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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                     Fifth Circuit

                                                                      FILED
                                                                  February 8, 2016
                                 No. 14-31130
                                                                   Lyle W. Cayce
                                                                        Clerk
TRINITY MARINE PRODUCTS, INC., formerly known as Trinity Marine
Baton Rouge, Inc.,

              Plaintiff–Appellant,

v.

UNITED STATES OF AMERICA,

              Defendant–Appellee.



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before STEWART, Chief Judge, and BARKSDALE, and PRADO, Circuit
Judges.
EDWARD C. PRADO, Circuit Judge:
      In 1999, Plaintiff–Appellant Trinity Marine Products, Inc. (“Trinity”),
was indicted for illegally storing hazardous waste without a permit. This
charge, however, was dismissed in 2003, and it was subsequently revealed
several years later that two of the federal agents involved in the investigation
and prosecution had used the case as a means to engage in an extramarital
affair with one another. It was also disclosed that one of these agents had
committed perjury and obstructed justice in attempting to conceal the affair
and the true motivation for the prosecution against Trinity. Trinity filed an
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administrative claim in 2012 and a complaint in federal court in 2013 under
the Federal Tort Claims Act (“FTCA”) alleging malicious prosecution. Based
on the recommendation of a magistrate judge, the district court dismissed
Trinity’s FTCA claim as time barred. Because we hold that the district court
erred by failing to equitably toll the statute of limitations, we affirm in part
and reverse in part.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      In 1996, agents from the Federal Bureau of Investigation (“FBI”),
Environmental Protection Agency (“EPA”), United States Marshal Service,
Coast Guard, and Louisiana State law enforcement executed a search warrant
on a facility owned by the Canal Refining Company (“Canal”). Vidrine v. United
States, 846 F. Supp. 2d 550, 555 (W.D. La. 2011). This facility was managed by
Hubert P. Vidrine Jr. and used by Trinity to transport oil. Id. at 555, 574–75.
The warrant was based on the belief that Canal was illegally accepting and
receiving hazardous materials without the required permits. See id. at 573.
      Among the agents involved in executing this warrant were Keith Phillips
of the EPA and Ekko Barnhill of the FBI. Id. at 574. While they were working
on the case, Agents Phillips and Barnhill began having an affair. Id. at 585.
According to Agent Barnhill, they were only physically intimate while working
together on the Canal case, as the investigation offered an opportunity for
them to be together without raising the suspicions of Agent Phillips’s wife. See
id. at 624.
      In 1999, a federal grand jury indicted Vidrine and Trinity for violating
42 U.S.C. § 6928(d)(2), which makes it illegal to store “hazardous waste . . .
without a permit.” See Vidrine, 846 F. Supp. 2d at 555, 561. The key to the
Government’s case was the testimony of Mike Franklin, a hydrocarbons broker
who happened to be at the Canal refinery facility when the search warrant was


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executed. See id. at 580, 582. According to Agent Barnhill’s notes from a 1998
interview, Franklin “obtained samples of the product TRINITY wanted to sell.
These samples were given to [a laboratory] for testing. Results of the test
showed one of the sampled products to be over 1000 ppm of chlorinated
solvents.” Id. at 583 (emphasis omitted). These test results were essential to
the Government’s case because federal regulations provide that “[i]f the used
oil contains greater than or equal to 1,000 ppm total halogens, it is presumed
to be a hazardous waste.” 40 C.F.R. § 279.53. Chlorinated solvents are a type
of halogen. See Vidrine v. United States, No. 6:07-CV-1204, 2012 WL 253124,
at *35 (W.D. La. Jan. 26, 2012).
      No such test results were ever found to exist, however. Vidrine, 846 F.
Supp. 2d at 594. Instead, each of the samples for which test results were
available contradicted Franklin’s allegations. Id. In light of these and other
problems with Franklin’s story and credibility, the court barred his testimony.
Id. at 597. With its key witness excluded, the Government moved to voluntarily
dismiss the charges. Id. at 580 n.62.
      Vidrine filed an administrative claim under the FTCA in 2005 and a
complaint in federal court asserting a malicious-prosecution claim in 2007. Id.
at 556–57. Vidrine’s complaint alleged, among other things, that Franklin was
not a credible witness and that there was “no tangible, physical evidence to
corroborate” Franklin’s assertions. It did not contain any allegations regarding
Agent Barnhill and Agent Phillips’s affair. During the course of litigation in
Vidrine’s federal case, the district court unsealed the grand jury transcripts
from the underlying criminal case. In light of this new evidence, Vidrine filed
an amended complaint in 2009 that added the allegation that Agent Phillips
provided false testimony to the grand jury. The amended complaint also did




