UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1056
ALEXANDER ZENO; MELANIE RIVERA-RIVERA,
Plaintiffs - Appellants,
v.
THE UNITED STATES OF AMERICA; JOSE A. FUSTE; DANIEL R.
DOMINGUEZ; CARMEN CONSUELO CEREZO; AIDA M. DELGADO-COLON;
JUAN M. PEREZ-GIMENEZ; SALVADOR E. CASELLAS; JAY A. GARCIA-
GREGORY; GUSTAVO A. GELPI; FRANCISCO A. BESOSA; JAIME
PIERAS, JR.; RAYMOND L. ACOSTA; JUAN R. TORRUELLAS; JEFFREY
HOWARD; JUAN MILANES; ANTONIO BAZAN; JOSE RUIZ; ROSA EMILIA
RODRIGUEZ-VELEZ,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:09-cv-00544-DKC)
Argued: September 21, 2011 Decided: October 20, 2011
Before DUNCAN and AGEE, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Alexander Zeno, Washington, D.C., for Appellants.
Joseph Ronald Baldwin, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellees. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Allen F. Loucks, Ariana
Wright Arnold, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant Alexander Zeno ("Zeno") appeals from the district
court’s dismissal of claims brought under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), and state law.
Because Zeno filed his FTCA claims after the expiration of the
relevant statute of limitations, and because his state law
claims are barred by collateral estoppel, we affirm.
I.
A.
Zeno is a criminal defense attorney who practices law
primarily in Puerto Rico. He and his wife, co-appellant Melanie
Rivera-Rivera, currently reside in Maryland. On June 4, 2007,
the United States District Court for the District of Puerto Rico
sanctioned Zeno. Consequently, he was suspended from the
practice of law before that court for three months and from the
court’s Criminal Justice Act (“CJA”) panel for fifteen months.
Zeno appealed these sanctions to the United States Court of
Appeals for the First Circuit, which affirmed. In re Zeno, 504
F.3d 64 (1st Cir. 2007).
B.
On November 27, 2007, Zeno filed suit pro se in the United
States District Court for the District of Maryland against
several federal judges from the District of Puerto Rico and the
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First Circuit seeking injunctive relief and damages. Zeno
claimed that the judges had abused their authority by
sanctioning him and by withholding or delaying payments he was
owed for representing CJA defendants. Zeno later added as
defendants the United States Attorney and several Assistant
United States Attorneys for the District of Puerto Rico. He
alleged that the federal prosecutors had improperly interfered
with Zeno’s attorney-client relationship with a criminal
defendant and that they had violated Zeno’s privacy rights by
requesting to inspect Zeno’s financial records in connection
with his representation of a different criminal defendant. Zeno
amended his complaint a second time to include a private
attorney from Puerto Rico, a Massachusetts state court judge,
two Massachusetts clerks of court, and three bar counsel as
defendants. We refer to this complaint as encompassing Zeno’s
state law claims.
The Maryland district court dismissed this complaint on
July 28, 2008, for lack of personal jurisdiction and improper
venue, and because suit against the federal defendants was
barred by absolute and qualified immunity. Zeno appealed the
decision to this court, but voluntarily dismissed that appeal on
December 15, 2008.
While the decision in his first case was pending, Zeno
filed an administrative tort claim with the Department of
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Justice, seeking $17 million in damages under the FTCA based
upon the same conduct described in his 2007 complaint (the “FTCA
claims”). The Administrative Office of the United States Courts
denied Zeno’s claim in a letter dated August 20, 2008. The
letter notified Zeno of his right to challenge the decision by
bringing suit in a federal district court within six months of
its mailing.
C.
On March 5, 2009, more than six months after notification
of the administrative denial of his FTCA claims, Zeno filed the
instant complaint in the District of Maryland. This suit
included the same federal defendants as those named in the 2007
action. The complaint differed in only three ways: it added the
United States as a defendant, it asserted jurisdiction under the
FTCA, and it omitted the non-federal defendants. The district
court dismissed Zeno’s 2009 complaint, holding that it was
barred by res judicata. In the alternative, the district court
ruled that the state claims were barred by collateral estoppel
and that the FTCA claims failed because they fell within the
statute’s exception for intentional torts. 1 See 28 U.S.C. §
2680. This appeal followed.
1
We refer to the state law claims and the FTCA claims
separately--even though they are based on the same enumerated
(Continued)
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II.
The issues before us are whether Zeno’s state claims are
barred by the resolution of identical claims in the 2007
complaint, and whether we have subject-matter jurisdiction to
hear his FTCA claims. We consider each of these issues in turn.
A.
We first consider appellant’s argument that the district
court erred by concluding that the repeated allegations from the
2007 complaint are barred from review. The district court held
that res judicata barred the entire 2009 suit. Because we agree
with the district court’s alternative holding that collateral
estoppel applies, we discuss only the latter issue. 2
Collateral estoppel serves to “foreclose[] the relitigation
of issues of fact or law that are identical to issues which have
been actually determined and necessarily decided in prior
litigation in which the party against whom [collateral estoppel]
is asserted had a full and fair opportunity to litigate.” In re
Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir.
2004) (quoting Sedlack v. Braswell Servs. Group, Inc., 134 F.3d
causes of action--because they involve distinct concepts and
must be analyzed differently.
2
Similarly, we need not reach the issue of whether the
state law claims against the federal defendants are barred by
absolute or qualified immunity.
