                   United States Court of Appeals,

                            Fifth Circuit.

                            No. 94-30085.

                Ronald LAMBERT, Plaintiff-Appellant,

                                  v.

            UNITED STATES of America, Defendant-Appellee.

                            Feb. 10, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

     W. EUGENE DAVIS, Circuit Judge:

     Ronald Lambert appeals the dismissal of his Federal Tort

Claims Act ("FTCA") suit.    The district court dismissed Lambert's

suit as untimely under the FTCA's six-month statute of limitations.

28 U.S.C. § 2401(b).     The central issue presented on appeal is

whether Lambert can rely on the doctrine of equitable tolling to

preserve his FTCA claim.    We conclude that Lambert cannot rely on

equitable tolling and affirm the district court's dismissal of his

suit as untimely under § 2401(b).

                                  I.

     In February 1992, Lambert was injured when his automobile

collided with a patrol vehicle driven by Richard Ritzman, an agent

with the Immigration and Naturalization Service ("INS").        On

November 4, 1992, the INS notified Lambert that it was rejecting

his administrative claim for medical expenses resulting from the

accident.    Lambert subsequently filed his first suit against the

United States pursuant to the FTCA, 28 U.S.C. §§ 2401 et seq.   In

                                  1
September 1993, the government moved to dismiss Lambert's claim

without prejudice on the grounds that he failed to properly serve

the government within 120 days as required by Federal Rule of Civil

Procedure 4(m). Federal Rule of Procedure 4(i) establishes special

procedures for serving the government:

     (1) Service upon the United States shall be effected

     (A) by delivering a copy of the summons and of the complaint
     to the United States attorney for the district in which the
     action is brought or to an assistant United States attorney or
     clerical employee designated by the United States attorney ...
     and

     (B) by also sending a copy of the summons and of the complaint
     by registered or certified mail to the Attorney General of the
     United States at Washington, District of Columbia....

Although Lambert served a copy of the complaint on the United

States Attorney's Office for the Eastern District of Louisiana, he

failed to deliver a copy of the summons as required by Rule

4(i)(1)(A).   Lambert also failed to send a copy of the summons and

complaint to the Attorney General as required by 4(i)(1)(B).          As a

result, the district court ruled that Lambert failed to comply with

Rule 4(i)'s service requirements within the 120-day time limit

imposed by    Rule   4(m)   and   granted   the   government's   motion   to

dismiss.

     Instead of appealing the district court's dismissal of his

first suit, Lambert filed a second complaint against the government

alleging the same facts and theories as his first suit.           Although

Lambert filed his second suit on the same day that the district

court dismissed his original suit, the government moved to dismiss

the suit as time barred under the FTCA's six-month statute of


                                     2
limitations.   The district court subsequently dismissed Lambert's

second suit.   Lambert timely appeals the district court's order

dismissing his second suit.

                                II.

     Lambert does not dispute the district court's conclusion that

his second suit is time barred under the terms of 28 U.S.C. §

2401(b).   Section 2401(b) 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 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.

(emphasis added).   While the timely filing of Lambert's first suit

tolled § 2401(b)'s six-month statute of limitations, the district

court's order dismissing the suit without prejudice left Lambert in

the same position as if the first suit had never been filed.

Hilbun v. Goldberg, 823 F.2d 881, 883 (5th Cir.1987), cert. denied,

485 U.S. 962, 108 S.Ct. 1228, 99 L.Ed.2d 427 (1988).       Because

Lambert's second suit was filed more than six months after the INS

mailed its final notice denying his claim, his second suit is time

barred under the plain language of § 2401(b).      Lambert argues,

however, that the district court erred by not applying the doctrine

of equitable tolling to suspend the running of the statute of

limitations while his first suit was pending.

     In Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95-96, 111

S.Ct. 453, 457, 112 L.Ed.2d 435 (1990), the Supreme Court held that

"the same rebuttable presumption of equitable tolling applicable to

suits against private defendants should also apply to suits against

                                 3
the United States."    The Court thus overturned the established

precedent of many circuits that equitable tolling is not available

against the government because the statutory time limits that apply

to suits against the government are jurisdictional. See Houston v.

United States Postal Service, 823 F.2d 896 (5th Cir.1987), cert.

denied, 485 U.S. 1006, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988).

Irwin does not, however, resolve whether equitable tolling is

available to Lambert in the instant case where his first FTCA suit

was dismissed because he failed to timely comply with the service

requirements of Rules 4(i) and 4(m).

