Michelle Zander v. US, No. 12-1555 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1555 MICHELLE ZANDER, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:09-cv-02649-AW) Submitted: September 28, 2012 Decided: October 3, 2012 Before WILKINSON, DAVIS, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. E. Dale Adkins III, Emily C. Malarkey, SALSBURY, CLEMENTS, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Neil R. White, Assistant United States Attorney, Greenbelt, Maryland; Stuart F. Delery, Acting Assistant Attorney General, Debra R. Coletti, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michelle Zander appeals from the district court s order granting Defendant s Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction her civil action under the Federal §§ 1346(b)(1), subsequent 2671-80 order hearing. Tort Claims (West denying Act 2006 her ( FTCA ), & Supp. motion seeking 28 2012), an U.S.C.A. and its evidentiary We affirm. We 12(b)(1) review for a district lack of court s under Rule jurisdiction subject-matter dismissal de novo. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Absent a statutory waiver, sovereign immunity shields the United States from a civil tort suit. Kerns v. United States, 585 F.3d 187, 193 94 (4th Cir. 2009). The FTCA acts as such a waiver, but it permits suit only strictly prescribed by Congress. on terms and conditions Gould v. U.S. Dep t of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990) (en banc). Congress limited waiver of sovereign immunity is conditioned upon the prompt government. presentation of tort claims against the Id. at 742. As relevant here, the FTCA s statute of limitations provides that a tort claim against the United States shall be forever barred . . . unless action is begun within six months after the date of mailing . . . of notice of final denial of the 2 claim by the agency to which it was presented. § 2401(b) (West 2006 & Supp. 2012). 28 U.S.C.A. Failure to file a complaint within the limitations period warrants dismissal of the suit. Gould, 905 F.2d at 742 (listing cases dismissing FTCA suits for failure to comply with the statute of limitations); accord Houston v. U.S. Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987) (holding that that § 2401(b) s [e]quitable requirements considerations are that jurisdictional may waive or and toll limitations periods in litigation between private parties do not have that same effect when suit is brought against the sovereign ). After review of the record and the parties briefs, we conclude that the district court did not reversibly err in dismissing Zander s complaint based on her failure to file it within the relevant six-month limitations period. Giving effect to the plain language of § 2401(b) understood in accordance with its ordinary meaning, Smith v. United States, 508 U.S. 223, 228 (1993), we conclude after applying standard dictionary definitions that the district court correctly determined that the date of mailing of the notice finally denying Zander s administrative unpersuasive encompasses claim Zander s the date was March argument on which 16, that the 2009. the We date notice reject of finally mailing denying Zander s claim was re-sent to her attorney April 8, 2009. 3 as The adjective final refers not to the position of the mailing as the second or last in a series, as Zander suggests, but, rather, to the type of claim denial issued by the agency under the most natural grammatical reading of § 2401(b), a reading that gives effect to the logical sequence of the language used. In re Bateman, 515 F.3d 272, 277, 280 n.12 (4th Cir. 2008) (internal quotation marks omitted). Our conclusion is also buttressed by the fundamental canon of statutory construction that limiting or qualifying words or phrases ordinarily are confined to the last antecedent. Id. at 277-78. Absent an expression of contrary congressional intent, the failure to apply this canon flies in the face of common sense in grammar hardened into law. Nat l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 288 n.6 (4th Cir. 1998) (internal quotation marks omitted). Here, the word final in § 2401(b) is antecedent to the word notice, and Zander does not suggest there is anything in the text of the FTCA or in its legislative history tending to show that the word final was meant to modify the phrase date of mailing. We reject Zander s argument urging the adoption of April 8, 2009 as the date of mailing on the premise that this construction best comports with the FTCA s purpose of ensuring that claimants receive effective notice of the denial of their 4 claims. This argument improperly seeks enlarge[ment of] that consent to be sued which the Government, through Congress, has undertaken 860 F.2d omitted); so 338, carefully to limit. (9th Cir. 1988) (internal Gould, 905 F.2d at 340 accord Berti 742 v. V.A. Hosp., quotation ( Section marks 2401(b) represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government. ). We further reject as lacking in principled explanation Zander s argument warranted that reversal in light administrative of claim, district the of the timely the nearly court s judgment submission five-year of is her administrative pendency of the claim, and Defendant s motions practice in the district court. As March 16, 2009 was the date of mailing, Zander had up to and including September 16, 2009 to file suit in the district court in a timely manner. file her untimely, suit the until October district court 8, Zander, however, did not 2009. properly As her dismissed action it. was Gould, 905 F.2d at 741. With Zander s motion respect seeking to an the district evidentiary court s hearing, denial we of conclude after review of the record and the parties briefs that the district court did not abuse 5 its discretion in rejecting Zander s request for a hearing. Accord Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (noting that a district court may consider evidence by affidavit, depositions or live testimony in disposing of a Rule 12(b)(1) motion). Zander s motion did not raise a dispute of fact with any material relevance to the jurisdictional question before the district court. Accordingly, We dispense with oral we affirm argument the district because the court s facts orders. and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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