                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-2102

                    MIGUEL DE CASENAVE AND
             MARIA ANGELICA MORALES DE CASENAVE,

                   Plaintiffs, Appellants,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen C. Cerezo, U.S. District Judge]
                                                    

                                         

                            Before

                     Stahl, Circuit Judge,
                                         
          Aldrich and Coffin, Senior Circuit Judges.
                                                   

                                         

Eduardo E. Betancourt with whom Hernandez  Sanchez Law Firm was on
                                                           
brief for appellants.
James G. Touhey, Jr., Trial Attorney,  with whom Stuart M. Gerson,
                                                                 
Assistant  Attorney  General,  Daniel  F. Lopez  Romo,  United  States
                                                 
Attorney,  and Jeffrey Axelrad, Director,  Torts Branch, were on brief
                          
for appellee.

                                         

                        April 20, 1993
                                         

          STAHL, Circuit Judge.   In this appeal,  plaintiffs
                              

Miguel  de  Casenave  and  his  wife,  Maria  A.  Morales  de

Casenave, challenge  the district court's  dismissal of their

complaint as  time-barred.   We  affirm the  judgment of  the

district court, although on different grounds.

                              I.
                                

                    Procedural Background
                                         

          On  March  24, 1989,  plaintiff Miguel  de Casenave

allegedly sustained  personal  injuries when  he tripped  and

fell  while  on the  premises of  the Roosevelt  Roads United

States  Naval Station, in Ceiba,  Puerto Rico.   On April 27,

1989,  Mr.  de Casenave  and  his  wife, plaintiff  Maria  de

Casenave,  presented   tort  claims  to  the   United  States

government  based on  this incident.   The  government denied

their claims on March 26, 1990, and mailed them the notice of

denial two  days  later.   On  August  14,  1990,  plaintiffs

commenced an  action in federal court  against the government

under  the Federal  Torts Claims  Act ("FTCA"), 28  U.S.C.   

1346(b),  2671,  et  seq.,  alleging  that  the  government's
                         

negligent  maintenance of  a  sidewalk at  the Naval  Station

caused his  injuries.   During the  pendency of  that action,

plaintiffs'  counsel failed  to comply with  an order  of the

district  court  (Pieras,  J.)  directing him  to  attend  an

initial scheduling conference and to file certain  scheduling

memoranda.    As a  result,  Judge  Pieras found  plaintiffs'

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                              2

counsel  in violation  of  Federal Rules  of Civil  Procedure

16(f)  and 37(b)(2), and, in an order dated January 18, 1991,

dismissed the complaint.   See de Casenave  v. United States,
                                                            

No.  90-2095(JP), slip  op. at 5  (D.P.R. January  18, 1991).

The judgment of  dismissal was entered on  January 23, 1991.1

On March 4, 1991, Judge Pieras denied plaintiffs'  motion for

reconsideration  of that  dismissal,  and on  April 3,  1991,

plaintiffs filed a notice  of appeal.  Subsequently, however,

plaintiffs moved  for a voluntary dismissal  of their appeal,

which this court entered on May 28, 1991.

          On July  10, 1991, plaintiff filed  a new complaint

against  the  government  which contained  verbatim  the same

allegations  as  the  first  complaint.    In  response,  the

government filed a  motion to dismiss, arguing  that the six-

month statute  of limitations  on plaintiffs' FTCA  claim had

run.  The  district court (Cerezo,  J.) agreed and  dismissed

                    

1.  In his  January 18 order,  Judge Pieras  stated that  the
dismissal was  "with prejudice."  The  judgment of dismissal,
however, stated that the dismissal was "without prejudice."

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                              3

the complaint.2   See de  Casenave v. United  States, 797  F.
                                                    

Supp. 86, 87 (D.P.R. 1992).  This appeal followed.

                             II.
                                

                          Discussion
                                    

          A FTCA  claimant has six  months from the  date the

federal agency  mails the notice  of final denial  of her/his

claim  to  file  suit in  federal  court.   See  28  U.S.C.  
                                               

2401(b).3  Here, the  government mailed plaintiffs the notice

of final denial of their claim on March 28, 1990.  Plaintiffs

filed their new lawsuit  more than one year after  the notice

of  denial was mailed.  Thus, the instant complaint was filed

well outside  the six-month  limitations period.   Plaintiffs

                    

2.  The  district  court  held  that,  because the  six-month
statute of limitations was jurisdictional, it had no power to
apply principles  of equitable tolling  to plaintiffs' claim.
In  light of the Supreme Court's holding in Irwin v. Veterans
                                                             
Admin.,  498 U.S.  89,    ,  111 S.  Ct. 453,  457-58 (1990),
      
discussed infra, the  district court's  refusal to  entertain
               
plaintiffs'  tolling argument  was  erroneous.    On  appeal,
however, we are  "free to affirm a  district court's decision
on  any ground supported in the record  even if the issue was
not  pleaded,   tried  or   otherwise  referred  to   in  the
proceedings below."  Resare v. Raytheon Co., 981 F.2d 32, 44-
                                           
45 n.30  (1st Cir. 1992)  (quoting Chamberlin v.  101 Realty,
                                                             
Inc., 915 F.2d 777, 783 n.8 (1st Cir. 1990)).  
    

