     Case: 12-50629   Document: 00512209753    Page: 1   Date Filed: 04/16/2013




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

                                                                 FILED
                                                               April 16, 2013

                                No. 12-50629                   Lyle W. Cayce
                                                                    Clerk

RUBEN DARIO ORTEGA, Individually and as Next Friends of A.O., a minor
child; NANCY ORTEGA, Individually and as Next Friends of A.O., a minor
child,

                                         Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA; JANET NAPOLITANO, in her capacity as
the current Secretary of Department of Homeland Security; MICHAEL
CHERTOFF, in his capacity as the former Secretary of Department of
Homeland Security; ERIC H. HOLDER, JR., in his capacity as the current
Attorney General of the United States of America; MICHAEL MUKASEY, in
his capacity as the former Attorney General of the United States of America;
THOMAS SNOW, in his capacity as the former Director of the Executive
Office of Immigration Review; KEVIN A. OHLSON, in his capacity as the
former Director of the Executive Office of Immigration Review; JOHN T.
MORTON, in his capacity as the current Director of Immigration and
Customs Enforcement; RICHARD T. JOHNSON, in his capacity as the
former Director of Immigration and Customs Enforcement; JAMES T.
HAYES, JR., in his capacity as the Director of the Immigration and Customs
Enforcement Office of Detention and Removal; ROBERT E. JOLICOUER, in
his capacity as the Director of the Immigration and Customs Enforcement El
Paso Office; TEAM HOTEL I; ICE DOES 1–15; CBP DOES 1–15,

                                         Defendants-Appellees



                Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 3:11-CV-401
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                                       No. 12-50629

Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
       The issue on appeal is whether the district court erred in dismissing
Appellants’ claims on the ground that the claims were time-barred under the
statute of limitations of the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2401(b). For the reasons stated below, we AFFIRM.
                                              I.
       Appellants are Ruben Dario Ortega and Nancy Ortega, who are husband
and wife. Mr. Ortega is a Mexican national and was lawfully present in the
United States as a temporary resident when federal agents erroneously deported
him to Mexico. A warrant of removal was issued against Mr. Ortega, for reasons
unknown to both the Ortegas and the Government. Apparently based on this
warrant of removal, on May 28, 2008, United States federal agents entered the
Ortegas’ gated and locked residence in El Paso, Texas. According to the Ortegas,
federal agents stated that they had a warrant and that Mr. Ortega had been
ordered deported. The agents took Mr. Ortega to the International Bridge
between El Paso and Ciuaded Juarez, Mexico, and told him to walk across. Mr.
Ortega spent the next 18 months in Ciudad Juarez, after which time he was
re-admitted to the United States under a waiver request.
       During the time that Mr. Ortega was in Ciudad Juarez, Mrs. Ortega
submitted a Freedom of Information Act (FOIA) request to U.S. Citizenship and
Immigration Services (USCIS). On May 15, 2009, Mrs. Ortega received 17 pages
of documents in response to her FOIA request. The Ortegas state that these
documents put them on notice for the first time that there had never been a
removal order issued against Mr. Ortega, and thus that his removal to Mexico


       *
         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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                                       No. 12-50629

was erroneous. The Government concedes on appeal that there was never a
removal order.
       On February 22, 2011, the Ortegas filed a notice of claim with USCIS
under the FTCA. USCIS denied the claim on the ground that the statute of
limitations had run. The Ortegas filed suit in federal district court.1 The
Government moved to dismiss under Rule 12(b)(1), which motion the district
court granted, also on the basis that the statute of limitations had run. In
particular, the district court concluded that “[b]ecause Plaintiffs were aware that
[Mr. Ortega] had been injured and who inflicted the injury as of May 28, 2008,
their claims accrued on that date.” The court stated that the discovery rule did
not apply because “Plaintiffs became abundantly aware of [Mr.] Ortega’s injury
on May 28, 2008 and had enough facts about the injury’s cause to investigate
their legal rights,” and thus “they could have subsequently discovered there was
no deportation order and representations to the contrary were therefore false.”
Accordingly, because more than two years had passed between Mr. Ortega’s
deportation on May 28, 2008, and the Ortegas’ filing an administrative claim on
February 22, 2011, the Ortegas’ claims were time-barred under the FTCA. The
Ortegas appeal this limitations issue.
                                             II.
       We review a district court’s grant of a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction de novo. United States v. Renda Marine, Inc.,
667 F.3d 651, 655 (5th Cir. 2012). “The burden of proof for a Rule 12(b)(1)
motion to dismiss is on the party asserting jurisdiction.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted).




