                                                   Filed:    February 14, 2012

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                  No. 10-1597
                              (1:08-cv-00003-CCB)


ANGELIA M. ANDERSON,

                    Plaintiff - Appellant,

            v.

UNITED STATES OF AMERICA,

                    Defendant - Appellee.



                                     O R D E R


     Upon    Appellee’s       unopposed   motion     for   publication   of    the

Court’s Order of Certification,

     IT IS ORDERED that the motion to publish is granted.

     The    Court    amends    its   order   filed    December   20,   2011,   as

follows:

     On the cover sheet, section 1 -- the status is changed from

“UNPUBLISHED” to “PUBLISHED.”

     On the cover sheet, section 6 -- the word “Unpublished”

before “Order of Certification” is deleted, and the following

sentence is added:         “Judge Diaz prepared the order, in which

Judge Davis and Judge Keenan joined.”
     On page 2 -– the heading “PER CURIAM” is deleted and is

replaced with “DIAZ, Circuit Judge.”



                                       For the Court – By Direction


                                           /s/ Patricia S. Connor
                                                     Clerk




                                2
                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


ANGELIA M. ANDERSON,                  
               Plaintiff-Appellant,
               v.                          No. 10-1597
UNITED STATES OF AMERICA,
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
        for the District of Maryland, at Baltimore.
            Catherine C. Blake, District Judge.
                  (1:08-cv-00003-CCB)

                 Argued: October 25, 2011

               Decided: December 20, 2011

   Before DAVIS, KEENAN, and DIAZ, Circuit Judges.



Order of Certification of a question of law to the Court of
Appeals of Maryland. Judge Diaz prepared the order, in
which Judge Davis and Judge Keenan joined.


                        COUNSEL

ARGUED: Byron Leslie Warnken, WARNKEN, LLC, Tow-
son, Maryland, for Appellant. Lewis S. Yelin, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee. ON BRIEF: Kerry D. Staton, Jonathan Scho-
2                 ANDERSON v. UNITED STATES
chor, SHOCHOR, FEDERICO & STATON, P.A., Baltimore,
Maryland, for Appellant. Tony West, Assistant Attorney Gen-
eral, Rod J. Rosenstein, United States Attorney, Thomas M.
Bondy, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.


                           ORDER

DIAZ, Circuit Judge:

                    I.   Question Certified

   Angelia Anderson sued the United States under the Federal
Tort Claims Act ("FTCA") in January 2008 in the U.S. Dis-
trict Court for the District of Maryland. In her complaint,
Anderson alleges that she received negligent medical care at
the Veterans Administration Medical Center in Baltimore,
Maryland ("VA Hospital") from February through December
2002. The district court granted the government’s motion to
dismiss for lack of subject matter jurisdiction, reasoning that
Maryland Code, Courts and Judicial Proceedings Article Sec-
tion 5-109(a)(1) constituted a five-year statute of repose that
barred Anderson’s claim. On appeal, Anderson argues that
Section 5-109(a)(1) constitutes a statute of limitations that is
preempted by the FTCA’s statute of limitations.

  The U.S. Court of Appeals for the Fourth Circuit, exercis-
ing the privilege afforded it by the Maryland Uniform Certifi-
cation of Questions of Law Act, Md. Code Ann., Cts. & Jud.
Proc. §§ 12-601 through 12-613, and Maryland Rule 8-305,
now certifies the following question of Maryland law to the
Court of Appeals of Maryland:

    Does Section 5-109(a)(1) of the Courts and Judicial
    Proceedings Article of the Maryland Code constitute
    a statute of limitations or a statute of repose?
                    ANDERSON v. UNITED STATES               3
   The answer to this question does not appear to be directly
controlled by any Maryland appellate decision, constitutional
provision, or state statute. The Court of Appeals of Maryland
has referred to Section 5-109 both as a statute of limitations
and a statute of repose, contrast Hill v. Fitzgerald, 501 A.2d
27, 32 (Md. 1985), with Rivera v. Edmonds, 699 A.2d 1194,
1195 (Md. 1997), but no case appears to have conclusively
resolved the issue.

