* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### JUN 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEOTA DIXON, as Personal Representative for Joseph Pete Dixon, deceased, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA,

Defendant - Appellee. No. 98-6455 (D. Ct. No. 98-CV-926) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. This appeal is from an order of the district court dismissing plaintiff’s complaint for lack of subject matter jurisdiction o n the ground that the statute of- 2 -

limitations had run for her claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). We affirm. The facts of this case are not in dispute. On Marc h 26, 1996, plaintiff filed an administrative claim with the Department of Vete rans Affairs seeking $300,000 in compensatory damages for the death of h er husband. The agency denied plaintiff’s claim on October 8, 1996. Plaintiff received notice of the denial on May 2, 1997. Plaintiff brought this acti on on July 2, 1998. The FTCA requires that claimants file suit within six months “after the date of mailing, by certified or registered mail, of notice of final de nial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). If this statute of limitations is not met, a tort claim against the United States is barr ed. Plaintiff argues on appeal that the filing of this suit should relate back to the filing of a previous suit in the United States District Court. Although that initial suit was commenced within the appropriate l imitations period, it was dismissed without prejudice for want of prosecutionon July 29, 1997. We find no basis for plaintiff’s argument that the filing of the first suit should excuse the running of the statute of limitations for the purpo ses of this action. Because this suit was filed as a separate claim and not as an am endment or any kind of supplementary pleading, it cannot relate back to th e previously filed claim. See Benge v. United States , 17 F.3d 1286, 1288 (10th Cir. 1994). Additionall y,- 3 -

plaintiff asserts that the Oklahoma statute of limi tations savings statute, Okla. Stat. Ann. tit. 12, § 100, applies to this case. T he district court correctly determined that the statute does not apply to this federal tort claim action. See Benge , 17 F.3d at 1288. Plaintiff further argues that the doctrine of equit able tolling should be applied to remove her claim from the operation of the six-month statute of limitations. We disagree. Assuming arguendo that the doctrine of equitable tolling should be applied to plaintiff’s situation, it would not save her claim. The doctrine of equitable tolling “means only that the running of the statute is suspended, not that the limitations period begins o ver again.” Id. Thus, even if the limitations period was suspended during the pen dency of the initial suit, it would have resumed after the first suit was dismiss ed on July 29, 1997. Plaintiff did not commence this action until almost a year af ter the initial suit was dismissed, well after the expiration of any additio nal period to which plaintiff would have been entitled. We therefore agree with the district court that it was without subject matter jurisdiction. AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge