     Case: 09-30471     Document: 00511026145          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-30471                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


DONALD PATRICK JOSEPH ADRIAN; JON NORQUIST EFTELAND;
DONALD PAUL ACHOR

                                                   Plaintiffs - Appellants
v.

ROBERT B. SELBE, Special Agent Federal Bureau of Investigation;
UNITED STATES OF AMERICA


                                                   Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-CV-455


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

        Donald Patrick Joseph Adrian, Jon Norquist Efteland, and Donald Paul




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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Achor (Appellants) appeal the district court’s dismissal of their Bivens 1 and

Federal Tort Claims Act (FTCA) abuse of process claims as barred by the statute

of limitations. Efteland and Achor also appeal the district court’s dismissal of

their FTCA malicious prosecution claims for failure to state a claim upon which

relief can be granted, and Adrian appeals the dismissal of his malicious

prosecution claim as time barred. Finding no reversible error, we AFFIRM.

                                   I. Background

      Appellants were the owners of several companies holding a federal

government contract. In November 1997, the United States sued the companies

and Appellant Adrian for, inter alia, violations of the Buy American Act, the

False Claims Act, and the Truth in Negotiations Act in connection with the

contract. Federal Bureau of Investigation Special Agent Robert Selbe swore an

affidavit on November 19, 1997, in support of a warrant for the search of

Appellants’ companies and the seizure of documents. On November 22, 1997,

Selbe also swore a declaration in support of the United States’s application for

a writ of pre-judgment garnishment of the companies’ bank accounts.                  On

January 9, 1998, the complaint against the companies was dismissed pursuant

to a consent decree and the complaint against Adrian was dismissed with

      1
        See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
91 S. Ct. 1999 (1971).

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                                  No. 09-30471

prejudice.

      Subsequently, in 1998 and 1999, Adrian and the companies filed lawsuits

against various defendants—none named here—alleging that the defendants

had conspired to bring about a false and malicious lawsuit by the United States

against the companies, a “raid” of the companies’ facilities, and the termination

of the government contract.

      Then, in October 2003, the Appellants filed administrative tort claims for

abuse of process and malicious prosecution with the FBI, as required by the

FTCA, alleging that Special Agent Selbe knowingly made false statements in the

affidavit and declaration supporting the search warrant and garnishment.

Finally, in October 2004, the Appellants brought the instant suit asserting (1) an

FTCA claim for abuse of process due to Selbe’s knowingly false declaration,

(2) an FTCA claim for malicious prosecution due to Selbe’s knowingly false

affidavit and declaration, and (3) a Bivens claim alleging that Selbe violated the

Appellants’ Fourth Amendment rights because his knowingly false affidavit

lacked probable cause for the search of Appellants’ companies, the search was

overbroad, and Efteland and Achor were unconstitutionally seized during the

search.

      The district court granted the Appellees’ Rule 12(b)(6) motion to dismiss


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                                       No. 09-30471

Appellants’ Bivens claim as time barred under the one-year statute of

limitations, finding that the claim accrued in August 2003 and that Appellants’

October 2004 suit, filed more than one year after the accrual date, was untimely.

The court also dismissed Efteland and Achor’s malicious prosecution claims

because they were not named defendants in the government’s November 1997

lawsuit against Adrian and the companies, nor did the prior suit result in a

favorable termination. Thus, Efteland and Achor could not satisfy the elements

of malicious prosecution as a matter of law. As for Appellants’ abuse of process

claims and Adrian’s malicious prosecution claim, the court granted Appellees’

Rule 12(b)(1) motion to dismiss or, alternatively, Rule 56 motion for summary

judgment, because these claims accrued in 1999 at the latest.                     Appellants’

October 2003 administrative filing with the FBI occurred well beyond the two-

year statute of limitations imposed by the FTCA. 2 The instant appeal followed.

                                II. Standard of Review

       “We review de novo a district court’s Rule 12(b)(1) (motion to dismiss for

lack of subject matter jurisdiction), Rule 12(b)(6) (motion to dismiss for failure

to state a claim upon which relief can be granted) and Rule 56 (motion for



       2
        “It is well-settled that these limitations periods [under the FTCA] are jurisdictional.”
Flory v. United States, 138 F.3d 157, 159 (5th Cir. 1998). Thus, a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction was appropriate.

