UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Tort Claims Act (“FTCA”), 28 U.S.C.A.
§§ 1346(b)(1), 2671-80 (West 2006 & Supp. 2012), and its
subsequent order denying her motion seeking an evidentiary
hearing. We affirm.
We review a district court’s dismissal under Rule
12(b)(1) for lack of subject-matter jurisdiction 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 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’ “limited waiver of sovereign immunity is conditioned
upon the prompt presentation of tort claims against the
government.” 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
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claim by the agency to which it was presented.” 28 U.S.C.A.
§ 2401(b) (West 2006 & Supp. 2012). 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 § 2401(b)’s requirements are jurisdictional and
that “[e]quitable considerations that may waive or 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 claim was March 16, 2009. We reject as
unpersuasive Zander’s argument that the “date of mailing”
encompasses the date on which the notice finally denying
Zander’s claim was re-sent to her attorney — April 8, 2009. The
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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
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claims. This argument improperly seeks “enlarge[ment of] that
consent to be sued which the Government, through Congress, has
undertaken so carefully to limit.” Berti v. V.A. Hosp.,
860 F.2d 338, 340 (9th Cir. 1988) (internal quotation marks
omitted); accord Gould, 905 F.2d at 742 (“Section 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 that reversal of the district court’s judgment is
warranted in light of the timely submission of her
administrative claim, the nearly five-year 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. Zander, however, did not
file her suit until October 8, 2009. As her action was
untimely, the district court properly dismissed it. Gould,
905 F.2d at 741.
With respect to the district court’s denial of
Zander’s motion seeking an evidentiary hearing, we conclude
after review of the record and the parties’ briefs that the
district court did not abuse its discretion in rejecting
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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 affirm the district court’s orders.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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