Zander v. USA

Filing 45

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 2/9/2012. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

MICHELE ZANDER,
Plaintiff,
v.

Civil Action No. 8:09-cv-02649-AW

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION
Plaintiff Michele Zander brings this action against Defendant United States of America.
Mrs. Zander asserts a claim of medical malpractice under the Federal Tort Claims Act. Presently
pending before the Court is the United States’ Motion to Dismiss or for Summary Judgment
(“Motion to Dismiss”). The Court has reviewed the entire record and finds no hearing necessary.
For the reasons that follow, the Court GRANTS Defendant’s Motion to Dismiss.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Court extracts the bulk of the following facts from the Memorandum Opinion it

issued on February 2, 2011 (“Feb. 2 Opinion”). Mem. Op. 1–3, Doc. No. 26; Zander v. United
States, 786 F. Supp.2d 880, 881–83 (2011). The instant case arises from a series of events that
Mrs. Zander alleges caused her temporary paralysis and permanent physical limitation. In August
1997, Mrs. Zander began to experience pain in her lower back and numbness in her legs. She
sought treatment at the Family Practice Clinic at Maxwell Air Force Base (“Maxwell AFB”) in
Alabama, where she was referred to physical therapy. Despite this measure, Mrs. Zander
continued to experience chronic weakness and pain. Therefore, she returned to the Maxwell AFB
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Clinic and was prescribed pain medication in a bid to alleviate her symptoms. This treatment also
bore little fruit. Mrs. Zander’s X-rays came back negative and medical personnel had no
explanation for her symptoms. Accordingly, Mrs. Zander requested and received a referral to an
orthopedist at Maxwell AFB.
In September 1997, medical personnel took an MRI of Mrs. Zander’s upper body. The
MRI disclosed a defect known as an arteriovenous malformation (“AVM”) in her spine. Mrs.
Zander alleges that she was not made aware of the AVM and that she did not receive treatment
for this condition. Mrs. Zander also alleges that she was not advised to limit her activities, seek
further consultation, undergo surgery, or otherwise take any remedial action. Further, Mrs.
Zander avers that the physician at Maxwell AFB informed her that she had two bulges in her
back, but not that she had a herniated disc. Additionally, Mrs. Zander contends that the physician
told her that it was normal to experience back pain at times.
Over the next three years, Mrs. Zander continued to receive treatment at Maxwell AFB
for her chronic pain. Mrs. Zander maintains that her healthcare providers at Maxwell AFB
repeatedly advised her that she had no serious problem. Consequently, Mrs. Zander contends,
she continued her active lifestyle oblivious to her lurking health hazard.
By 2002, Mrs. Zander and her husband had relocated to the Washington, D.C. area,
where the clinics at National Naval Medical Center (NNMC) in Bethesda assumed her care. In
the last week of November 2002, the events precipitating the injury of which Mrs. Zander
complains took place. On November 24, 2002, after using a leaf vacuum for several hours, Mrs.
Zander began to experience back and leg pain. By November 26, 2002, Mrs. Zander’s symptoms
had grown worse. The next morning, Mrs. Zander repaired to the emergency room at NNMC,
where personnel administered an injection and oral medication to temporarily relieve her pain.

