* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50473

Summary Calendar

 

DWAIN L. CADELL, Individually 

and as Independent Executor 

of the Estate of Alta B Caddell, Deceased 

 Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA; TERRI K. TREVINO

 DefendantsAppellees.

-----------------------------------------------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-01-CV-283

-----------------------------------------------------------

February 17, 2003

Before JONES, STEWART and DENNIS

PER CURIAM:*

Dwain Caddell appeals the district court’s order dismissing for lacking subject matter

jurisdiction his action seeking a declaratory judgment declaring a lien in favor of the United States

to be void, and seeking an injunction enjoining the United Statesfromforeclosing. The district court
 

dismissed Caddell’s case after determining that the limitations period provided in the applicable

statute, 28 U.S.C. § 2401(a), had expired. 

Caddell argues that the district court improperly converted the Government’s motion under

FED. R. CIV. P. 12(b)(1) into a motion for summary judgment without giving him a reasonable

opportunity to present evidence to support his position that the court had jurisdiction to hear his

claim. 

Statutes of limitations defining the extent of a waiver ofsovereignty are jurisdictional. E.g.,

United States v. Dalm, 494 U.S. 596, 608 (1990);Ramming v. United States, 281 F.3d 158, 165 (5th

Cir. 2001); United States v. Gandy, 234 F.3d 281, 283 (5th Cir. 2000); Dunn-McCampbell Royalty

Interest v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997). A motion under Rule 12(b)(1) is

thus the proper method of challenging a court’s subject matter jurisdiction. Ramming, 281 F.3d at

161. The court need not convert a Rule 12(b)(1) motion into a motion for summary judgment when

it considers matters outside of the pleadings. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507,

512 (5th Cir. 1980). 

Caddell arguesthat the district court was not authorized to be the factfinder on the application

of the statute of limitations. The district court did not err when it resolved disputed facts to

determine whether it had subject matter jurisdiction over Caddell’s claim. Barrera-Montenegro v.

United States, 74 F.3d 657, 659 (5th Cir. 1996). 

Next, Caddell arguesthat the six-year limitations period provided in 28 U.S.C. § 2401(a) had

not run as of September 2001, when he filed suit. We review de novo a district court’s determination

that a statute of limitations has run. Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000).

After a thorough review of the record, we agree with the district court that the l imitations period
 

began to run in 1984. Thus, Caddell’s claim, filed in September 2001, was filed after the limitations

period had expired.

Lastly, Caddell argues that the district court should have allowed his claim to have been

equitably tolled. While this court has held that the limitations period provided in 28 U.S.C. § 2401(a)

may be equitably tolled, Clymore, 217 F.3d at 374, we need not decide whether equitable tolling

applies with respect to liens involving real property because Caddell has failed to establish that he

would be entitled to equitable tolling.

Equit able tolling is only available in “rare and exceptional circumstances.” Teemac v.

Henderson, 298 F.3d 452, 457 (5th Cir. 2002) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th

Cir. 1998)). Equitable tolling is proper when “the claimant has actively pursued his judicial remedies

by filing a defective pleading during the statutory period”, or “the complainant has been induced or

tricked by his adversary’s misconduct into allowing the filing deadline to pass.” See Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 96 (1990). Caddell’s argument for equitable tolling does not allege

government misconduct or trickery, nor does it indicate that he actively pursued judicial remedies.

As a result, Caddell cannotshow that the district court abused its discretion in not extending equitable

tolling to his claim.

Because the district court was not in error whenit dismissedCaddell’s complaint, itsjudgment

is AFFIRMED.