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not mention the affair or allege that it was the motivation for the investigation
or prosecution.
      The case proceeded to a bench trial and in September 2011 the court
awarded Vidrine $1.677 million in damages for malicious prosecution. In its
ruling, the court found that “Agent Phillips deliberately used his investigation
and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his
extra-marital affair with Agent Barnhill, and perhaps, to exert improper
influence over the manner in which she investigated and reported upon this
case.” Id. at 624. The court also found that Agent Phillips took further steps
during discovery and the trial “to cover up the affair,” including perjuring
himself and obstructing justice by repeatedly calling Agent Barnhill to “remind
her he had testified that their relationship during the Vidrine investigation
was purely professional.” Id. at 626.
      Trinity claims that it did not learn about the extramarital affair and its
concealment until 2011 when one of its employees read a blog post which
mentioned a Department of Justice press release regarding Agent Phillips. The
July 27, 2011 press release stated that Agent Phillips had been indicted for
perjury and obstruction of justice for falsely testifying in a deposition “that he
did not have an affair with the FBI Special Agent, when, in fact, he did,” and
“committ[ing] perjury when he testified falsely about the affair.” The press
release also stated that Agent Phillips obstructed justice by “contact[ing] the
FBI Special Agent to influence her not to disclose the existence of the affair.”
Agent Phillips pleaded guilty and admitted that “[w]hile under oath, [he]
testified falsely that he did not have an extramarital affair with FBI Special
Agent A, testimony he knew at the time to be false” and that information about
the affair “was material to the Vidrine civil matter at the time [he] testified
falsely.”


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      Trinity filed an administrative FTCA complaint on July 25, 2012—nine
months after Vidrine’s FTCA claim was decided and roughly a year after it
claims to have learned about the affair. Trinity then filed a lawsuit for
malicious prosecution in federal court on August 23, 2013, invoking the
discovery rule and equitable tolling of the statute of limitations. Trinity alleged
that it had no reasonable basis to bring its malicious-prosecution claim until it
discovered Agent Phillips’s deception in July 2011, and, therefore, its claim did
not accrue until then. Trinity further alleged that due to Agent Phillips’s
concealment, it could not have discovered the basis for its claim “until at least
March 2011, when an internal investigation conducted by the United States,
for the first time uncovered evidence” that “an investigative and law
enforcement officer intentionally had engaged in misconduct to conceal the
improper motives for the criminal prosecution of Trinity.”
      Reasoning that the FTCA’s two-year statute of limitations was
jurisdictional, a magistrate judge issued a recommendation that the complaint
be dismissed for lack of subject-matter jurisdiction. The district judge adopted
the magistrate judge’s recommendation and entered judgment for the
Government. Trinity timely appealed. While briefing was pending in the
present appeal, the Supreme Court decided United States v. Kwai Fun Wong
and held that “the FTCA’s time bars are nonjurisdictional and subject to
equitable tolling.” 135 S. Ct. 1625, 1638 (2015).
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had “the jurisdiction to determine its own jurisdiction.”
Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1137 (5th Cir. 1980).
To the extent the district court addressed the merits, it had original
jurisdiction under 28 U.S.C. § 1346(b)(1). This Court has appellate jurisdiction