2 

On November 29, 2002, Mrs. Zander returned to the clinic at NNMC and received more pain
medication. Mrs. Zander was sent home with instructions to return for an MRI if the numbness
intensified. At 5:30 that afternoon, Mrs. Zander returned to the emergency
room at NNMC. Allegedly, in the face of efforts to discharge her, Mrs. Zander persuaded
medical personnel for an additional opinion and MRI.
On November 30, 2002, Mrs. Zander was admitted to the hospital at NNMC.
At 2:00 a.m. or thereabouts, medical personnel conducted an MRI. According to Mrs. Zander,
medical personnel reviewed the earlier MRI conducted at Maxwell AFB and noted the presence
of AVM. By this time, Mrs. Zander had started to feel numbness in her posterior and to
experience difficulty with urination and bowel movements. Mrs. Zander underwent a procedure
known as an angiogram with embolization of the spinal cord AVM. Not long thereafter,
weakness beset Mrs. Zander’s lower body. Despite the additional efforts of medical personnel,
Mrs. Zander’s lower body became paralyzed. Mrs. Zander acknowledges that, through a
corrective surgery carried out in Canada, her symptoms have improved to the point that she can
move both legs and walk with a walker. Mrs. Zander asserts, however, that her physical
limitations and inability to walk without assistance are permanent.
Pursuant to the Federal Tort Claims Act (“FTCA”), Mrs. Zander filed an administrative
tort claim in late November 2004, nearly two years to the day after her injury. Andrea Bennett
represented Mrs. Zander at this time. See Doc. No. 34-2. Ms. Bennett was affiliated with the firm
Gray & Gilliland, P.C., whose address she used in her correspondence with the United States.
See id. Gray & Gilliland’s address was 750 Hammond Drive Building 12, Suite 200, Atlanta, GA
30328. Id. On May 3, 2005, during the administrative review process, Ms. Bennett notified the

3 

United States that she had gone to the firm Gilliland, Ratz & Browning, P.C., whose address was
1455 Lincoln Parkway Suite 300, Atlanta, GA 30346. See Doc. No. 34-4.
On October 12, 2006, the United States notified Mrs. Zander that its investigation had
uncovered no actionable malpractice and invited her to submit additional medical evidence
substantiating her claim. Doc. No. 34-5. The United States sent this notice to the Lincoln
Parkway address. See id. Mrs. Zander accepted this invitation and, after the United States
completed its supplemental review, it issued a notice of final denial on February 22, 2008. See
Doc. No. 34-6. The United States sent this notice, like the original, to Ms. Bennett’s Lincoln
Parkway address. See id.
On July 18, 2008, Ms. Bennett requested reconsideration of the United States’ denial.
Doc. 34-7. In this letter, which was sent from the Lincoln Parkway address, Ms. Bennett asked
the United States to provide her with Mrs. Zander’s medical records. Id. On July 30, 2008, the
United States sent a letter to Ms. Bennett at the Lincoln Parkway address stating that it was
willing to consider additional medical reports before taking further action on her claim. See Doc.
No. 34-8. The July 30 mailing included the medical records that Ms. Bennett requested on July
18. See id.
On March 16, 2009, via certified mail, the United States sent a notice of final denial of
Mrs. Zander’s claim to the Lincoln Parkway address. Doc. No. 34-10. Someone at the Lincoln
Parkway address signed for and received the letter. Id. The letter was marked “return to sender”
and received hand-written instructions to forward it to a different address. Doc. No. 34-11. On
April 8, 2009, the Government resent the denial letter to the forwarding address. Doc. No. 34-12
at 2.

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On October 8, 2009, six months to the day after the United States resent the denial letter,
Mrs. Zander filed a Complaint against the United States. Compl., Doc. No. 1. On April 14, 2010,
the United States moved to dismiss on the ground that Mrs. Zander filed her malpractice claim
outside Maryland’s statute of repose. Doc. No. 13. In its Feb. 2 Opinion, the Court rejected this
argument, holding that FTCA’s “deemed denied” provision preempts Maryland’s statute of
repose. See Zander, 786 F. Supp.2d at 886–87. Although the Court’s Feb. 2 Opinion treated with
limitations issues, the United States did not raise the related argument it raises herein: whether
Mrs. Zander’s purported failure to file suit within FTCA’s six-month statute of limitations timebars her claim.
On June 24, 2011, the United States filed the instant Motion to Dismiss. Mot. Dismiss,
Doc. No. 34. The United States urges the Court to dismiss Mrs. Zander’s claim on two grounds:
(1) Mrs. Zander failed to satisfy the preconditions to suit of Maryland’s Health Care Malpractice
Claims Act (“HCMCA”); and (2) Mrs. Zander filed suit outside of FTCA’s six-month statute of
limitations. Both grounds are meritorious.
II.

