                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    _____________

                         No. 17-3440
                        _____________

                     STACI SCONIERS,

                              Appellant

                               v.

              UNITED STATES OF AMERICA1
                    ______________

                      APPEAL FROM THE
            UNITED STATES DISTRICT COURT
           FOR THE DISTRICT OF NEW JERSEY
             (D.C. Civ. Action No. 2-17-cv-01835)
          District Judge: Honorable William J. Martini
                        ______________



      1
          The Court notes that the original complaint included
fictitious parties who have not participated in the case.
Accordingly, the caption is hereby amended to reflect that the
United States is the only defendant and appellee in this case.
        Submitted Under Third Circuit L.A.R. 34.1(a)
                      June 18, 2018
                    ______________

   Before: GREENAWAY, JR., RESTREPO, and BIBAS,
                  Circuit Judges.

                (Opinion Filed: July 24, 2018)
                      ______________

                          OPINION
                       ______________

Randall Bass
Freeman & Bass, P.C.
24 Commerce Street, Suite 726
Newark, NJ, 07102
             Counsel for Appellant

Craig Carpenito
Kruti D. Dharia
Office of United States Attorney
970 Broad Street
Newark, N.J., 07102
              Counsel for Appellee



GREENAWAY, JR., Circuit Judge.

       Staci Sconiers asks us to reinstate her tort claim against
the United States under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671-80 (2012), because she presented
her claim to the United States Postal Service (USPS) within




                               2
two years, as required by 28 U.S.C. § 2401(b). We decline to
do so because we hold that the FTCA additionally requires
claimants to file their claims within six months of an agency’s
written denial, which Sconiers failed to do. We will affirm the
District Court.2

                           I. FACTS

        This case arises from a car accident that occurred on
January 6, 2016, in Newark, New Jersey, between a car driven
by Sconiers and a vehicle owned by USPS. About two weeks
after the accident, Sconiers submitted an administrative tort
claim form to USPS seeking damages for injuries that she
claimed she suffered in the accident.

        Approximately seven months later, by letter dated July
14, 2016, and addressed to Sconiers’s counsel, USPS denied
her claim. The letter, citing the FTCA—i.e., 28 U.S.C.
§ 2401(b) and the relevant regulation—informed Sconiers that
if she was “dissatisfied with the Postal Service’s final denial,”
she “may file suit in a United States District Court no later than
six (6) months after the date the Postal Service mails the notice

       2
         In the judgment, the District Court ordered that all
claims against the defendants be “dismissed with prejudice.”
App. 2 (emphasis omitted). This characterization of the
Government’s motion for summary judgment motion is
incorrect “[b]ecause the grant of summary judgment and the
dismissal of the complaint are inconsistent.” Cheminor Drugs,
Ltd. v. Ethyl Corp., 168 F.3d 119, 121 n.2 (3d Cir. 1999).
Therefore, “we will disregard reference to the ‘dismissal’ of
[Sconiers’s] complaint and treat the record as a summary
judgment record.” Id.




                                3
of that final action.” App. 19. Sconiers, however, filed her
complaint before the District Court eight months later—or two
months after the limitations period that USPS alleges that the
FTCA requires—and named as defendants, inter alia, USPS
and Stephan D. Johnson, who was the driver of the USPS truck.

        The United States moved before the District Court to be
substituted in place of USPS and Johnson, as well as for
summary judgment. It contended that Sconiers’s failure to file
her lawsuit within six months of the mailing of the denial of
her administrative claim rendered her lawsuit untimely.
Sconiers did not contest the substitution of the United States,
but urged the District Court to equitably toll the statute of
limitations.

       The District Court found that Sconiers’s complaint was
filed beyond the FTCA’s six-month statute of limitations and
determined that she had not identified any extraordinary
circumstance that justified equitable tolling of the deadline.
Accordingly, it granted the Government’s motions. This
appeal followed.




