United States Court of Appeals
For the First Circuit
No. 13-2266
ROBERTO CARLOS DOMINGUEZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Gerald A. Phelps for appellant.
Brian Pérez-Daple, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
August 27, 2015
HOWARD, Chief Judge. Plaintiff-appellant Roberto Carlos
Dominguez filed suit seeking money damages against the United
States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b)(1), 2671 et seq. Dominguez alleged that in 1998 and
1999 he was wrongfully detained and deported as an unauthorized
alien despite his true status as a United States citizen. The
district court dismissed the case as time barred on the
government's motion, thereby rejecting Dominguez's attempt to use
the discovery rule as shelter for his claims. Concluding that
delayed accrual is foreclosed by the factual allegations in
Dominguez's complaint, we affirm.
We construe the facts alleged favorably to the plaintiff,
and, viewed through that lens, the complaint and attached exhibits
present the following facts. See Yacubian v. United States, 750
F.3d 100, 107-08 (1st Cir. 2014). Federal immigration authorities
detained Dominguez from July 1998 through September 1999. In the
course of numerous interrogations, Dominguez told Immigration and
Customs Enforcement ("ICE") agents that he was born in Lawrence,
Massachusetts, but the agents failed to investigate his citizenship
status beyond the immigration file and ignored his claim of a
United States birthplace. After an administrative hearing before
an Immigration Judge ("IJ") in September 1999, Dominguez was
ordered removed to the Dominican Republic. ICE agents told him
that if he ever returned to America he would be incarcerated.
-2-
Dominguez lived in the Dominican Republic for the next
ten years. At some point, friends and family told him to go to the
United States Embassy to see what, if any, paperwork he could
obtain in order to return to the United States. Dominguez did so,
and after submitting a United States birth certificate and other
documentation, he was granted a U.S. passport. He returned to this
country in September 2009, and for about a year he lived in fear
that he again would be deported or thrown in jail. In November
2010, Dominguez met with a lawyer to "give himself up" but instead
allegedly learned that his detention and deportation at the hands
of the federal government had been illegal. Dominguez did not
pursue relief until February 2012 when he first filed a damages
claim through administrative channels as required under the FTCA.
See 28 U.S.C. § 2675(a). Meanwhile, in October 2011, federal
authorities had asked the Commonwealth of Massachusetts to detain
him and also had required Dominguez to surrender his U.S.
passport.1
In his complaint, Dominguez faults the government for,
among other things, failing to investigate his claims of U.S.
citizenship in 1998-1999 thereby causing his illegal detention and
removal as a United States citizen. He attached to the complaint
a purported Massachusetts birth certificate showing that he had
1
At argument before us, the government represented that
Dominguez is not in custody and that no removal proceedings are
pending against him.
-3-
been born in Lawrence, Massachusetts on November 9, 1979.2
Dominguez asserted claims against the United States and three
individual federal employees who had been involved in his detention
and deportation or in issuing the 2011 detention letter. The
individual defendants later were dismissed from the case, leaving
the federal government as the sole defending party.
After conducting a hearing on the government's motion to
dismiss, the district court granted the motion and entered a final
judgment of dismissal in September 2013. We review the court's
decision de novo. Sanchez v. United States, 740 F.3d 47, 52 (1st
Cir. 2014).
The FTCA permits suits against the government for torts
caused by the wrongful acts of any government employee while acting
within the scope of his office or employment. See 28 U.S.C.
§§ 1346(b)(1), 2645. Plaintiffs have two years from the time of
accrual to file a claim with the appropriate agency and then, if
the claim is denied, six months after the denial to file suit. See
id. § 2401(b). Therefore, if Dominguez's detention and deportation
in 1998 and 1999 constituted the accrual conduct, his decade-plus
delay in filing an agency claim in February 2012 would, of course,
2
The government identifies several discrepancies which, it
claims, undermine the validity of the Massachusetts birth
certificate document and stands by its initial reliance on
documents in the immigration file to show Dominguez's Dominican
Republic citizenship. It is unnecessary for us to decide the
validity of the document.
-4-
bar his federal suit. Application of the federal discovery rule is
Dominguez's only hope, and it quickly fades.
The discovery rule applies to certain FTCA claims "under
circumstances where the fact or cause of an injury is unknown to
(and perhaps unknowable by) a plaintiff for some time after the
injury occurs, and which will sometimes dictate that a claim
accrues well after the time of the injury." Rakes v. United
States, 442 F.3d 7, 19 (1st Cir. 2006); see Sanchez, 740 F.3d at
52. For such claims, the cause of action accrues once the
plaintiff knows, or in the exercise of reasonable diligence should
have known, the factual basis of the cause of action, which
includes the existence of an injury and its probable causal
connection to the federal government. McIntyre v. United States,
367 F.3d 38, 52 (1st Cir. 2004); Callahan v. United States, 426
F.3d 444, 451 (1st Cir. 2005). This objective inquiry focuses on
when a person similarly situated to the plaintiff would have
discovered necessary facts in the exercise of reasonable diligence.
