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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL BURNELL MARLEY, 

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

Case No. C06-0366RSL

ORDER GRANTING 

MOTION FOR PARTIAL

RECONSIDERATION

This matter comes before the Court on the United States’ motion for partial

reconsideration of the Court’s November 2, 2006 order granting its motion to dismiss

(Dkt. #24, the “Order”). The United States contends that the Court properly dismissed

plaintiff’s case but erroneously noted that the time limit contained in the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 2401(b) is not jurisdictional. The United States

argues that the finding was not necessary to the decision. Plaintiff filed a response to the

motion, arguing that the Court did not err.

The applicable portion of the Order stated:

The relevant statutory provision provides, “A tort claim against the United States

shall be forever barred . . . 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.” 28 U.S.C. § 2401(b). As an initial matter,

Case 2:06-cv-00366-RSL Document 34 Filed 11/29/06 Page 1 of 2
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26 ORDER - 2

the government has filed its motion under Rule 12(b)(1), arguing that the FTCA’s

time limits are jurisdictional. However, recent cases have explained that “‘federal

statutory time limitations on suits against the government are not jurisdictional in

nature.’” Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997)

(analyzing 28 U.S.C. § 2401(a)) (quoting Washington v. Garrett, 10 F.3d 1421,

1437 (9th Cir. 1994) and citing Irwin v. Department of Veterans Affs., 498 U.S.

89 (1990)). Although some requirements for suing the government are

jurisdictional, a statute of limitations that “does not speak of jurisdiction, but

erects only a procedural bar” is not jurisdictional. Cedars-Sinai Med. Ctr., 125

F.3d at 770 (citing Irwin, 498 U.S. at 95) (additional citations omitted). Section

2401(b) speaks only of time limitations, and therefore does not erect a

jurisdictional bar. Accordingly, this motion is more appropriately considered as

one to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 n.2 (9th Cir. 1995)

(explaining that the government’s motion to dismiss for failure to comply with a

statute of limitations in an IRS statute should have been filed as a Rule 12(b)(6)

motion rather than a Rule 12(b)(1) motion).

Order at p. 3. Based on the cited and other relevant authority, the Court does not believe

that it erred in concluding that Section 2401(b) does not erect a jurisdictional bar. 

However, the United States correctly notes that the Ninth Circuit has not specifically

ruled on the issue. Furthermore, resolution of whether the time limit in Section 2401(b)

is jurisdictional is not necessary to the holding in the Order. Regardless of whether the

motion is construed as a Rule 12(b)(1) motion to dismiss for lack of jurisdiction or a Rule

12(b)(6) motion, the outcome is the same.

Accordingly, the United States’ motion for partial reconsideration (Dkt. #26) is

GRANTED. The Court vacates the Order’s finding that Section 2401(b) does not erect a

jurisdictional bar.

DATED this 29th day of November, 2006.

A

Robert S. Lasnik

United States District Judge

Case 2:06-cv-00366-RSL Document 34 Filed 11/29/06 Page 2 of 2