                              4
                      II. DISCUSSION3



       “As a sovereign, the United States is immune from suit
unless it consents to be sued.” White-Squire v. U.S. Postal
Serv., 592 F.3d 453, 456 (3d Cir. 2010). The FTCA is “a
limited waiver of the sovereign immunity of the United
States,” Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 270 (3d
Cir. 2006), that provides that:

       The United States shall be liable, respecting the
       provisions of this title relating to tort claims, in
       the same manner and to the same extent as a
       private individual under like circumstances, but

       3
          The District Court had jurisdiction under 28 U.S.C.
§ 1346(b)(1) and the federal-question statute, 28 U.S.C.
§ 1331. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. “Our review of the District Court’s [summary
judgment] decision is plenary, and we apply the same standard
as the District Court to determine whether summary judgment
was appropriate.” State Auto Prop. & Cas. Ins. Co. v. Pro
Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Thus, summary
judgment is properly granted “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
For the reasons below, we will affirm the judgment of the
District Court.




                                5
      shall not be liable for interest prior to judgment
      or for punitive damages.

28 U.S.C. § 2674; see also Gotha v. United States, 115 F.3d
176, 179 (3d Cir. 1997) (“The Federal Torts [sic] Claims Act
is a partial abrogation of the federal government’s sovereign
immunity that permits suits for torts against the United
States.”).

        “To make a claim under the FTCA, a claimant first must
file her claim with the administrative agency allegedly
responsible for her injuries.” Santos ex rel. Beato v. United
States, 559 F.3d 189, 193 (3d Cir. 2009). The statute provides:

      An action shall not be instituted upon a claim
      against the United States for money damages for
      injury or loss of property or 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, unless the claimant shall have first
      presented the claim to the appropriate Federal
      agency and his claim shall have been finally
      denied by the agency in writing and sent by
      certified or registered mail.

28 U.S.C. § 2675(a). The FTCA also provides for a statute of
limitations that a claimant seemingly must abide by in order to
recover:

      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




                              6
       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.

Id. § 2401(b) (emphasis added).

        At issue in this case is whether the FTCA requires—as
the Government argues—that a claimant file both a claim with
the federal agency within two years of the tort and a suit within
six months of the agency’s denial, or—as Sconiers contends
based on the provision’s use of the word “or”—that a plaintiff
satisfies the limitations period by meeting just one of the two
conditions. In considering this matter, we note that “[b]ecause
the Federal Tort Claims Act constitutes a waiver of sovereign
immunity, the Act’s established procedures have been strictly
construed.” White-Squire, 592 F.3d at 456 (quoting Livera v.
First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir.
1989)).

       We agree with the Government and hold that both
conditions must be satisfied in order for a plaintiff to properly
bring a claim under the FTCA. The Sixth Circuit has aptly
explained why, and we adopt its reasoning today:

       Context provides considerable support for this
       reading. Claimants, remember, must present
       their claims to the relevant agency before
       bringing suit in federal court. See 28 U.S.C.
       § 2675(a). And if we construe the Act’s time bar
       to mean that the claimant must fail to satisfy both
       deadlines, that would pull at least two threads out
       of a coherent reading of the provisions. For one,
       a claimant cannot receive a notice of denial—the




                               7
trigger for the six-month limitations rule—until
she has filed an administrative claim. The statute
thus plainly contemplates that one act (the
administrative filing) will precede the other
(court filing) and thus most naturally requires
claimants to satisfy both deadlines.

For another, the alternative would effectively
eliminate any court deadline. It would mean that
(1) claimants could wait as long as they wished
before presenting tort claims to agencies as long
as they filed the claim within six months of any
denial or (2) they could present their claims to
agencies within two years of accrual and then
wait as long as they wished to file suit in district
court. But no one doubts that Congress meant to
impose some time limitation on administrative
and court filings, and, if we left the Act without
a meaningful time limitation, we would be
“tak[ing] it upon ourselves to extend the waiver
[of sovereign immunity] beyond that which
Congress       intended.” United       States     v.
Kubrick, 444 U.S. 111, 117–18, 100 S.Ct. 352,
62 L.Ed.2d 259 (1979).

