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Flores v. United States

United States Court of Appeals, Second Circuit

March 15, 2018

Eduardo Flores, Patricia Flores, Plaintiffs-Appellants,
v.
United States of America, Defendant-Appellee.

          Submitted: November 22, 2017

         Plaintiffs Eduardo and Patricia Flores (husband and wife) appeal from the decision of the United States District Court for the Eastern District of New York (Wexler, J.) awarding summary judgment to the Government dismissing the Floreses' claims brought under the Federal Tort Claims Act ("FTCA"). The district court concluded that the FTCA's two-year statute of limitations barred Mr. Flores' claims, that his claims were not saved by the continuing violation doctrine or equitable tolling, and that Mrs. Flores had failed to exhaust her administrative remedies. We find no error and AFFIRM the judgment of the district court.

          Sandra Lynn Greene, Greene Fitzgerald, Advocates & Consultants, York, PA, for Plaintiffs-Appellants.

          Robert B. Kambic, Varuni Nelson, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendant- Appellee.

          Before: Katzmann, Chief Judge, Walker, Calabresi, Circuit Judges.

          Per Curiam:

         This appeal calls on us principally to decide whether claims brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, were timely filed in federal district court. We conclude that the district court committed no error in finding that the claims were filed outside of the statute's two-year statute of limitations and were not saved by the continuing violation doctrine or equitable tolling. We accordingly AFFIRM the judgment below.

         Plaintiff-Appellant Eduardo Flores, a native of Ecuador, legally entered the United States in 1978 but overstayed his visa. He subsequently applied for legal permanent resident ("LPR") status, which the Immigration and Naturalization Service ("INS") granted on July 3, 1979. INS stamped his Ecuadorian passport the same day with an insignia reading "temporary evidence of lawful admission for permanent residence valid until 1-2-80." App. 24.

         Approximately five months later, on November 9, 1979, INS denied Mr. Flores' application for adjustment of status and gave him until December 9, 1979 to voluntarily depart from the country. Mr. Flores remained, and on January 17, 1994, an immigration judge ("IJ") ordered that Mr. Flores be deported. The Board of Immigration Appeals ("BIA") dismissed Mr. Flores' appeal on August 15, 2000.

         On or about August 12, 2008, Mr. Flores was arrested at his home and placed into immigration detention. He was held for approximately three months until he was placed on supervised release.[1] Mr. Flores subsequently filed a motion with the BIA to reopen his removal proceedings. The BIA granted the motion and Mr. Flores moved in immigration court to terminate the removal proceedings.

         The IJ granted Mr. Flores' motion by decision and orders dated December 2, 2010, finding that Mr. Flores had been granted LPR status by virtue of the stamp placed in his passport on July 3, 1979, and that status had not been properly rescinded. Although the Government initially sought to appeal the IJ's decision, it withdrew its appeal, and the BIA closed the case by order dated May 3, 2011.

         On November 4, 2011, Mr. Flores received a notice from the United States Citizenship and Immigration Services ("USCIS") requesting that he report to its Manhattan location on November 11, 2011 for a "[r]eview of your IJ decision, and LPR status." Id. at 68. The notice stated that "it is important that you keep this appointment" and "if you are unable to do so, state your reason, sign below and return this letter to the office below at once." Id. Mr. Flores appeared at the interview and, at its conclusion, was given a second stamp in his passport indicating that he was a lawful permanent resident. He received his lawful permanent resident card ("green card") in November 2012.

         On November 11, 2013, Mr. Flores, through counsel, sent administrative claims to four federal entities pursuant to § 2675(a) of the FTCA. The statute provides a limited waiver of the United States' sovereign immunity from suit in "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). However, before an FTCA suit can be filed in the district court, "the claimant shall have first presented the claim to the appropriate Federal agency, " id. § 2675(a), and the statute makes clear that "[a] tort claim against 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, " id. § 2401(b).

         After the relevant federal entities denied his claims, Mr. Flores and his wife, Plaintiff-Appellant Patricia Flores, filed this action in the district court in November 2014. The Floreses cited the FTCA as the jurisdictional basis of their suit and asserted that the actions of the United States set forth in the complaint constituted false arrest and imprisonment, assault, battery, intentional infliction of emotional distress, ...


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