USCA4 Appeal: 23-1768 Doc: 22 Filed: 05/23/2024 Pg: 1 of 2

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 23-1768 Doc: 22 Filed: 05/23/2024 Pg: 2 of 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jurisdiction); see also Krembel v. United States, 837 F. App’x 943, 950 (4th Cir. 2020) (No. 19-6774) (argued but unpublished).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