VANESSA ORTIZ-RIVERA; LIZMARIE SANTIAGO-RIVERA, individually and in representation of her minor son; E.J.R.S.; SULEIMA ORTIZ-RIOS, Plaintiffs, Appellants.
UNITED STATES OF AMERICA, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Gustavo A. Gelpí, Jr., U.S. District
José R. Olmo-Rodríguez on brief for appellants.
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.
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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.
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).
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). 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).
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
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
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.
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. 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.
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.
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.
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
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 ...