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summary judgment) dispositions, applying the same standards as the district

court.” LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005) (citation omitted).

                                     III. Discussion

A. Statute of Limitations

       1. Bivens Claims

       The district court found that Appellants’ Bivens claims were barred by the

statute of limitations because the claims accrued in August 2003—more than one

year prior to the filing of suit in October 2004—when Appellants received via a

Freedom of Information Act (FOIA) request a document alerting them that Selbe

knowingly falsified his affidavit. However, Appellants argue that the Bivens

claims did not accrue until February 2004, when Selbe’s affidavit was unsealed

and the Appellants became certain that Selbe lied to obtain a search warrant.3

We agree with the district court.

       The statute of limitations for a Bivens action is borrowed from state law,

Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982), and Louisiana tort law



       3
          Appellants argue that all of the bases for their Bivens claims, including their
allegations that the search of their companies’ facilities was overbroad and that Efteland and
Achor were unconstitutionally detained during the search, rest on Selbe’s falsification of the
affidavit in support of the search warrant. However dubious that proposition, we will assume
arguendo that the statute of limitations for all of the Bivens claims did not commence running
until the date the Appellants knew that Selbe intentionally lied in the affidavit, as this does
not alter our result.

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provides a one-year prescriptive period. Gaspard v. United States, 713 F.2d

1097, 1102 n.11 (5th Cir. 1983). Federal law, however, determines when a

Bivens cause of action accrues. United Klans of America v. McGovern, 621 F.2d

152, 153 n.1 (5th Cir. 1980). “A cause of action accrues, under federal law, ‘when

the plaintiff knows or has reason to know of the injury which is the basis of the

action;’ such knowledge encompasses both “(1) the existence of the injury; and

(2) the connection between the injury and the defendant’s actions.” Brown v.

Nationsbank Corp., 188 F.3d 579, 589–90 (5th Cir. 1999). Actual knowledge is

not necessary, though, for the limitations period to commence “if the

circumstances would lead a reasonable person to investigate further.”

Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995).

       By their own admission, Appellants had actual knowledge in August 2003

that Selbe allegedly lied in his affidavit. Paragraph 17 of Appellants’ initial

complaint states that the “smoking-gun document [the term Appellants use to

describe the August 2003 FOIA document] showed that Defendant Selbe knew,

when he swore to the Affidavit in support of the search warrant and in the

Declaration in support of the application for a prejudgment writ of garnishment,

that his statements were false and deceptive . . . .” Thus, Appellants’ contention

on appeal—that it was only in February 2004 that Appellants knew Selbe


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intentionally falsified his affidavit—rings hollow.            Nonetheless, Appellants

further insist that even knowledge of Selbe’s intentional falsehoods was

insufficient to trigger knowledge of a Bivens injury, for only upon reading the

affidavit in February 2004 could the Appellants see that, with “falsities”

redacted, the affidavit still lacked probable cause.             This argument is also

fruitless, for their actual knowledge of Selbe’s falsification—which Appellants

admitted arose in August 2003—would have reasonably led Appellants to

investigate whether the affidavit entirely lacked probable cause. Consequently,

the FOIA receipt in August 2003 triggered the limitations period and Appellants’

Bivens claims were properly dismissed as time barred.4

       2. Abuse of Process and Adrian’s Malicious Prosecution Claim

       The district court also dismissed Appellants’ abuse of process claims and

Adrian’s malicious prosecution claim as time barred, finding that these claims

accrued in 1999 at the latest because Appellants had a copy of Selbe’s

declaration (which formed the basis of the abuse of process claim) as early as




       4
         Appellants’ argument that it was only in February 2004 that Appellants could have
pled a Bivens claim immune from Rule 11 sanctions also fails. Appellants’ admission in their
complaint shows that, as of August 2003, they had “evidentiary support” for the Bivens claim.
See FED . R. CIV . P. 11(b)(3). Additionally, because Appellants did not need access to the
affidavit, unsealed in February 2004, for the limitations period to commence, Appellants’
equitable tolling and equitable estoppel arguments—which turn on the sealing of the
affidavit—are inapposite.