   The district court’s finding that Section 5-109(a)(1) is a
statute of repose stems primarily from a recent opinion of the
Court of Appeals of Maryland discussing the statute, Burnside
v. Wong, 986 A.2d 427, 440 (Md. 2010). The answer to this
certified question is outcome determinative of this appeal
because Anderson’s claim may proceed if the district court
erred in concluding that Section 5-109(a)(1) was a statute of
repose. Therefore, the question is properly subject to review
by the Court of Appeals of Maryland on certification.

  We acknowledge that the Court of Appeals of Maryland
may reformulate this question.

              II.    Statement of Relevant Facts

   Anderson first visited the VA Hospital in February 2002,
complaining of lower back pain. An MRI revealed scattered
marrow abnormalities in Anderson’s lumbar spine and a radi-
ologist recommended a bone scan, which was performed in
May 2002 and showed abnormal results. Subsequently, a bone
marrow biopsy was performed, resulting in a diagnosis of B-
cell lymphoproliferative disease in Anderson’s spine. Ander-
son was scheduled to begin chemotherapy in August 2002,
but her doctors determined instead that a course of observa-
tion was more appropriate. Anderson was given a fentanyl
patch to control her pain. Anderson returned to the VA Hospi-
tal in September 2002, reporting continuing pain on her left
side; her doctors responded by increasing her pain medica-
tion.
4                 ANDERSON v. UNITED STATES
   On December 19, 2002, Anderson complained at the VA
Hospital of increased pain and new symptoms, including pain
and numbness radiating to her foot. She was discharged and
instructed to report to the neurology clinic four days later.
Anderson returned to the VA Hospital the next day complain-
ing of increased pain in her back and an inability to move her
legs. An MRI revealed no evidence of compression. Anderson
again returned to the VA Hospital on December 23, reporting
an inability to walk or stand and complaining of numbness up
to her breasts. She was again discharged with instructions to
return for another MRI on December 26. Anderson instead
sought treatment at another hospital on December 24, where
a physical examination and diagnostic tests revealed an epidu-
ral spinal tumor compressing her spinal cord. Anderson
underwent immediate surgery to relieve the spinal compres-
sion and remained hospitalized until December 30.

   Nearly a year later, on December 17, 2003, Anderson initi-
ated an administrative claim with the Veterans Administration
in Baltimore by filing a completed Standard Form 95 (Claim
for Damage, Injury, or Death). She alleged that the VA Hos-
pital failed to recognize the symptoms of progressive spinal
cord compression due to an epidural spine tumor that devel-
oped as a result of her known cancer. She also alleged that the
negligent care she received at the VA Hospital necessitated
emergency surgery on her spine, and that, notwithstanding the
emergency surgery, the VA Hospital’s negligence left her
with significant, permanent neurological deficits, severe and
permanent disability, and incessant pain and emotional
anguish.

   For nearly four years, Anderson’s claim proceeded through
the administrative process, including significant settlement
discussions, until it was denied as not amenable to administra-
tive resolution by letter dated September 26, 2007. Anderson
filed suit in the district court on January 2, 2008. The govern-
ment moved to dismiss arguing that Anderson had failed to
file a claim and an expert certificate with the Maryland Health
                      ANDERSON v. UNITED STATES                           5
Care Alternative Dispute Resolution Office ("HCADRO"), as
required by Maryland’s Health Care Malpractice Claims Act
(codified at Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04).
The district court stayed the case to allow Anderson to file the
complaint and certificate with HCADRO. Anderson complied
and the district court lifted the stay.

   The government then filed a second motion to dismiss,
arguing that Section 5-109(a)(1), which it characterized as
Maryland’s statute of repose for health care malpractice
claims, divested the court of subject matter jurisdiction
because Anderson did not file her federal suit within the five-
year statutory period. In its order granting the motion, the dis-
trict court noted that Maryland courts have referred to Section
5-109 as a statute of limitations and that it contains tolling
provisions that are generally inconsistent with statutes of
repose. However, the district court concluded that, "particu-
larly in light of the recent reference by the Court of Appeals
in Burnside," it was "constrained to conclude that the state’s
highest court views § 5-109(a)(1) as a statute of repose." J.A.
227 (citing Burnside, 986 A.2d at 440). Thus, the district
court granted the government’s motion to dismiss for lack of
subject matter jurisdiction.

