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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11393
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:16-cv-02791-MHC



EDWINA ROSE TUCKER,

                                                          Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (February 8, 2018)

Before ROSENBAUM, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM:
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      Edwina Rose Tucker appeals the district court’s dismissal of her pro se

Federal Tort Claims Act (“FTCA”) lawsuit. The court found that her complaint

was time-barred and therefore frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

Tucker maintains that she timely filed her initial complaint because she mailed it to

the court on the last day of the limitations period, and that the court committed

several errors in handling her case. After careful review, we affirm.

      We begin by summarizing the operative facts. On March 15, 2016, Tucker

signed a complaint against the Secretary of the U.S. Department of Veterans

Affairs arising out of the hospitalization and subsequent death of her husband at

the Atlanta Veterans Affairs Medical Center in June 2014. Tucker alleged that her

husband died from a fungal infection he contracted at the Medical Center due to

the negligence of its staff. The complaint was stamped as received by the clerk of

the district court on April 4, 2016.

      The district court, acting sua sponte, dismissed the complaint for lack of

jurisdiction over the named defendant—the Secretary of the U.S. Department of

Veterans Affairs—and directed her to re-file her complaint against the proper

defendant—the United States—within 30 days. When Tucker filed an amended

complaint naming the United States, the district court construed it as a new case

and directed the clerk to file the complaint under a new civil-action number.




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      The United States moved to dismiss Tucker’s amended complaint soon after

it was opened as a new civil case on August 1, 2016. The United States argued

that Tucker’s action was time-barred because she did not file her complaint within

six months of the September 15, 2015, final administrative decision on her claim.

See 28 U.S.C. § 2401(b) (providing that tort claims against the United States “shall

be forever barred” unless filed within six months of the agency’s final decision).

In response, Tucker asserted that her initial complaint was timely because it “was

dated for March 15, 2016 and deposited in the U.S. Mail with postage prepaid,

which constitutes a legal filing with the U.S. Courts.”

      On March 14, 2017, the district court again dismissed Tucker’s FTCA

lawsuit. This time, the court found that Tucker’s claim was time-barred because it

was not filed within six months of the VA’s September 15, 2015, final decision.

The court first used the date Tucker’s amended complaint was docketed—August

1, 2016—to determine that it was untimely.          But the court determined that

Tucker’s initial complaint was untimely as well, rejecting her argument that the

filing date of her initial complaint should have been March 15, 2016, when she

deposited it in the U.S. mail. The date that mattered, according to the court, was

the date the clerk received her complaint, which was April 4, 2016. The court

found that it lacked jurisdiction due to Tucker’s untimely filing, and so it dismissed

her lawsuit as frivolous. Tucker filed a timely notice of appeal. The court denied

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Tucker’s motion for reconsideration and her application for leave to appeal in

forma pauperis, certifying that the appeal was not taken in good faith.

      Under § 1915(e)(2)(B)(i), the district court must, on its own initiative,

dismiss the case of a plaintiff proceeding in forma pauperis if the court determines

that the action is “frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A case is frivolous if

it lacks an arguable basis in law or fact. Miller v. Donald, 541 F.3d 1091, 1100

(11th Cir. 2008). We ordinarily review a district court’s sua sponte dismissal of a

claim as frivolous under § 1915(e)(2)(B)(i) for an abuse of discretion. Id. Here,

however, the dismissal was based on the court’s interpretation and application of a

statute of limitations, issues we review de novo. Ctr. for Biological Diversity v.

Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006). Therefore, we apply de novo

review.

      We liberally construe the filings of pro se parties. Campbell v. Air Jam.

Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014). However, we still require pro se

parties to comply with procedural rules, Albra v. Advan, Inc., 490 F.3d 826, 829

(11th Cir. 2007), including statutes of limitations, see Outler v. United States, 485

F.3d 1273, 1282 n.4 (11th Cir. 2007) (“[P]ro se litigants, like all others, are

deemed to know of the . . . statute of limitations.”).

      “[T]he United States, as a sovereign entity, is immune from suit unless it

consents to be sued.” Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir.

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2015). Through the FTCA, the United States has, as a general matter, “waived its

immunity from tort suits based on state law tort claims.” Id. But the United States

may impose whatever conditions on its consent that it wishes, and courts must

strictly observe those conditions and limitations. Id. at 1321–22.

      As relevant here, the FTCA requires that tort claims against the United

States be filed with the appropriate agency “within two years after such claim

accrues” and in federal court “within six months after” the agency’s final decision

on the claim. 28 U.S.C. § 2401(b). These time bars are non-jurisdictional and

subject to equitable tolling. United States v. Kwai Fun Wong, 135 S. Ct. 1625,

1638 (2015). “Equitable tolling is appropriate when a movant untimely files

because of extraordinary circumstances that are both beyond her control and

unavoidable even with diligence.” Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336,

1342 (11th Cir. 2017) (alteration adopted) (quotation marks omitted).

      Here, we agree with the district court that Tucker’s claim is barred by the

FTCA because her complaint was not timely filed within six months of the VA’s

final decision on her claim. See 28 U.S.C. § 2401(b). In reaching that conclusion,

we assume, as Tucker contends, that the court erred by construing her amended

complaint as a new case. We also assume that her amended complaint relates back

to her initial complaint for timeliness purposes. We therefore base our decision on

her initial complaint, which, she says, she signed and mailed on the final day of the

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limitations period, March 15, 2016. Nevertheless, Tucker’s initial complaint is still

untimely because it was not “filed” by that date.

