UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1539

MARGARET A. LUCAS, Individually, as Widow and Wrongful 

Death Beneficiary, and as Personal Representative of the 

Estate of John A. Lucas, Deceased; STEPHANIE L. CADEN, 

Individually, as Daughter and Wrongful Death Beneficiary of 

John A. Lucas, Deceased; CAROLINE A. LUCAS, Individually, 

as Daughter and Wrongful Death Beneficiary of John A. 

Lucas, Deceased,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee,

and

WALTER REED NATIONAL MILITARY MEDICAL CENTER, f/k/a National 

Naval Medical Center,

Defendant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Senior District 

Judge. (8:14-cv-02032-DKC)

Argued: October 25, 2016 Decided: November 22, 2016 

Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.
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ARGUED: Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, 

P.C., Washington, D.C., for Appellants. Molissa Heather Farber, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee. ON BRIEF: Patrick M. Regan, Christopher J. Regan, 

REGAN ZAMBRI LONG, Washington, D.C., for Appellants. Rod J. 

Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Margaret Lucas appeals the dismissal of her Federal Torts 

Claims Act (“FTCA”) complaint as untimely. We agree with the 

district court that the FTCA’s limitations period bars her 

claim. Nor has she shown extraordinary circumstances that call

for equitably tolling that bar. We therefore affirm.

I.

In November 2003, Margaret Lucas’s husband, John Lucas, 

underwent surgery to repair a paraesophageal hernia at what was 

then the National Naval Medical Center in Bethesda, Maryland. 

As part of the procedure, surgeons implanted mesh in Mr. Lucas’s 

body to prevent future herniation. The mesh migrated, allegedly 

causing Mr. Lucas’s health to deteriorate drastically over the 

next several years. Mr. Lucas suffered cardiac arrest in June 

2009 and never regained consciousness. He died on August 11, 

2009.

On February 23, 2010, Margaret Lucas and her two surviving 

daughters filed a medical malpractice claim with the Department 

of the Navy. Nearly four years passed before the Navy mailed 

its notice of final denial on November 8, 2013. Under the FTCA, 

a plaintiff has six months to initiate an action after the 

appropriate government agency mails her notice of its denial of 

her claim. 28 U.S.C. § 2401(b) (2012). Accordingly, Lucas had 
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until May 8, 2014, to bring her FTCA claim against the United 

States.

The parties agree that, because state law determines the 

liability of the United States under the FTCA, 28 U.S.C. § 2674, 

medical malpractice plaintiffs seeking relief under the FTCA 

must comply with the state’s substantive requirements. Maryland 

law, which the parties recognize controls here, requires a 

plaintiff to submit her medical malpractice claim to the state’s 

Health Care Alternative Dispute Resolution Office before filing

it in court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a), -

04(a)(1)(i) (West 2016). A plaintiff must then file an expert 

report certifying that the claim is meritorious within ninety 

days. Id. § 3-2A-04(b)(1)(i)(1). Once a plaintiff has filed an

expert report, she may waive arbitration and proceed to court. 

Id. § 3-2A-06B(a).

After receiving notice of the Navy’s denial, Lucas quickly 

filed her claim with the state agency on November 21, 2013. 

However, she did not file her expert report and waive

arbitration until May 19, 2014 -- eleven days after the FTCA’s 

six-month limitations period passed. And Lucas did not file her 

complaint in federal district court until one month later.

The United States moved to dismiss the complaint for lack 

of subject matter jurisdiction on the ground that it was 

untimely. The district court stayed the proceedings pending the 
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Supreme Court’s resolution of United States v. Kwai Fun Wong,

135 S.Ct. 1625 (2015). In that case, the Court held that the 

FTCA’s filing deadline under § 2401(b) is not jurisdictional and 

allows for equitable tolling. 135 S. Ct. at 1629. After Kwai 

Fun Wong, the United States moved to dismiss Lucas’s complaint

for failure to state a claim. The district court granted the 

motion. The court reasoned that § 2401(b) applied and that no 

extraordinary circumstances warranted tolling the limitations 

period.

II.

On appeal, Lucas first argues that her claim was timely 

because filing a required state administrative claim begins an 

“action” under § 2401(b). But the text of § 2401(b) plainly 

establishes that “action” refers only to a federal civil action. 

See Raplee v. United States, --- F.3d --- (4th Cir. 2016). 

Therefore, § 2401(b) requires a plaintiff to file a complaint 

with a federal district court within six months after the 

relevant federal agency mails her notice that it has denied her 

claim. Lucas filed her federal complaint more than a month 

after this deadline passed. Therefore, her complaint was 

untimely.

Although § 2401(b) allows for equitable tolling, Lucas’s 

case does not call for it. We generally review the district 
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court’s denial of equitable tolling for abuse of discretion. 

Rouse v. Lee, 339 F.3d 238, 247 n.6 (4th Cir. 2003) (en banc). 

But see Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (noting 

that in some circumstances review is de novo).

A statute can be equitably tolled only if a plaintiff shows

that (1) she pursued her claim with reasonable diligence and (2) 

extraordinary circumstances prevented her from filing on time. 

See Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable 

tolling is an extraordinary remedy limited to those occasions 

when “it would be unconscionable to enforce the limitation 

period against the party and gross injustice would result.” 

Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).

Regardless of whether Lucas pursued her claim diligently, 

she has failed to show any “extraordinary circumstances”

preventing her from filing on time. In fact, Lucas does not 

point to any intervening events that detained her. Rather, she 

argues only that Maryland’s pre-filing requirements themselves

constitute extraordinary circumstances.

Maryland’s pre-filing requirements certainly place a burden 

on medical malpractice plaintiffs. However, this hardly counts 

as an extraordinary circumstance. The requirements apply to all 

medical malpractice claims that arise in Maryland. Lucas’s 

argument would require us to hold that it is unconscionable to 

require an FTCA plaintiff to comply with state tort law. We 
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lack the power to do so. A state unquestionably has the 

prerogative to place whatever requirements it chooses on its 

tort causes of action. And Congress clearly intended FTCA 

plaintiffs to comply with those requirements. See, e.g.,

Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011).

The record contains no evidence that Maryland’s 

requirements prevented Lucas from filing on time. Lucas had 

more than four years to prepare the required state filings and 

her federal complaint. Moreover, the state agency processed 

Lucas’s filings without delay. The agency issued its order of 

transfer –- allowing Lucas to proceed to federal court –- the 

day after Lucas filed her expert report and waived arbitration.

III.

For the foregoing reasons, the judgment of the district 

court is

AFFIRMED.