ORDER

This matter came on regularly for hearing on the motion of the United States to dismiss plaintiff’s complaint because on the face of the complaint it appears that the statute of limitations bars the suit.

Plaintiff alleges in paragraph VIII of her complaint that the negligence occurred on or about September 6, 1967. She further alleges in paragraph XIII that she filed her administrative claim on or about April 10, 1973.

In opposition to the motion, plaintiff now asserts that she did not discover the alleged negligence until 1972, within two years immediately preceding the filing of her administrative claim. Because she did not discover the alleged negligence until 1972, she contends her cause of action did not accrue until then, and hence the statute of limitations did not commence to run until 1972.

Ordinarily, a statute of limitations is an affirmative defense to be pleaded affirmatively by a defendant, and failure to raise it may constitute a waiver. Rule 8(c), Federal Rules of Civil Procedure. This is so because statutes of limitations are normally characterized as rules of procedure. However, where a statute of limitations is part of the legislation which created a right to sue where none existed before, the statute of limitations is a condition of and limitation upon the right to sue. Lomax v. United States, 155 F.Supp. 354 (E.D.Pa.1957).

In Lomax v. United States, supra, the court wrote:

See, Sikes v. United States, D.C.E.D.Pa. 1948, 8 F.R.D. 34, 35 .

In Simon v. United States, 5 Cir., 1957, 244 F.2d 703 , the court cited 34 Am.Jur. “Limitations on Actions,” Sec. 7 approvingly:

And in the 1957 Cumulative Supplement:

The Supreme Court has described the effect of such a limitation on the substantive rights created by a waiver of sovereign immunity. In United States v. Sherwood, 312 U.S. 584 , 61 S.Ct. 767 , 85 L.Ed. 1058 (1941), the Court wrote:

Prior to adoption of the Federal Tort Claims Act, suit against the United States for money damages for torts committed by federal employees acting within the course and scope of their employment was precluded by the doctrine of sovereign immunity. The Federal Tort Claims Act, when adopted, constituted a limited waiver of sovereign immunity, which waiver is to be strictly construed. United States v. Sherwood, supra.

The statute of limitations for the Federal Tort Claims Act appears at 28 U.S.C. § 2401 (b), and provides:

Just as it is clear that the statute of limitations for the Federal Tort Claims Act, because it is part of the Act which created the right to sue, is one of the “terms of [the government’s] consent to be sued,” it is also clear that 28 U.S.C. § 2401 (b) defines the “court’s jurisdiction to entertain the suit.” The timely filing of an administrative claim has long been recognized to be a jurisdictional prerequisite to suit under the Federal Tort Claims Act. Caton v. United States, 495 F.2d 635 (9th Cir. 1974).

With all the foregoing in mind, a review of plaintiff’s complaint compels the conclusion that the motion to dismiss must be granted. So far as can be determined from the face of the complaint, the administrative claim was not filed until approximately five and one half years after the date of the alleged negligence. It therefore follows that this court is without jurisdiction to entertain the suit.

Professor Moore discusses cases involving suits against the United States and substantive statutes of limitations and counsels that:

2A Moore’s Federal Practice § 8.17[2], p. 1731.

In passing, the court notes that Rule 8(a), Federal Rules of Civil Procedure, would require the same result inasmuch as 28 U.S.C. § 2401 (b) is jurisdictional and Rule 8(a) requires the plaintiff to set forth “a short and plain statement of the grounds upon which the court’s jurisdiction depends

Accordingly, IT IS HEREBY ORDERED that the motion to dismiss shall be and hereby is granted, the complaint is dismissed, and plaintiff shall have leave of twenty (20) days from March 28, 1977 in which to file an amended complaint, if plaintiff so chooses.