3.  28 U.S.C.   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.

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                              4

argue, however, that the six-month  limitations period should

have  been tolled during  the pendency of  the first lawsuit.

We do not agree.4

          In  cases "where  the claimant [fails]  to exercise

due diligence in preserving  his[/her] legal rights,"  Irwin,
                                                            

498 U.S. at     , 111 S. Ct. at 458,  courts are reluctant to

apply  principles of  equitable tolling  to extend  a federal

limitations period.   See id.  at    , 111  S. Ct. at  457-58
                             

("Federal  courts have  typically  extended equitable  relief

only  sparingly.    We  have  allowed  equitable  tolling  in

situations  where  the  claimant  has  actively  pursued  his

judicial remedies  by filing a defective  pleading during the

statutory period,  or where the complainant  has been induced

or tricked  by his  adversary's misconduct into  allowing the

filing  deadline  to pass.")  (footnotes omitted);  Pipkin v.
                                                          

United  States, 951 F.2d 272,  274 (10th Cir. 1991) (refusing
              

to toll  FTCA six-month  limitations period during  filing of

previous FTCA lawsuit  which was dismissed  without prejudice

for failure to prosecute).

          Plaintiffs'  initial lawsuit  was dismissed  due to

their counsel's refusal  to abide by the  discovery orders of

                    

4.  Because the facts upon which plaintiffs' tolling argument
rests are undisputed, we see no reason to remand this case to
the district court.  See,  e.g., Societe Des Produits Nestle,
                                                             
S.A.  v. Casa  Helvetia, Inc.,  982 F.2d  633, 642  (1st Cir.
                             
1992) (using findings  of fact  made in the  framework of  an
unacceptable legal  analysis to  affirm on a  different legal
theory).

                             -5-
                              5

the district court.   The  record contains  no evidence  that

plaintiffs were induced  or tricked by any misconduct  on the

part of the government to delay as long as they did in filing

this lawsuit.5   Rather, this case is  a classic example of a

party  "[fail]ing  to  exercise due  diligence  in preserving

his[/her] legal rights."  Irwin, 498 U.S.  at    , 111 S. Ct.
                               

at 458.   Thus, we discern no basis  under which the district

court  could  have  applied  equitable principles  to  rescue

plaintiffs' complaint.  Cf. Pipkin, 951 F.2d at 275 (refusing
                                  

to toll FTCA six-month  limitations period during pendency of

previously filed lawsuit).  

          Even if the district court  had decided to toll the

six-month  limitations period  between  the  time  plaintiffs

filed  the  first  lawsuit  and  the  time  that  action  was

dismissed, plaintiffs' instant complaint would still be time-

barred.6   Plaintiffs waited four  months and sixteen days to

                    

5.  At  oral argument,  plaintiffs appeared  to be  asserting
some sort  of estoppel theory based on  an alleged discussion
with counsel  for the government  during the pendency  of the
previous   appeal.     This  theory,  however,   was  neither
articulated  below  nor  developed  in plaintiffs'  brief  on
appeal.  As such, we need not address it.  See, e.g., Lafont-
                                                             
Rivera v. Soler-Zapata,  984 F.2d  1, 3 n.2  (1st Cir.  1993)
                      
(refusing  to   address  issue  which  appellant   failed  to
articulate  below);  Rodriguez-Pinto  v. Tirado-Delgado,  982
                                                       
F.2d 34, 41  (1st Cir. 1993) (deeming issue  adverted to in a
"perfunctory manner" on appeal waived).

6.  Plaintiffs cannot  successfully  argue that  the  tolling
period should extend through the time that plaintiff filed an
unsuccessful motion for reconsideration of the dismissal.  We
have  previously rejected  that  same argument  in a  similar
context.  Hilton  Int'l Co.  v. Union de  Trabajadores de  La
                                                             

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                              6

file  their  first  lawsuit.   After  the  dismissal of  that

lawsuit, plaintiffs waited in excess of five months to refile

their  complaint.   Thus,  even giving  them  the benefit  of

tolling, plaintiffs  waited  more  than  nine  months  before

bringing  suit.7   We therefore  affirm, albeit  on different

grounds, the district court's decision to dismiss plaintiffs'

complaint.

          Affirmed.
                   

                    

Industria  Gastronomica,  833 F.2d  10,  11  (1st Cir.  1987)
                       
(holding  that   plaintiff's   filing   of   a   motion   for
reconsideration  of  a   dismissal  of  a  previously   filed
complaint  does  not  toll limitations  period  in subsequent
action). 

7.  The question of whether the court's dismissal was with or
without prejudice is therefore irrelevant.

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                              7
