FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 21, 2013
Elisabeth A. Shumaker
Clerk of Court
CESAR ANTONIO SALAS;
JUANA SALAS DURON,
Plaintiffs-Appellants,
v. No. 12-1454
(D.C. No. 1:11-CV-00784-CMA-KMT)
UNITED STATES OF AMERICA, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Cesar Antonio Salas and his mother, Juana Salas Duron, appeal from the
district court’s dismissal of their Second Amended Complaint in part for lack of
jurisdiction and in part for failure to state a claim for relief. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm in part, vacate in part, and remand with
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
instructions to dismiss Ms. Duron’s claim for negligent infliction of emotional
distress in part for lack of jurisdiction and in part for failure to state a claim.
I. BACKGROUND
We draw the facts largely from the Second Amended Complaint, which was
the operative district-court pleading. Mr. Salas is a United States citizen who suffers
from epilepsy and diminished cognitive ability. In May 2001, he took a trip to
Mexico. When he attempted to return to the United States, he was refused entry at
the border in Arizona and deported to Mexico. The same thing occurred in July
2007. On that occasion, Mr. Salas wandered homeless and without money in Mexico
for a period of weeks, suffering a series of hardships (including being beaten, robbed,
and kidnapped), until his mother, Ms. Duron, was able to locate him and effect his
return to the United States.
On March 1, 2008, Mr. Salas again attempted to return to the United States
from a trip to Mexico, this time at the Texas-Mexico border. He was detained at the
El Paso county jail and charged with unlawful re-entry. While he was held, the
United States Bureau of Immigration and Customs Enforcement (ICE) placed a
detainer on him. The criminal charge was dismissed on March 14, 2008, and ICE
then took him into custody and initiated removal proceedings. On March 31, 2008,
the removal proceedings were terminated upon proof that Mr. Salas was a United
States citizen. ICE then released Mr. Salas in El Paso, Texas, despite his attorney’s
request that ICE continue to hold him until Ms. Duron, who had traveled from her
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home in Colorado to Los Angeles to retrieve a copy of her son’s birth certificate,
could arrive in Texas. Mr. Salas spent several hours wandering in El Paso until his
mother could locate him.
Some two years later, on March 26, 2010, each plaintiff filed a claim with the
Department of Homeland Security (DHS) pursuant to the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. DHS denied those claims.
On March 28, 2011, plaintiffs filed the instant action against the United States,
raising two claims in their Second Amended Complaint. In the first claim, Mr. Salas
alleged that the United States was negligent in investigating his citizenship on each
of the three occasions he was deported or detained. In the second claim, Ms. Duron
sought damages for the negligent infliction of emotional distress (NIED) arising from
the allegedly negligent treatment of Mr. Salas.
The United States moved to dismiss the Second Amended Complaint under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6), advancing a number of theories. Plaintiffs
opposed the motion and moved to convert it to one for summary judgment. The
district court denied the conversion motion, limited its review to the Second
Amended Complaint and evidence referenced in it, and granted the motion to
dismiss.
The district court first concluded that it lacked jurisdiction over the
negligent-investigation claim because Mr. Salas filed his FTCA claim with the DHS
on March 26, 2010, more than two years after it accrued, and “[a] tort claim against
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the United States shall be forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim accrues.” 28 U.S.C.
§ 2401(b); see also Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003)
(explaining that a district court must dismiss an action for lack of subject matter
jurisdiction if a plaintiff fails to comply with § 2401(b)’s two-year time limit for
presenting a claim to the appropriate federal agency). Mr. Salas had argued that his
negligent-investigation claim involved a continuing tort that began when he was first
deported to Mexico in 2001 and only accrued when he was released from ICE
custody on March 31, 2008, thereby rendering his DHS claim timely under
§ 2401(b).
The district court rejected this contention. First, the court noted that plaintiffs
had not alleged any tortious conduct related to negligent investigation that occurred
after March 25, 2008, which might have made the DHS claim timely. Second, the
court concluded that each of the three occasions when Mr. Salas was deported or
detained was a separately actionable claim, not a continuing tort, under applicable
state law, which governs “whether a tort is characterized as permanent or
continuous,” Cannon v. United States, 338 F.3d 1183, 1192 (10th Cir. 2003). The
court held that, under Texas law, the continuing-tort theory only applies where no
single incident “can fairly or realistically be identified as the cause of significant
harm.” Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex. App. 1990) (internal
quotation marks omitted), reversed on other grounds, 855 S.W.2d 619 (Tex. 1993).
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It also relied on Dowling v. Arpaio, No. 09-1401, 2011 WL 843942, at *4 (D. Ariz.
Mar. 8, 2011) (unpublished), for the proposition that, under Arizona law, negligence
is not a continuing tort. See Aplt. App. at 110 n.5.
Third, the court found no authority for Mr. Salas’s proposition that
investigatory errors made during his first erroneous deportation led to the 2007 and
2008 incidents, but instead concluded that any continuing adverse effects from an
initial tort do not establish a continuing tort. See id. at 110.
Fourth, the court observed that even if the three instances of allegedly
negligent investigation were part of a continuous tort, plaintiffs could recover
damages “‘for [only] the two years prior to the time they filed their required
administrative complaint.’” Id. (brackets omitted) (quoting Hoery v. United States,
324 F.3d 1220, 1224 (10th Cir. 2003)).
The district court also rejected Mr. Salas’s argument that his claim accrued
when he discovered he had been injured, not when he was injured, on the ground that
the discovery rule applies only to medical malpractice claims. See id. (citing and
quoting Kynaston v. United States, 717 F.2d 506, 508 (10th Cir. 1983), for the
proposition that, “[u]nder the FTCA a cause of action accrues at the time the plaintiff
is injured, or, in a medical malpractice action, when the plaintiff has discovered both
its injury and its cause”). The court further refused Mr. Salas’s plea for equitable
tolling due to his mental disabilities because “[e]quitable considerations do not toll
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the limitations period in 28 U.S.C. § 2401(b).” Aplt. App. at 110 (citing Anderberg
v. United States, 718 F.2d 976, 977 (10th Cir. 1983)).
