Sabrina Brown v. United States ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1666
SABRINA R. BROWN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, Senior District Judge. (2:21-cv-00069-RAJ-LRL)
Submitted: June 27, 2022 Decided: July 22, 2022
Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Mark J. Favaloro, FAVALORO LAW, Virginia Beach, Virginia, for
Appellant. Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Garry D.
Hartlieb, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sabrina R. Brown appeals the district court’s order granting the Government’s
motion to dismiss her complaint pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671-80 (“FTCA”). Brown argues that Portsmouth Community Health
Center, Inc. (“PCHC”), was not deemed a federal entity when one of its nurse practitioners
allegedly committed malpractice in 2016, that PCHC failed to disclose its status as a federal
entity, and that such failure tolls the statute of limitations under the FTCA. Brown also
contends that her filing of a state action was sufficient to satisfy the FTCA’s administrative
exhaustion requirement and that her claim is preserved under 28 U.S.C. § 2679(d)(5).
We review de novo a district court’s order granting a motion to dismiss under Fed.
R. Civ. P. 12(b)(6), “accept[ing] the factual allegations of the complaint as true and
constru[ing] them in the light most favorable to the nonmoving party.” Rockville Cars,
LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). Similarly, on appeal from a
motion to dismiss under Fed. R. Civ. P. 12(b)(1), “we review the district court’s factual
findings with respect to jurisdiction for clear error and the legal conclusion that flows
therefrom de novo.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014)
(cleaned up).
We have carefully reviewed the parties’ briefs and the joint appendix and find no
reversible error because Brown did not exhaust her administrative remedies. To the extent
that Brown asks us to decide any future applicability of 28 U.S.C. § 2679(d)(5), she did
not raise that issue in the district court, so it is not properly before us. Accordingly, we
affirm the district court’s judgment. Brown v. United States, No. 2:21-cv-00069-RAJ-LRL
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(E.D. Va. May 10, 2021). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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