   The district court denied Anderson’s subsequent motion for
reconsideration, and Anderson timely appealed to this Court,
assigning error to the district court’s conclusion that Section
5-109(a)(1) is a statute of repose.1
  1
    Anderson also argues on appeal that the district court erred by failing
to find (1) that participation in the mandatory administrative procedures
required by the FTCA tolls the running of the statutory period prescribed
by Section 5-109 until the administrative process is exhausted, and (2) that
the filing of a claims notice under the FTCA satisfies the requirement
under Section 5-109 that an action for damages be filed within five years
of the time the injury was committed. We do not certify these latter two
questions.
6                 ANDERSON v. UNITED STATES
            III. Legal Discussion and Relevant
            Maryland Case Law and Legislation

             A. The Government’s Limited
           Waiver of Immunity under the FTCA

   A plaintiff may recover against the United States only to
the extent that it has expressly waived sovereign immunity.
Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (cit-
ing United States v. Sherwood, 312 US 584, 586 (1941)).
Where the United States has not waived its sovereign immu-
nity, a plaintiff’s claim against the United States should be
dismissed for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1). Williams v. United States,
50 F.3d 299, 304 (4th Cir. 1995).

   Congress waived the sovereign immunity of the United
States for certain torts committed by federal employees when
it enacted the FTCA in 1946. Kerns v. United States, 585 F.3d
187, 194 (4th Cir. 2009) (citing FDIC v. Meyer, 510 U.S. 471,
475 (1994)). However, the FTCA is a limited waiver of
immunity, imposing tort liability on the United States only "in
the same manner and to the same extent as a private individ-
ual under like circumstances," 28 U.S.C. § 2674, and only to
the extent that "a private person[ ] would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred," id. § 1346(b)(1). In other words, a
claimant "has an FTCA cause of action against the govern-
ment only if she would also have a cause of action under state
law against a private person in like circumstances." Miller v.
United States, 932 F.2d 301, 303 (4th Cir. 1991). Thus, the
substantive law of each state establishes the cause of action.
Kerns, 585 F.3d at 194; Unus v. Kane, 565 F.3d 103, 117 (4th
Cir. 2009).

   Whereas substantive state law establishes—and circum-
scribes—FTCA causes of action, "federal law defines the lim-
itations period." Miller, 932 F.2d at 303. This period is
                       ANDERSON v. UNITED STATES                                7
codified in 28 U.S.C. § 2401, which provides, in pertinent
part, that "[a] tort claim against the United States shall be for-
ever barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues
. . . ." Id. § 2401(b). Here, it is undisputed that Anderson satis-
fied the FTCA statute of limitations by filing Standard Form
95 within one year of her injury.

   State law may nevertheless speak to the timeliness of a
claim brought under the FTCA, because a state’s enactment
of a statute of repose "creates a substantive right in those pro-
tected to be free from liability after a legislatively-determined
period of time." First United Methodist Church of Hyattsville
v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989). By
contrast, a statute of limitations is a "procedural device that
operates as a defense to limit the remedy available from an
existing cause of action." Id. at 865. Thus, "[t]he distinction
between statutes of limitations and statutes of repose corre-
sponds to the distinction between procedural and substantive
laws." Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir.
1987). Because statutes of repose are substantive limitations
on liability, an FTCA claim does not lie against the United
States where a statute of repose would bar the action if
brought against a private person in state court. See, e.g., Sim-
mons v. United States, 421 F.3d 1199, 1202 (11th Cir. 2005)
(affirming dismissal of FTCA action that was filed after
period specified in state statute of repose).

   Thus, the key inquiry in this case is whether Section 5-
109(a)(1) is a substantive statute of repose or a procedural
statute of limitations. If the former, then Anderson’s claim
may be barred,2 because allowing it to proceed would poten-
  2
    As noted earlier, Anderson argues that even if Section 5-109(a)(1) is
a statute of repose, the district court erred by failing to find (1) that partici-
pation in the mandatory administrative procedures required by the FTCA
tolls the running of the statutory period prescribed by Section 5-109 until
the administrative process is exhausted, and (2) that the filing of a claims
notice under the FTCA satisfies the requirement under Section 5-109 that
an action for damages be filed within five years of the time the injury was
committed.
8                  ANDERSON v. UNITED STATES
tially impose liability on the government in a different manner
and to a greater extent than on a private individual under like
circumstances. If the latter, however, the FTCA’s two-year
statute of limitations preempts the state statute and Ander-
son’s claim survives because it was properly presented within
that period.

