Howard Bearden, Plaintiff-appellant, v. United States of America, Defendant-appellee, 988 F.2d 117 (9th Cir. 1993)

MEMORANDUM^** 

Howard Bearden appeals pro se the district court's dismissal of his action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. The district court found that Bearden failed to file his complaint within the applicable statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and we affirm.

Bearden allegedly suffered injuries when he was attacked on March 17, 1990 by a fellow inmate at the Metropolitan Detention Center in Los Angeles, where Bearden was incarcerated at the time. Bearden filed a timely administrative claim with the Bureau of Prisons alleging the staff was negligent in failing to prevent the attack. Bearden's administrative claim was denied in a letter dated September 28, 1990. This letter was mailed to Bearden by certified mail on October 3, 1990. Bearden filed his complaint in district court on April 26, 1991.

The Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), authorizes suits against the United States for money damages for personal injury resulting from the negligent or wrongful acts or omissions of United States employees acting within the scope of employment. The FTCA is a limited waiver of sovereign immunity. See 28 U.S.C. §§ 2401, 2674. To bring an action under the FTCA, a claimant must first file a written claim for money damages with the federal agency employing the negligent employee. 28 U.S.C. § 2675. Furthermore, a tort claim against the United States is "forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b). The requirements of section 2401(b) are jurisdictional. Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). If either requirement is not met, the action will be time barred. Id.

Here, the letter denying Bearden's claim was mailed by certified mail on October 3, 1990. Bearden filed his action on April 26, 1991, 23 days beyond the statutory period for filing.¹  See 28 U.S.C. § 2401(b). Thus, the district court correctly found that Bearden's action was time-barred. See Dyniewicz, 742 F.2d at 485.

Bearden contends that his failure to file his action timely constitutes excusable neglect because he retained an attorney who was supposed to file the action in a timely manner but failed to do so.²  Bearden contends that he should not be penalized by losing his cause of action due to the negligence of his attorney. This contention lacks merit. It is well settled that a litigant is bound by the actions of his attorney. Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962); Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). Furthermore, even if Bearden could show excusable neglect, the statute of limitations under the FTCA is jurisdictional and therefore is not subject to equitable tolling. See Dyniewicz, 742 F.2d at 485; see also United States v. Kubrick, 444 U.S. 111, 117-18 (1979) (section 2401(b) must be construed narrowly in light of the limited waiver of sovereign immunity under the FTCA).

AFFIRMED.³