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to review the district court’s final decision dismissing the complaint under 28
U.S.C. § 1291.
      The district court dismissed Trinity’s FTCA claim for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), concluding
that the FTCA’s statute of limitations was jurisdictional and had run. In the
alternative, the district court concluded that even assuming the FTCA’s
statute of limitations was not jurisdictional, equitable tolling would not apply
in these circumstances.
      Because the district court held that the FTCA’s statute of limitations was
jurisdictional, it concluded that Trinity, as the claimant, bore the burden of
showing that the limitations period had not run. However, after the district
court made its ruling, the Supreme Court held in Wong that this is not the
case. See 135 S. Ct. at 1638 (“[W]e hold that the FTCA’s time bars are
nonjurisdictional . . . .”). Accordingly, the district court should have considered
the Government’s motion to dismiss under Rule 12(b)(6) rather than 12(b)(1),
see Fed. R. Civ. P. 12(b), and held that the FTCA’s statute of limitations is an
affirmative defense for which the Government has the burden of proof, see Sec.
Indus. Ins. Co. v. United States, 702 F.2d 1234, 1251 (5th Cir. 1983). That the
district court considered this matter under Rule 12(b)(1), however, does not
require reversal where “a remand would only require a new Rule 12(b)(6) label
for the same Rule 12(b)(1) conclusion.” Morrison v. Nat’l Austl. Bank Ltd., 561
U.S. 247, 254 (2010). Nor must we reverse because the district court erred in
determining which party bore the burden of proof. Rather, “this court may
‘affirm the district court’s judgment on any grounds supported by the record.’”
United States ex rel. Farmer v. City of Hous., 523 F.3d 333, 338 n.8 (5th Cir.
2008) (quoting Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp.,
509 F.3d 216, 221 (5th Cir. 2007)).


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      The district court also made summary judgment rulings. For instance, it
held that even if the FTCA’s statute of limitations was not jurisdictional and
equitable tolling could apply, Trinity would not be entitled to equitable tolling.
This holding was unrelated to the district court’s examination of its jurisdiction
and necessarily relied on evidence outside the pleadings. Specifically, the
district court held that “there is no evidence that Trinity Marine did anything
between the date that the indictment was dismissed and the date this suit was
filed that might be perceived as diligent pursuit of its legal remedies” and
found Trinity’s conduct particularly troubling “when its inaction is compared
with the actions taken by Mr. Vidrine.”
      “Although the district court did not explicitly inform the parties that it
was converting the motion to dismiss into a summary judgment motion,
‘appellate courts may take the district court’s consideration of matters outside
the pleadings to trigger an implicit conversion.’” Bellotte v. Edwards, 388 F.
App’x 334, 337 (4th Cir. 2010) (per curiam) (quoting Bosiger v. U.S. Airways,
510 F.3d 442, 450 (4th Cir. 2007)); see also, e.g. Exxon Corp. v. Md. Cas. Co.,
599 F.2d 659, 661 (5th Cir. 1979). Under Rule 12(d), a district court may
convert a motion to dismiss to a motion for summary judgment so long as it
gives the parties a “reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d).
      Here, the parties had ample notice that the district court might consider
the extra-pleading material included with the Government’s motion to dismiss.
Moreover, Trinity filed its own motion for summary judgment that relied on
evidence outside the pleadings. Thus, we consider the district court to have
implicitly converted the Government’s motion to dismiss into a motion for
summary judgment. Summary judgment is appropriate where, after “[t]he
evidence of the non-movant is . . . believed, and all justifiable inferences are to


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be drawn in his favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law, Fed. R. Civ. P. 56(a).
                              III. DISCUSSION
       The district court held that Trinity’s malicious-prosecution claim
accrued on dismissal of the indictment and that because the FTCA’s statute of
limitations was jurisdictional it could not be equitably tolled. The district court
also held that even if it could be tolled, Trinity had not met its burden of
establishing that equitable tolling would be appropriate. Finally, the district
court rejected Trinity’s arguments that the statute of limitations should be
tolled under the doctrines of judicial and collateral estoppel. Trinity appeals
these rulings.
A.    Accrual
      Under the FTCA, tort actions are barred “against the federal government
unless the claim is first presented to the appropriate federal agency ‘within
two years after such claim accrues.’” Johnson v. United States, 460 F.3d 616,
621 (5th Cir. 2006) (quoting United States v. Kubrick, 444 U.S. 111, 113 (1979)).
“The general rule under the FTCA is that a tort action accrues at the time of a
plaintiff’s injury.” Id. In Dubose v. Kansas City Southern Railway Co., we
explained that the discovery rule governs the accrual of causes of action in
federal cases where a plaintiff claims it was not aware of the injury or could
not have discovered facts critical to ascertaining the injury’s cause. See 729
F.2d 1026, 1030 (5th Cir. 1984). Under the discovery rule, “a claim accrues
when a plaintiff knows both her injury and its cause.” In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 190 (5th Cir. 2011), abrogated
on other grounds by Wong, 135 S. Ct. 1625. In cases of alleged malicious
prosecution, numerous federal courts, including this one, have uniformly


