Ortiz-Rivera v. United States , 891 F.3d 20 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2278
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
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.
May 23, 2018
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
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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
1 Section 14.2(a) provides in full:
For purposes of the provisions of 28 U.S.C.
2401(b), 2672, and 2675, a claim shall be
deemed to have been presented when a Federal
agency receives from a claimant, his duly
authorized agent or legal representative, an
executed Standard Form 95 or other written
notification of an incident, accompanied by a
claim for money damages in a sum certain for
injury to or loss of property, personal
injury, or death alleged to have occurred by
reason of the incident; and the title or legal
capacity of the person signing, and is
accompanied by evidence of his authority to
present a claim on behalf of the claimant as
agent, executor, administrator, parent,
guardian, or other representative.
For ease of reference, we will refer to the requirement set forth
in this regulation as the requirement to provide notice of a tort
claim.
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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
2 Although the relative died on July 27, 2012, the parties
agree that the two-year statutory period ran on July 28, 2014
because July 27, 2014 was a Sunday.
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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
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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
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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.
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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, 135 S. Ct. 1625 (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
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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 Holloway v. United
States, 845 F.3d 487, 492 n.5 (1st Cir. 2017).
To the extent that the plaintiffs mean to argue merely
that the government is estopped from asserting untimely
presentment as a ground for dismissal, however, we see no reason
why the government must specify untimeliness as a ground for
denying the claim in the administrative proceedings in order to
preserve that argument in federal court. After all, this is not
a situation in which we are reviewing an administrative order, in
which circumstances we could uphold the order only on grounds
specified by the agency in its order. See SEC v. Chenery Corp.,
318 U.S. 80, 95 (1943). In this regard, we note that § 2401(b)
does not provide for judicial review of the agency's order denying
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the tort claim. Rather, § 2401(b) simply ensures that the
appropriate federal agency has an opportunity to pass on a
claimant's tort claim before that claim is brought to federal
court. Nor were the proceedings before the agency adversarial,
where general principles of fairness and judicial economy might
counsel in favor of ensuring that the timeliness issue was
developed below. See Sims v. Apfel, 530 U.S. 103, 110 (2000)
("Where, by contrast, an administrative proceeding is not
adversarial, we think the reasons for a court to require issue
exhaustion are much weaker.").
B.
The plaintiffs also cannot prevail on their contention
that, pursuant to 28 C.F.R. § 14.2(b), the FBI should have
transferred the notice that it had received from the plaintiffs
before the two-year deadline to ICE and that the FBI's failure to
do so means that their claim should be considered timely presented
on the date that the FBI received it. As the government points
out, the plaintiffs never made this argument below. Nor have they
offered any plain error argument on appeal. Accordingly, this
argument cannot help them now. See Dominguez v. United States,
799 F.3d 151, 154-55 (1st Cir. 2015) (explaining that undeveloped
arguments are deemed waived).
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C.
The plaintiffs also contend that, even if the
government's own conduct does not preclude the FTCA's two-year
time bar from being enforced against them, equitable tolling does.
But, here, too, the plaintiffs' contention fails.
The FTCA's time bar may be equitably tolled, Wong, 135
S. Ct. at 1633, "when a party has pursued [its] rights diligently
but some extraordinary circumstance prevents [it] from meeting a
deadline." Id. at 1631 (internal quotation marks omitted). But,
the party seeking tolling has the burden of establishing that there
is a basis for doing so, and the District Court has discretion to
decide whether that burden has been met. Delaney v. Matesanz, 264
F.3d 7, 13-14 (1st Cir. 2001).
The plaintiffs premise their equitable tolling argument
on the difficulties they claim to have experienced in identifying
the appropriate federal agency to notify of their claim. In this
regard, they point to the two prior attempts that they made to
notify the government of their tort claim before the delivery of
their notice to ICE on July 28, 2014.
But, the plaintiffs concede that the District Court
correctly determined that the plaintiffs had not raised this
equitable tolling argument until their motion for reconsideration.
And we review denials of motions for reconsideration only for abuse
of discretion. Villanueva v. United States, 662 F.3d 124, 128
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(1st Cir. 2011) (per curiam). We see no abuse of discretion in
the District Court's decision not to reconsider its judgment in
light of the plaintiffs' equitable tolling argument, given that
the reason the plaintiffs gave for not making that argument earlier
was merely that they had not previously "remembered" the
difficulties they had experienced in identifying the responsible
federal agency. See Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 537 (1st Cir. 2011) (finding no abuse of discretion in
denying a motion to reconsider the dismissal of a complaint where
the movant had asked the district court "to consider new arguments
that [the movant] could have made earlier").
D.