          B.   The Statutory Text of Section 5-109(a)

    Section 5-109(a) provides in relevant part as follows:

      An action for damages for an injury arising out of
      the rendering of or failure to render professional ser-
      vices by a health care provider . . . shall be filed
      within the earlier of: (1) Five years of the time the
      injury was committed; or (2) Three years of the date
      the injury was discovered.

Md. Code Ann., Cts. & Jud. Proc. § 5-109(a). The periods are
subject to tolling for minority, incompetency, and fraudulent
concealment. Id. § 5-109(f) ("Nothing contained in this sec-
tion may be construed as limiting the application of the provi-
sions of: (1) § 5-201 of this title that relate to a cause of action
of a mental incompetent; or (2) § 5-203 of this title [relating
to fraudulent concealment]."); Piselli v. 75th St. Med., 808
A.2d 508, 517 (Md. 2002) (holding that both the three- and
five-year statutory periods must be tolled during a plaintiff’s
minority).

   The Court of Appeals of Maryland has aptly summarized
the uncertainty in the statutory language:

      [I]t is not clear whether the General Assembly
      intended § 5-109 to be either (A) a five-year statute
      of repose with a provision that allows a defendant to
      cut that period short by up to two years if the defen-
      dant can show that the plaintiff did not comply with
      the three-year discovery provision, or (B) a three-
                  ANDERSON v. UNITED STATES                    9
    year statute of limitations with a provision that could
    allow the plaintiff to extend that period up to five
    years if the plaintiff can show that he or she filed the
    claim within the three-year discovery provision.

Newell v. Richards, 594 A.2d 1152, 1157 (Md. 1991).

   Anderson makes three principal arguments to support her
view that Section 5-109(a)(1) is a statute of limitations. First,
she points out that the event that triggers the running of the
statutory period for both the five-year period in (a)(1) and the
three-year period in (a)(2) is an "injury." The Court of
Appeals of Maryland has held that an injury is committed on
"the date upon which the allegedly negligent act was first cou-
pled with harm." Hill, 501 A.2d at 32. Thus, Anderson argues
that an injury that triggers the running of the statutory period
is not necessarily committed on the date upon which an alleg-
edly negligent act occurs, and that Section 5-109(a)(1)
thereby "contradicts the fundamental requirement of a statute
of repose, i.e., that it operates from a fixed point in time and
can terminate a cause of action before injury occurs." Appel-
lant’s Br. 27.

   Anderson contrasts this feature with the ability of a statute
of repose to extinguish a plaintiff’s claim before it accrues,
when a plaintiff’s injury fails to materialize prior to the run-
ning of the fixed statutory period. It is this ability to extin-
guish claims prior to their accrual, Anderson argues, that is
the quintessential barometer of a statute of repose. Id. at 25-26
(citing Hinds v. CompAir Kellogg, 776 F. Supp. 1102, 1105
(E.D. Va. 1991), aff’d per curiam, 961 F.2d 211 (4th Cir.
1992) (unpublished); Walker v. Montclaire Hous. Partners,
736 F. Supp. 1358, 1361 (M.D.N.C. 1990)). Because the run-
ning of the statutory period commences upon "injury," Ander-
son contends that Section 5-109(a)(1) cannot operate to
extinguish a cause of action before an injury arises and the
claim accrues, and that it thus lacks the substantive quality of
a statute of repose.
10                     ANDERSON v. UNITED STATES
   Second, Anderson notes that, as a general rule, statutes of
limitations are subject to tolling whereas statutes of repose are
fixed. However, Section 5-109(f) expressly provides that both
the five-year period in (a)(1) and the three-year period in
(a)(2) may be tolled in instances of minority, mental incompe-
tency, and fraudulent concealment. Anderson concludes from
these statutory tolling provisions that "the Maryland General
Assembly provided further evidence that CJ § 5-109 should
not be interpreted as providing a substantive right to be free
from liability." Appellant’s Br. 30.

   Finally, Anderson compares Section 5-109(a)(1) with Sec-
tion 5-108 of the Courts and Judicial Proceedings Article of
the Maryland Code, claiming that the latter is unmistakably a
statute of repose and that a comparison of the two statutes
reveals that Section 5-109(a)(1) is a statute of limitations.3
Section 5-108, concerning injuries after improvements to real
property, provides:

      (a) Except as provided by this section, no cause of
      action for damages accrues and a person may not
      seek contribution or indemnity for damages incurred
      when wrongful death, personal injury, or injury to
      real or personal property resulting from the defective
      and unsafe condition of an improvement to real
      property occurs more than 20 years after the date the
      entire improvement first becomes available for its
      intended use. . . .

