S.D. Georgia Notes Circuit Split re Whether the FTCA Statute of Limitations is Jurisdictional

Per Nelson v. Chaney, 2006 WL 1039885 (Apr. 19, 2006):

When plaintiff filed the instant action on December 6, 2004, the six month period had elapsed and plaintiff's complaint was untimely. Under either limitations period, plaintiff is forever barred from seeking relief for these claims in the federal courts.FN5

Footnote 5: In his response to the motion to dismiss, plaintiff argues that defendants did not affirmatively raise the statute of limitations defense in their answer as required by Fed.R.Civ.P. 8(c), and should be prohibited from raising it in a motion to dismiss. Although the circuits are split on whether the FTCA statute of limitations is jurisdictional, the Eleventh Circuit has held that § 2401 is jurisdictional. “The district court has jurisdiction over a claim under the FTCA only if the plaintiff has first applied to the appropriate agency and been denied.” Keira v. United States Postal Inspection Service, 157 Fed. Appx. 135, 136 (11th Cir.2005) (unpublished opinion) (affirming district court dismissal of plaintiff's FTCA claims where administrative claim not brought to agency within two years of accrual of claim). See also Skwira v. United States, 344 F.3d 64, 71 (1st Cir.1997) (“failure to comply with the FTCA's statute of limitations means that the district court lacks subject matter jurisdiction to entertain the suit and must dismiss it”), cert. denied,542 U.S. 903, 124 S.Ct. 2836, 159 L.Ed.2d 267 (2004); Johnson v. United States, 2005WL 1605822 (W.D. Tex. June 30, 2005). But see Hughes v. United States, 263 F.3d 272 (3d Cir.2001) (since equitable tolling may apply to FTCA's statute of limitations, it is not jurisdictional and therefore a waivable affirmative defense).