STANDARD OF REVIEW
As a threshold matter, the Court must ascertain the appropriate standard of review. The

Government first argues that Mrs. Zander’s failure to comply with HCMCA serves as a basis for
dismissal. HCMCA sets forth several prefiling requirements that plaintiffs must satisfy before
they may assert medical malpractice claims. See infra Part III.A. A few authorities propose that
courts properly analyze whether the failure to comply with such requirements warrants dismissal
under Rule 12(b)(6). See Renn v. Bd. of Comm’rs of Charles Cnty., Md., 352 F. Supp.2d 599,
602 (D. Md. 2005) (citation omitted) (“a prefiling requirement is most appropriately analyzed
under Rule 12(b)(6) . . . rather than as a lack of subject matter jurisdiction under Rule 12(b)(1)”);

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cf. Oxtoby v. McGowan, 447 A.2d 860, 864–65 (Md. 1982) (holding that a plaintiff’s failure to
satisfy HCMCA’s preconditions does not deprive trial courts of subject matter jurisdiction to
hear and decide claims coming within the Act’s purview).
The weight of the authority, however, indicates that courts properly analyze such
arguments under Rule 12(b)(1). See Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009)
(citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (indicating that FTCA’s dictate that the United
States may incur tort liability only “under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred” is jurisdictional); Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201,
205 (4th Cir. 2002) (citing Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995)) (stating
that “an assertion of governmental immunity is properly addressed under the provisions of Rule
12(b)(1)”); cf. Jones v. Bagalkotakar, 750 F. Supp.2d 574, 582 (D. Md. 2010) (stating that it was
improper to dismiss a medical malpractice claim under Rule 12(b)(1) for lack of subject matter
jurisdiction in that the plaintiffs fulfilled the HCMCA precondition at issue).
The decision to apply 12(b)(1) rather than 12(b)(6) as to the United States’ first argument
makes little practical difference. “There are two critically different ways in which to present a
motion to dismiss for lack of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). “First, it may be contended that a complaint simply fails to allege facts upon
which subject matter jurisdiction can be based.” Id. Here, similarly, the United States contends
that Mrs. Zander has failed to allege that she complied with HCMCA. In such a case, “all the
facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the

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same procedural protection as he would receive under a Rule 12(b)(6) consideration.” 1 Id.;
accord, Kerns, 585 F.3d at 192.
Secondly, the United States contends that Mrs. Zander filed suit outside of FTCA’s sixmonth statute of limitations. See 28 U.S.C. § 2401(b). Although the Supreme Court has yet to
weigh in on the matter, the overwhelming weight of authority proposes that § 2401(b) is
jurisdictional. See, e.g., Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994); Hahn v.
United States, 313 Fed. App’x 582, 586 (4th Cir. 2008); McKewin ex rel. Harrell v. United
States, No. 92-1770, 1993 WL 389568, at *1 (4th Cir. Oct. 4, 1993) (citing cases). Thus, the
Court analyzes the United States’ § 2401(b) argument under the standard of review for 12(b)(1)
motions.
The manner in which the Court applies 12(b)(1) to the United States’ limitations
argument varies from the manner in which it applies 12(b)(1) to the United States’ HCMCA
argument. The United States maintains that March 16, 2009 is the date on which it mailed Mrs.
Zander notice of final denial of her administrative claim within the meaning of § 2401(b). If this
is true, § 2401(b) time-bars Mrs. Zander’s claim because she waited to file suit until October 8,
2009. The United States relies on matter extraneous to the Complaint to fortify this argument.
“[I]f the governmental entity challenges jurisdiction under Rule 12(b)(1) . . . the court is
free to consider exhibits outside the pleadings ‘to resolve factual disputes concerning
jurisdiction.’” Smith, 290 F.3d at 205 (quoting Williams, 50 F.3d at 304). In other words, “the
trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear
the case.” Williams, 50 F.3d at 304 (citation and internal quotation marks omitted). These
authorities are consistent with the Supreme Court’s obiter dictum that “if subject-matter

1
In the interest of brevity, the Court passes on setting forth the standard of review for Rule 12(b)(6)
motions. Suffice it to say that, in the aftermath of Twombly and Iqbal, the complaint must state a claim to
relief that is plausible on its face.