      (c) Upon accrual of a cause of action referred to in
      subsections (a) and (b) of this section, an action shall
      be filed within 3 years.
  3
    This Court has found Section 5-108 to be a statute of repose. See First
United, 882 F.2d at 865 ("Maryland courts have repeatedly recognized
[that] § 5-108 is a statute of repose. . . ."); id. at 866 (refusing to construe
Section 5-108 as "provid[ing] anything other than the 20-year repose
period" because it did not permit tolling).
                       ANDERSON v. UNITED STATES                             11
Id. § 5-108(a), (c).

   Anderson claims that Section 5-108 "operates as a statute
of repose because it (1) precludes accrual of any claim,
regardless of when (or if) injury occurs, after a fixed period
of time; (2) is not subject to tolling; and (3) was expressly
intended to confer substantive immunity from suit." Appel-
lant’s Br. 31.4 Anderson argues that, conversely, Section 5-
109(a)(1) is a statute of limitations because it requires an
injury to trigger the running of the statute, cannot eliminate a
cause of action before it accrues, is subject to tolling, and
does not evidence an express grant of substantive immunity
on medical malpractice defendants.

   Before addressing Anderson’s arguments, the government
describes two features of Section 5-109(a)(1) that it contends
cut in favor of the statute’s construction as a statute of repose.
First, the government posits that statutes of repose are "based
on considerations of the economic best interests of the public
as a whole and are substantive grants of immunity based on
a legislative balance of the respective rights of potential plain-
tiffs and defendants struck by determining a time limit beyond
which liability no longer exists." Appellee’s Br. 23 (quoting
First United, 882 F.2d at 866). Because Section 5-109(a)(1)
was enacted to promote those considerations, the government
argues that the district court properly characterized it as a stat-
ute of repose.

   The government contends further that the Maryland Gen-
eral Assembly enacted Section 5-109(a)(1) not out of concern
for court management or to address problems associated with
  4
    As to the substantive immunity granted by Section 5-108, Anderson
quotes the Revisor’s Note to Section 5-108 when it was enacted in 1970:
"The section is drafted in the form of a statute of limitation, but, in reality,
it grants immunity from suit in certain instances." Carven v. Hickman, 763
A.2d 1207, 1212 (2000) (quoting Revisor’s Note), aff’d sub nom. Hickman
ex rel. Hickman v. Carven, 784 A.2d 31 (2001).
12                ANDERSON v. UNITED STATES
stale or fraudulent claims—which the government urges are
the principal purposes underlying statutes of limitations—but
" ‘to contain the ‘long-tail’ effect of the discovery rule in
medical malpractice cases.’ " Id. 25 (quoting Hill, 501 A.2d
at 32 ("The statute is a response to the so-called crisis in the
field of medical malpractice claims.")). In so doing, the gov-
ernment posits that the legislature acted to "promote society’s
interest in maintaining malpractice insurance coverage and
managing the costs of malpractice litigation," Newell, 594
A.2d at 1157, fulfilling the principal purpose underlying a
statute of repose of promoting the "economic best interests of
the public as a whole," First United, 882 F.2d at 866.

   The government contends that the Court of Appeals of
Maryland confirmed this policy objective in Hill, where the
court noted that Section 5-109(a)(1) was intended to "re-
strict[ ], in absolute terms, the amount of time that could lapse
between the allegedly negligent treatment of a patient and the
filing of a malpractice claim related to that treatment." 501
A.2d at 32. As further evidence of this, the government points
to the legislature’s proscription of judicial tolling to extend
statutory limits, claiming that this limitation on judicial dis-
cretion is typical of statutes of repose and inconsistent with
statutes of limitations.

   The government also argues that a comparison of Section
5-108 with Section 5-109(a)(1) supports the construction of
the latter as a statute of repose. The government emphasizes
the legislative purposes it claims animated the enactment of
both statutes, contending that both stemmed from a "public
policy problem resulting from the exposure to potentially pro-
longed periods of liability by professionals providing impor-
tant public services." Appellee’s Br. 32. The government
submits that both statutes were enacted "based on consider-
ations of the economic best interests of the public as a whole"
and "based on a legislative balance of the respective rights of
potential plaintiffs and defendants struck by determining a
time limit beyond which liability no longer exists." First
                     ANDERSON v. UNITED STATES                13
United, 882 F.2d at 866. As such, the government contends
that both statutes exhibit the same key feature of statutes of
repose and should both be so construed.