       1
        This suit was timely filed, meaning within six months of USCIS’s decision, as required
under 28 U.S.C. § 2401(b). There is no dispute that the Ortegas met this deadline; the only
dispute is over the timing of their February 2011 claim with USCIS.

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                                  No. 12-50629

      The FTCA’s statute of limitations, codified at 28 U.S.C. § 2401(b), provides
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.” The Ortegas do not dispute that Mr. Ortega was arrested
and deported on May 28, 2008, nor do they dispute that they filed their
administrative claim under the FTCA more than two years later on February 22,
2011. They argue only that under the discovery rule their claims accrued later
on May 15, 2009 (less than two years before the filing of their administrative
claim), because that is when they learned that federal agents’ removal of Mr.
Ortega was not conducted pursuant to a valid removal order. Accordingly, the
salient issue before us is when the statute of limitations began to run—that is,
when the Ortegas’ causes of action accrued.
      As a general rule, “a statute of limitations begins to run at the moment a
plaintiff’s legally protected interest is invaded. This injury usually coincides
with the tortious act.” DuBose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1028–29
(5th Cir. 1984). “Often, however, plaintiffs may be unaware that they have been
injured, even though the tort has been completed. Courts thus developed the
‘discovery rule’ to mitigate the harshness of applying statutes of limitations
strictly in cases involving medical malpractice, occupational diseases, and other
types of latent injuries.” Id. at 1029. The Supreme Court provided guidance on
the discovery rule in United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352
(1979). In Kubrick, the Supreme Court rejected the argument that a claim does
not accrue until the plaintiff learns or forms a reasonable opinion that he has
been wronged. 444 U.S. at 118, 100 S. Ct. at 358. The Court stated that where
the plaintiff discovered the fact of his injury or its cause sometime after the
injury took place, he benefits from a later accrual date; but where he merely
learned of his legal rights sometime after his injury, he does not receive that
benefit. Id. at 118–22, 100 S. Ct. at 357–59; see also Ramming, 281 F.3d at 162

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                                    No. 12-50629
(“A cause of action under federal law accrues within the meaning of § 2401(b)
when the plaintiff knows or has reason to know of the injury which is the basis
of the action,” which point in time is determined by ascertaining both “[t]he
existence of the injury” and “causation, that is, the connection between the
injury and the defendant’s actions.” (internal quotations and citations omitted));
In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th
Cir. 2011) (stating that under the discovery rule, “a claim accrues when a
plaintiff knows both her injury and its cause”).
      The Ortegas argue that their claims could not have accrued until May 15,
2009, at the earliest because that is when they learned, through the
Government’s FOIA response, that Mr. Ortega’s removal was conducted without
a valid removal order. We disagree. This was not the case of a latent injury.
See DuBose, 729 F.2d at 1029. 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. at 1030. In contrast, the facts that the
Ortegas learned through the Government’s FOIA response in May 2009 go to
when the Ortegas overcame “ignorance of [their] legal rights,” which are the sort
of facts that do not establish accrual. Kubrick, 444 U.S. at 122, 100 S. Ct. 359.
      On appeal, the Ortegas are careful not to aver that they merely learned at
a later date that they had a cause of action. Instead, they argue 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. In other words, the Ortegas 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. For the reasons
given above, the discovery rule is inapposite here.

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                                No. 12-50629
                                    III.
     The district court did not err in dismissing the Ortegas’ FTCA claims on
the ground that they were time-barred under 28 U.S.C. § 2401(b). We therefore
AFFIRM the district court’s judgment.




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