James Port Parker v. United States
Opinion
Opinion
Farris, J.
James Port Parker appeals pro se the district court’s dismissal of his action for damages pursuant to the Federal Tort Claims Act as time-barred under 28 U.S.C. § 2401 (b). We reverse.
FACTS
On February 19, 1985, Parker timely filed a form 95 with the United States Department of Agriculture, alleging negli gence by the Department and its employees. No final agency denial of the claim was issued. On August 19, 1988, Parker filed a negligence action under the Federal Tort Claims Act. The action was dismissed without prejudice on January 24, 1989, pursuant to Fed.R.Civ.P. 4(j). While appeal of the dismissal was pending, Parker refiled an identical complaint on March 10, 1989. Service of process was effected March 22, 1989. By an order filed June 6, 1989, we dismissed the appeal of the original action as moot, in light of the refiling. On September 5, 1989, the district court dismissed the second action as time-barred. The dismissal order did not discuss the basis for holding that 18 U.S.C. § 2401 (b) barred the claim.
DISCUSSION
Section 2401(b) provides that a tort claim against the United States is barred “unless action is begun within six months after the date of mailing, by…