Ortiz-Rivera v. United States

• Decision Date: 23 May 2018
• Docket Number: No. 16-2278,16-2278
• Citation: 891 F.3d 20
• Parties: Vanessa ORTIZ-RIVERA; Lizmarie Santiago-Rivera, individually and in representation of her minor son; E.J.R.S. ; Suleima Ortiz-Rios, Plaintiffs, Appellants. v. UNITED STATES of America, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

891 F.3d 20

Vanessa ORTIZ-RIVERA; Lizmarie Santiago-Rivera, individually and in representation of her minor son; E.J.R.S. ; Suleima Ortiz-Rios, Plaintiffs, Appellants.

v.UNITED STATES of America, Defendant, Appellee.

No. 16-2278

United States Court of Appeals, First Circuit.

May 23, 2018

José R. Olmo-Rodríguez on brief for appellants.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Mainon A. Schwartz, Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

BARRON, Circuit Judge.

The District Court dismissed this Federal Tort Claims Act ("FTCA") suit for wrongful death on the ground that the plaintiffs had not first timely presented their claim to the appropriate federal agency. See 28 U.S.C. § 2401(b). We vacate and remand.

I.

The suit arises from the plaintiffs' allegation that federal agents or employees of Immigration and Customs Enforcement ("ICE") within the United States Department of Homeland Security negligently shot their close relative, who the government concedes died as a result of his gunshot wounds

. The appeal turns on the timeliness of the claim's presentment to that agency.

The timeliness issue arises because the FTCA waives the United States' sovereign immunity in federal court with respect to certain torts committed by federal employees only if certain preconditions are met. Id. § 1346(b). In particular, before a tort action against the United States may be filed in federal court under the FTCA, the tort claim must first be "presented" to the appropriate federal agency "within two years after such claim accrues." Id. § 2401(b).

A regulation, 28 C.F.R. § 14.2(a), promulgated by the United States Department of Justice fleshes out parts of this requirement. See Santiago-Ramirez v. Sec'y of Dep't of Def., 984 F.2d 16, 19 (1st Cir. 1993). The regulation provides that a tort claim is "presented" within the meaning of § 2401(b) when the appropriate federal agency "receives" written notice of that claim. 28 C.F.R. § 14.2(a).¹ If the agency that receives a timely presented claim denies it, then an FTCA suit predicated on that claim must be brought in federal court within six months of the agency's denial to avoid being dismissed. 28 U.S.C. § 2401(b).

The following facts bearing on whether the claim was timely presented are undisputed, unless noted otherwise. The plaintiffs' tort claim, as it is predicated on their relative's death, accrued when their relative died on July 27, 2012. On May 20, 2014, the plaintiffs mailed notice of their tort claim to the Federal Bureau of Investigation ("FBI"). The plaintiffs did so because they originally believed, based on what an unidentified source had told them, that FBI agents were responsible for their relative's death.

The FBI received the notice of the claim on June 10, 2014 and then informed the plaintiffs that "Homeland Security Immigration" was the appropriate federal agency to consider their claim. The plaintiffs next mailed the notice of their claim on July 2 to a Puerto Rico address that was allegedly listed on the Department of Homeland Security's website. That mailing was returned as undeliverable on July 20.

At that point, the plaintiffs finally learned the correct address for ICE (although it is unclear from the record how they did so). The plaintiffs mailed notice of their claim to that address on July 24, 2014 through the United States Postal Service ("USPS") via certified mail.

USPS delivered that mailing to ICE by 7:22 pm on July 28, 2014, which was the last day of the two-year period that began to run upon the relative's death.² According to the USPS tracking information, however, no "[a]uthorized [r]ecipient" was available. The tracking information further indicates that USPS left notice of the mailing at the address and that the mailing was then "[a]vailable for [p]ickup" as of the following afternoon.

ICE did not come into actual possession of the mailing until August 1, 2014, which was after the two-year period had run. The parties dispute how exactly ICE came into possession of the mailing on that day.

The plaintiffs contend that an ICE agent picked up the mailing from USPS because the "Date of Delivery" box on the USPS certified mail receipt is empty (although the August 1 date is stamped elsewhere on the receipt). ICE counters that USPS in fact "delivered" the mailing on August 1, given that the USPS tracking information reports a status of "delivered" for an entry dated August 1, 2014.

