          United States Court of Appeals
                      For the First Circuit


No. 09-2311

                  FRANCISCA ROMÁN-CANCEL ET AL.,

                      Plaintiffs, Appellants,

                                v.

                     UNITED STATES OF AMERICA,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                              Before

              Boudin, Selya and Lipez, Circuit Judges.



     Nicolás Nogueras Cartagena, Julio C. Alejandro Serrano, and
Office of Nicolás Nogueras Cartagena on brief for appellants.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Appellate Chief, and Luke Cass, Assistant United States
Attorney, on brief for appellee.


                           July 22, 2010
              SELYA, Circuit Judge.     This appeal follows on the heels

of the dismissal of a Federal Tort Claims Act (FTCA) suit as time-

barred.       We reach the same conclusion as the district court,

although we premise our decision on alternative holdings (one of

which extends beyond the lower court’s rationale).

              The facts are straightforward.         Upon returning from

military service in Vietnam, plaintiff-appellant Nelson Cortés-

Castillo1      experienced    delusions       and   depression.          This

symptomatology led to a diagnosis of schizophrenia.           In August of

1970, the Department of Veterans Affairs (VA) assigned Cortés-

Castillo a 100% disability rating. This rating dictated the amount

of disability benefits due to him.           See 38 C.F.R. § 3.321(a).

              On July 16, 1975, the VA's regional office, responding to

a psychiatric reevaluation, lowered the plaintiff's disability

rating to 70%.       The lowered rating resulted in a corresponding

decrease in disability benefits.

              The VA notified the plaintiff of the reduction on July

24,   1975,    effective   October    1,    1975.   The   plaintiff   sought

administrative review before the Board of Veterans Affairs (the

Board). In a decision dated November 2, 1976, the Board upheld the



      1
       There are actually three plaintiffs: Cortés-Castillo;             his
wife, Francisca Román-Cancel; and their conjugal partnership.            For
ease in exposition, we refer to Cortés-Castillo as if he were            the
sole plaintiff.     Because the other plaintiffs' claims                 are
derivative,   the  resolution   of  Cortés-Castillo's   claim             is
determinative of all the issues on appeal.

                                      -2-
lowered   disability   rating   (and,    thus,   cemented   in   place   the

corresponding decrease in benefits).

            The plaintiff subsequently sought to restore his 100%

disability rating.     On November 21, 1985, the Board denied his

petition.    On April 30, 1986, the plaintiff served a notice of

disagreement in which he alleged that the VA had committed a clear

and unmistakable error in reducing his disability rating.

            For all practical purposes, the matter lay fallow until

May of 2001, when the plaintiff again charged, in a renewed filing

with the Board, that the lowered disability rating was the product

of clear and unmistakable error.        This time, the Board upheld the

plaintiff’s claim; on October 14, 2004, it returned his disability

rating to 100%.   It also awarded him retroactive benefits totaling

$33,905.11, dating back to 1975. The plaintiff received this award

in a lump sum, paid on March 4, 2005.

            This victory did not placate the plaintiff. Invoking the

FTCA, he filed an administrative claim with the VA on August 16,

2005, alleging negligent reduction of his disability benefits.            By

law, the VA had six months within which to respond.              28 U.S.C.

§ 2675(a).    On December 22, 2005, the VA denied the claim.2             It




     2
       On October 7, 2005, the plaintiff filed a premature civil
action in the district court.    The court dismissed this action
without prejudice for failure to exhaust administrative remedies.
Neither the commencement nor the termination of this action is
material to the issues on appeal.

                                  -3-
explained that the plaintiff's exclusive remedy was the award of

retroactive benefits (already received).

            The VA's response laid out the plaintiff's options for

further review.     It informed him that he could either file for

administrative reconsideration or sue under the FTCA.              The letter

spelled out the temporal limitations that applied to each of these

options.    The plaintiff did nothing within the time allotted (six

months).

            On   August    8,   2006,    the   plaintiff   filed    a   second

administrative claim with the VA, once again alleging negligent

reduction of his benefits.       This second claim went unanswered.

