* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 25 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUSAN C. FARLAINO,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA,

Defendant-Appellee. No. 95-4165 (Dist. Of Utah) (D.C. No. 94-CV-833-B)

ORDER AND JUDGMENT *

Before EBEL , HOLLOWAY, and MURPHY , Circuit Judges.
Susan Farlaino filed this action against the UnitedStates 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, Farlain o claimed that officers and employees of the United States negligently placed o r left foreign objects within her breast and, as a result, she incurred medical e xpenses and loss of earnings and-2-

suffered “a continuing injury of mind and body.” T he district court granted the United States' Motion to Dismiss or Alternatively F or Summary Judgment on the grounds that plaintiff failed to comply with the ju risdictional prerequisites of the FTCA. This court exercises jurisdiction pursuant t o 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 faciliti es for infections and abscesses in her right breast. On February 12, 1990, Farlain o sought medical care outside of the military medical system, undergoing explorat ory surgery by a private physician at Castleview Hospital in Price, Utah. I t was during that procedure, according to Farlaino, that her private physician d iscovered 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 empl oyee of the United States negligently placed or left a foreign object within Farlaino's breast.-3-

On February 10, 1992, Assistant United States Attorney Joseph W. Anderson wrote to Farlaino's counsel and advised hi m that the receipt of the Standard Form 95 Claim for Damage by the USAO did n ot comply with the jurisdictional requirements of the FTCA. In respon se, 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 actio n in the district court pursuant to the FTCA. Farlaino claimed that office rs 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 e arnings 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 d ate 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 confere nce scheduled by the district court, failed to designate expert witnesse s, failed to conduct discovery, and failed to file any dispositive motions before t he scheduled cut-off date, the district court dismissed Farlaino’s complaint for f ailure to prosecute. On August1 In addition, the Amended Complaint alleged that i n September, 1983, Dr.

Antoine Jumell, an officer and employee of the Unit ed States, engaged in an unauthorized touching or battery of Farlaino when h e attempted to change Farlaino's surgical dressing over her protests. Far laino conceded at oral argument before the district court that her claims of assaul t and battery were barred by the statute of limitations. Accordingly, Farlaino has not appealed the district court's dismissal of those claims. -4- 24, 1994, approximately one year later, Farlaino fi led a document entitled "Refiling of Complaint" under the same civil number as her original complaint. On January 4, 1995, Farlaino then commenced this actio n by filing a document entitled "Amended Complaint." The amended complaint contained the same allegations that Farlaino's original complaint cont ained, that the United States negligently placed or left foreign objects in Farla ino's breast. 1
The United States filed a Motion to Dismiss or Alte rnatively 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 accru ed 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.-5- 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 immu ne 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’ sovereignimmunity 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 wa iver 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 for ever barred unless it is presented in writing to the appropriat e 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-6-

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 co mply with either limitation period set out in § 2401(b). The UnitedStates notes that under § 2401(b), a claim is barred unless it is presented i n writing “to the appropriate Federal agency” within two years after the claim ac crues. The Code of Federal Regulations provides that the appropriate agency fo r 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 A rmy, 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 i s barred by the first clause of § 2401(b). In response, Farlaino argues that the DOJ was oblig ated 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 wh ose activities gave rise to the claim. When a claim is presented to any other Federal agency, that agency shall transfer it forth with to the appropriate agency, if the proper agency can be ide ntified from the claim, and advise the claimant of the transfer. If transfer is not feasible, the claim shall be returned to the claima nt. The fact of transfer shall not, in itself, preclude further tra nsfer, return of the claim to the claimant or other appropriate disposit ion 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.-7-

Because the DOJ failed to comply with the transfer requirements set out in § 14.2(b)(1), Farlaino argues that her claim shouldbe considered constructively presented to the Army as of the date it was present ed 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 c laim” 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 dispositionof this case. We agree. In Pipkin , the plaintiff filed a grievance with the United S tates Postal Service (“USPS”). Id. at 274. After the USPS denied the grievance on Ju ly 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, 1 989, 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) w as tolled during the pendency of the original and timely filed FTCA action. Id. Upon dismissal of that claim-8-

for failure to prosecute, however, the limitations period began to run again. Because more than six months elapsed between the di smissal 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 simila r to Pipkin . Farlaino filed her administrative claim with the Army on Feb ruary 24, 1992. She filed her original FTCA action on September 18, 1992. Approx imately two months later, on November 23, 1992, the Army denied Farlaino’s cl aim 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 failur e 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 F TCA 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-9-

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 Comp laint” constitute a continuation of her original, timely-filed FTCA act ion. 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.” F ed. 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 op posed to an amendment or supplementary pleading, does not relate back to a p reviously filed claim”). This court can resolve Farlaino’s remaining content ions in short order. First, Farlaino contends that DOJ is an “appropriat e agency” for purposes of § 2401(b). She further contends that because she pre sented her claim to the DOJ in a timely manner and the DOJ has not yet acted on he r claim, the six-month limitations period set out in § 2401(b) has not yetbegan to run. This contention clearly fails in light of the 28 C.F.R. § 14.2(b)(1 ), which specifically defines-10-

appropriate agency for the purposes of § 2401(b) as the “agency whose activities gave rise to the claim.” Second, in a barely compr ehensible portion of her brief, Farlaino appears to argue that the United States sh ould 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 rai se § 2401(b) in its answer to Farlaino’s original, timely FTCA action. It is suf ficient 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 w aiver 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 fo r the District of Utah is hereby AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge