Barnes v. Doe, No. 13–5014.

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtHOLMES
Citation776 F.3d 1134
PartiesLarry Wayne BARNES, Sr.; Linda Sue Barnes, Plaintiffs–Appellants, v. UNITED STATES of America; John Doe, sued as: John Does 1–30, unknown individuals of the Tulsa Police Department and/or Batf and John Does 31–40, unknown supervisors and/or policy makers for the Tulsa Police Department and/or BATF, Defendants–Appellees.
Docket NumberNo. 13–5014.
Decision Date21 January 2015

776 F.3d 1134

Larry Wayne BARNES, Sr.; Linda Sue Barnes, Plaintiffs–Appellants,
v.
UNITED STATES of America; John Doe, sued as: John Does 1–30, unknown individuals of the Tulsa Police Department and/or Batf and John Does 31–40, unknown supervisors and/or policy makers for the Tulsa Police Department and/or BATF, Defendants–Appellees.

No. 13–5014.

United States Court of Appeals,
Tenth Circuit.

Jan. 21, 2015.


[776 F.3d 1136]


Art Fleak, Tulsa, OK (J. Derek Ingle, E. Terrill Corley & Associates, Tulsa, OK, and E. Anthony Mareshie, E. Anthony Mareshie, P.L.L.C., Tulsa, OK, with him on the briefs), for Plaintiffs–Appellants.

Zakary Toomey, Civil Division, U.S. Department of Justice, Washington, D.C. (Stuart F. Delery, James G. Touhey, Jr., and Lawrence Eiser, Civil Division, U.S. Department of Justice, Washington, D.C., with him on the brief), for Defendants–Appellees.


Before KELLY, GORSUCH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Larry and Linda Barnes appeal from the dismissal of their Federal Tort Claims Act (“FTCA”) suit. The district court dismissed

[776 F.3d 1137]

the case for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), based on its finding that the Barneses' claims were time-barred under the six-month statute of limitations in 28 U.S.C. § 2401(b). The Barneses now seek reversal of this order, arguing that the district court misinterpreted the statute of limitations and further erred by failing to afford the Barneses the benefit of the doctrines of relation back, equitable tolling, and equitable estoppel. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In August 2007, a federal grand jury of the United States District Court for the Northern District of Oklahoma returned a two-count indictment against Larry Barnes, charging him with crimes relating to the possession and distribution of methamphetamine.1 After a three-day trial, a jury convicted Mr. Barnes on both counts, and Mr. Barnes was sentenced to sixty-six months' incarceration on each count, to run concurrently, as well as a lengthy period of supervised release.

While Mr. Barnes's direct appeal was pending, the government acquired evidence indicating that material testimony offered at trial by a Bureau of Alcohol, Tobacco, Firearms, and Explosives (“BATF”) special agent, an officer of the Tulsa Police Department, and a confidential informant had been fabricated. The government responded to the newly acquired evidence by asking the court to vacate Mr. Barnes's conviction, to dismiss the indictment against him, and to release him from incarceration. On July 2, 2009, the district court entered an order effectuating this request and directed the Bureau of Prisons to immediately release Mr. Barnes.

Following his release, Mr. Barnes desired redress related to his prosecution and imprisonment. He and his wife, Linda Barnes, began the process of seeking it on May 20, 2010, by filing administrative tort claims with the BATF. About a year later, on May 13, 2011, the Barneses filed a civil lawsuit against the BATF in Oklahoma state court (“Lawsuit # 1”), asserting various claims sounding in tort. The BATF removed this suit to the United States District Court for the Northern District of Oklahoma pursuant to 28 U.S.C. § 1442(a)(1), which permits “[t]he United States or any agency thereof” to remove any “civil action or criminal prosecution” against it to federal district court.

On September 23, 2011, less than two weeks after removing the case to federal court, the BATF filed a motion to dismiss for lack of subject-matter jurisdiction. The agency's argument proceeded as follows: (1) because 28 U.S.C. § 1346(b) vests exclusive jurisdiction over FTCA suits in the federal district courts; and (2) removal jurisdiction under 28 U.S.C. § 1442(a) is derivative and cannot vest jurisdiction in a federal court where the state court had none; then (3) the state court and, perforce, the district court, lacked jurisdiction to hear the case.

On October 25, 2011, while the motion to dismiss Lawsuit # 1 remained pending before the district court, the BATF provided

[776 F.3d 1138]

notice via certified mail to the Barneses (through their counsel) of its formal denial of their administrative claims. In apparent contemplation of 28 U.S.C. § 2401(b)'s statute of limitations,2 the BATF's notice expressly informed the Barneses of a deadline for filing any subsequent lawsuit: “If your clients are dissatisfied with this action, a lawsuit must be filed in an appropriate United States district court not later than six months after the date of the mailing of this notification.” Aplt.App. at 37 (Letter to J. Derek Ingle, Esq., from Eleaner R. Loos, Assoc. Chief Counsel, Litig. Div., U.S. Dep't of Justice, dated Oct. 24, 2011) (emphasis added). Approximately five months later, on March 23, 2012, the district court granted the BATF's motion to dismiss Lawsuit # 1 for lack of jurisdiction and dismissed that case without prejudice.3

On August 22, 2012, the Barneses filed their second lawsuit (“Lawsuit # 2”), the action now before us on appeal. Notably, this action was filed approximately five months after the district court dismissed Lawsuit # 1 and nearly ten months after the BATF gave the Barneses notice of its formal denial of their administrative claims. More specifically, with regard to the BATF's formal denial, the Barneses filed Lawsuit # 2 nearly four months after the six-month deadline (i.e., April 25, 2012) that the BATF communicated to the Barneses in the formal denial.

The government filed a motion to dismiss Lawsuit # 2 for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). This time, the government argued that the Barneses' claims were barred by the FTCA's statute of limitations, 28 U.S.C. § 2401(b), because by the time the Barneses filed Lawsuit # 2, the statute's six-month limitations period had run.

The district court agreed, finding the Barneses' claims time-barred. It rejected the Barneses' arguments regarding the doctrines of relation back and equitable estoppel, finding these doctrines inapplicable under the pleaded facts. Finally, the court found that the Barneses' claims were not saved by equitable tolling, because “[t]he Tenth Circuit has repeatedly referred to the FTCA's timeliness requirement as being jurisdictional,” and thus, the statutory limitations period was “not subject to equitable tolling.” Aplt.App. at 102 (Order, filed Jan. 14, 2013).

Based on these conclusions, the district court granted the government's motion and dismissed the Barneses' claims with prejudice. The Barneses timely filed this appeal, and we now exercise jurisdiction pursuant to 28 U.S.C. § 1291.

II
A

First, we conclude that the district court soundly analyzed whether Lawsuit # 2 was time-barred and properly determined that it was. Consequently, we find that the Barneses' action was properly dismissed as time-barred. See

[776 F.3d 1139]

Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“If the allegations ... show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim....”); accord Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir.2009).

1

In assessing the district court's ruling that Lawsuit # 2 was barred by the statute of limitations, we turn first to the court's interpretation and application of the statute of limitations itself, which we review de novo. See Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.2010).

We start by observing that the FTCA has both an administrative-exhaustion requirement, set forth in 28 U.S.C. § 2675(a), and a statute of limitations, set forth in 28 U.S.C. § 2401(b). Combined, these provisions act as chronological bookends to an FTCA claim, marking both a date before which a claim may not be filed and a date after which any filing is untimely.

The Barneses conflate these two distinct features of the statutory scheme when they argue that compliance with the administrative-exhaustion requirement under § 2675(a)'s “deemed denial” provision effectively exempted them from § 2401(b)'s six-month limitations period. To the contrary (as the district court correctly found), the six-month limitations period in § 2401(b) is triggered by an agency's formal denial of a potential plaintiff's administrative claims—regardless of whether that plaintiff has filed a claim pursuant to § 2675(a)'s “deemed denial” provision.

The administrative-exhaustion requirement applicable to FTCA claims “bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). Section 2675(a) provides:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

28 U.S.C. § 2675(a). In other words, to meet the threshold requirement of administrative exhaustion, plaintiffs must either (1) have their administrative claims finally denied by the relevant federal agency; or (2) if the agency fails to act on their administrative claims within six months of presentment, they may thereafter deem the claims (constructively) denied.


If § 2675(a)'s exhaustion requirement establishes a date before which a claim cannot be filed, § 2401(b)'s limitations...

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56 practice notes
  • Rawers v. United States, No. CIV 19-0034 JB\CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 7, 2020
    ...claim, marking both a date before which a claim may not be filed and a date after which any filing is untimely.Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015)(Holmes, J.). Once a tort claim accrues against the United States, 28 U.S.C. § 2401 gives a claimant two years to prese......
  • United States v. Spaulding, No. 13-1376
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 1, 2015
    ...to a lawsuit establish claim-processing rules and should not be treated as jurisdictional prescriptions." Barnes v. United States, 776 F.3d 1134, 1146 (10th Cir. 2015) (quotations, citations, and alterations omitted). The overwhelming majority of the cases in the Supreme Court's Eberhart-Ko......
  • Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, No. 15-1352
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 15, 2016
    ...of the relevant market from the elements necessary to prove a conspiracy-to-monopolize claim under § 2. Compare Barnes v. United States , 776 F.3d 1134, 1147 (10th Cir. 2015) (refusing to overrule prior precedent from our circuit because the "collective message" from intervening, related Su......
  • United States v. Spaulding, No. 13–1376.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 1, 2015
    ...to a lawsuit establish claim-processing rules and should not be treated as jurisdictional prescriptions.” Barnes v. United States, 776 F.3d 1134, 1146 (10th Cir.2015) (quotations, citations, and alterations omitted). The overwhelming 802 F.3d 1123majority of the cases in the Supreme Court's......
  • Request a trial to view additional results
56 cases
  • Rawers v. United States, No. CIV 19-0034 JB\CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 7, 2020
    ...claim, marking both a date before which a claim may not be filed and a date after which any filing is untimely.Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015)(Holmes, J.). Once a tort claim accrues against the United States, 28 U.S.C. § 2401 gives a claimant two years to prese......
  • United States v. Spaulding, No. 13-1376
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 1, 2015
    ...to a lawsuit establish claim-processing rules and should not be treated as jurisdictional prescriptions." Barnes v. United States, 776 F.3d 1134, 1146 (10th Cir. 2015) (quotations, citations, and alterations omitted). The overwhelming majority of the cases in the Supreme Court's Eberhart-Ko......
  • Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, No. 15-1352
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 15, 2016
    ...of the relevant market from the elements necessary to prove a conspiracy-to-monopolize claim under § 2. Compare Barnes v. United States , 776 F.3d 1134, 1147 (10th Cir. 2015) (refusing to overrule prior precedent from our circuit because the "collective message" from intervening, related Su......
  • United States v. Spaulding, No. 13–1376.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 1, 2015
    ...to a lawsuit establish claim-processing rules and should not be treated as jurisdictional prescriptions.” Barnes v. United States, 776 F.3d 1134, 1146 (10th Cir.2015) (quotations, citations, and alterations omitted). The overwhelming 802 F.3d 1123majority of the cases in the Supreme Court's......
  • Request a trial to view additional results

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