IV. CONCLUSION Because Hester failed to file suit against the United States within six months after the denial of his administrative claim on January 29, 2016 and because there are no grounds for the application of equitable tolling, this action should be dismissed based on plaintiff’s failure to comply with the requirements of 28 U.S.C. § 2401(b). Case 3:17-cv-01407-G-BN Document 11 Filed 06/12/17 Page 18 of 19 PageID 120 Defendant’s Brief in Support of Motion to Dismiss or Alternatively, for Summary Judgment – Page 13 Dated: June 12, 2017 Respectfully Submitted, JOHN R. PARKER UNITED STATES ATTORNEY /s/ Mattie Peterson Compton Mattie Peterson Compton Assistant United States Attorney Texas Bar No. 04652300 Burnett Plaza, Suite 1700 801 Cherry Street, Unit #4 Fort Worth, TX 76102 Telephone: 817-252-5200 Facsimile: 817-252-5458 Email: mattie.compton@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served this 12th day of June 2017, via certified mail, return receipt requested to the following: Ryan E. Rogers 1909 Woodall Rodgers Freeway Suite 200 Dallas, TX 75201 /s

Accordingly, since the Donelson case was not a class action and the Donelson plaintiffs never filed a motion for class certification, let alone had a motion for class certification denied, Plaintiff’s argument fails. For the foregoing reasons, Plaintiff’s claims are barred by the six-year statute of limitations set forth in 28 U.S.C. § 2401(a) and are not saved by equitable tolling. Accordingly, Plaintiff’s claims should be dismissed.

for Biological Diversity, 453 F.3d at 1335 (holding sovereign immunity prevented court from extending the continuing violation doctrine to suits to compel the performance of an agency’s duty to regulate according to a statutory deadline); West Virginia Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125, 143 (D.D.C. 2008) (holding Sand and relevant circuit precedent compelled conclusion that 28 U.S.C. § 2401 was jurisdictional and could not be tolled even in the context of a claim for delayed agency action), currently on appeal, No. 08-5153 (D.C. Cir.). The consequences of finding that the continuing violation doctrine applies to cases challenging agency action as unlawfully withheld and/or unreasonably delayed would be directly contrary to the purposes of 28 U.S.C. § 2401(a). If failure to meet a statutory deadline were a continuing violation, then a plaintiff effectively would be able to sue forever, since no alternative statute exists to provide agencies with repose – a result which the Court should avoid.

(See ECF 13 ¶ 19; SF-95, Ex. A to Complaint, ECF 13-1). Yet the Court’s jurisdiction also depends upon the Defendant’s notification to Plaintiff of its final denial of her administrative claim. See 28 U.S.C. § 2401(b). The denial letter therefore is properly before the Court on this motion to dismiss as a “document[] incorporated into the complaint by reference.” See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 2014) (affirming district court’s consideration on motion to dismiss of SEC filings relied upon in, but not attached to, complaint); Wright v. City of Santa Cruz, No. 13-cv- 1230, 2014 WL 3058470, at *4–6 (N.D. Cal. July 3, 2014)

Berti, 860 F.2d at 340. However, that request must be received by the agency “prior to the expiration of the 6–month period provided in 28 U.S.C. 2401(b).” 28 C.F.R. §14.

"" where the act or omission occurred, 28 U.S.C. S 2612. This letter constitutes the notice of fi-nal determination on these claims, as required by 28 U.S.C. S 2401(b), 2675(a). Your clients' administrative tort claims are denied.

As a result, Plaintiff’s claim is forever barred by 28 U.S.C. § 2401(b) and should be dismissed with prejudice. See e.g., Myszkowski v. United States Gov’t, 553 F. Supp. 66, 67 (N.D. Ill. Oct. 13, 1982)(claim filed six months and two weeks after mailing of notice of final action was barred under 28 U.S.C. § 2401(b)). Case: 3:16-cv-00607-wmc Document #: 6 Filed: 11/16/16 Page 4 of 5 5 Dated this 16th day of November, 2016.

Case 3:15-cv-08545-FLW-DEA Document 10-2 Filed 08/22/16 Page 2 of 4 PageID: 54 9. In the denial letter, the Postal Service noted that Plaintiff could, in accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a), “file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of the final action.”

The FTCA provides that when an agency denies an administrative tort claim, the claimant may seek judicial relief in a Federal district court. The claimant must initiate the suit within six months of the mailing of this notice as shown by the date of this denial (28 U.S.C. § 2401(b)). In any lawsuit, the proper party defendant is the United States, not the Department of Veterans Affairs.

III. CONCLUSION Assuming all facts most favorably to the Consortium Plaintiffs, their claims are time- barred. 28 U.S.C. § 2401(b). According to the facts alleged in their Complaint, the Consortium Plaintiffs claims accrued at the latest in May of 2013.