FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL BURNELL MARLEY,                          No. 06-36003
individually,                                       D.C. No.
               Plaintiff-Appellant,
               v.                              CV-06-00366-RSL
                                                 ORDER AND
UNITED STATES OF AMERICA,                         AMENDED
              Defendant-Appellee.
                                                  OPINION

         Appeal from the United States District Court
           for the Western District of Washington
          Robert S. Lasnik, District Judge, Presiding

                    Argued and Submitted
               May 8, 2008—Seattle, Washington

                     Filed December 8, 2008
                     Amended June 1, 2009

     Before: Susan P. Graber and Johnnie B. Rawlinson,
    Circuit Judges, and Otis D. Wright II,* District Judge.

                    Opinion by Judge Graber




  *The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.

                                 6435
6438               MARLEY v. UNITED STATES
                         COUNSEL

Michael B. King, Talmadge Law Group PLLC, Tukwila,
Washington; and Ann R. Deutscher, Wiener & Lambka, PS,
Renton, Washington, for the plaintiff-appellant.

Brian C. Kipnis, Assistant United States Attorney, Seattle,
Washington; and Philip H. Lynch and Darwin Roberts, Assis-
tant United States Attorneys, Tacoma, Washington, for the
defendant-appellee.


                          ORDER

  The opinion filed December 8, 2008, slip op. at 16067, 

, is replaced by the amended opinion filed concur-
rently with this order. With these amendments, Judges Graber
and Rawlinson have voted to deny the petition for rehearing
en banc, and Judge Wright has so recommended.

  The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. On such vote, a majority of the
nonrecused active judges failed to vote in favor of en banc
rehearing. Fed. R. App. P. 35.

   The petition for rehearing en banc is DENIED. No further
petitions for rehearing or for rehearing en banc will be enter-
tained.


                         OPINION

GRABER, Circuit Judge:

   We must decide whether the statute of limitations in
§ 2401(b) of the Federal Tort Claims Act (“FTCA”), 28
                     MARLEY v. UNITED STATES                     6439
U.S.C. § 2401(b), is jurisdictional and, in turn, whether courts
can employ the doctrines of equitable estoppel or equitable
tolling to extend the limitations period. We hold that the stat-
ute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and,
consequently, that equitable doctrines that otherwise could
excuse a claimant’s untimely filing do not apply. Accord-
ingly, we affirm the district court’s judgment, which dis-
missed this action.

        FACTUAL AND PROCEDURAL HISTORY

   Plaintiff Michael Burnell Marley received treatment for
prostate cancer at the Puget Sound Healthcare System Hospi-
tal. He alleges that he experienced complications resulting in
physical injury. In February 2004, he filed an administrative
tort claim with the Department of Veterans Affairs.

   On October 22, 2004, the Department of Veterans Affairs
sent Plaintiff a notice of final denial of his tort claim. The let-
ter, addressed to Plaintiff’s lawyer at the time, stated that
Plaintiff could file suit against the United States under the
FTCA. The notice informed Plaintiff’s lawyer that any action
“must be initiated within 6 months after the date of the mail-
ing of this notice of final denial as shown by the date of this
letter,” that is, within six months of October 22, 2004.

   In March 2005, within that six-month period, Plaintiff hired
new lawyers and filed a timely complaint for damages against
the United States. On December 16, 2005, Plaintiff’s new
lawyers moved for leave to withdraw from representing Plain-
tiff. The motion provided no reason for the request.1 The dis-
trict court granted the motion on January 3, 2006, and gave
Plaintiff “notice that he [was] responsible for pursuing [the]
action in accordance with the Order Setting Trial Date and
Related Dates.”
  1
   Plaintiff’s opening brief asserts that his lawyers withdrew “because
they had been unable to locate an expert witness.”
6440               MARLEY v. UNITED STATES
  On January 27, 2006, long after the six-month limitations
period had passed, an Assistant United States Attorney
(“AUSA”) sent a letter to Plaintiff, stating in part:

      I was told by the staff in our Tacoma office that
    you might be interested in dismissing your case. In
    case that’s still true, I’ve taken the liberty of drafting
    a “Stipulation” (enclosed) that would do that. If
    you’re not familiar with the legal terms involved,
    and in case you don’t want to consult another lawyer
    (which is entirely your right), I’ll briefly state my
    opinion as to what they mean.