      The doctrine of equitable tolling preserves a plaintiff's

claims when strict application of the statute of limitations would

be inequitable.   Burnett v. New York Central R.R. Co., 380 U.S.

424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965).   In Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723,

1725, 80 L.Ed.2d 196 (1984), the Supreme Court described the types

of cases where courts have applied equitable tolling:

     This is not a case in which a claimant has received inadequate
     notice;   or where a motion for appointment of counsel is
     pending and equity would justify tolling the statutory period
     until the motion is acted upon; or where the court has led
     the plaintiff to believe that she has done everything required
     of her. Nor is this a case where affirmative misconduct on
     the part of a defendant lulled the plaintiff into inaction.

(citations omitted).   Traditional equitable principles preclude a

court from invoking equitable tolling, however, when the party

seeking relief has an adequate legal or statutory remedy to avoid

the consequences of the statute of limitations.   Justice v. United

States, 6 F.3d 1474, 1480 (11th Cir.1993);    see also Tudor Dev.


                                 4
Group, Inc. v. U.S. Fidelity & Guar. Co., 968 F.2d 357, 364 (3rd

Cir.1992).

     In Justice, the Eleventh Circuit held that equitable tolling

was not available in a second suit brought against the government

under the Public Vessels Act and Suits in Admiralty Act where the

first suit was dismissed for want of prosecution.   6 F.3d at 1482.

The court reasoned that the plaintiff had several legal avenues

available to remedy the dismissal of his first suit, including

filing a motion for reconsideration and appealing the dismissal.

Id. at 1480.     The court concluded that the availability of these

alternative legal remedies precluded the application of equitable

tolling.    Id. at 1482.1

         The reasoning of Justice is applicable to the present case

because Rule 4(m) provides an express legal remedy for plaintiffs

who fail to timely serve the government under Rule 4(i).   Rule 4(m)

provides:

     If service of the summons and complaint is not made upon a
     defendant within 120 days after the filing of the complaint,
     the court ... shall dismiss the action without prejudice ...
     provided that if the plaintiff shows good cause for the
     failure, the court shall extend the time for service for an
     appropriate period.




     1
      In rejecting equitable tolling, the court also noted that
the plaintiff "failed to act with due diligence in pursuing his
cause of action against the government." Id. at 1483. Lambert's
failure to timely serve the government demonstrates a similar
lack of diligence. See Wilson v. Grumman Ohio Corp., 815 F.2d
26, 29 (6th Cir.1987) ("Wilson's lack of diligence in effecting
service upon Grumman within the necessary period cannot be the
basis for an equitable tolling of the statutory filing period in
her favor.").

                                  5
(emphasis added).2    Thus, Rule 4(m) allows the tardy plaintiff to

escape the harsh consequences of dismissal if he shows "good cause"

for this delay.       This statutory escape provision essentially

duplicates the equitable remedy provided by equitable tolling.            In

Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306

(5th Cir.1985), this court held that "good cause" under Rule 4(m)

requires:

     at least as much as would be required to show excusable
     neglect, as to which simple inadvertence or mistake of counsel
     or ignorance of the rules usually does not suffice, and some
     showing of "good faith on the part of the party seeking an
     enlargement and some reasonable basis for noncompliance within
     the time specified" is normally required.

(quoting 4A Wright & Miller Federal Practice and Procedure:          Civil

§ 1165 at 480) (emphasis in original).           Rule 4(m)'s good cause

standard thus allows plaintiffs to raise substantially the same

equitable arguments that they can raise under the equitable tolling

doctrine.    See Baldwin County, 466 U.S. at 151, 104 S.Ct. at 1725.

         Under Rule 4(m), a plaintiff can resist the government's

motion to dismiss for tardy service on grounds that he has "good

cause" for the delay.           If the district court concludes that a

plaintiff has not shown good cause for failing to timely effect

service    and   grants   the    government's   motion   to   dismiss,   the

plaintiff can appeal the court's dismissal.          The availability of

this express legal remedy precludes the applicability of equitable

tolling in a second suit.

     We conclude, therefore, that Lambert cannot rely on the

     2
      Rule 4(m) was added by amendment in 1993 and contains much
of the same language as the former Rule 4(j).

                                      6
doctrine of equitable tolling to preserve his FTCA claim.       If

equitable tolling were available to Lambert in this case, he would

have an opportunity to re-litigate essentially the same issues the

district court considered when the court dismissed his first suit

under Rule 4(m).    Accordingly, we AFFIRM the district court's

dismissal of Lambert's FTCA suit as untimely under § 2401(b).

     AFFIRMED.




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