[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-17643

Non-Argument Calendar

________________________

D.C. Docket No. 6:16-cv-00719-GKS-KRS

MARY N. GARRETSON, 

 Plaintiff-Appellant,

 versus

UNITED STATES OF AMERICA, 

INTERNAL REVENUE SERVICE, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(August 24, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM: 

Case: 16-17643 Date Filed: 08/24/2017 Page: 1 of 3 
2

Pro se petitioner Mary Garretson appeals the district court’s dismissal of her 

civil suit seeking a refund for overpaid taxes, filed pursuant to 26 U.S.C. § 7422. 

Because Garretson filed her complaint outside of the two-year statute of limitations 

and because the circumstances of the case did not warrant equitable tolling, the 

district court dismissed her suit for lack of subject matter jurisdiction. On appeal, 

Garretson contends that the court should have equitably tolled the statute of 

limitations because she timely filed an action for a refund, but did so in the wrong 

court. The government responds that the two-year statute of limitations for filing a 

refund suit, set forth in 26 U.S.C. § 6532(a), is jurisdictional, such that equitable 

tolling does not apply. They further contend that even if equitable tolling was an 

available remedy, it is not applicable to Garretson. After a careful review, we 

affirm.

We review de novo the district court’s decision to grant a motion to dismiss 

for lack of subject matter jurisdiction. Christian Coal. of Fla., Inc. v. United 

States, 662 F.3d 1182, 1188 (11th Cir. 2011). 

We need not address whether 26 U.S.C. § 6532(a)’s statute of limitations is

jurisdictional in nature, and thus subject to equitable tolling, to affirm the district 

court’s dismissal. In First Alabama Bank, N.A. v. United States, we upheld the 

district court’s dismissal of a taxpayer’s refund claim as time-barred because, even 

assuming arguendo that equitable tolling applied to the statute of limitations set out 

Case: 16-17643 Date Filed: 08/24/2017 Page: 2 of 3 
3

in 26 U.S.C. § 6532(a), the circumstances did not warrant it. 981 F.2d 1226, 

1228–29 (11th Cir. 1993). Equitable tolling applies only in situations in which a 

plaintiff’s filing was untimely because of extraordinary circumstances that are 

beyond her control and unavoidable even with diligence. Arce v. Garcia, 434 F.3d 

1254, 1261 (11th Cir. 2006). Even if we were to assume that equitable tolling is 

available here, like we did in First Alabama Bank, the circumstances do not 

warrant such relief. See 981 F.2d at 1228–29. Garretson’s own lack of diligence 

caused her to file suit in the wrong forum. She was twice warned by the Internal 

Revenue Service that she must file her claim in either the district court or the 

Federal Claims Court within two years. She was also warned that administratively 

appealing the disallowance of her claim did not toll the statute of limitations. 

Nevertheless, she filed her claim two years after the Internal Revenue Service sent 

the notice of the disallowance of her claim in the Tax Court instead. 

Therefore, regardless of whether the statute of limitations at issue here is 

jurisdictional in nature, we can affirm the district court’s dismissal. Even if we 

accept Garretson’s contention that the statute of limitations is non-jurisdictional, 

making equitable tolling an available remedy, equitable tolling is not warranted 

here. Accordingly, we affirm the district court’s dismissal of Garretson’s 

complaint.

AFFIRMED. 

Case: 16-17643 Date Filed: 08/24/2017 Page: 3 of 3