    . . . This stipulation provides that your case would be
    dismissed “without prejudice.” That means you
    could (in theory) bring it again at a later date. The
    other option would be dismissing “with prejudice,”
    which would mean you could not bring it again. But
    please be aware that even if you dismiss now “with-
    out prejudice,” there may be other factors, such as
    statutes of limitations, that could limit or bar your
    ability to bring this case again.

  Plaintiff did not respond to that letter. On February 14,
2006, the AUSA sent a follow-up letter to Plaintiff, stating in
part:

       I have not heard from you since I sent that letter.
    I’m writing again because there are deadlines
    approaching in your case. For example, expert
    reports are due to be disclosed by April 10, 2006. If
    you intend to keep litigating your case, I would
    appreciate it if you could please let me know, so that
    I can work on it and meet my side of the deadlines.
    But if you do want to dismiss it, please send me the
    stipulation and I will go ahead and file it for you.

   Plaintiff then signed the stipulation and returned it in the
self-addressed, stamped envelope that the AUSA had pro-
                     MARLEY v. UNITED STATES                      6441
vided. On February 22, 2006, the Stipulation and a Proposed
Order dismissing the action were filed with the court. On Feb-
ruary 27, 2006, the court dismissed the action “without preju-
dice.”

   On March 15, 2006, sixteen days after dismissal of the first
action, Plaintiff—once again represented by the lawyers who
had filed the first complaint—filed a second action against the
United States, which was essentially identical to the first one.
The United States filed an answer and a motion to dismiss for
failure to meet the six-month deadline prescribed by 28
U.S.C. § 2401(b).

   In considering the government’s motion, the district court
examined documents outside the pleadings and, accordingly,
construed the motion as one for summary judgment. Accord-
ing to the court, Plaintiff raised no factual disputes. Turning
to the legal issues, the court ruled that Plaintiff could not
establish equitable estoppel because he was not ignorant of
the six-month time limit and because he could not demon-
strate affirmative misconduct by the government. The court
rejected Plaintiff’s equitable tolling argument on the ground
that he was not excusably ignorant of the six-month limita-
tions period.

  Plaintiff timely appealed from the resulting judgment,
which dismissed the second action as untimely.

                          DISCUSSION2

  The FTCA provides that

      every civil action commenced against the United
      States shall be barred unless the complaint is filed
      within six years after the right of action first accrues.
  2
   We review de novo a grant of summary judgment. Huseman v. Icicle
Seafoods, Inc., 

, 1120 (9th Cir. 2006).
6442                MARLEY v. UNITED STATES
    The action of any person under legal disability or
    beyond the seas at the time the claim accrues may be
    commenced within three years after the disability
    ceases.

28 U.S.C. § 2401(a). The statute goes on to state, as relevant
here:

    A tort claim against the United States shall be for-
    ever 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 . . . of notice of
    final denial of the claim by the agency to which it
    was presented.”

   Plaintiff filed his first action within six months of the mail-
ing date on the notice of final denial from the Department of
Veterans Affairs. But Plaintiff voluntarily dismissed that
action. Plaintiff recognizes that, by the time he filed the sec-
ond action, the six-month period had run. He argues, though,
that the January 27, 2006, letter misled him into thinking that
he would be able to file suit on the same claim if the action
were dismissed “without prejudice.” Thus, he maintains,
either equitable estoppel or equitable tolling should save his
suit from dismissal.

   As a threshold matter, we must decide whether we have
jurisdiction over a claim that does not meet the deadlines con-
tained in § 2401(b). See Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 

, 430-31 (2007) (stating that a
federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction). We con-
clude that we do not have jurisdiction and, therefore, cannot
apply the doctrines of equitable estoppel or equitable tolling
that might otherwise allow Plaintiff’s case to proceed.
                   MARLEY v. UNITED STATES                  6443
   Unless Congress enacts legislation that subjects the federal
government to tort liability, the United States, as sovereign,
cannot be sued. United States v. Dalm, 

, 610
(1990); Minnesota v. United States, 

, 388 (1939).
The FTCA is a limited waiver of the federal government’s
historical immunity from tort liability. Molzof v. United
States, 

, 305 (1992); United States v. Orleans,

, 813 (1976).

    [1] The FTCA’s statute of limitations is a condition of the
federal government’s waiver of sovereign immunity. See
United States v. Kubrick, 

, 117-18 (1979)
(“[T]he [FTCA] waives the immunity of the United States and
. . . in construing the statute of limitations, which is a condi-
tion of that waiver, we should not take it upon ourselves to
extend the waiver beyond that which Congress intended.”).
“[W]hen Congress attaches conditions to legislation waiving
sovereign immunity of the United States, those conditions
must be ‘strictly observed.’ ” Block v. North Dakota ex rel.
Bd. of Univ. & Sch. Lands, 

, 287 (1983). Meet-
ing the statutory deadlines, then, is generally a condition upon
which the ability to sue the federal government is predicated.