After ICE had taken possession of the mailing, ICE sent the plaintiffs a letter dated December 4, 2014. In that letter, ICE stated that the plaintiffs' claim had been "denied."

On May 28, 2015, the plaintiffs filed this FTCA action against the United States in the United States District Court for the District of Puerto Rico. The complaint alleged that federal agents or employees of ICE had, under Puerto Rico law, negligently shot their relative and that other federal agents or employees of ICE had negligently supervised the shooters.

The government moved to dismiss the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. In its brief supporting the motion to dismiss, the government contended that dismissal was required because the plaintiffs had failed to present a timely claim to ICE within two years of the time at which that claim had accrued.

The government described the two-year presentment requirement imposed by § 2401(b) as "a jurisdictional requirement" under the FTCA for filing a tort action in federal court. The government also contended that, even though the two-year deadline is subject to equitable tolling, there were no reasons to toll that deadline in this case.

The plaintiffs filed an opposition to the government's motion to dismiss. They asserted that ICE had been "timely" presented the claim within the two-year period because, after the plaintiffs had mailed the notice to ICE through USPS certified mail, USPS "attempted delivery" on the last day of the two-year period. The plaintiffs further contended that ICE itself had "deemed the claim to be timely" because it denied the claim and "cannot go against its own acts."

The government correctly pointed out in a reply brief that the plaintiffs did not contend that the deadline should be equitably tolled. The plaintiffs did file a motion requesting leave to file a surreply. But, in that motion, they did not argue that the deadline should be equitably tolled. They merely reasserted their arguments as to why their administrative claim was timely.

The District Court took this matter under advisement on the briefs without oral argument and granted the government's motion to dismiss. The District Court took the view that the FTCA's two-year time bar for administrative presentment was of jurisdictional stature, and that, as a result, the plaintiffs had the burden to prove that their administrative claim was timely presented.

The District Court then concluded that the plaintiffs had not carried that burden. The District Court also explained that it had no need to reach the government's arguments against equitable tolling because the plaintiffs had never sought equitable tolling.

After the District Court entered judgment in the government's favor, the plaintiffs moved for reconsideration and—for the first time—sought equitable tolling of the two-year deadline. The plaintiffs explained that, upon reading the District Court's opinion, they "remembered" that they had experienced difficulties identifying the particular federal agency that was responsible for the shooting of their relative. They also recounted their efforts to send the notice of their claim first to the FBI and then to the Puerto Rico address that they had allegedly found on the Department of Homeland Security's website.

The District Court denied the plaintiffs' motion for reconsideration without a written order. The plaintiffs then filed this timely appeal.

The plaintiffs do not appear to challenge the District Court's reliance on Rule 12(b)(1) as the procedural vehicle for dismissal. The government recognizes on appeal, however, that, under United States v. Wong, ––– U.S. ––––, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015), the FTCA's two-year time bar for presentment is a claims-processing rule, not a jurisdictional requirement, even though the government maintains that "dismissal is still warranted" here (presumably through some procedural vehicle other than Rule 12(b)(1) ). See id. at 1638.

II.

The plaintiffs make a number of arguments as to why the FTCA's presentment requirement does not preclude their suit from going forward. They argue, for example, that the government's own conduct—both in denying their claim without specifying untimeliness as a ground for doing so and in failing to transfer their claim from the FBI to ICE—bars the government from now successfully arguing that their suit must be dismissed as untimely. After explaining why those arguments are unavailing, we then turn to their alternative arguments for permitting the suit to proceed—namely, that the District Court erred by not tolling the two-year deadline and that, even if the deadline is not tolled, the District Court still erred in ruling that they did not satisfy the requirement to present their claim to ICE within two-years of the death of their relative. We consider each of these arguments in turn.

A.

The plaintiffs first contend that ICE's denial of the plaintiffs' administrative claim establishes that ICE itself considered the presentment of that claim to have been timely and that the government cannot now argue otherwise. To the extent that the plaintiffs mean to argue that the government is estopped altogether from denying the timeliness of the administrative presentment of their claim, we agree with the government that this point is waived for lack of development. See ...