Ortiz-Rivera v. United States

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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