   [2] In certain circumstances, however, a late filing may not
be fatal, as a court may employ equitable doctrines to excuse
a claimant’s tardiness. The Supreme Court recognized in John
R. Sand & Gravel Co. v. United States, 

, 753
(2008), that equitable doctrines are available to extend stat-
utes of limitations in many cases. “Most statutes of limita-
tions,” the Court explained, “seek primarily to protect
defendants against stale or unduly delayed claims.” 

that kind of statute, courts have flexibility to toll
the limitations period “in light of special equitable consider-
ations.” 

other cases, time limits are “more absolute.” 

statute of limitations aims “not so much to protect a defen-
dant’s case-specific interest in timeliness as to achieve a
6444                MARLEY v. UNITED STATES
broader system-related goal, such as facilitating the adminis-
tration of claims, limiting the scope of a governmental waiver
of sovereign immunity, or promoting judicial efficiency,” a
court’s flexibility in using equitable doctrines to extend dead-
lines is limited. 

When construing a
statute containing a strict limitations period, the Court has
“often read the time limits . . . as more absolute, say as . . .
forbidding a court to consider whether certain equitable con-
siderations warrant extending a limitations period.” 

of limitations have been referred to, in “shorthand,”
as “jurisdictional.” 

the present case, then, depends on how to cat-
egorize the six-month filing deadline of § 2401(b). If the time
limit is “jurisdictional,” we can apply neither equitable estop-
pel nor equitable tolling to save Plaintiff’s case. 

time
limit is instead intended to be only a procedural bar, equitable
doctrines may apply. 

Sand & Gravel itself is instructive. In that case, the
Supreme Court was considering the statute of limitations in
28 U.S.C. § 2501, which states:

       Every claim of which the United States Court of
    Federal Claims has jurisdiction shall be barred
    unless the petition thereon is filed within six years
    after such claim first accrues.

    ....

       A petition on the claim of a person under legal
    disability or beyond the seas at the time the claim
    accrues may be filed within three years after the dis-
    ability ceases.

   The Court held that § 2501 is jurisdictional and therefore
absolute in 

. Using the principle of
stare decisis, the Court relied on past cases in which it had
                       MARLEY v. UNITED STATES                        6445
held that the statute was not one that could be equitably tolled.

rejected the plaintiff’s assertion that Irwin v.
Department of Veterans Affairs, 

, 95-96 (1990),
which established a rebuttable presumption that equitable toll-
ing is available in suits against the government, applied when
the Court’s past cases already had established a rule dealing
with the particular statute at hand. John R. Sand & 

.

   [4] We, too, can find the answer in our own precedent. We
have long held that § 2401(b) is jurisdictional.3 See, e.g., Berti
v. V.A. Hospital, 

, 340 (9th Cir. 1988). There, we
held that the timing requirement contained in § 2401(b) is
jurisdictional and is “subject neither to estoppel principles nor
to equitable considerations.” 

the plaintiff’s
claim as untimely and, because neither estoppel nor equitable
tolling could extend the limitations period, the plaintiff’s
claim could not succeed. Id.; see also Augustine v. United
States, 

, 1077 (9th Cir. 1983) (“Timely compli-
ance with section 2401(b) is a jurisdictional prerequisite to
maintenance of a FTCA suit.”); Blain v. United States, 

, 291 (9th Cir. 1977) (per curiam) (noting that the
requirements of § 2401(b), and 28 U.S.C. § 2675(a), another
FTCA statute of limitations, are “jurisdictional in nature and
may not be waived”); Mann v. United States, 

,
673 (9th Cir. 1968) (holding that the statute of limitations in
§ 2401(b) is jurisdictional and that the time limitation was not
tolled while the claimant was a minor).

   Berti in turn cited Burns v. United States, 

,
724 (9th Cir. 1985), which held that § 2675(a) was jurisdic-
tional. There, the plaintiff had filed an untimely action, but he
  3
   We recognize that Cedars-Sinai Medical Center v. Shalala, 

, 770 (9th Cir. 1997), held that the six-year statute of limitations in
§ 2401(a) is not “jurisdictional,” but instead sets up a waivable procedural
bar. Section 2401(a) is not before us, so we need not decide here whether
Cedars-Sinai can survive after John R. Sand & Gravel.
6446               MARLEY v. UNITED STATES
argued that the United States should be estopped from assert-
ing the insufficiency of his administrative claim and that prin-
ciples of equity should toll the statute of limitations. 