See Sanchez, 740 F.3d at 52; McIntyre, 367 F.3d at 59.
Dominguez's own factual allegations in his complaint
place the time of accrual well before February 2010, the date that
is two years prior to his agency filing. He alleges that he knew
of his United States birthplace at the time of his deportation in
1999 and also that his detention and deportation by the United
States government were based on his status as an unauthorized
-5-
alien. He alleges that he knew that, even though he had told
federal officials of his United States citizenship status, the
immigration proceedings continued and resulted in his removal from
this country as a foreigner. Dominguez further alleges that, while
in the Dominican Republic, he took steps to return to his alleged
homeland and even acquired and delivered a Massachusetts birth
certificate to the embassy. All of this he knew prior to September
2009 when he returned to the United States.
These are more than enough facts to charge a reasonable
person with knowledge, and certainly would put a person on at least
inquiry notice, in 1999 or soon thereafter of the putative injury
and its probable causal connection to the federal government.
Under any accounting, accrual occurred before September 2009 when
Dominguez returned to the United States with a U.S. passport and
birth certificate in hand. This dooms his federal lawsuit.
Dominguez asserts, however, that while he knew he had
been deported in 1999, he remained in the dark about the illegal
nature of his deportation and its probable connection to the
failures of ICE agents. He contends that it was not until November
2010 when he met with a lawyer for the first time that the
necessary basis for the cause of action became known to him. This
argument goes nowhere. Federal law does not allow a potential
plaintiff to await confirmation from an attorney before the
-6-
limitations period begins to run. See Sanchez, 740 F.3d at 52;
Rakes, 442 F.3d at 20 n.8; Callahan, 426 F.3d at 451.
In an attempt to keep the door slightly ajar, Dominguez
asserts a type of duress or fraud argument that skews application
of the reasonable person inquiry under the federal discovery rule.
He claims that the 1999 threats of imprisonment should he return to
the United States (and other vague allusions of "negligence, fraud,
threats, and intimidation" by ICE agents) overpowered his mind and
rendered him unable to link the government misconduct to his injury
until 2010 when legal counsel cleared the cloud. The trouble is,
he relies on Massachusetts law (a single case) to advance his
anemic argument, see Riley v. Presnell, 565 N.E.2d 780 (Mass.
1991), when it is federal law that governs the statute of
limitations accrual question for FTCA claims. See, e.g., United
States v. Kubrick, 444 U.S. 111, 123 (1979); Sanchez, 740 F.3d at
52; see also Rakes, 442 F.3d at 19 n.7 (collecting cases). And,
federal law is to the contrary. Cf. Rakes, 442 F.3d at 24-27
(demonstrating that the concepts of duress and fraudulent
concealment pertain to tolling doctrines under federal law and are
not part of the discovery rule calculus).
Dominguez also contends that the government's ongoing
refusal to acknowledge his citizenship status constitutes a
continuing tort that delays accrual of his FTCA claim until he is
adjudicated a United States citizen. However, not only was his
-7-
administrative complaint based only on the government's conduct in
1998-1999, but also he offers no argument as to how he could
possibly be entitled to such an adjudication of his citizenship in
the face of the IJ's 1999 deportation ruling that he neither
appealed to the Board of Immigration Appeals nor sought to reopen.
With this essential link lacking, Dominguez's continuing violation
theory is a nonstarter. Cf., Fisher v. United States, 959 F.2d
230, 1992 WL 63516, at *4 (1st Cir. 1992) (per curiam) (unpublished
disposition) (holding that false arrest with its ongoing effects is
not a continuing tort and thus accrues at the time of arrest).
Finally, we note that any peripheral argument based on
equitable tolling, see United States v. Kwai Fun Wong, 575 U.S. __,
135 S. Ct. 1625 (2015), either has been waived for lack of
development, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990), or is so embedded in his discovery rule arguments such that
they fall together, see, e.g., Sanchez, 740 F.3d at 53-54 (holding
that the plaintiff's patent lack of diligence forecloses equitable
tolling of FTCA claim).
Because we resolve this case on statute of limitations
grounds, we do not reach the government's other assorted bases for
dismissal. The judgment of the district court is affirmed.
Costs are awarded to the appellee.
-8-