That leaves the plaintiffs' contention that, even
without the benefit of equitable tolling, they complied with the
requirement under 28 C.F.R. § 14.2(a) that notice of their claim
be "receive[d]" by the appropriate federal agency within the two-
year statutory period that began to run when their relative died.
Their argument is that the notice was in fact "received by [ICE]
prior to the end of the period, as soon as delivery was attempted"
by USPS as of 7:22 pm on the last day of that period, even though
"no officer of the agency accepted the claim."
In ruling that the plaintiffs had not timely presented
their claim to the agency, the District Court correctly described
the plaintiffs as having argued in their opposition to the motion
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to dismiss that their claim was timely presented because, in the
District Court's summation, "the claim was properly mailed and
delivered on time by July 28, 2014, in spite of the fact that it
was not accepted until [after the deadline]" (emphasis added).
However, the District Court then proceeded to reject the
plaintiffs' argument solely on the ground that "mailing of the
claim alone" is insufficient to satisfy the FTCA's presentment
requirement. Thus, the District Court did not address -- at least
explicitly -- the plaintiffs' contention that they had complied
with the deadline because USPS arrived with the notice of their
claim at ICE by 7:22 pm on the last day of the two-year period
only for there to be no "authorized recipient" available to
"accept" the notice.
In defending the ruling below, the government, like the
District Court, also appears to focus on whether a mailing of a
claim within the two-year statutory period in and of itself renders
the claim timely for purposes of the presentment requirement. For
example, in defending the District Court's ruling, the government
relies on out-of-circuit precedents establishing that, in the
government's words, "[d]epositing the notice in the mail within
the two-year timeframe is insufficient to satisfy the statutory
requirements" under the FTCA.
The government does also cite United States v. Lombardo,
241 U.S. 73 (1916), as support for the proposition that
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"[d]epositing the notice in the mail within the two-year timeframe
is insufficient to satisfy the statutory requirements." But, even
assuming that Lombardo, which construed the words "shall file"
from a provision of the White Slave Traffic Act (or the Mann Act),
18 U.S.C. § 2424, offers useful guidance about how to construe
"receives" under § 14.2(a), that precedent shows only what the
other precedents on which the government relies show -- namely,
that something is not received when it is mailed. For while the
Court in Lombardo quoted the district court's view that "[a] paper
is filed when it is delivered to the proper official and by him
received and filed," the Court did not endorse that view in
construing the statutory deadline at issue. 241 U.S. at 76.
Rather, the Court affirmed the district court's decision that
mailing a notice did not constitute "fil[ing]" under the Act by
explaining that "a deposit in the post office" does not satisfy
the requirement "that a paper shall be filed with a particular
officer." Id. at 78.
Of course, we may affirm a District Court's order of
dismissal on any ground manifest in the record. González v. Vélez,
864 F.3d 45, 50 (1st Cir. 2017). But, in light of the state of
the record and the District Court's possible misapprehension of
the nature of the plaintiffs' argument, we conclude that the
prudent course is to vacate the order of dismissal and remand the
case for consideration of the plaintiffs' contention that the
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regulation providing that "a claim shall be deemed to have been
presented when a Federal agency receives" written notice of the
claim, 28 C.F.R. § 14.2(a), means that the plaintiffs' claim had
been timely presented by virtue of the fact that USPS arrived at
ICE with notice of the tort claim by 7:22 pm on the last day of
the two-year statutory period.3
In remanding the case, we note that the government did
assert below -- without reference to the record -- that "the
federal agency was closed" when USPS arrived at the agency. But,
on appeal, the government makes the somewhat different point that
7:22 pm was merely "after close of business." Moreover, the record
does not contain any evidence regarding ICE's actual hours on July
28, 2014 for "business" as well as for "accepting" certified mail.
In addition, the government, in stating that USPS
arrived at ICE "after close of business," does not explain why
that fact should matter for the purpose of determining whether the
3 We note that the government's assertion that the plaintiffs
had necessarily failed to exhaust their administrative remedies
because their tort claim had not been timely presented to ICE is
premised on the District Court's untimeliness ruling, which we
conclude must be reconsidered on remand. We also note that the
government separately contends that the plaintiffs did not exhaust
their administrative remedies because their written notice to ICE
neither indicated "the title or legal capacity of the person
signing" nor included "evidence of his authority to present a claim
on behalf of the claimant[s]," as required under 28 C.F.R. §
14.2(a). But, this argument was neither raised below nor developed
on appeal. We thus deem it to have been waived. Dominguez, 799
F.3d at 154-55.
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agency "receive[d]" the notice under § 14.2(a). We do observe,
though, that, to the extent that the government means to suggest
that the agency must first make a particular recipient available
to "accept" notice of a tort claim in order for the agency to be
deemed to have "receive[d]" the notice, we doubt that the
government could withdraw its statutory waiver of sovereign
immunity against tort actions in federal court simply by not making
such a recipient available.