. We held that § 2675(a) is jurisdictional and
that the government could not be barred, through the opera-
tion of equitable doctrines, from asserting that jurisdictional
requirements must be met. Id.; see also William G. Tadlock
Constr. v. U.S. Dep’t of Defense, 

, 1340 (9th Cir.
1996) (recognizing that, if a filing period is jurisdictional,
equitable doctrines are inapplicable because their use would
create jurisdiction in the federal courts where Congress has
not done so).

   Our more recent cases also reflect the view that the timing
requirements of § 2401(b) are jurisdictional. See, e.g., Good-
man v. United States, 

, 1053 (9th Cir. 2002)
(“A district court does not have jurisdiction to hear a tort
claim against the United States unless the claimant files a
complaint in federal court within six months after final
agency decision.”); McGraw v. United States, 

,
1001 (9th Cir.) (holding that the two-year limitation in
§ 2401(b) is a “threshold jurisdictional requirement”),
amended on denial of reh’g, 

(9th Cir. 2002).
Just as the Supreme Court in John R. Sand & Gravel relied
on its past cases to conclude that the statute of limitations at
issue there was jurisdictional and not subject to equitable
extensions so, too, we are bound by our own precedents to
hold that the limitations period in § 2401(b) is jurisdictional.

   [5] Even in the absence of those Ninth Circuit precedents,
we would reach the same conclusion. The purpose of
§ 2401(b)’s six-month filing deadline fits squarely into John
R. Sand & Gravel’s second category of statutes of limitations:
Its purpose is “not so much to protect [the government’s]
case-specific interest in timeliness as to achieve a broader
system-related goal, such as facilitating the administration of
claims.” John R. Sand & 

. The FTCA
includes a detailed administrative process for handling tort
                   MARLEY v. UNITED STATES                  6447
claims against agencies. The statutory filing deadline is a key
part of that process and plainly “facilitat[es] the administra-
tion of claims.” When the six-month deadline to file an action
in federal court was added to the FTCA in 1966, the Senate
Judiciary Committee concluded that the deadline would

    ease court congestion and avoid unnecessary litiga-
    tion, while making it possible for the Government to
    expedite the fair settlement of tort claims asserted
    against the United States. . . . The committee
    observes that the improvements contemplated by the
    bill would not only benefit private litigants, but
    would also be beneficial to the courts, the agencies,
    and the Department of Justice itself.

S. Rep. No. 89-1327 (1966), reprinted in 1966 U.S.C.C.A.N.
2515, 2516. Those remarks bolster our conclusion that the
purpose of the six-month limitation was, indeed, to facilitate
the administration of claims. Additionally, the legislative his-
tory of § 2401(b) of the FTCA suggests that Congress did not
intend for equitable tolling to apply. See generally Ugo
Colella & Adam Bain, Revisiting Equitable Tolling and the
Federal Tort Claims Act: Putting the Legislative History in
Proper Perspective, 31 Seton Hall L. Rev. 174 (2000) (engag-
ing in a detailed discussion of the legislative history of
§ 2401).

   [6] A final reason to conclude that equitable exceptions do
not apply to § 2401(b) is found in its context. Congress
explicitly included some exceptions to the deadlines in
§ 2401(a), but included no such exceptions in § 2401(b). Sec-
tion 2401(a) of the statute reads in part: “The action of any
person under legal disability or beyond the seas at the time the
claim accrues may be commenced within three years after the
disability ceases.” Section 2401(b) contains no exceptions to
its six-month statute of limitations. Where Congress “includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
6448               MARLEY v. UNITED STATES
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 

, 23 (1983) (internal quotation marks omitted). Because
Congress chose to extend the time limit in § 2401(a) under
certain circumstances, but did not include any exceptions to
the limitations period of § 2401(b), we must conclude that
Congress intended the deadlines of § 2401(b) to be adhered to
strictly. If Congress had intended to grant exceptions to the
§ 2401(b) limitations period, it would have done so expressly,
as it did in § 2401(a). United States v. Fiorillo, 

, 1153 (9th Cir. 1999) (per curiam).

  [7] To summarize, because § 2401(b) is jurisdictional, we
must refrain from using equitable estoppel or equitable tolling
to excuse Plaintiff’s untimeliness. To save Plaintiff’s suit
using an equitable doctrine would impinge on Congress’ role
as regulator of the jurisdiction of the federal courts.

