* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAY 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANCEL BARR, deceased, by and through his wife and next of kin, BEVERLY BARR,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA,

Defendant-Appellee. No. 98-7164 (D.C. 98-CV-200-P) (Eastern District of Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.2

Ms. Barr appeals, on behalf of her deceased husband , the district court's grant of summary judgment to the United States in h er Federal Tort Claims Act (FTCA) case for her failure to timely file her comp laint. We affirm. Ms. Barr filed an administrative claim under the FT CA in February, 1997. When no action had been taken on her administrative claim after six months, she filed a lawsuit in the Eastern District of Oklahomaon August 22, 1997. The agency dismissed Ms. Barr's administrative claim on October 22, 1997. Ms. Barr subsequently voluntarily dismissed her pending laws uit on February 13, 1998. She re-filed her lawsuit on April 27, 1998. Under the FTCA, however, a plaintiff must file a tort claim “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). As her second lawsuit was filed on April 27, 1998, it was filed more than six months after the October 22, 1997 notice o f final denial of her administrative claim by the agency. Ms. Barr argues, however, that equitable tolling sh ould apply for the period during which her first complaint was pending such that her second complaint should be deemed to have been timely file d. We review a grant of summary judgment de novo, applying the same legal s tandard as the district
court. See Sundance Assocs., Inc. v. Reno , 139 F.3d 804, 807 (10th Cir. 1998). We affirm for substantially the same reasons as sta ted by the district court3

in its order dated October 19, 1998. Ms. Barr cann ot relate the untimely filing date of her second complaint back to the timely fil ing date of her first complaint: “a separately filed claim, as opposed to an amendme nt or a supplementary pleading, does not relate back to a previously filed claim.” Benge v. United
States , 17 F.3d 1286, 1288 (10th Cir. 1994). Further, eq uitable tolling could not apply to toll the period during which her prior com plaint was pending when there is no evidence that her original pleading was in an y way “defective” or that she had “been induced or tricked by [her] adversary's c onduct into allowing the filing deadline to pass.” See Irwin v. Veterans Admin. , 498 U.S. 89, 95-96 (1990). Therefore, we AFFIRM the decision of the district c ourt.

Entered for the Court,

Robert H. Henry Circuit Judge