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concluded that a claim accrues with the termination of the criminal proceeding
against the plaintiff. See, e.g., Brummett v. Camble, 946 F.2d 1178, 1184 (5th
Cir. 1991).
      There is no dispute that Trinity was aware of its injury no later than
2003 when the criminal indictment was dismissed. The issue, then, is whether
Trinity was aware of the causal connection between its injury and the
defendant’s actions at this time. The causal-connection element is met if the
plaintiff “had knowledge of facts that would lead a reasonable person (a) to
conclude that there was a causal connection between the injury and [the
defendant’s actions] or (b) to seek professional advice, and then, with that
advice, to conclude that there was a causal connection.” Adrian v. Selbe, 364 F.
App’x 934, 938 (5th Cir. 2010) (per curiam) (alteration omitted) (quoting
Piotrowski v. City of Hous., 51 F.3d 512, 516 (5th Cir. 1995)).
      In Ortega v. United States, 547 F. App’x 384 (5th Cir. 2013) (per curiam),
this Court rejected a claim similar to the one Trinity makes here. The plaintiffs
in Ortega argued that their FTCA claims, which alleged that they had been
illegally removed, “could not have accrued until May 15, 2009, at the earliest
because that is when they learned . . . that Mr. Ortega’s removal was conducted
without a valid removal order.” Id. at 387. Holding that their claims were
nevertheless untimely, we reasoned that the plaintiffs’ contention “that they
did not discover that there was any injury at all until they learned that there
had been no removal order against Mr. Ortega” was really an “attempt to
define their ‘injury’ by the unlawfulness of Mr. Ortega’s deportation, rather
than by the deportation per se. However, to define a tortious injury by the
unlawfulness of the tortious act causing the injury is circular.” Id. That the
absence of a removal order no doubt strengthened the plaintiffs’ claim was
irrelevant to accrual of the statute of limitations. Rather, we explained that:


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       The Ortegas knew that they had suffered injuries immediately
       after Mr. Ortega’s arrest and deportation on May 28, 2008, and
       they knew that those injuries were caused by federal agents. These
       constitute the sort of facts that we consider ‘the critical facts of [a
       plaintiff’s] injury and its cause,’ which establish accrual.

Id. (alteration in original) (quoting Dubose, 729 F.2d at 1030).
       This same principle applies with equal force here. Trinity knew that the
charges against it were dismissed in 2003 and that any related injury had been
caused by agents of the federal government. While information about Agent
Phillips and Agent Barnhill’s affair certainly strengthens Trinity’s claim, it
does not alter when the claim accrued. Accordingly, the district court correctly
concluded that Trinity’s claim accrued before 2009.
B.     Equitable Tolling
       The fact that Trinity’s malicious-prosecution claim accrued as early as
2003, however, is not fatal to its case. In Wong, the Supreme Court held that
equitable tolling may be applied to claims under the FTCA. 135 S. Ct. at 1638.
“The doctrine of equitable tolling preserves a plaintiff’s claims when strict
application of the statute of limitations would be inequitable.” Alexander v.
Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (quoting United States v. Patterson,
211 F.3d 927, 930 (5th Cir. 2000)). As “[t]he claimant,” Trinity “bears the
burden of justifying equitable tolling.” Hood v. Sears Roebuck & Co., 168 F.3d
231, 232 (5th Cir. 1999). This Court has recognized several grounds for
equitable tolling, including where a plaintiff is unaware “of the facts giving rise
to the claim because of the defendant’s intentional concealment of them.”
Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011).
       The principal issue before this Court is whether Agent Phillips’s
intentional concealment of his extramarital affair with another investigator
should equitably toll the statute of limitations. This Court has previously