   Responding to Anderson’s first argument in favor of con-
struing Section 5-109(a)(1) as a statute of limitations—that
the suffering of an injury triggers the running of the statute,
whereas a typical statute of repose begins to run from the date
of a tortfeasor’s act or omission—the government explains
that "[t]here are sound reasons why a time limit need not be
capable of extinguishing a claim before a plaintiff suffers
injury in order for it to be a statute of repose." Appellee’s Br.
37. The government contends that, as a general matter, legis-
latures must balance competing interests, and, in the case of
Section 5-109(a)(1), the Maryland legislature decided that "its
policy goals would best be served by measuring the time limit
from the occurrence of an injury." Id. 38.

   As for Anderson’s contention that the presence of tolling
provisions renders Section 5-109(a)(1) a statute of limitations,
the government again responds that the legislature’s decision
to include such provisions is part of the balance struck in
addressing the underlying problem. What statutes of repose
forbid, contends the government, is judicially-created tolling
because that would upset the balance struck by the legislature.
The features Anderson relies on to support her view of Sec-
tion 5-109(a)(1) as a statute of limitations are, according to
the government, instead consistent with a statute of repose.

                C.     Relevant Maryland Cases

   Exactly a decade after Section 5-109 was enacted in 1975,
Hill presented the Court of Appeals of Maryland with its first
opportunity to interpret the statute, in a question certified
from the U.S. District Court for the District of Maryland seek-
ing "a determination as to when the three- and five-year limi-
tation periods begin to run in a case which involves . . . a
continuous course of treatment for a single medical condi-
14                    ANDERSON v. UNITED STATES
tion." 501 A.2d at 32. Hill described Section 5-109 as "Mary-
land’s statute of limitations for medical malpractice claims,"
id. at 28, that "places a five-year maximum limitation on the
filing of medical malpractice claims," id. at 29. The court fur-
ther concluded "that the words of § 5-109 expressly place an
absolute five-year period of limitation on the filing of medical
malpractice claims calculated on the basis of when the injury
was committed, i.e., the date upon which the allegedly negli-
gent act was first coupled with harm." Id. at 32.

   According to the Hill court, the purpose of the statute was
"to contain the ‘long-tail’ effect of the discovery rule in medi-
cal malpractice cases by restricting, in absolute terms, the
amount of time that could lapse between the allegedly negli-
gent treatment of a patient and the filing of a malpractice
claim related to that treatment." Id. The court further
described the statute as a "response to the so-called crisis in
the field of medical malpractice claims." Id.

     Responding to the certified question, the court concluded:

       The three- and five-year periods of limitations must,
       therefore, be calculated in accordance with the literal
       language of § 5-109 [beginning upon the date in
       which the allegedly negligent act was first coupled
       with harm]. Indeed, the five-year maximum period
       under the statute will run its full length only in those
       instances where the three-year discovery provision
       does not operate to bar an action at an earlier date.
       And this is so without regard to whether the injury
       was reasonably discoverable or not.

Id. at 32-33.5
  5
    Despite the "limitation" nomenclature, the government argues that the
court’s reference to Section 5-109 as "an absolute five-year period of limi-
tation" that "restrict[s], in absolute terms, the amount of time that could
lapse between the allegedly negligent treatment of a patient and the filing
of a malpractice claim," Hill, 501 A.2d at 32 (emphasis added), compels
the statute’s construction as a statute of repose.
                    ANDERSON v. UNITED STATES                        15
   Three years later, in Geisz v. Greater Baltimore Medical
Center, 545 A.2d 658 (1988), the Court of Appeals of Mary-
land considered a case in which the injury to the patient pre-
dated the enactment of Section 5-109. The patient’s survivors
brought a wrongful death and survival action more than ten
years after the patient died of cancer, and the issue presented
was whether the survival claim was barred under the discov-
ery rule of the general three year statute of limitations in
effect prior to the enactment of Section 5-109. Id. at 659.
Although the applicability of Section 5-109 was not at issue,
the court consistently described it as a "statute of repose for
medical malpractice claims." Id.; see also id. at 660 n.3, 661,
666-67, and 669 n.9. Notably, the court stated that Section 5-
109 "clearly reinforces the policy of repose underlying all
statutes of limitations and caps the discovery rule." Id. at 667.

