4 F.3d 985 (4th Cir. 1993), 92-2420, Kelly v. U.S.
| Citation | 4 F.3d 985 |
| Docket Number | 92-2420. |
| Date | 23 August 1993 |
| Parties | Catherine A. KELLY, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Page 985
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)
Argued: July 12, 1993.
Appeal from the United States District Court for the Eastern District of North Carolina, at Fayetteville. W. Earl Britt, District Judge. (CA-91-1-3-CIV-BR)
Argued: Christopher Martin Mislow, Scottsdale, Arizona, for Appellant.
Eileen G. Coffey, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
On Brief: Wade E. Byrd, Berry & Byrd, Fayetteville, North Carolina, for Appellant.
James R. Dedrick, United States Attorney, Raleigh, North Carolina, for Appellee.
E.D.N.C.
AFFIRMED.
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:
On January 4, 1991, appellant Catherine A. Kelly filed suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 et seq., in the United States District Court for the Eastern District of North Carolina. Kelly claimed that doctors at Keller Army Hospital at West Point, New York, had negligently performed a caesarean section and an unconsented tubal ligation on January 7, 1985, during delivery of her third child.
The United States moved to dismiss appellant's complaint, or in the alternative, for summary judgment, on the grounds that the district court lacked subject-matter jurisdiction because appellant had not filed her claim with the appropriate federal agency within the time prescribed by the FTCA. The district judge granted the United States' motion as to the claims relating to the caesarean section, but denied it in regard to the tubal ligation claims. After a bench trial, the district judge found that consent had been given for the tubal ligation and denied appellant all relief.
Three issues are presented on appeal: (1) whether the district court lacked subject-matter jurisdiction because appellant's claim was untimely filed; (2) whether the district court lacked subject-matter jurisdiction because the United States has not waived its immunity for assault-and-battery actions; and (3) whether the district court committed clear error in finding that the plaintiff had consented to the tubal ligation. Because we hold that appellant's claim was untimely filed, we have no occasion to reach the issues of consent and sovereign immunity for assault-and-battery actions.
I.
The FTCA provides for a limited waiver of the sovereign immunity of the United States for the torts of government employees committed within the scope of their employment. A condition of that waiver, however, is compliance with the Act's statute of limitations, which states that
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). The two-year limitations period is jurisdictional and therefore may be raised by the parties at any stage of the litigation, or by the court on its own motion; it is not subject to waiver. Barren...
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