Magnate, LLC v. United States Environmental Protection Agency

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-1768
MAGNATE, LLC,
Plaintiff - Appellant,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:22-cv-00040-EKD)
Submitted: May 21, 2024 Decided: May 23, 2024
Before WYNN and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
ON BRIEF: Bradley G. Pollack, Woodstock, Virginia, for Appellant. Christopher R.
Kavanaugh, United States Attorney, Jonathan Jones, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 2 --

2
PER CURIAM:
Magnate, LLC, appeals the district court’s order dismissing Magnate’s complaint
filed under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (FTCA), for lack
of subject matter jurisdiction. We have reviewed the record and find no reversible error,
as the challenged EPA action falls squarely within the discretionary function exception to
the FTCA. See Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F. Supp. 400,
423 (D.S.C. 1994) (collecting cases). Accordingly, we affirm the district court’s order, as
modified to reflect a dismissal without prejudice. See Ali v. Hogan, 26 F.4th 587, 600
(4th Cir. 2022) (explaining that dismissals for lack of subject matter jurisdiction must be
without prejudice); Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir.
2009) (stating dismissal pursuant to discretionary function exception is for lack of subject
matter jurisdiction); see also Krembel v. United States, 837 F. App’x 943, 950 (4th Cir.
2020) (No. 19-6774) (argued but unpublished). 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 AS MODIFIED

-- 2 of 2 --