Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding D.C. No. CV-06-00366-RSL.
The opinion of the court was delivered by: Graber, Circuit Judge
ORDER AND AMENDED OPINION
Argued and Submitted May 8, 2008 -- Seattle, Washington.
Filed December 8, 2008; Amended June 1, 2009
Before: Susan P. Graber and Johnnie B. Rawlinson, Circuit Judges, and Otis D. Wright II,*fn1 District Judge.
The petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc will be entertained.
We must decide whether the statute of limitations in § 2401(b) of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401(b), is jurisdictional and, in turn, whether courts can employ the doctrines of equitable estoppel or equitable tolling to extend the limitations period. We hold that the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, that equitable doctrines that otherwise could excuse a claimant's untimely filing do not apply. Accordingly, we affirm the district court's judgment, which dismissed this action.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Michael Burnell Marley received treatment for prostate cancer at the Puget Sound Healthcare System Hospital. He alleges that he experienced complications resulting in physical injury. In February 2004, he filed an administrative tort claim with the Department of Veterans Affairs.
On October 22, 2004, the Department of Veterans Affairs sent Plaintiff a notice of final denial of his tort claim. The letter, addressed to Plaintiff's lawyer at the time, stated that Plaintiff could file suit against the United States under the FTCA. The notice informed Plaintiff's lawyer that any action "must be initiated within 6 months after the date of the mailing of this notice of final denial as shown by the date of this letter," that is, within six months of October 22, 2004.
In March 2005, within that six-month period, Plaintiff hired new lawyers and filed a timely complaint for damages against the United States. On December 16, 2005, Plaintiff's new lawyers moved for leave to withdraw from representing Plaintiff. The motion provided no reason for the request.*fn2 The district court granted the motion on January 3, 2006, and gave Plaintiff "notice that he [was] responsible for pursuing [the] action in accordance with the Order Setting Trial Date and Related Dates."
On January 27, 2006, long after the six-month limitations period had passed, an Assistant United States Attorney ("AUSA") sent a letter to Plaintiff, stating in part:
I was told by the staff in our Tacoma office that you might be interested in dismissing your case. In case that's still true, I've taken the liberty of drafting a "Stipulation" (enclosed) that would do that. If you're not familiar with the legal terms involved, and in case you don't want to consult another lawyer (which is entirely your right), I'll briefly state my opinion as to what they mean.
. . . This stipulation provides that your case would be dismissed "without prejudice." That means you could (in theory) bring it again at a later date. The other option would be dismissing "with prejudice," which would mean you could not bring it again. But please be aware that even if you dismiss now "without prejudice," there may be other factors, such ...