   The court seemed to retreat from the Geisz "repose" charac-
terization in Jones v. Speed, 577 A.2d 64 (Md. 1990). In
Jones, the court described the case as involving "the effect of
Maryland’s statute of limitations upon a medical malpractice
claim." Id. at 65. Like Hill, the dispute also centered on the
question of when an injury was committed to trigger the statu-
tory periods in Section 5-109. The court concluded that "the
claim was brought within three years of discovery of [the]
injury; and, it is clear that the claim was brought within five
years of the time the injury was alleged to have been commit-
ted. The statute of limitations is therefore not a bar." Id. at 70.

  Since Jones, opinions of the Court of Appeals of Maryland
have predominantly characterized Section 5-109 as a statute
of repose, albeit not consistently.6 For example, in 1991, the
court in Newell stated, "In malpractice actions against health
  6
   The lone exception is Rios v. Montgomery County, 872 A.2d 1 (Md.
2005), in which the court recounted that in an earlier case it had "con-
cluded that the statutes of limitations contained in Section 5-109 as
applied to minors violated Article 19 of the Maryland Declaration of
Rights as an unreasonable restriction." Id. at 21.
16                    ANDERSON v. UNITED STATES
care providers, in lieu of the general statute of limitations,
there is a special statute of repose, § 5-109 of the Maryland
Code . . . ." 594 A.2d at 1156. The court nevertheless con-
cluded that the plaintiff’s claim "was filed within the five-year
limitations period." Id. at 1157 (emphasis added). Addressing
the parties’ contentions, the court explained, "Although Rich-
ards [the alleged tortfeasor] argues that Newell [the plaintiff]
is attempting to avoid the three-year limitation in the statute,
Newell may just as logically argue that Richards is attempting
to avoid the five-year limitation in the statute." Id. (emphasis
added). After restating some of the historical and policy argu-
ments from Hill, the court concluded that "it is obvious that
the primary purpose of [Section 5-109] is to create a total bar
to malpractice actions brought after five years from the date
of the alleged negligent treatment . . . ." Id.7

   In Rivera, a 1996 case, the Court of Appeals of Maryland
again described Section 5-109 as "the medical malpractice
statute of repose." 699 A.2d at 1195. The case also involved
the determination of when an injury occurs for purposes of
triggering the statutory periods. The Court of Appeals of
Maryland affirmed the judgment of the Court of Special
Appeals, which had reversed the trial court’s determination on
summary judgment that the plaintiff’s claim was time barred,
holding instead that genuine issues of material fact existed as
to when the plaintiff suffered her injury. Notably, the Court
of Special Appeals appeared to reject a characterization of
Section 5-109 as a statute of repose, finding that the failure of
an amendment to Section 5-109 proposed in 1987 demon-
strated "that the General Assembly did not intend to create an
ironclad rule that a medical malpractice claim would be
barred if filed more than five years after the health care pro-
  7
    We note that Newell refers to date of "the alleged negligent treatment"
as the trigger for the five-year statutory period. 594 A.2d at 1157. By its
plain terms, however, a plaintiff’s "injury" is the trigger under Section 5-
109. Pursuant to Hill, an injury is committed on "the date upon which the
allegedly negligent act was first coupled with harm." 501 A.2d at 32.
                       ANDERSON v. UNITED STATES                             17
vider’s wrongful act." Edmonds v. Cytology Servs. of Md.,
Inc., 681 A.2d 546, 557 (Md. Ct. Spec. App. 1996). The pro-
posed amendment would have "ma[d]e it express that the stat-
utory periods begin to run from the date of the ‘allegedly
wrongful act or omission’ in place of the common law term
‘injury.’ " Id. (quoting a position paper prepared by the Legis-
lative Office of the Governor).

   According to the Court of Special Appeals, the rejection of
the amendment illustrated that the Maryland legislature, on
the one hand, sought "to combat the ‘long-tail effect’ on med-
ical malpractice insurance," while also "wish[ing] to lessen
the potential unfairness to victims of malpractice by not
overly restricting their ability to present their claims." Id. at
557. The court concluded that the legislature reconciled the
competing interests by providing a five-year cut off in Section
5-109(a)(1) that would run from the date of the "injury"
resulting from the health care provider’s wrongful act or
omission, rather than the actual date of the act or omission. Id.
at 557-58.