. . . [T]he fact that the statute uses the disjunctive
does not by itself tell us anything. The question
remains whether the statute sets forth alternative
ways of barring a claim or alternative ways of
preserving a claim. A statute that precludes an
action if the claimant (disjunctively) fails to meet
either of two requirements generally will come
to the same end as a statute that requires the
claimant (conjunctively) to fulfill both




                          8
        requirements. In barring an action if the claimant
        fails to meet the agency-filing deadline (because
        it is not “presented in writing to the appropriate
        Federal agency within two years after such claim
        accrues”) “or” if the claimant fails to meet the
        court-filing deadline (because it is not “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”), the statute bars claims that fail to
        meet either deadline.

Ellison v. United States, 531 F.3d 359, 361–63 (6th Cir. 2008).

       Our holding today is consistent with our strict
construction of the FTCA and with how we have described the
FTCA’s filing requirements in the past.4 It also aligns this



        4
            For example, in Lightfoot v. United States, we stated
that:

        The FTCA precludes suit against the United
        States unless the claimant has first presented the
        claim to the relevant Federal agency and the
        claim has been finally denied. . . . After the
        denial of an administrative claim, the claimant
        has two options: (1) he may file suit in the
        District Court within six months of the denial
        pursuant to 28 U.S.C. § 2401(b); or (2) he may
        file a request for reconsideration directly with the
        agency to which the claim was originally made.




                                 9
Court’s precedent with that of every other circuit to have
considered this issue, each of which has held that both
conditions must be satisfied. See Sanchez v. United States, 740
F.3d 47, 50 n.6 (1st Cir. 2014) (“We read this disjunctive
language [of § 2401(b)] as setting out two deadlines, both (not
just either) of which must be satisfied.”); Houston v. U.S.
Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987) (“Though
phrased in the disjunctive, this statute requires a claimant to
file an administrative claim within two years and file suit
within six months of its denial.”); Dyniewicz v. United States,
742 F.2d 484, 485 (9th Cir. 1984) (“Under the Federal Tort
Claims Act a claim must be filed with the appropriate federal
agency within two years of its accrual and suit must be
commenced within six months of the agency’s denial of the
claim.”) (Kennedy, J.); Willis v. United States, 719 F.2d 608,
612-13 (2d Cir. 1983) (considering the legislative history and
concluding that § 2401(b) requires that both deadlines must be
met); Schuler v. United States, 628 F.2d 199, 201-02 (D.C. Cir.
1980) (en banc) (per curiam) (same).

        Here, Sconiers does not dispute that she filed her
complaint before the District Court eight months after USPS
delivered her notice of denial to her counsel’s office.
Furthermore, on appeal, she does not argue that the statute of
limitations should be tolled—accordingly, she has waived this
argument.5 See, e.g., United States v. Pelullo, 399 F.3d 197,

564 F.3d 625, 626–27 (3d Cir. 2009) (citation and footnotes
omitted).


      5
       Sconiers argues for the first time on appeal that the
FTCA’s time limitations are unconstitutional and that barring




                              10
222 (3d Cir. 2005) (“It is well settled that an appellant’s failure
to identify or argue an issue in his opening brief constitutes
waiver of that issue on appeal.”). Because Sconiers did not
bring this case within the six-month period required by
§ 2401(b), the District Court properly held that her lawsuit was
untimely. See Ellison, 531 F.3d at 363 (“And because [the
claimant] failed to meet the second deadline, that dooms the
action.”).

                     III. CONCLUSION

      For the aforementioned reasons, we will affirm the
judgment of the District Court.




her from pursuing this lawsuit will deny her due process of law
and equal protection. However, we find that this argument is
waived because she did not raise it before the District Court.
See, e.g., United States v. Dupree, 617 F.3d 724, 727 (3d Cir.
2010) (“[A]rguments not raised in the district courts are waived
on appeal.”).




                                11