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219, 224 (4th Cir. 1998)). The doctrine applies where “(1) the
issue or fact is identical to the one previously litigated; (2)
the issue or fact was actually resolved in the prior proceeding;
(3) the issue or fact was critical and necessary to the judgment
in the prior proceeding; (4) the judgment in the prior
proceeding is final and valid; and (5) the party to be
foreclosed by the prior resolution of the issue or fact had a
full and fair opportunity to litigate the issue or fact in the
prior proceeding.” Id. at 326. We review a grant of collateral
estoppel de novo. Tuttle v. Arlington Cnty. Sch. Bd., 195 F.3d
698, 703 (4th Cir. 1999).
The five considerations noted above all point in favor of
finding collateral estoppel here. First, with respect to the
state law claims, the issues before us are the same as those
previously litigated in Zeno’s 2007 suit. Specifically, the
district court in the 2007 case determined that it did not have
personal jurisdiction over the individual defendants and that
venue in the District of Maryland was improper. In his 2009
complaint, Zeno named the same individual defendants and again
filed in the District of Maryland--thus making the issues
identical.
Zeno contends that the issues are not the same because
filing under the FTCA corrected the jurisdictional problems
present in his 2007 complaint. Because the FTCA confers
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jurisdiction upon the United States district courts only for
claims against the United States for money damages, see 28
U.S.C. § 1346(b)(1), this contention is incorrect with respect
to the state law claims.
Turning to the second factor, the district court in the
2007 case resolved the issues now before us. The court first
considered whether it could exercise personal jurisdiction over
the defendants under any of the methods described in Federal
Rule of Civil Procedure 4(k)(1) and concluded that it could not
because none of the defendants had the required contacts with
Maryland. It then analyzed whether venue was proper under 28
U.S.C. § 1391(a) and determined that it was not because the
alleged conduct took place solely in Puerto Rico. Zeno v.
Fuste, No. 07-3173 (D. Md. July 28, 2008).
Third, the resolution of these issues was critical to--in
fact, completely supported--the district court’s holding in the
2007 case. A district court may not adjudicate a dispute over
which it lacks personal jurisdiction. Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584 (1999). Further, a court is required
to resolve threshold jurisdictional issues before considering
the merits of a dispute. Sucampo Pharm., Inc. v. Astellas
Pharm., Inc., 471 F.3d 544, 548 (4th Cir. 2006). Resolution of
the issue of personal jurisdiction was therefore necessary to
the judgment in the prior proceeding.
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Fourth, it is undisputed that after Zeno voluntarily
dismissed his appeal of the 2007 case, the district court’s
determination became final and valid.
Finally, Zeno had an opportunity to litigate these issues
in the 2007 suit. The defendants were required to raise the
threshold issues of personal jurisdiction and venue for the
district court to consider them. The district court’s opinion
in the 2007 case indicated that Zeno had made arguments in
support of his position. The court considered and rejected
Zeno’s contentions. As such, the issues were fully litigated in
the 2007 case.
For these reasons, we agree with the district court that
appellant should be collaterally estopped from relitigating the
previously determined issues of personal jurisdiction and venue.
B.
We next consider whether the district court correctly
dismissed Zeno’s claims against the United States for lack of
subject-matter jurisdiction under the FTCA. We review de novo a
dismissal for lack of subject-matter jurisdiction under Fed. R.
Civ. P. 12(b)(1). Evans v. B.F. Perkins, 166 F.3d 642, 647 (4th
Cir. 1999).
The district court based its determination on the fact that
Zeno alleges only intentional torts, which are expressly
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excluded from the FTCA’s coverage. See 28 U.S.C. § 2680(h). As
set forth below, however, we affirm on a different ground.
Less than a week before oral argument, the government moved
to dismiss on the ground that Zeno failed to meet the statutory
deadline within which to file a claim under the FTCA. See 28
U.S.C. § 2401(b). Although we would have appreciated greater
diligence on the part of the government, “a federal court has an
independent obligation to investigate the limits of its subject-
matter jurisdiction . . . even when the parties overlook or
elect not to press the issue.” Liberty Univ., Inc. v. Geithner,
--- F.3d ----, 2011 WL 3962915, No. 10-2347, at *4 (4th Cir.
2011) (internal quotations omitted). We therefore turn to a
consideration of that issue.
“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 on terms and conditions
strictly prescribed by Congress.” Gould v. U.S. Dep’t of Health
& Human Servs., 905 F.2d 738, 741 (4th Cir. 1990) (en banc).
Congress’s “limited waiver of sovereign immunity is conditioned
upon the prompt presentation of tort claims against the
government.” Id. at 742.
Section 2401(b) provides that a tort claim against the
United States “shall be forever barred . . . unless action is
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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.” 28 U.S.C. § 2401(b). Failure to file a
complaint within the limitations period typically warrants
dismissal. See Gould, 905 F.2d at 742; accord Houston v. U.S.
Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987) (holding that
the requirements that a claimant file an administrative claim
within two years and that he file suit within six months of its
denial are both jurisdictional).
The record clearly reflects that appellant failed to meet
the six-month deadline to challenge in federal district court
the administrative denial of his tort claims against the
government. Specifically, the final letter denying Zeno’s
administrative tort claims was dated August 20, 2008, and he did
not file his second complaint in the District of Maryland until
March 5, 2009. Because the date of filing was beyond the six-
month limitations period and because Zeno does not assert any
grounds for equitable tolling, we conclude that his claims under
the FTCA are not properly before this court.
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III.
For the foregoing reasons, the judgment of the district
court is affirmed. This conclusion moots the need to rule
independently on the government’s late-filed motion to dismiss.
AFFIRMED
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