            On April 2 or 3, 2007 — the record is tenebrous, but the

exact date makes no difference — the plaintiff sued the government

in the United States District Court for the District of Puerto

Rico.   See 28 U.S.C. § 1346.     The plaintiff's complaint sounded the

same theme adumbrated in the two administrative claims, premising

the government’s liability on an allegedly negligent reduction of

benefits.   The government moved to dismiss, arguing that the court

lacked subject matter jurisdiction because the suit had not been

filed within two years next following the accrual of the cause of

action.    See id. § 2401(b); Skwira v. United States, 344 F.3d 64,

71 (1st Cir. 2003).       The plaintiff opposed the motion.

            The district court concluded that the plaintiff's cause

of action had accrued in November of 1985 (when the Board denied


                                        -4-
the petition to restore the higher disability rating).                 Román-

Cancel v. United States, No. 07-1275, slip op. at 10 (D.P.R. July

31, 2009) (unpublished).      This timely appeal followed.

           We review the granting of a motion to dismiss for lack of

subject matter jurisdiction de novo.            See Fothergill v. United

States, 566 F.3d 248, 251 (1st Cir. 2009); González v. United

States, 284 F.3d 281, 287 (1st Cir. 2002).           We are not wedded to

the lower court's rationale, but may affirm the order of dismissal

on any ground made manifest by the record.                InterGen, N.V. v.

Grina, 344 F.3d 134, 141 (1st Cir. 2003).

           Generally speaking, the United States enjoys immunity

from suit.   See McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.

2006); see also Cohens v. Virginia, 19 U.S. 264, 413 (1821).                 In

the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, Congress waived the

government's   sovereign   immunity      with   respect    to   private   tort

actions.     That   waiver,   however,     is   hedged    by    a   number   of

restrictions and conditions.      See, e.g., 28 U.S.C. § 2680(a)-(n);

see also Fothergill, 566 F.3d at 252. Congress further limited the

waiver by incorporating into the FTCA a series of fixed time

limits.    See Rakes v. United States, 442 F.3d 7, 18 (1st Cir.

2006).    The limitations period prescribed in the FTCA constitutes

a condition of the immunity waiver, and its expiration extinguishes

any potential governmental liability.           United States v. Kubrick,

444 U.S. 111, 117-18 (1979).


                                   -5-
          The time limits for FTCA actions have more than one

dimension.   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 . . .

of notice of final denial of the claim by the agency to which it

was presented."    28 U.S.C. § 2401(b).   These temporal parameters

are strictly construed in favor of the sovereign.     Patterson v.

United States, 451 F.3d 268, 270 (1st Cir. 2006).

          The case at hand deals with both of the FTCA's temporal

limitations. We begin with the six-month filing deadline following

the denial of an administrative claim.    The district court based

its analysis on the two-year claim-filing deadline following the

accrual of the claim.    It did not discuss the six-month filing

deadline, assuming that the second administrative claim, filed on

August 8, 2006, was the operative filing.     The court's analysis

therefore proceeded on the assumption that the six-month window for

the commencement of suit opened on February 8, 2007 (the effective

denial date of the second administrative claim).     See 28 U.S.C.

§ 2675(a) (stating that the "failure of an agency to make final

disposition of a claim within six months after it is filed shall

. . . be deemed a final denial of the claim").      Therefore, the

district court regarded the suit initiated in early April of 2007

as timely filed.


                                -6-
                On appeal, the government argues that the plaintiff's

first administrative claim was the operative filing for the purpose

of measuring the six-month window.            Since the VA denied that claim

on December 22, 2005, the government posits, the window closed on

June 22, 2006. Thus, the plaintiff's suit, commenced in early April

of 2007, overshot the deadline.

                The plaintiff's riposte is twofold.      First, he says that

this argument is waived because the government did not advance it

below.     Second, he maintains that the later administrative claim

comprises the correct point of reference.

                The waiver argument is easily dismissed. Compliance with

the FTCA's temporal deadlines is both mandatory and jurisdictional.

