failed to comply with the transfer requirements set out in

§ 14.2(b)(1), Farlaino argues that her claim should be considered constructively

presented to the Army as of the date it was presented to the DOJ. See Bukala v.

United States, 854 F.2d 201, 203-04 (7th Cir. 1988).

      This court need not decide whether 28 C.F.R. § 14.2(b)(1) creates a

constructive filing exception to § 2401(b) because even if we assume, without

deciding, that Farlaino timely presented her claim to the Army, she still failed to

file this action “within six months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim” by the Army. 28 U.S.C. §

2401(b).

      The United States contends that Pipkin v. United States Postal Serv., 951

F.2d 272 (10th Cir. 1991), controls the disposition of this case. We agree. In

Pipkin, the plaintiff filed a grievance with the United States Postal Service

(“USPS”). Id. at 274. After the USPS denied the grievance on July 23, 1988, the

plaintiff filed an FTCA action on November 12, 1988. Id. Although the district

court dismissed the original FTCA suit on May 23, 1989, the plaintiff filed a

second and virtually identical FTCA suit on May 2, 1990. The district court

dismissed this second action as well. Id. On appeal, this court assumed that the

six-month limitations period set out in § 2401(b) was tolled during the pendency

of the original and timely filed FTCA action. Id. Upon dismissal of that claim


                                          -7-
for failure to prosecute, however, the limitations period began to run again.

Because more than six months elapsed between the dismissal of the first action

and the filing of the second, the second action was not timely filed. Id.

      The facts of the instant case are remarkably similar to Pipkin. Farlaino

filed her administrative claim with the Army on February 24, 1992. She filed her

original FTCA action on September 18, 1992. Approximately two months later,

on November 23, 1992, the Army denied Farlaino’s claim on the following

grounds: (1) her claim was not filed within two years of the date her cause of

action accrued; and (2) her claim was no longer subject to administrative

settlement because a lawsuit was pending. The district court dismissed Farlaino’s

original FTCA action on August 23, 1993, for failure to prosecute. Farlaino then

filed a document styled “Re-filing of Complaint” on August 23, 1994 and filed an

“Amended Complaint” on January 4, 1995.

      Assuming, as did the court in Pipkin, that the statute of limitations was

tolled during the pendency of Farlaino’s original FTCA action, the limitations

period did not begin to run until the district court dismissed the original action for

failure to prosecute on August 23, 1993. See id. Thus, Farlaino had until

February 23, 1994, (six months) to file suit. 28 U.S.C. § 2401(b). Because she

did not file her second FTCA action until at least August 23, 1994, her suit was




                                          -8-
not timely filed. See Pipkin, 951 F.2d at 274; see also Benge v. United States, 17

F.3d 1286, 1288 (10th Cir. 1994).

      In an effort to distinguish Pipkin, Farlaino argues that the documents she

filed as “Re-filing of Complaint” and “Amended Complaint” constitute a

continuation of her original, timely-filed FTCA action. This contention is clearly

untenable. The district court dismissed Farlaino’s original FTCA action on

August 23, 1993, for failure to prosecute. Because the district court’s order of

dismissal did not provide otherwise, the dismissal for failure to prosecute

“operate[d] as an adjudication upon the merits.” Fed. R. Civ. P. 41(b); See 5

James Wm. Moore et al., Moore’s Federal Practice ¶ 41.14 (2d 1996). Thus, at

that point, the original action was terminated and there was nothing to which the

amended complaint could relate back. See Benge, 17 F.3d at 1288 (holding under

similar facts that “a separately filed claim, as opposed to an amendment or

supplementary pleading, does not relate back to a previously filed claim”).

      This court can resolve Farlaino’s remaining contentions in short order.

First, Farlaino contends that DOJ is an “appropriate agency” for purposes of §

2401(b). She further contends that because she presented her claim to the DOJ in

a timely manner and the DOJ has not yet acted on her claim, the six-month

limitations period set out in § 2401(b) has not yet began to run. This contention

clearly fails in light of the 28 C.F.R. § 14.2(b)(1), which specifically defines


                                          -9-
appropriate agency for the purposes of § 2401(b) as the “agency whose activities

gave rise to the claim.” Second, in a barely comprehensible portion of her brief,

Farlaino appears to argue that the United States should be estopped from relying

on § 2401(b) for the following two reasons: (1) the DOJ failed to transfer

Farlaino’s claim to the Army as it was obligated to do under 28 C.F.R. §

14.2(b)(1); and (2) the United States failed to raise § 2401(b) in its answer to

Farlaino’s original, timely FTCA action. It is sufficient to note in response to

Farlaino’s contention that the limitations periods set out in § 2401(b) are

jurisdictional and are not subject to estoppel or waiver principles. See Hopeland

Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988);

Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985); Garrett v. United

States, 640 F.2d 24, 26 (6th Cir. 1981) (per curiam).



                                  CONCLUSION

      The judgment of the United States District Court for the District of Utah is

hereby AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge



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