We also note that neither the FTCA presentment
provision, 28 U.S.C. § 2401(b), nor the regulation at issue, 28
C.F.R. § 14.2(a), indicates that notice of the tort claim must be
presented to any particular recipient at the federal agency during
any particular hours within the two-year period. Rather, the FTCA
refers to the statutory period simply in terms of years, and the
regulation (like the statutory provision it interprets) refers to
the notice's receipt within that statutory period by a "Federal
agency," not a specific person. See Barnett v. Okeechobee Hosp.,
283 F.3d 1232, 1241 (11th Cir. 2002) (observing that notice of the
plaintiff's tort claim against the United States "was mailed -- in
compliance with the pertinent federal regulations -- to an
administrative office . . . and not to a person").
Likewise, the Department of Justice's own Standard Form
95, which § 14.2(a) indicates may be used for providing the
appropriate federal agency with notice of a tort claim, instructs
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claimants, consistent with the statutory and regulatory language,
merely that "the claim must be presented to the appropriate federal
agency within two years after the claim accrues" (first emphasis
added). That form does not further specify when or to whom such
presentment must be effected.4
Nevertheless, the plaintiffs have not identified any
authority that supports the conclusion that delivery of a notice
of a tort claim to a federal agency "after close of business" that
is not "accepted" nonetheless suffices to establish that the notice
was "receive[d]" by the agency under § 14.2(a). Nor have the
plaintiffs argued that the government has waived a response to
their argument -- that what they term the "delivery" of their
4 The government has not argued that either § 2401(b) or
§ 14.2(a) incorporates a rule like the one set forth in Rule 6(a)
of the Federal Rules of Civil Procedure -- which provides that the
last day of a non-electronic filing period generally ends "when
the clerk's office is scheduled to close" -- for the purpose of
determining when the FTCA's presentment deadline passes. We note,
however, that some circuits have held that § 2401(b) incorporates
a different rule set forth in Rule 6(a) -- its rule for counting
days in order to determine the last day of a time period -- in
order to calculate the day that the FTCA's two-year presentment
period ends, at least insofar as that method benefitted claimants
by rendering their claims timely. See, e.g., Maahs v. United
States, 840 F.2d 863, 865-67 (11th Cir. 1988); Frey v. Woodard,
748 F.2d 173, 175 (3d Cir. 1984). We express no view as to how
Rule 6(a) may bear on determining under § 2401(b) and § 14.2(a)
the time by which a tort claim must be presented on the last day
of the FTCA's presentment period. We also express no view as to
any issue concerning the adequacy of notice of the rules for
meeting the presentment deadline that might arise if the government
were to argue that § 2401(b) or § 14.2(a) does, impliedly,
incorporate rules like those set forth in Rule 6(a).
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notice to ICE on July 28, 2014 constituted ICE's receipt of the
notice under § 14.2(a) -- by not further developing such a response
in its brief on appeal.
With these observations, we remand the case, leaving the
parties free to develop their respective arguments as to whether
the arrival of the plaintiffs' mailing at ICE as of 7:22 pm on the
last day of the two-year period satisfied the FTCA's presentment
requirement. If necessary, the District Court may convert the
government's motion to a motion for summary judgment, see Holloway,
845 F.3d at 489, and develop the record regarding, for example,
with whom the plaintiffs would have needed to leave the notice of
their tort claim and during what hours of the day on July 28, 2014
in order to effect "recei[pt]" under § 14.2(a), as well as what
notice, if any, the public had of this information.
In this regard, though, we point out that, to the extent
that the District Court's consideration of the plaintiffs'
argument on remand might turn on such factual issues, neither party
has addressed whether the government's acknowledgment on appeal
that the FTCA's two-year time bar for administrative presentment
is not a jurisdictional requirement affects the allocation of the
burden of proof on this issue. See Skwira v. United States, 344
F.3d 64, 71 n.8 (1st Cir. 2003) (noting, prior to Wong, that
although our circuit was among those that viewed the FTCA's two-
year time bar for presentment as "jurisdictional in nature, and,
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accordingly, place[d] the burden of proof on the plaintiff,"
"[o]ther circuits view [it] as an affirmative defense . . . and
therefore place the burden of proof on the defendant"). Because
the District Court has not yet had the benefit of the government's
concession on appeal that the time bar is not a jurisdictional
requirement, we leave the question of which party has the burden
of proof and how its allocation may affect whether the plaintiffs'
administrative claim was timely presented for the District Court
to reconsider in the first instance.
III.
We vacate the District Court's order and judgment
dismissing this action, and we remand for further proceedings
consistent with this opinion. Each party shall bear its own costs.
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