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Ortiz-Rivera v. United States

United States Court of Appeals, First Circuit

May 23, 2018

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]

          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.

          Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

          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 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 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 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 ...


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