United States District Court, Central District of Illinois, Rock Island Division
May 16, 1989
LILLIAN CONNORS, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JACK CONNORS, SR., DECEASED, PLAINTIFF, UNITED STATES OF AMERICA AND UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, DEFENDANTS, UNITED STATES OF AMERICA, THIRD PARTY PLAINTIFF, C. IBER & SONS, INC., THIRD PARTY DEFENDANT.
The opinion of the court was delivered by: Mihm, District Judge.
This case is before the Court on the Motion of the United
States to dismiss the main action for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure for the reason that Plaintiff failed to meet
the applicable statute of limitations in filing this lawsuit.
The question presented by this Motion is whether, when the
statute of limitations for a cause of action against the United
States expires on a weekend, the statute of limitations is
satisfied by the filing of the complaint on the next work day.
This Court finds that the answer to that question is "Yes," and
therefore denies the United States' Motion.
This is a case brought pursuant to the Federal Tort Claims
Act (hereinafter referred to as "FTCA"). The statute of
limitations that governs actions under the FTCA is contained in
28 U.S.C. § 2401(b), That statute provides as follows:
A tort claim against the United States shall be
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 the notice of
final denial of the claim by the agency to which
it was presented.
28 U.S.C. § 2401(b).
In this case, the Complaint states that the denial of
Plaintiff's administrative tort claim was mailed on August 24,
1984, and the Complaint was filed on Monday, February 25, 1985.
The issue to be resolved in this Motion is whether the filing
on Monday was permissible where a literal application of the
statute of limitations would indicate that it expired on
Sunday. According to the United States, the six-month statute
of limitations period began to run on August 25, 1984 and ended
on Sunday, February 24, 1985, so that Plaintiff's filing on
February 25, 1985 was not "within six months after the date of
mailing" as required by 28 U.S.C. § 2401(b). This Court
Two Federal Rules of Civil Procedure must be considered in
resolving the statute of limitations questions. The first is
Rule 6(a), which states as follows:
In computing any period of time prescribed or
allowed by these rules, by the local rules of any
district court, by order of court, or by any
applicable statute, the day of the act, event, or
default from which the designated period of time
begins to run shall not be included. The last day
of the period so computed shall be included,
unless it is a Saturday, a Sunday, or a legal
holiday, or, when the act to be done is the filing
of a paper in court, a day on which weather or
other conditions have made the office of the Clerk
of the District Court inaccessible, in which event
the period runs until the end of the next day,
which is not one of the aforementioned days.
Fed.R.CiP. 6(a). The other rule is Rule 82, which states:
These rules shall not be construed to extend or
limit the jurisdiction of the
United States district courts or the venue of
Because both of the above Federal Rules should be given
effect, the United States suggests that this Court find that
the filing on Monday was permissible except if such a
construction would extend this Court's jurisdiction. The United
States emphasizes that this Court has no jurisdiction over a
tort claim against the United States without compliance with
the terms and conditions of a waiver of sovereign immunity.
Best Bearings Co. United States, 463 F.2d 1177, 1179 (7th Cir.
1972); Stewart United States, 655 F.2d 741, 742 (7th Cir.
1981). Yet, the United States claims that a construction which
would allow the Monday filing would, in fact, result in an
enlargement of this Court's jurisdiction.
This Court is cognizant of the fact that a tort claim against
the United States must comply with the terms and conditions of
the waiver of sovereign immunity. Nevertheless, this Court
holds that Rule 6(a) of the Federal Rules of Civil Procedure
extends the time limit for filing where the statute of
limitations runs on a day on which the office of the Clerk of
the Court is not open. Although the Court of Appeals in this
circuit has not addressed this precise question, this holding
is consistent with the rulings of other federal courts of
appeal that have adjudicated the issue.
In Frey Woodard, 748 F.2d 173, 175 (3rd Cir. 1984), the
United States Court of Appeals for the Third Circuit held that
an administrative claim filed under the Federal Tort Claims Act
was timely where the statutory period expired on a Saturday and
the claim was not filed until Monday. The Court rejected a
strict construction of all statutes which might affect a waiver
of sovereign immunity. Id. The Frey court also observed that
Congress specifically approved Rule 6(a). Id.
In Arnold United States, 816 F.2d 1306 (9th Cir. 1987), the
United States Court of Appeals for the Ninth Circuit allowed a
Post Office employee to file an employment discrimination
complaint on a Monday when the statute of limitations
technically ran on a Saturday. According to the Arnold court,
Rule 6(a) extended the employee's time limit for filing to the
next business day. Id. at 1310. This Court adopts a similar
Although the United States Court of Appeals for the Seventh
Circuit has not spoken to the exact issue presented here, that
Court has indicated its approval of the reasoning of the Third
Circuit in Frey. In Tribue United States, 826 F.2d 633 (7th
Cir. 1987), the Seventh Circuit held that the computation of
the six-month statute of limitations period under 28 U.S.C. § 2401(b)
should be computed from the day after the date of
mailing of notice of final denial of the claim by the agency to
the day before the same calendar day six months later. Id. at
635. In the course of so ruling, the Seventh Circuit found that
the district court in Tribue incorrectly refused to apply Rule
6(a) in determining whether the statute of limitations was
satisfied. Id. at 634-35. The Tribue Court endorsed the Third
Circuit's application of Rule 6(a) in the § 2401(b) context and
adopted the Frey Court's statement that "no more satisfactory
rule [for interpreting § 2401(b)] has been called to our
attention than that, approved by Congress, and announced in
Rule 6(a)." Frey, 748 F.2d at 175 (quoted in Tribue, 826 F.2d
While the Tribue Court recognized that § 2401(b) must be
strictly construed because it is an integral part of the
government's waiver of sovereign immunity, Tribue, 826 F.2d at
636, the Court also emphasized that, "to say we must strictly
construe § 2401(b) is not to say that we may narrow the waiver
of sovereign immunity that Congress intended. See, United
States Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 357, 62
L.Ed.2d 259 (1979)." Id. The Tribue Court, by stating, "[W]e
have not discerned  any compelling reason not to apply Rule
6(a) in interpreting § 2401(b)," Id. 826 F.2d at 635, suggested
that application of Rule 6(a) in the § 2401(b) context is not
contrary to the principle of strict construction. Admittedly,
the Tribue Court, in finding that the result that it reached
did not extend the
United States' waiver of sovereign immunity, was applying the
portion of Rule 6(a) which states that "in computing any
applicable period of time . . . the day or date of the act,
event, or default from which the designated period of time
begins to run shall not be included," and a different portion
of Rule 6(a) is at issue in this case. Nevertheless, this Court
believes that the Tribue Court's sanctioning the application of
Rule 6(a) in interpreting § 2401(b) would extend to situations
such as that presented by the case at bar.
Because this Court finds that application of Rule 6(a) of the
Federal Rules of Civil Procedure dictates that the filing that
was accomplished in this case was timely, the United States'
Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) is DENIED.
It is so ordered.
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