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jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and
resolve the dispute on her own.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citations
omitted). In some cases, it may behoove the trial court to conduct an evidentiary hearing to
resolve the disputed facts that underpin subject matter jurisdiction. See Kerns, 585 F.3d at 193;
Adams, 697 F.2d at 1219. Such a measure is unnecessary here because the Parties do not contest
the facts relevant to the Court’s analysis.
III.

LEGAL ANALYSIS

A.

The Propriety of Dismissal for Failure to Comply with the Health Care Malpractice
Claims Act
“As a sovereign, the United States is immune from all suits against it absent an express

waiver of its immunity.” Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing
United States v. Sherwood, 312 U.S. 584, 586 (1941)). “The FTCA effects a limited waiver of
the United States’ sovereign immunity for ‘personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of
his office or employment.’” Id. at 651 (citing 28 U.S.C. § 1346(b)(1)). In other words, FTCA
generally waives the United States’ sovereign immunity with respect to common law torts that
federal employees commit while acting within the scope of employment. See id.; Jamison v.
Wiley, 14 F.3d 222, 226 n.1 (4th Cir. 1994) (citation omitted).
As a limited waiver of sovereign immunity, FTCA’s terms circumscribe the authority of
federal courts to entertain suits against the United States. The United States’ waiver of sovereign
immunity applies only “under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1). Therefore, federal courts must apply “the substantive law of
the state where the alleged tort took place” to determine the extent to which, if any, the United
8 

States is liable in tort. Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009). Furthermore, FTCA
authorizes tort liability against the United States only “in the same manner and to the same extent
as a private individual under like circumstances.” 28 U.S.C. § 2674.
Under Maryland law, a plaintiff in a medical malpractice action must comply with the
requirements of the Health Care Malpractice Claims Act. See Md. Code Ann., Cts. and Jud. Proc.
§§ 3-2A-01 et seq. HCMCA mandates that a medical malpractice suit “may not be brought or
pursued in any court of this State except in accordance with [the statute].” Id. § 3-2A-02(a)(2).
HCMCA requires plaintiffs to satisfy several preconditions before bringing a medical
malpractice action. See id. §§ 3-2A-01 et seq. One precondition requires plaintiffs to file with the
Director of the Health Care Alternative Dispute Resolution Office (“HCADRO”) “a certificate of
a qualified expert . . . attesting to departure from standards of care, and that the departure from
standards of care is the proximate cause of the alleged injury.” Id. § 3-2A-04(b)(1)(i). Plaintiffs
also must avail themselves of HCADRO’s arbitration procedure. See id. § 3-2A-04; Rowland v.
Patterson, 882 F.2d 97, 97 (4th Cir. 1989). Although plaintiffs may waive arbitration in certain
circumstances, this option is unavailable to plaintiffs who fail to file the certificate of qualified
expert. See Md. Code Ann., Cts. and Jud. Proc. § 3-2A-06B(b)(1)(i). Ordinarily, courts must
dismiss, without prejudice, an action in which the plaintiff has failed to file the certificate of
qualified expert. See id.; McCready Mem’l Hosp. v. Hauser, 624 A.2d 1249, 1251 (Md. 1993).
The United States moves this Court to dismiss Mrs. Zander’s suit for failure to plead
compliance with HCMCA’s prerequisites, as well as failing to comply with them in fact. Mrs.
Zander concedes the truth of these charges on brief. See Pl.’s Opp. Def.’s Mot. Dismiss 9–11,
Doc. No. 36.

