Chelsea Greene v. DOJ , 606 F. App'x 77 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2152
CHELSEA ELIZABETH GREENE,
Plaintiff - Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cv-00246-F)
Submitted: May 29, 2015 Decided: June 12, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher J. Anglin, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, R.A. Renfer, Jr.,
Matthew L. Fesak, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chelsea Elizabeth Greene appeals the district court’s order
dismissing her Federal Tort Claims Act (“FTCA”) claim for lack
of jurisdiction and for failure to state a claim upon which
relief can be granted. On appeal, Greene only raises arguments
concerning the Department of Justice’s (“DOJ”) failure to
prosecute and intervene in a qui tam action against her former
employer, Omni Visions, Inc. (“Omni”). See Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (failing to
raise an argument in the opening brief constitutes abandonment
of that argument). For the reasons stated herein, we affirm.
In her complaint, Greene alleged that, while employed at
Omni, she witnessed her employer fraudulently billing Medicaid.
In 2007, Greene filed a False Claims Act claim against Omni (the
“qui tam action”). On August 29, 2007, the Government filed
notice declining intervention in the qui tam action. Greene
then voluntarily dismissed her action. As a result of her
participation in the qui tam action, Greene alleged Omni and
subsequent employers terminated her. The latest adverse
employment action cited by Greene appears to have occurred, at
the latest, at the end of 2008. Greene filed her administrative
claim with the DOJ in September 2012.
We conduct a de novo review of the dismissal of a complaint
pursuant to Fed. R. Civ. P. 12(b)(1), (6). Taylor v. Kellogg
2
Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011);
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To
bring a claim under the FTCA, a plaintiff must first “present an
administrative claim to an appropriate federal agency within two
years of the date the cause of action accrues.” Muth v. United
States, 1 F.3d 246, 249 (4th Cir. 1993). The plaintiff’s “cause
of action accrues when the plaintiff knows, or in the exercise
of due diligence, should have known, first, of the existence of
the injury, and second, of the cause thereof.” Id. Plaintiff’s
administrative claim was first brought in September 2012, and
thus her claim is beyond the two-year limitations period.
Greene, however, argues that the DOJ’s conduct constitutes
a continuing violation, thus rendering her claim timely. To
establish a continuing violation, a plaintiff must establish
that the “‘illegal act was a fixed and continuing practice.’” A
Soc’y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir.
2011) (quoting Nat’l Adver. Co. v. City of Raleigh, 947 F.2d
1158, 1166 (4th Cir. 1991)). “A continuing violation is
occasioned by continual unlawful acts, not continual ill effects
from an original violation.” Nat’l Adver. Co., 947 F.2d at 1166(internal quotation marks omitted). Here, there is one discrete
act that is alleged to be unlawful: the DOJ’s failure to
prosecute or intervene in Greene’s qui tam action. This is not
a series of separate acts. A Soc'y Without A Name, 655 F.3d at
3
348. Thus, even though Greene may have suffered, and may
continue to suffer, harm after the DOJ opted not to intervene in
her qui tam action, she alleges but one unlawful act. Thus, any
claim accrued, if at all, when the DOJ opted not to intervene in
the qui tam action, and Greene’s current claim is untimely. ∗
Therefore, we affirm the order of the district court. 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
∗
We have considered United States v. Kwai Fun Wong, 135 S.
Ct. 1625, 1632-33 (2015), decided after the conclusion of
briefing, but it does not change our decision.
4