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November 1997 and filed prior lawsuits in 1998 and 1999 alleging that the

government’s November 1997 suit against Adrian and the companies was falsely

and maliciously instigated. The district court refused to exercise subject matter

jurisdiction because Appellants did not present their administrative claims to

the FBI until October 2003, long after the FTCA’s 2-year bar. See 28 U.S.C.

§ 2401(b) (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”). Appellants maintain that the prior lawsuits

had nothing to do with Selbe’s alleged falsification of the affidavit and

declaration and that Appellants’ currently alleged claims were unknown until

they could determine that Selbe had intentionally lied. For purposes of these

claims, Appellants concede in their brief that the “moment” of actual knowledge

occurred in August 2003 with receipt of the FOIA document, rendering the

October 2003 administrative filing timely.

      Notwithstanding the factual inconsistencies in Appellants’ arguments,

these claims are likewise barred by the statute of limitations. Contrary to

Appellants’ suggestion, the law does not require a plaintiff to know with

certainty that the elements of a cause of action are legally satisfied before a

cause of action accrues. See Piotrowski, 51 F.3d at 516 (“A plaintiff need not


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                                    No. 09-30471

realize that a legal cause of action exists . . . .”). Rather, a limitations period

commences when a plaintiff has knowledge of facts that would prompt a

reasonable person to investigate a claim. In 1997, Appellants had possession of

Selbe’s declaration and, as admitted in their complaint, they then knew it

contained false information. By 1999, Appellants had filed lawsuits detailing

facts which, in their view, supported a claim that the government’s November

1997 suit was false and malicious. Appellants clearly “had knowledge of facts

that would lead a reasonable person (a) to conclude that there was a causal

connection [between the injury and Selbe’s declaration and affidavit] or (b) to

seek professional advice, and then, with that advice, to conclude that there was

a causal connection . . . .” Piotrowski, 51 F.3d at 516 (quoting Harrison v. United

States, 708 F.2d 1023, 1027 (5th Cir. 1983)). Because Appellants had enough

information in 1999 to warrant inquiry into whether Selbe knowingly falsified

his affidavit and declaration, the district court correctly found that the October

2003 administrative filing was untimely.

B. Efteland’s and Achor’s Malicious Prosecution Claims

      Noting the six elements of a malicious prosecution claim under Louisiana

law, 5 as recognized by this court in Piazza v. Mayne, 217 F.3d 239, 245 (5th Cir.

      5
        “Those elements are: (1) the commencement or continuance of an original criminal
proceeding; (2) its legal causation by the present defendant against plaintiff who was

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                                       No. 09-30471

2000), the district court dismissed Efteland’s and Achor’s malicious prosecution

claims for failure to state a claim because neither one was a defendant in the

government’s original proceeding against Adrian and the companies. And the

extent their malicious prosecution claims derived from ownership interests in

the companies named as defendants, the court held that the consent decree

settling the government’s lawsuit was not the “favorable termination” required

to state a cause of action for malicious prosecution. Citing no legal authority,

Appellants maintain that the suit against the companies was “basically the same

thing” as a suit against Efteland and Achor due to the financial harm they

suffered as owners of the now-defunct defendant-companies and as signatories

on garnished bank accounts. They explain away the “favorable termination”

requirement by noting that the consent decree “garnered really nothing for the

government” and was necessary to free up Appellants’ frozen financial assets.

Creative arguments all, but completely unsupported by law. As Efteland and

Achor cannot state a malicious prosecution claim that is “plausible on its face,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007), we

affirm the Rule 12(b)(6) dismissal.


defendant in the original proceeding; (3) its bona fide termination in favor of the present
plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice
therein; (6) damage conforming to legal standards resulting to plaintiff.” Piazza, 217 F.3d at
245.

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                                Conclusion

    For the foregoing reasons, the district court’s judgment is, in all respects,
AFFIRMED.




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