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Notwithstanding these failures, Mrs. Zander contends that the Court would improperly
dismiss her malpractice claim for two reasons. First, Mrs. Zander asserts that the pertinent
HCMCA provisions are procedural rather than substantive. Alternately, Mrs. Zander maintains
that the Court must stay the case pending resolution of the parallel arbitration process if it
sanctions dismissal without prejudice. The first argument is incorrect. The Court need not
consider her alternative argument because, even if this case’s circumstances counseled for a stay,
Mrs. Zander’s suit is still time-barred.
The Court disagrees with the proposition that HCMCA regulates procedure rather than
substance. Concededly, HCMCA’s plain language lends support to Mrs. Zander’s position. See
Md. Code Ann., Cts. and Jud. Proc. § 3-2A-10 (emphasis added) (providing that “the provisions
of this [statute] shall be deemed procedural in nature”). Notwithstanding this clear language, a
line of authority advances the notion that HCMCA is substantive in nature. See, e.g., Rowland,
882 F.2d at 99. Relying on Rowland, the Court of Appeals of Maryland has declared that
HCMCA is “substantive rather than procedural” for the purposes of Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938). Lewis v. Waletzky, 31 A.3d 123, 130 n.9 (Md. 2011).
Granted, this case is before the Court under federal question jurisdiction, not under
diversity jurisdiction as in Erie. But this distinction is insignificant in the context of this case.
The underlying cause of action is medical malpractice, which is a garden-variety tort claim.
FTCA comes into play only because Mrs. Zander has sued the United States on a respondeat
superior theory and the United States has limitedly waived sovereign immunity. For these
reasons, this case comprehends some of the policy considerations that are present in the Erie
context. Plaintiffs who sue private physicians for medical malpractice in Maryland circuit courts
must comply with HCMCA’s preconditions. Arguably, then, it would be anomalous if plaintiffs

10 

who sued United States physicians in the District of Maryland faced no such preconditions.
FTCA seems to recognize this concern in prescribing that “[t]he United States shall be liable
[under FTCA] in the same manner and to the same extent as a private individual under like
circumstances.” See 28 U.S.C. § 2674(b)(1). Therefore, the Lewis court’s gloss—that HCMCA is
substantive rather than procedural—on Rowland applies in this case. Accordingly, HCMCA’s
preconditions to suit are substantive and Mrs. Zander’s failure to comply with them vitiates her
claim.2
B.

The Propriety of Dismissal for Failure to Comply with the Federal Tort Claims
Act’s Six-Month Statute of Limitations
The United States posits that Mrs. Zander filed her suit outside of FTCA’s six-month

statute of limitations. FTCA’s limitations provision 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 notice of final denial of the claim by the agency to
which it was presented.
28 U.S.C. § 2401(b) (emphasis added).
The United States concedes that Mrs. Zander filed an administrative tort claim within two
years after the claim accrued. Nevertheless, the United States asserts that Mrs. Zander failed to
begin this action “within six months after the date of mailing . . . of notice of final denial of the

2
Assuming arguendo that FTCA did not time-bar Mrs. Zander’s action, the Court agrees with Mrs.
Zander that this case would make a good candidate for a stay despite her failure to comply with
HCMCA’s preconditions. Courts have discretion to stay cases in which plaintiffs fail to comply with
HCMCA’s preconditions to avoid creating a statute of limitations bar. See Jewell v. Malamet, 587 A.2d
474, 481 (Md. 1991). Furthermore, in this district, Judge Blake has stayed a case in which the plaintiff
failed to follow HCMCA’s preconditions. Anderson v. United States, Civil No. CCB-08-3, 2008 WL
3307137, at *4 (D. Md. Aug. 8, 2008).

11 

claim.” Id.3 The United States asserts that March 16, 2009 is the “date of mailing” within the
meaning of § 2401(b). If so, then Mrs. Zander would have had to have filed suit by September
16, 2009. See Tribue v. United States, 826 F.2d 633, 635 (7th Cir. 1987) (citations omitted)
(calculating the six-month limitations period “from the day after mailing to the day before the
same calendar date six months later”); Vernell ex rel. Vernell v. U.S. Postal Serv., 819 F.2d 108,
111 (5th Cir. 1987) (citing cases) (characterizing this method of calculation as “the majority
rule”), superseded on other grounds by Rule, Fed. R. Civ. P. 15(c), as recognized in, McGuire v.
Turnbo, 137 F.3d 321, 325–26 (1998). Mrs. Zander does not—and cannot—dispute that she did
not file her Complaint until October 8, 2009. Therefore, if March 16 is the date of mailing under
§ 2401(b), Mrs. Zander’s action is time-barred.
Mrs. Zander disputes that March 16 is the applicable mailing date. Mrs. Zander asserts
that April 8, 2009 is the date on which the United States mailed “notice of final denial of the
claim.” To support this assertion, Mrs. Zander recounts the history of the United States’ attempts
to mail her notice of final denial of her claim. The United States mailed the March 16 letter to the
address it had on file for Mrs. Zander: Ms. Bennett’s Lincoln Parkway address. Subsequently,
the letter was marked “returned to sender” and received hand-written instructions to forward it to