   To be clear, the proposed amendment, and the court’s anal-
ysis of it, did not directly address the question of whether Sec-
tion 5-109 is a statute of limitations or a statute of repose.
Nevertheless, the import of an "injury," as opposed to a defen-
dant’s act or omission, serving as the trigger for the statutory
periods constitutes one of the key disputes between the parties
in this case as to whether Section 5-109(a)(1) is a statute of
repose or a statute of limitations.8
  8
   The court further explained,
      The Maryland Legislature could have followed the great majority
      of jurisdictions by enacting a statute providing for the com-
      mencement of limitations on the date of the defendant’s alleged
      "act" or "omission." . . . Despite the plethora of statutes in other
      states to this effect, our Legislature did not adopt such a provi-
      sion.
Id. at 556-57.
18                 ANDERSON v. UNITED STATES
   Several other opinions of the Court of Appeals of Maryland
have described Section 5-109 as a statute of repose. In Green
v. North Arundel Hospital Association, 785 A.2d 361 (Md.
2001), the court referred to "the statute of repose codified in
[Section 5-109], which requires a medical malpractice action
to be filed within five years after the time ‘the injury was
committed.’ " Id. at 368. This case is notable because it
appears to be the first in which the court specifically
described the five-year period of subsection (a)(1) as a statute
of repose, rather than a generic description of Section 5-109
in its entirety as either a statute of repose or a statute of limi-
tations.

   The Court of Appeals of Maryland noted this distinction in
Piselli, where it discussed "the three-year statute of limita-
tions of section 5-109(a)(2)," 808 A.2d at 513 (quoting the
U.S. Court of Appeals Certification Order), and the "five-year
statute of repose for medical malpractice actions," id. at 519,
but nevertheless held generically that "mandating that the
three and five-year limitations periods run against a minor’s
tort claim from the time the minor is 11 years old, or under
a few circumstances 16 years old, is an unreasonable restric-
tion upon a child’s remedy and the child’s access to the
courts," id. at 524 (emphasis added).

   Finally, in Burnside, the Court of Appeals of Maryland
again referred to Section 5-109 as both a statute of limitations
and statute of repose. First, the Burnside court quoted the
entirety of Section 5-109(a), labeling it "the statute of limita-
tions." 986 A.2d at 440. However, the court later referred to
its earlier analysis in Rivera, which it claimed "also involved
the application of the statute of repose to a failure to diagnose
medical malpractice claim." Id. Thus, although the district
court below relied on Burnside in favoring a construction of
Section 5-109 as a statute of repose, we cannot be as confi-
dent that Burnside meaningfully resolves the question.

   In sum, it does not appear that the Maryland cases have
resolved definitively whether Section 5-109 is a statute of
                   ANDERSON v. UNITED STATES                  19
repose, a statute of limitations, or both, with subsection (a)(1)
serving as a statute of repose and subsection (a)(2) a statute
of limitations. The lack of definitive guidance necessitates
certification of this question.

             IV.   The Parties and Their Counsel

   Counsel of record for Anderson are Byron Warnken,
Warnken, LLC, 300 East Joppa Road, Suite 303, Towson,
Maryland, 21286, and Kerry Staton and Jonathan Schochor,
Schochor, Federico & Staton, P.A., 1211 St. Paul Street, Bal-
timore, Maryland, 21202. Counsel of record for the United
States are Thomas Bondy and Lewis Yelin, Civil Division,
U.S. Department of Justice, 950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530.

                        V.   Conclusion

   Pursuant to the privilege made available by the Maryland
Uniform Certification of Questions of Law Act, we hereby
ORDER: (1) that the question stated above be certified to the
Court of Appeals of Maryland for answer; (2) that the Clerk
of this Court forward to the Court of Appeals of Maryland,
under the official seal of this Court, a copy of this Order,
together with the original or copies of the record before this
Court to the extent requested by the Court of Appeals of
Maryland; and (3) that the Clerk of this Court fulfill any
request for all or part of the record simply upon notification
from the Clerk of the Court of Appeals of Maryland.

                                      QUESTION CERTIFIED
