16‐3981 Flores v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________
August Term, 2017
(Submitted: November 22, 2017 Decided: March 15, 2018)
Docket No. 16‐3981
_______________
EDUARDO FLORES, PATRICIA FLORES,
Plaintiffs‐Appellants,
– v. –
UNITED STATES OF AMERICA,
Defendant‐Appellee. _______________
B e f o r e:
KATZMANN, Chief Judge, WALKER, CALABRESI, Circuit Judges.
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. _______________
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
1 The Order of Supervision stated in relevant part that the conditions of release were imposed “[b]ecause the Department [of Homeland Security] has not effected your deportation or removal during the period prescribed by law,” and required, inter alia, that Mr. Flores not travel outside a certain geographical radius without first notifying the department at least 48 hours in advance. App.
84.
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, negligence, invasion of privacy, malicious prosecution, and
abuse of process under the laws of the state of New York.
The Government moved to dismiss for failure to state a claim or, in the
alternative, for summary judgment. The district court granted summary
judgment for the Government on September 30, 2016, holding that: (1) Mr. Flores
failed to timely present his administrative claims within the two‐year statute of
limitations; (2) the “continuing violation doctrine” did not apply to this action;
(3) Mr. Flores failed to establish entitlement to equitable tolling of the limitations
period; and (4) Mrs. Flores failed to exhaust her administrative remedies because
she never filed her own administrative claims with the Government. Flores v.
United States, No. CV 14‐6614, 2016 WL 6094187, at *6‐8 (E.D.N.Y. Sept. 30, 2016).
The district court entered final judgment for the Government on September 30,
2016, and the Floreses timely appealed.
We review the district court’s grant of summary judgment de novo. Spak v.
Phillips, 857 F.3d 458, 461 (2d Cir. 2017). While we are “required to resolve all
ambiguities and draw all permissible factual inferences in favor of [the non‐
moving party],” Terry v. Ashcroft, 336 F.3d 128
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16‐3981 Flores v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________
August Term, 2017
(Submitted: November 22, 2017 Decided: March 15, 2018)
Docket No. 16‐3981
_______________
EDUARDO FLORES, PATRICIA FLORES,
Plaintiffs‐Appellants,
– v. –
UNITED STATES OF AMERICA,
Defendant‐Appellee. _______________
B e f o r e:
KATZMANN, Chief Judge, WALKER, CALABRESI, Circuit Judges.
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. _______________
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
1 The Order of Supervision stated in relevant part that the conditions of release were imposed “[b]ecause the Department [of Homeland Security] has not effected your deportation or removal during the period prescribed by law,” and required, inter alia, that Mr. Flores not travel outside a certain geographical radius without first notifying the department at least 48 hours in advance. App.
84.
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, negligence, invasion of privacy, malicious prosecution, and
abuse of process under the laws of the state of New York.
The Government moved to dismiss for failure to state a claim or, in the
alternative, for summary judgment. The district court granted summary
judgment for the Government on September 30, 2016, holding that: (1) Mr. Flores
failed to timely present his administrative claims within the two‐year statute of
limitations; (2) the “continuing violation doctrine” did not apply to this action;
(3) Mr. Flores failed to establish entitlement to equitable tolling of the limitations
period; and (4) Mrs. Flores failed to exhaust her administrative remedies because
she never filed her own administrative claims with the Government. Flores v.
United States, No. CV 14‐6614, 2016 WL 6094187, at *6‐8 (E.D.N.Y. Sept. 30, 2016).
The district court entered final judgment for the Government on September 30,
2016, and the Floreses timely appealed.
We review the district court’s grant of summary judgment de novo. Spak v.
Phillips, 857 F.3d 458, 461 (2d Cir. 2017). While we are “required to resolve all
ambiguities and draw all permissible factual inferences in favor of [the non‐
moving party],” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003), “conclusory
statements, conjecture, or speculation by the party resisting the motion will not
defeat summary judgment,” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.
1996).
The Floreses principally argue on appeal that the continuing violation
doctrine tolled the statute of limitations until the date that Mr. Flores received his
green card because it was only then that the Government could inflict no further
injuries. We disagree.
The continuing violation doctrine provides that “[w]hen a plaintiff
experiences a continuous practice and policy [that violates his or her rights], . . .
the commencement of the statute of limitations period may be delayed until the
last [violation].” Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (citations
and internal quotation marks omitted) (discussing the doctrine in the 42 U.S.C.
§§ 1983, 1985 contexts); see also Syms v. Olin Corp., 408 F.3d 95, 108‐09 (2d Cir.
2005) (discussing the doctrine in the FTCA context and the possible relevance of
state law in that context). Mr. Flores, however, has not shown a continuous
practice or policy that violated his rights. His injuries ceased after the IJ’s order
recognizing his LPR status became final on May 3, 2011, when the Government
withdrew its appeal. From that point on, Mr. Flores was not (and could not be)
subject to deportation, and was no longer (and could no longer be) subject to
supervised release.
The Floreses’ argument to the contrary, that Mr. Flores suffered injury by
attending the November 2011 interview with USCIS, is without basis. There is no
evidence in the record that the interview was for the purpose of revoking Mr.
Flores’ LPR status, and the scheduling notice sent by the Government does not
state that the interview was mandatory or that Mr. Flores would suffer any
repercussions for not reporting. Moreover, the record shows the Government
stamped Mr. Flores’ passport at the interview’s conclusion to evidence that he
was a lawful permanent resident—an undisputedly favorable development. The
Floreses’ speculation about USCIS’ motive for scheduling the interview
accordingly is insufficient to create a genuine dispute of material fact precluding
summary judgment. See Kulak, 88 F.3d at 70‐71.
CONCLUSION
We have considered the Floreses’ remaining contentions on appeal and
have found in them no basis for reversal. For the reasons stated herein, the
judgment of the district court is AFFIRMED.