González, 284 F.3d at 288; González-Bernal v. United States, 907

F.2d 246, 248 (1st Cir.          1990).        It is a familiar rule that

challenges to a federal court's subject matter jurisdiction can be

raised at any stage of the litigation.            See, e.g., ConnectU LLC v.

Zuckerberg, 522 F.3d 82, 86 n.2 (1st Cir. 2008); Am. Fiber &

Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138-39

(1st     Cir.    2004).   That   rule    controls    here:   this   particular

jurisdictional question, although raised by the government for the

first time on appeal, is properly before us.

                The dilemma created by the duplicative administrative

claims is more apparent than real.            The papers in the case describe

only a single injury: the (allegedly negligent) reduction of the


                                        -7-
plaintiff's disability benefits.          Even without the claim forms

(which are not part of the record on appeal),3 the only inference

that can be drawn is that both claims relate to that injury.           See

32 C.F.R. § 750.26(c) ("A claim is a notice . . . of an incident

giving rise to Government liability . . . .").                From a legal

standpoint, then, the second claim is the functional equivalent of

the first.

             Where,   as   here,    a   party   has   filed    duplicative

administrative claims, an inquiring court can regard the second

claim in one of two ways: as either an attempt to re-file the

original claim or an attempt to have the agency reconsider its

disposition of the original claim.        Either way, the second claim in

this case is a nullity.     We explain briefly.

             If we view the second claim as an attempt to re-file, it

would not reconfigure the FTCA time line.          Nothing to change the

substance of the claims occurred in the interval between the first

and   second   filings.     Under   these    circumstances,    the   second

administrative claim served no legitimate purpose.

             That conclusion divests the second claim of any legal

effect.   After all, it would be pointless for a court to allow a

claimant an opportunity to reopen the FTCA's limitations window by



      3
       The plaintiff, as the party prosecuting the appeal, has the
responsibility to ensure that the record on appeal is complete.
See Fed. R. App. P. 11(a); Real v. Hogan, 828 F.2d 58, 60 (1st Cir.
1987).

                                    -8-
the simple expedient of re-filing a claim to supplant an earlier,

functionally equivalent claim on which the window had shut.                In the

bargain, honoring a re-filed claim would frustrate the goal of the

FTCA's     filing    deadlines.      See    Steven     W.     Feldman,    Federal

Administrative Practice § 445, at 167 (4th ed. 2002) (explaining

that decisions of the Board "are final").

             The    point   is   obvious,   so   the   case    law   is   sparse.

Nevertheless, what few cases there are plausibly suggest that such

repetitive filings should not be given effect.              See, e.g., Matos v.

Sec'y of HEW, 581 F.2d 282, 286 (1st Cir. 1978) (holding denial of

administrative claim res judicata as to subsequent claim for the

same benefits on the same grounds).          That makes perfect sense: one

bite at the apple is all that the FTCA's claim-filing scheme

allows.4    Cf. Dynamic Image Techs., Inc. v. United States, 221 F.3d

34, 39 (1st Cir. 2000) (reinforcing strict construction of FTCA

requirements).

             Of course, there is another way in which one might view

the second administrative claim: as a request to reconsider the

denial of the original claim.        But even if assayed in that manner,

the second claim here would nonetheless be impuissant.

             The FTCA sets out a six-month period following the denial

of an administrative claim in which an FTCA action premised on that


     4
        This holding applies to claims that are essentially
duplicative of one another. We take no view of the propriety of a
successive claim that is, in some meaningful sense, new.

                                      -9-
claim may be brought. 28 U.S.C. § 2401(b). Prior to the expiration

of that period, a claimant, as an alternative, also has six months

to file a request with the agency for reconsideration of the

previously denied claim. 28 C.F.R. § 14.9(b). A timely request for

reconsideration will toll the six-month period for filing suit for

an additional six months (or such shorter period in which the agency

actually responds to the request).      See Berti v. VA Hosp., 860 F.2d

338, 340 (9th Cir. 1988).

           The time parameters for such requests for reconsideration

are strictly enforced. See id. This means that an untimely request

does not reopen an expired six-month window for the filing of suit.

Id.