3
 The plain language of § 2401(b) seems to contradict the proposition that plaintiffs must file suit within
six months of receiving notice of final denial of the claim where they have “presented [the claim] in
writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. §
2401(b). FTCA’s limitations provision is written disjunctively. Pertinently, it provides: “A tort claim . . .
shall be forever barred unless it is presented . . . within two years after such claim accrues or unless action
is begun within six months after the date of mailing . . . .” Id. (emphasis added). Notwithstanding this
provision’s plain meaning, it is well-settled that the failure to file suit within six months of administrative
notice of final denial of the claim forever bars the action where, as here, the plaintiff files the
administrative tort claim within two years after the claim’s accrual. See, e.g., Houston v. United States
Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987) (citing cases); Willis v. United States, 719 F.2d 608, 610–
13 (2nd Cir. 1983); Schuler v. United States, 628 F.2d 199, 201–02 (D.C. Cir. 1980) (en banc); Lynch v.
U.S. Dep’t of Army Corps of Eng’rs, 474 F. Supp. 545, 548 (D. Md. 1979). In a smattering of unpublished
opinions, the Fourth Circuit has embraced these holdings. See Zeno v. United States, No. 10–1056, 2011
WL 5023947, at *4 (4th Cir. Oct. 20, 2011); Savage v. United States, No. 91-2585, 1992 WL 122292, at
*2 (4th Cir. June 8, 1992). 

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a different address. The letter was returned to the United States on March 30. On April 8, the
United States redated the letter and mailed it to the forwarding address. Based on this sequence
of events, Mrs. Zander concludes that April 8 constitutes the date of mailing of notice of final
denial of the claim.
The United States’ construction of § 2401(b) rests on solider ground. “[T]he starting
point for interpreting a statute is the language of the statute itself.” Consum. Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). “It is well established that when the
statute’s language is plain, the sole function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its terms.” Lamie v. U.S. Tr., 540 U.S.
526, 534 (2004) (citations and internal quotation marks omitted). Dictionaries are a primary
source of words’ ordinary meaning. See, e.g., Schindler Elevator Corp. v. United States ex rel.
Kirk, 131 S. Ct. 1885, 1891 (2011). “[W]aivers of sovereign immunity are strictly construed and
ambiguities in statutory language are construed in favor of immunity . . . .” Flory v. United
States, 138 F.3d 157, 160 (5th Cir. 1998) (citing Lane v. Pena, 518 U.S. 187, 190–92 (1996));
see also, e.g., Pipkin v. U.S. Postal Serv., 951 F.2d 272, 275 (10th Cir. 1991) (citing cases).
A popular dictionary defines the verb “mail” straightforwardly. Merriam-Webster’s
Online Dictionary defines mail as “to send by mail.” Mail, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/mail (last visited Feb. 6, 2012). “Mail,” in its
relevant nominal sense, is defined as “a nation’s postal system.” Mail, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/mail?show=1&t=1328550776 (last visited Feb. 6,
2012). “Send,” for its part, has several entries, most of which coalesce around the concept of
causing something to go forward. See Send, Merriam-Webster.com, http://www.merriamwebster.com/dictionary/send (last visited Feb. 6, 2012). So deconstructed, “date of mailing”