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considered several cases in which a plaintiff asserts that it was prevented from
bringing a timely claim due to the defendant’s intentional concealment of
material facts. In such cases, this Court has held that the limitations period
may be tolled “by proving two elements: first, that the defendants concealed
the conduct complained of, and second, that the plaintiff failed, despite the
exercise of due diligence on his part, to discover the facts that form the basis
of his claim.” Texas v. Allan Constr. Co., 851 F.2d 1526, 1528 (5th Cir. 1988)
(alteration omitted) (quoting In re Beef Indus. Antitrust Litig., 600 F.2d 1148,
1169 (5th Cir. 1979)).
      The first of these factors is plainly met in this case. Agent Phillips lied
under oath and was ultimately charged with, and imprisoned for, perjury and
obstruction of justice for his attempts to conceal the affair and material facts
relevant to the Trinity prosecution. Trinity argues that the second factor is also
met in this case because no amount of diligence would have revealed Agent
Phillips’s deceptions prior to the release of the government’s internal
investigation in 2011. The Government objects and contends that equitable
tolling should not apply because Trinity failed to take action for eight years
following the dismissal of the indictment, during which time its co-defendant,
Vidrine, filed suit and succeeded on its malicious-prosecution claim.
      While the Government is correct to point out that equitable tolling “is
not intended for those who sleep on their rights,” Covey v. Ark. River Co., 865
F.2d 660, 662 (5th Cir. 1989), this Court held in Beef Industries that “[t]he mere
filing of a similar lawsuit, without more, does not necessarily give ‘good ground’
[to support the plaintiff’s lawsuit] because that suit might well be frivolous or
baseless,” Beef Indus., 600 F.2d at 1171. Rather, as we explained in Allan
Construction: “To justify summary judgment, . . . defendants would have had
to prove that the plaintiffs had access to information that would independently


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verify the allegations in the [similar lawsuit’s] complaint.” 851 F.2d at 1533.
Put another way, a defendant can establish that summary judgment is
warranted only if it “demonstrate[s] conclusively:” (1) “that the plaintiffs,
through the exercise of reasonable diligence, would have discovered adequate
ground for filing suit,” id. (quoting Beef Indus., 600 F.2d at 1171), and (2) either
that there is no evidence of reasonable diligence, or, if the plaintiff produces
“some evidence of its diligence,” that “no reasonable jury could consider [the
plaintiff’s] attempts reasonably diligent,” id. at 1534.
      A claim for malicious prosecution under the FTCA is dependent on the
substantive law of the state where the claim arose, Cleveland ex rel. Cleveland
v. United States, 457 F.3d 397, 403 (5th Cir. 2006), in this case, Louisiana.
Under Louisiana law, a claim of malicious prosecution requires showing both
an “absence of probable cause” and “the presence of malice.” Miller v. E. Baton
Rouge Par. Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987). Further, 28 U.S.C.
§ 2680(h)’s “law enforcement proviso” precludes FTCA malicious-prosecution
claims unless the claim is premised on the “acts or omissions of [federal]
investigative or law enforcement officers.” Thus, the only evidentiary basis for
a viable malicious-prosecution FTCA claim “well grounded in fact” within the
meaning of Allan Construction, would be evidence to support Vidrine’s
allegations that federal law enforcement officers maliciously instigated the
prosecution despite a lack of probable cause.
      The Government argues that Trinity would have discovered evidence to
independently verify Vidrine’s allegations had it exercised reasonable diligence
when Agent Phillips’s grand jury testimony in the underlying criminal case
was unsealed in 2007 and then referenced in Vidrine’s amended complaint in
2009. However, neither the unsealed grand jury testimony nor Vidrine’s
amended complaint conclusively establish that Trinity would have discovered