           The VA denied the first administrative claim by letter

dated December 22, 2005.    The letter informed the appellant of his

option to file a request for reconsideration within six months of

that date and provided helpful information for doing so. The letter

also made it clear that "[t]o be timely filed, this request [for

reconsideration] must be received by VA prior to the expiration of

6 months from the date of the mailing of this final denial."

           The plaintiff's second administrative claim was not filed

until August 8, 2006 — beyond the six-month period allotted for

reconsideration requests.    That was too late.    See Davis v. United

States, 589 F.3d 861, 865 (6th Cir. 2009) (finding administrative

claim exhausted if there is no timely request for reconsideration).


                                 -10-
               The short of it is that, no matter how the second

administrative claim is characterized, it had no practical effect.

Consequently, the first administrative claim is the relevant claim

for the purpose of determining the timeliness of the instant action.

               There is no need to tarry.     The first administrative

claim was denied on December 22, 2005. The plaintiff had six months

from that date within which to sue.5       See 28 U.S.C. § 2401(b).   The

plaintiff commenced his suit on April 2 or 3, 2007.        This was one

year, three months, and ten or eleven days after the denial of the

relevant administrative claim.       Accordingly, this suit is untimely.

See Vélez-Díaz v. United States, 507 F.3d 717, 720 (1st Cir. 2007).

               The plaintiff's suit is untimely on a second ground as

well.       As the district court recognized, the plaintiff did not file

either administrative claim with the VA within two years after his

cause of action accrued.         This is a fatal flaw.    See 28 U.S.C.

§ 2401(b).

               For FTCA purposes, a claim accrues upon the occurrence of

the underlying injury.        Callahan v. United States, 426 F.3d 444,

450-51 (1st Cir. 2005).       This moment is pinpointed at the time the

injured party knows of the existence and the cause of his injury.

Id. at 451.       Something less than full knowledge suffices to start

the running of the FTCA limitations period. Skwira, 344 F.3d at 78.


        5
       The plaintiff does not argue that this six-month period was
somehow tolled.   Any such argument is, therefore, waived.     See
United States v. Zannino, 895 F.2d 1, 9 n.7 (1st Cir. 1990).

                                    -11-
Accrual is triggered by the discovery of sufficient facts about the

injury and its cause to prompt a reasonable person to seek advice

to decide if there is a basis for filing a claim.              Callahan, 426

F.3d at 451; Skwira, 344 F.3d at 78.

             The plaintiff contends that he had no knowledge of the

existence or cause of his injury until October of 2004, when the

Board agreed that the reduction of his disability rating was the

result of clear and unmistakable error.            Like the district court,

we find this argument unconvincing.            At bottom, it is an effort to

redefine what constitutes accrual.          See, e.g., Callahan, 426 F.3d

at 450-51.

             The plaintiff knew all the pertinent facts about his

injury when he was first notified of the impending decrease in his

disability rating on July 24, 1975.            His repeated efforts to have

his rating increased highlight this knowledge.                 He also knew

definitively of the causal connection between the VA's action and

his injury by November 21, 1985. It was on that date that the Board

denied his petition to restore his disability rating.               Thus, the

plaintiff's claim, for FTCA purposes, accrued by November of 1985.

He had two years from that time in which to initiate the FTCA claim-

filing process.     He missed this deadline.

             In   his   reply   brief,   the    plaintiff   makes   a   related

assertion that it was the VA's acknowledgment of error and inept

handling over time, rather than the original incorrect decision to


                                     -12-
reduce his disability rating, that triggered the running of the

two-year limitations period. Whether or not that would be a viable

claim had the plaintiff made it — a matter on which we take no view

— his complaint belies that depiction of the claim.   It alleges at

the outset that the harm was the erroneous reduction of his

disability rating, simpliciter.   It is too late in the day for the

plaintiff to switch his theory of the case.       See B&T Masonry

Constr. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 39-40 (1st

Cir. 2004); see also Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86

(1st Cir.1990).

            We need go no further.    For the reasons elucidated

above, we affirm the order of dismissal.



Affirmed.




                               -13-