13 

refers to the date on which the United States caused the final denial letter to go forward in the
postal system.
At least two circuits have construed “date of mailing” consistent with its plain meaning.
Berti v. VA Hosp., 860 F.2d 338, 340 (9th Cir. 1988); Carr v. Veterans Admin., 522 F.2d 1355,
1356 & n.1, 1357 (5th Cir. 1975). In Berti, the Ninth Circuit held that “the date of the initial
mailing of a properly certified or registered letter begins the six-month statutory period” for §
2401(b) purposes. 860 F.2d at 340. The plaintiff argued that “only a mailing which the claimant
actually receives constitutes a mailing that triggers the six-month statutory period under [§
2401(b)].” Id. The Berti court rejected this argument “in the face of clear statutory language.”
The Berti court further reasoned that the plaintiff’s “request would enlarge that consent to be
sued which the Government, through Congress, has undertaken so carefully to limit.” Id.; see
also Carr, 522 F.2d at 1356 & n.1, 1357 (date of mailing was postmark date on back of
envelope, not date on which plaintiff received letter; adherence to “plain words of the statute”
“particularly necessary . . . because the waiver of sovereign immunity . . . must be strictly
construed”).
In this case, the United States caused the notice of final denial to go forward in the postal
system on March 16. This fact is uncontested. Like the plaintiffs in Berti and Carr, Mrs. Zander
cannot escape this clear statutory language. Consequently, the six-month time limit that §
2401(b) prescribes started to run on the day after this date and expired on September 16.
Therefore, when Mrs. Zander filed suit more than three weeks later, her cause of action had
earlier evaporated.
Similar to the plaintiffs in Berti and Carr, Mrs. Zander campaigns for a broad reading of
§ 2401(b). Yet, in contrast to asking the Court to expand § 2401(b)’s ambit to include actual

14 

receipt of the notice, Mrs. Zander labels the United States’ initial mailing as invalid. This is so
because, in Mrs. Zander’s words, the United States sent the March 16 letter to “Plaintiff’s
counsel’s old address.” Pl.’s Opp. 5, Doc. No. 36. Mrs. Zander further contends that the United
States “took action to correct the error” on April 8. Therefore, Mrs. Zander concludes, April 8 is
the date of mailing. To bolster her broad reading of § 2401(b), Mrs. Zander relies extensively on
Matos v. United States, 380 F. Supp.2d 36 (D.P.R. 2005).
Mrs. Zander’s attempt to spin the facts falls flat. The fundamental flaw in the notion that
the United States sent the denial letter to her counsel’s “old address” is that the United States had
every reason to believe it was the correct address. As recounted above, see supra Part I, Ms.
Bennett notified the United States that her address changed from 750 Hammond Drive to 1455
Lincoln Parkway during the administrative review process. Thereafter, the United States sent two
mailings to the Lincoln Parkway address, to both of which Ms. Bennett responded. Ms. Bennett
sent both responses from the Lincoln Parkway address, the second as late as July 18, 2009. In the
second response, Ms. Bennett requested reconsideration of the United States’ denial and asked
for medical records. On July 30, the United States notified Ms. Bennett that it would consider
additional medical evidence and returned the medical records that Ms. Bennett requested.
These facts lead inescapably to the conclusion that the United States had good reason to
believe that Ms. Bennett was located at the Lincoln Parkway address when it mailed the March
16 final denial letter. Up to July 18, 2009, every indication was that Ms. Bennett was located at
the Lincoln Parkway address. Furthermore, although Ms. Bennett did not contact the United
States from the Lincoln Parkway address after that time, the record contains no indication that
Ms. Bennett did not receive the July 30 mailing that included the medical records. Nor does the
record reflect that Ms. Bennett notified the United States of her apparent address change.

