Attallah v. U.S.
| Decision Date | 12 September 1991 |
| Docket Number | No. 91-1291,91-1291 |
| Citation | 955 F.2d 776 |
| Parties | Elias ATTALLAH, Violeta Lajam de Attallah, and the Conjugal Partnership They Comprise, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Luis A. Gonzalez-Perez, Hato Rey, P.R., for plaintiffs, appellants.
Heidi E. Weckwert, Trial Atty., Torts Branch, Civil Div., U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., and Phyllis J. Pyles, Asst. Director, Torts Branch, Civil Div., Washington, D.C., were on brief, for defendant, appellee.
Before TORRUELLA, Circuit Judge, COFFIN and TIMBERS, * Senior Circuit Judges.
This appeal arises from an action brought by Elias Attallah and Violeta Lajam de Attallah against the United States Customs Service, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., seeking to recover damages for the theft of their property. The United States District Court for the District of Puerto Rico entered summary judgment for defendants. We affirm.
We review the facts as ascertained by the district court. Elias Attallah and Violeta Lajam Attallah (hereinafter "plaintiffs") allege that on or about September 10, 1982, a courier named Yamil A. Mitri-Lajam transported currency and other monetary assets into the Commonwealth of Puerto Rico on their behalf. These assets were owned by plaintiffs and valued at $693,838.43. Upon arrival at Luis Munoz Marin International Airport, Mitri-Lajam declared and surrendered the assets for verification to the U.S. Customs Service agents ("Customs agents" or "agents") on duty, as required by federal law. The courier was to enter the country and deposit the assets at the San Juan branch of the Royal Bank of Canada. When plaintiffs did not hear from Mitri-Lajam that day, they contacted the bank and were told that the courier had not arrived. Plaintiffs then contacted the Customs Service and were told, by a person who identified himself as a Customs agent, that Mitri-Lajam had been processed by customs and had left the premises. Elias Attallah travelled to Puerto Rico the evening of September 10, 1982, and went to the Customs Service office the next day. After being told the same information, he contacted the Puerto Rico Police Department.
Approximately ten days later, Mitri-Lajam's decomposed body was found in Puerto Rico's rain forest--El Yunque. The police advised Mr. Attallah that they had no leads as to who was responsible for the criminal acts committed.
On May 13, 1987, four years and seven months later, a federal grand jury returned an indictment against two former Customs agents--Rafael J. Dominguez and Daniel J. Maravilla--for the assault, robbery, and murder of Mitri-Lajam. The indictment was the conclusion of a federal investigation into the death of Mitri-Lajam, and it included charges of obstruction of justice, perjury and unlawful transportation of stolen assets in interstate commerce.
In June 1987, Elias Attallah was approached by the U.S. Justice Department to testify for the prosecution in the criminal trial against the two former Customs agents Dominguez and Maravilla. On January 12, 1988, the Customs Service received a letter from plaintiffs claiming damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. for the negligent conduct of Dominguez and Maravilla, who allegedly acted within the scope of their employment. 1 The instant complaint against the United States was filed on October 3, 1988.
Plaintiffs also allege that Customs agents Rafael J. Dominguez, Daniel J. Maravilla, Julio C. Palmer, and other unidentified agents designated as John, Richard and William Doe, negligently failed to provide adequate security for the assets which were stolen or lost while under the exclusive custody and control of the Customs agents; and that Customs agents Maravilla and Dominguez willfully assaulted, robbed and murdered Mitri-Lajam. 2 Plaintiffs further allege that the Customs Service negligently supervised the aforementioned agents, and fraudulently concealed the two agents' involvement in the disappearance of the assets.
On February 2, 1991, the district court entered summary judgment for defendant on the grounds that plaintiff's first claim arose out of the intentional criminal acts committed by two Customs agents acting outside the scope of their employment. Furthermore, the district court held that plaintiff's second and third claims were barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). A timely Notice of Appeal was filed on March 11, 1991. As we agree with the district court's reasoning, we affirm.
Summary judgment is proper when there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). 3 We consider the undisputed facts in the light most favorable to the non-movant. See, e.g., Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 804 (1st Cir.1987). Our review of legal issues is plenary.
The FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq., affords a plaintiff two years from the date a claim against the United States accrues, to file a written claim with the agency thereby preserving the right to file a tort suit in federal court against the United States. 28 U.S.C. § 2401(b). 4 It is well settled law that an action brought against the United States under the FTCA must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate federal agency. United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 355, 62 L.Ed.2d 259 (1979); Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir.1990). See also, Vega-Velez v. United States, 800 F.2d 288 (1st Cir.1986); Richman v. United States, 709 F.2d 122 (1st Cir.1983). The filing of a timely administrative claim is a jurisdictional requirement that cannot be waived. Gonzalez-Bernal, 907 F.2d at 248; Richman, 709 F.2d at 124. If the claimant fails to comply with this requirement, his claim is "forever barred." 28 U.S.C. § 2401(b).
Plaintiffs-appellants allege that appellees deliberately concealed material facts related to Mitri-Lajam's death, and thus, that the statute of limitations should not begin to run until they discovered, or by reasonable diligence should have discovered, the basis of the lawsuit. 5 They argue that even in the exercise of due diligence they could not have discovered that Customs agents were the responsible parties within two years of Mitri-Lajam's death, and that the statute of limitations should begin to run at the time of the indictment of the responsible Customs agents. The general rule, within the meaning of the FTCA, is that a tort claim accrues at the time of the plaintiff's injury, Kubrick, 444 U.S. at 120, 100 S.Ct. at 358; Gonzalez-Bernal, 907 F.2d at 249; Richman, 709 F.2d at 123--in this case, at the time of the courier's robbery, on or about September 10, 1982. Plaintiffs filed their claim with the Customs Service on January 12, 1988, five years and four months after the robbery and assassination of their courier, Mitri-Lajam. Hence, according to the statute of limitations provision cited above, the plaintiffs' action is time-barred.
However, the jurisprudence has recognized an exception to the general rule established by the statute of limitations in actions which fall under the so-called "discovery rule." See, e.g., Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Under the discovery rule, the action accrues when the injured party knew or, in the exercise of reasonable diligence, should have known the factual basis for the cause of action. Kubrick, 444 U.S. at 121-25, 100 S.Ct. at 359-61; Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 130 (1st Cir.1987). The standard set forth by the discovery rule is an objective one. In order for the statute of limitations to be tolled pursuant to the discovery rule, the factual basis for the cause of action must have been "inherently unknowable" at the time of the injury. See, e.g., Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984). After a careful examination of the record in the light most favorable to plaintiffs, we find that the principles established by the discovery rule warrant a delayed accrual in this case since appellants did not know, nor in the exercise of reasonable diligence could have known of the Customs agents' criminal acts until the time of their indictment in May of 1987.
The government, however, argues that the statute of limitations should not be tolled in this case because appellants were aware of their injury and its cause on or about September 20, 1982, when the body of the courier was found. 6 At that time, the government claims, appellants were armed with the critical facts concerning their injury, i.e., loss of their assets, and its cause--the abduction and murder of Mitri-Lajam. We disagree. Appellants travelled to Puerto Rico when their courier failed to call them after his trip. They visited the Customs Service office at the Luis Munoz Marin airport where they were told that Mitri-Lajam had been processed and had left the premises. In fact, they were even shown documentation to that effect. Aside from this information, appellants had no other source of information regarding the whereabouts of their courier. In light of these facts, we cannot see how appellants could have known the factual basis for their claim--the robbery and subsequent assassination of their courier by two Customs agents. The police did not have sufficient information to bring charges against the responsible Customs agents until 1987. We believe appellants could not have been more efficient. Where the injury and its cause are not immediately apparent, accrual of...
To continue reading
Request your trial
-
McIntyre v. U.S., Civil Action No. 01-CV-10408-RCL.
...is easy to see how that conduct was not motivated in any part by a desire to advance the interests of the employer. Attallah v. United States, 955 F.2d 776 (1st Cir.1992), applies Puerto Rico law to hold that two Customs agents who robbed and murdered a courier were not in any way acting fo......
-
Cronauer v. U.S.
...cases where it cannot be readily known that the federal government was involved in the tort." Id. (citing Attallah v. United States, 955 F.2d 776, 780 (1st Cir.1992)). The plaintiffs explain that there was no identifying information on the manhole cover, and "no insignia or other markings t......
-
Armstrong v. Lamy
...is the basis of the cause of action." Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995). See also Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992) ("Where the injury and its cause are not immediately apparent, accrual of the cause of action occurs at the time the in......
-
McCloskey v. Mueller, No. CIV.A.04-CV-11015.
...as to how best to fulfill this duty are protected by the discretionary function exception to the FTCA"); see Attallah v. United States, 955 F.2d 776, 782-84 (1st Cir.1992) (concluding that customs agents have discretion, protected by 28 U.S.C. § 2680(a), to search or not search a particular......