       The general rule is “that a complaint is ‘filed’ for statute of limitations

purposes when it is ‘in the actual or constructive possession of the clerk.’”

Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir. 1986) (quoting

Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. Mar. 1981) 1); see Houston v.

Lack, 487 U.S. 266, 273 (1988) (“[R]eceipt constitutes filing in the ordinary civil

case . . . .”); Fed. R. Civ. P. 5(d) (stating that a paper is “filed” by delivering it to

the clerk or a judge who agrees to accept it for filing). Mailing alone is not

enough. See Leggett, 640 F.2d at 766 (holding that a complaint mailed before but

received after the expiration of the limitations period was time-barred).

       The general rule is subject to a few exceptions, most notably for cases

involving pro se inmates. The filings of pro se inmates generally are deemed

“filed” when they are delivered to prison authorities for mailing to the court clerk.

Houston, 487 U.S. at 266. Tucker’s case, however, is subject to the general rule

because she is not an inmate and no contrary rule or statute applies. 2


       1
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
       2
          Before the district court, Tucker cited 26 U.S.C. § 7502 (“Timely mailing treated as
timely filing and paying”), which provides an exception to the general rule in some matters
involving the Internal Revenue Service. See 26 U.S.C. § 7502(a). But that statute expressly
does not apply to “the filing of a document in . . . any court other than the Tax Court.” 26 U.S.C.
§ 7502(d). Consequently, Tucker cannot rely on § 7502.
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       Construing the record in Tucker’s favor, her complaint was not timely filed.

Because the general rule applies, Tucker’s complaint needed to be “in the actual or

constructive possession of the clerk” by March 15, 2016. See Rodgers ex rel.

Jones, 790 F.2d at 1552. But her initial complaint was not received until after that

date. Even assuming that the clerk delayed docketing her complaint, the clerk

would not have received her complaint by March 15, 2016, which was the date she

deposited the complaint in the U.S. Mail.3 Accordingly, Tucker did not file her

initial complaint before the expiration of the six-month limitations period

applicable to claims under the FTCA. See 28 U.S.C. § 2401(b).

       Equitable tolling can in some circumstances excuse a failure to file on time.

For example, in Suarez v. Little Havana Activities, a Title VII case, we applied

equitable tolling where the complaint was mailed to the clerk two days before the

limitations period expired but it was not docketed by the district court until four

days later, after the period expired. 721 F.2d 338, 339–40 (11th Cir. 1983). We

held that equitable tolling applied because it was reasonable to mail a complaint in

Miami and expect it to be delivered and filed in Miami within 48 hours of its

mailing. Id. at 340.

       3
         In her reply brief, Tucker asserts that she filed her complaint on March 15, 2016, by
submitting it “to the District Court’s U.S. Mail Slot for after business hour submission of
documents.” But that assertion is inconsistent with her representation to the district court that
she placed the complaint in the U.S. Mail with “postage prepaid,” and it was raised for the first
time in her reply brief. Because Tucker raised that argument for the first time in her reply brief,
we decline to consider it. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“[W]e do
not address arguments raised for the first time in a pro se litigant’s reply brief.”).
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      Suarez’s reasoning does not apply here, though, because Tucker mailed her

complaint on the same day the limitations period expired. And it is not reasonable

to expect an ordinary letter deposited in the U.S. Mail to be delivered that same

day. See Hallgren v. U.S. Dep’t of Energy, 331 F.3d 588, 591 (8th Cir. 2003)

(refusing to apply equitable tolling where the plaintiff “mailed his complaint from

450 miles away and expected it to be filed within 24 hours of its mailing”).

Because plaintiffs are generally responsible for “ordinary delays in the mail

service,” id., equitable tolling is not warranted.

      We acknowledge that a matter of a few days or even a few weeks seems

trivial in comparison to the magnitude of Ms. Tucker’s loss. But, despite our

sympathy for her, we may not disregard the limitations periods established by

Congress for actions under the FTCA. See Zelaya, 781 F.3d at 1321–22. So we

must affirm the district court’s decision to dismiss Tucker’s lawsuit as time-barred.

Although the district court erroneously concluded that it lacked jurisdiction as a

result, see Kwai Fun Wong, 135 S. Ct. at 1638, that error is harmless because

Tucker’s claim was time-barred and she is not entitled to equitable tolling.

      Finally, we lack jurisdiction to consider Tucker’s argument that the district

court erred in denying her motion for leave to appeal in forma pauperis. See

Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1250 (11th Cir. 2008) (we examine

our own jurisdiction sua sponte). The denial of an application for leave to appeal

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in forma pauperis is not a final order subject to appeal. Gomez v. United States,

245 F.2d 346, 347 (5th Cir. 1957). Instead, plaintiffs “may file a motion to

proceed on appeal in forma pauperis in the court of appeals” after the district court

denies leave to appeal in forma pauperis.           See Fed. R. App. P. 24(a)(5).

Accordingly, we dismiss Tucker’s appeal as to the denial of her application for

leave to appeal in forma pauperis. But we note that the district court’s reference to

the appeal not being taken in “good faith” was the court’s assessment of her

likelihood of prevailing on appeal, not a comment on her obviously sincere

intentions.

      For the reasons stated, we affirm the dismissal of Tucker’s complaint, and

we dismiss her appeal to the extent she seeks review of the district court’s denial of

her motion for leave to appeal in forma pauperis.

      AFFIRMED IN PART AND DISMISSED IN PART.




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