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Therefore, it is disingenuous to insist that the United States sent the notice of final denial to the
wrong address; all signs pointed to its being the correct address.
Mrs. Zander’s rosy gloss on Matos likewise rings hollow. In Matos, the court held that
the United States’ mailing of a denial letter does not start the statute of limitations in the
following circumstances: the United States (1) has a PO Box and a physical address for the
plaintiff’s attorney’s firm; (2) sends the denial letter to the physical address; (3) receives no
confirmation that the denial letter was received; and (4) fails to resend the letter to the PO Box.
380 F. Supp.2d at 39–40. In this case, by contrast, the Lincoln Parkway address was the only
address of record for Ms. Bennett when the United States sent the notice of final denial.
Furthermore, dissimilar to Matos, the United States received confirmation that someone at the
Lincoln Parkway address received the letter, promptly resending it to the forwarding address that
that person left. Therefore, unlike in Matos, the United States’ initial mailing of the denial letter
was not “defective.” To so conclude would be to contort the meaning of mailing under § 2401(b)
to exclude otherwise valid mailings free from neglect or undue delay. Thus distorting §
2401(b)’s clear language runs counter to the mandate that courts must construe waivers of
sovereign immunity strictly.
Mrs. Zander also argues from equity. In her opinion, dismissing the case as time-barred is
unfair and pointless considering that she notified the United States of her medical malpractice
claim in 2004 and the United States failed to notify her of its final denial of the claim for
approximately half a decade. Further, the United States neglected to raise this argument as a
ground for dismissal for almost two years after Mrs. Zander filed suit, during which time it
moved to dismiss on a related ground. All told, the United States failed to argue that Mrs. Zander
had to comply with § 2401(b) for nearly seven years since Mrs. Zander first notified it of her

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malpractice claim. In view of these events, Mrs. Zander insists that dismissing the case would
fail to fulfill the cardinal purposes of statutes of limitations: (1) notice to the defendant and (2)
prevention of stale claims. See, e.g., Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S.
342, 349 (1944).
This equity argument does not survive scrutiny. The first flaw is that Mrs. Zander did not
file suit until October 2009. Therefore, it is disingenuous to assert that the United States has
failed to move to dismiss under § 2401(b) for nearly seven years. Second, even though the
United States has already moved to dismiss on a separate limitations ground, the law does not
preclude the United States from doing so again. It is well-established that § 2401(b)’s limitations
period is jurisdictional and, hence, nonwaivable. Gould v. U.S. Dep’t of Health & Human Servs.,
905 F.2d 738, 741 (4th Cir. 1990) (citing Kielwien v. United States, 540 F.2d 676, 679 (4th
Cir.)). Therefore, the six-month limitations period “may be raised by the parties at any stage of
the litigation, or by the court on its own motion.” Kelly v. United States, No. 92-2420, 1993 WL
321581, at *1 (4th Cir. Aug. 23, 1993) (citing Barren ex rel. Barren v. United States, 839 F.2d
987, 992 (3rd Cir.)). For these reasons, the United States did not waive its right to move to
dismiss on § 2401(b) grounds for failing to do so when it moved to dismiss on the separate
limitations ground. For similar reasons, it is immaterial that dismissing the action does not
promise to promote the dual purpose of statutes of limitations.
Mrs. Zander’s equity argument suffers from equally grave defects. To spin Jane Austen’s
memorable words, it is a truth universally acknowledged that she who comes into equity must
come with clean hands. Yet, transgressing the spirit of this maxim, Mrs. Zander has prosecuted
her medical malpractice claim in a manner lacking diligence. First, Mrs. Zander waited for
almost two years to file suit after she received her injury. Then, Ms. Bennett failed to notify the

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United States of her address change even though she had notified the United States of an earlier
address change, which indicates that she knew she had an obligation to give such notice. Next,
when Ms. Bennett received the April 8 courtesy denial letter, Mrs. Zander waited all the way
until October 8 to file suit. In other words, had Mrs. Zander waited just one more day, §
2401(b)’s six-month period would have expired. Therefore, although equitable tolling does not
apply to § 2401(b), this case is a poor candidate for such relief. See Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990) (“[T]he principles of equitable tolling . . . do not extend to what
is at best a garden variety claim of excusable neglect.”).
IV.

CONCLUSION 
For the foregoing reasons, the Court GRANTS the United States’ Motion to Dismiss. A

separate Order follows.

February 9, 2012
Date

/s/
Alexander Williams, Jr.
United States District Judge

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