The district court then turned to Ms. Duron’s NIED claim, which it read as
limited to emotional distress arising from Mr. Salas’s release in El Paso in 2008. The
court dismissed it for failure to state a claim, concluding that it could not succeed
under the FTCA because “‘there is no general duty in Texas not to negligently inflict
emotional distress.’” Id. at 111 (quoting Boyles v. Kerr, 855 S.W.2d 593, 594
(Tex. 1993)).
Finally, the court denied plaintiffs’ motion for leave to amend because the
deficiencies in their claims could not be cured by amendment. This appeal followed.
II. DISCUSSION
Having reviewed the parties’ briefs, the record, and the controlling law, and
bearing in mind that we review dismissals under Rules 12(b)(1) and 12(b)(6)
de novo, Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004), we
affirm the district court’s judgment on the negligent-investigation claim for
substantially the same reasons stated in its Order Granting Defendant’s Motion to
Dismiss filed September 18, 2012.1 We also agree with the district court that
1
Plaintiffs argue that the district court was required to convert the motion to
dismiss into one for summary judgment, but they did not include their motion for
conversion and the ensuing briefs in their appendix. Therefore, they have not
provided an adequate record for appellate review of this issue, see 10th Cir.
R. 10.3(D)(2), 30.1(A), and we are “not obligated to remedy . . . failures by counsel
(continued)
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Ms. Duron failed to state a claim for NIED, but only in part. The NIED claim also
fails in part for lack of subject matter jurisdiction, which we must consider before
merits issues. See Franklin Sav. Corp. v. United States (In re Franklin Sav. Corp.),
385 F.3d 1279, 1286 & n.6 (10th Cir. 2004) (observing that “[j]urisdictional issues
must be addressed first” and that we are “under a continuing obligation to examine
. . . the jurisdiction of the district court” (internal quotation marks omitted)).
The United States argues on appeal, as it did in its motion to dismiss, that
Ms. Duron failed to exhaust her NIED claim before the DHS. The United States
contends that the claim she filed with the DHS referenced Mr. Salas’s deportations in
2001 and 2007 but not ICE’s release of her son in El Paso in 2008. It then reads
Ms. Duron’s judicial claim as limited to emotional distress arising from the
March 31, 2008 release of Mr. Salas in El Paso and contends that the failure to
adequately set forth any facts regarding that release in her DHS claim means the
judicial NIED claim was not exhausted and therefore the district court lacked
jurisdiction over it.
We disagree that the Second Amended Complaint alleged a NIED claim
limited to distress arising from the 2008 release of Mr. Salas in El Paso. It also
alleged distress arising from his 2001 and 2007 deportations and from his detention
in March 2008. Ms. Duron’s DHS claim referenced all of these bases except for
to designate an adequate record,” Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 910
(10th Cir. 2009). Accordingly, we decline to consider the argument. See id.
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distress arising from Mr. Salas’s release in El Paso. Thus, to the extent Ms. Duron’s
NIED claim is based on alleged emotional distress she suffered as a result of ICE’s
release of Mr. Salas in El Paso on March 31, 2008, the district court lacked
jurisdiction because she did not present that basis of her claim to the DHS. See
Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir.
2005) (discussing FTCA’s jurisdictional notice requirements, including “a written
statement sufficiently describing the injury to enable the agency to begin its own
investigation” (internal quotation marks omitted)).
Moreover, for the same reasons that Mr. Salas’s claim is not a continuing tort,
so too is Ms. Duron’s NIED claim not a continuing tort. At least four NIED claims
accrued separately: the first in 2001; the second in 2007; the third when Ms. Duron
learned of her son’s March 2008 detention and began efforts to obtain his birth
certificate in California and travel to El Paso; and the fourth on March 31, 2008,
when Mr. Salas was released in El Paso prior to Ms. Duron’s arrival there. Hence,
Ms. Duron’s DHS claim, filed March 26, 2010, was untimely as to her NIED claims
that accrued in 2001 and 2007. Consequently, the district court lacked jurisdiction
over them. See Dahl, 319 F.3d at 1228 (two-year time limit set forth in 28 U.S.C.
§ 2401(b) is jurisdictional). The DHS claim was also untimely to the extent a NIED
claim arose from her son’s March 2008 detention and accrued more than two years
prior to March 26, 2010. But because the precise date of that accrual is uncertain,
we hold that the NIED claim arising from Mr. Salas’s March 2008 detention (as
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opposed to his release from detention) fails to state a claim upon which relief can be
granted because Texas law does not recognize a NIED cause of action. See Boyles,
855 S.W.2d at 594.
III. CONCLUSION
The judgment of the district court is affirmed as to the dismissal of the
negligent-investigation claim for lack of subject matter jurisdiction. We vacate that
portion of the judgment dismissing the NIED claim for failure to state a claim upon
which relief can be granted, and we remand the case for the limited purpose of
dismissing the NIED claim in part for lack of jurisdiction and in part for failure to
state a claim for relief, as set forth above. We deny appellants’ Motion in
Conformity with F.R.A.P. 27.1, which asks us “to certify the question as to the status
of the theory of continuing tort to the Texas Supreme Court.” Mot. at 3.
Entered for the Court
John C. Porfilio
Senior Circuit Judge
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