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evidence to verify Vidrine’s allegations that federal law enforcement officials
maliciously instigated the case against Vidrine and Trinity despite a lack of
probable cause. For instance, the judge who presided over the underlying
criminal case, after reviewing the grand jury testimony, concluded that it did
not, on its face, contain evidence of impropriety. Even Vidrine’s 2009 amended
complaint, which referred to the grand jury testimony, stated that the
allegation was not based on concrete evidence but rather “upon information
and belief” and states: “If subsequent discovery proves this to be true, then the
conduct of such . . . employees of the Government . . . would constitute [a] . . .
conspiracy to maliciously prosecute Mr. Vidrine.” Although the grand jury
testimony was later found to be “replete with misrepresentations, falsehoods,
omissions, hyperbole, and inflammatory statements,” Vidrine, 846 F. Supp. 2d
at 639, information about the affair as the motive to perpetuate an
investigation lacking probable cause was only discovered as a result of the
Government’s internal investigation, which did not become available until July
2011—less than two years before Trinity filed its administrative claim.
Further, trial testimony in the Vidrine civil case provided evidence that Agent
Phillips continued to conceal the affair well into 2011. Thus, the Government
has not met its burden of conclusively establishing that Trinity would have
discovered evidence to support the allegations in Vidrine’s complaint through
the exercise of reasonable diligence prior to 2011. Accordingly, the district
court’s holding in this regard must be reversed.
C.     Judicial and Collateral Estoppel
       Trinity argues that the district court erred in finding that the statute of
limitations should not be tolled under the equitable doctrines of judicial and
collateral estoppel. The doctrine of judicial estoppel prevents “litigants from
asserting contradictory positions for tactical gain.” Republic of Ecuador v.


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Connor, 708 F.3d 651, 654 (5th Cir. 2013). Judicial estoppel applies only if “the
following elements are present: (1) the party against whom judicial estoppel is
sought has asserted a legal position which is plainly inconsistent with a prior
position; (2) a court accepted the prior position; and (3) the party did not act
inadvertently.” Reed v. City of Arlington, 650 F.3d 571, 574 (5th Cir. 2011).
      Trinity argues that the Government should be judicially estopped from
asserting that Trinity had a factual basis for its malicious-prosecution claim
because the Government vigorously defended itself on the merits in the Vidrine
litigation. However, asserting that one plaintiff’s case is weak in one
proceeding is not inconsistent with arguing that a second plaintiff’s case is
untimely. Further, the court did not accept the Government’s prior position in
Vidrine. Instead, the court in Vidrine awarded the plaintiff a nearly $1.7
million judgment. Accordingly, judicial estoppel does not apply because the
Government has not taken an inconsistent position that has been adopted by
a court.
      Under the doctrine of collateral estoppel, “once a court has decided an
issue of fact or law necessary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action involving a party to the
prior litigation.” United States v. Mendoza, 464 U.S. 154, 158 (1984). A plaintiff
seeking to invoke this doctrine “offensively” must establish four elements:

      (i) The issue under consideration in a subsequent action must be
      identical to the issue litigated in a prior action; (ii) The issue must
      have been fully and vigorously litigated in the prior action; (iii) The
      issue must have been necessary to support the judgment in the
      prior case; and (iv) There must be no special circumstance that
      would render [estoppel] inappropriate or unfair.

Kariuki v. Tarango, 709 F.3d 495, 506 (5th Cir. 2013) (alteration in original)
(quoting United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994)).


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      Here, Trinity fails to establish the first element because the issue in this
case is not “identical to the issue litigated in [the] prior action.” Id. In essence,
Trinity argues that the Government should be estopped from arguing that
Trinity had a factual basis to investigate a potential malicious-prosecution
claim because the court in Vidrine found that Agent Phillips went to great
lengths to cover up the affair while the Vidrine case was ongoing and that
Agent Phillips’s extramarital affair “was, at least in part (if not in whole), a
motivation for Agent Phillips’[s] continued pursuit of Hubert Vidrine [and
Trinity], without probable cause.” Vidrine, 846 F. Supp. 2d at 624–25. But this
argument overlooks the fact that the Government is not contesting Agent
Phillips’s fraudulent concealment; instead, they are contesting Trinity’s lack of
diligence in pursuing its claim. The diligence issue, which pertains to
timeliness under the equitable-tolling doctrine, was never at issue in the
Vidrine litigation. Thus, the equitable-tolling diligence issue is not identical to
the issue in the Vidrine litigation and collateral estoppel does not apply.
                              IV. CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED in
part and REVERSED in part, and this matter is remanded for further
proceedings consistent with this opinion.




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