   [8] We are mindful that a panel decision of our court held
that § 2401(b) is not jurisdictional but, for reasons we shall
explain, that holding has no precedential value. In Alvarez-
Machain v. United States, 

, 700 (9th Cir. 1996),
the plaintiff filed suit under the FTCA one year after the dead-
line embodied in § 2401(b) had lapsed. The plaintiff had been
abducted by federal agents, interrogated in Mexico and, upon
his return, incarcerated for more than two years before being
acquitted at trial. 

He argued that his late filing
should be excused under the doctrine of equitable tolling. 

We held, with respect to § 2401(b): “Equitable tolling
is available in suits against the United States absent evidence
that Congress intended the contrary. Nothing in the FTCA
indicates that Congress intended for equitable tolling not to
apply. Hence, equitable tolling is available for FTCA claims
in the appropriate circumstances . . . .” 

(citations
omitted).

   After the panel’s decision issued, our court voted to rehear
the case en banc. See Alvarez-Machain v. United States, 284
                   MARLEY v. UNITED STATES                 

(9th Cir. 2002) (order). The order granting rehear-
ing en banc stated: “The three-judge panel opinion shall not
be cited as precedent by or to this court or any district court
of the Ninth Circuit, except to the extent adopted by the en
banc court.” 

The panel’s holding regarding
§ 2401(b) therefore lost its precedential value, except to the
extent that the en banc court later adopted it.

   The en banc opinion did not discuss the FTCA statute of
limitations; our FTCA discussion was limited to whether two
statutory exceptions, the “foreign activities” exception and the
“intentional tort” exception, applied. See Alvarez-Machain v.
United States, 

, 638-40 (9th Cir. 2003) (en banc).
The en banc court adopted no part of the panel opinion. But,
to reach the merits of the plaintiff’s FTCA claims, we had to
have held implicitly that the statute of limitations was tolled,
because the plaintiff’s suit was filed well after the deadline
had passed. We therefore implicitly held that § 2401(b) is
non-jurisdictional; sitting as an en banc court, we could do so
despite our earlier panel decisions to the contrary.

   [9] But the story does not end there. In time, the Supreme
Court granted certiorari and reversed our en banc decision.
See Sosa v. Alvarez-Machain, 

, 738 (2004). Just
as we had done, the Court moved directly to the merits of the
FTCA claim without examining jurisdiction; that is, it did not
discuss whether tolling was available under § 2401(b). 

After the Supreme Court’s decision, our en banc
court vacated its earlier opinion and remanded the case to the
district court for further proceedings. Alvarez-Machain v.
United States, 

(9th Cir. 2004) (en banc order).
Because “a decision that has been vacated has no precedential
authority whatsoever,” Durning v. Citibank, N.A., 

, 1424 n.2 (9th Cir. 1991), our implicit en banc holding
regarding § 2401(b) is of no moment and does not bind us.
See also 47 Am. Jur. 2d Judgments § 714 (2009) (“When a
judgment has been rendered and later set aside or vacated, the
matter stands precisely as if there had been no judgment.”).
6450                MARLEY v. UNITED STATES
   Nor are we bound by the Supreme Court’s sub silentio
assumption that it had jurisdiction over Alvarez-Machain’s
FTCA claims in Sosa. See Burbank-Glendale-Pasadena Air-
port Auth. v. City of Burbank, 

, 1363 (9th Cir.
1998) (holding that, when the Supreme Court did not address
a jurisdictional issue directly in a previous case, its sub silen-
tio assumption that it had jurisdiction “does not constitute
binding authority” on that jurisdictional issue). Similarly, our
own sub silentio assumption that we had jurisdiction over
late-filed claims in three post-Alvarez-Machain cases does not
create an intra-circuit conflict on this issue, because our
assumption of jurisdiction in those cases does not dictate that
we have jurisdiction in this case. See Hensley v. United States,

, 1057-58 (9th Cir. 2008), petition for cert.
filed, 

(U.S. Jan. 14, 2009) (No. 08-904);
Papa v. United States, 

, 1011 (9th Cir. 2002);
Lehman v. United States, 

, 1015-16 (9th Cir.
1998).

   [10] In summary, we hold that the six-month statute of lim-
itations in § 2401(b) is jurisdictional and that failure to file a
claim within that time period deprives the federal courts of
jurisdiction. Accordingly, the doctrines of equitable estoppel
and equitable tolling do not apply. We dismiss Plaintiff’s
claim for lack of subject matter jurisdiction.

  AFFIRMED.