03 January 2024

Federal Tort Claims Act

 

Doe v. United States involves the plaintiff, Doe, who brings suit against Rodriguez, an ICE (Immigration and Customs Enforcement) agent, alleging assault, battery, and intentional infliction of emotional distress. 76 F. 4th 64 (2nd Cir. 2023). The complaint also included claims against the United States, DHS (Department of Homeland Security), ICE, and two federal officials. Doe's claims under the Federal Tort Claims Act (FTCA) and state law negligence against ICE and DHS were denied on summary judgment, primarily based on the argument that Doe failed to file a timely administrative claim within the required two years. Rodriguez, acting in his individual capacity, sought summary judgment on Doe's Bivens claims, asserting they should be dismissed under Connecticut's three-year statute of limitations.

The district court granted summary judgment for all defendants, citing the timeliness of Doe's claims. It concluded that equitable tolling, a doctrine that extends the statute of limitations under certain circumstances, did not apply because Doe could not establish that she had diligently pursued her claims and that extraordinary circumstances prevented her from timely filing. The district court neither purported to find facts nor to exercise its discretion in concluding that Doe is not entitled to equitable tolling. Doe appeals the decision.

Vacated and Remanded — A reasonable fact-finding court could determine that Doe faced extraordinary circumstances (such as threats and fear of retaliation by Rodriguez) and that she pursued her rights diligently once able to do so. The district court should act in a fact-finding capacity and determine whether Doe has demonstrated both extraordinary circumstances and reasonable diligence. The law prohibits a judge from exercising her discretion where these two elements are missing.

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FTCA claims must be brought within two years of accrual. 28 U.S.C. § 2401(b). Bivens actions arising in Connecticut must be brought within three years, see Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994) (holding that Conn. Gen. Stat. § 52-577 applies to claims under § 1983); Chin v. Bowen, 833 F.2d 21, 23 (2d Cir. 1987) ("Bivens actions are closely analogous to actions brought pursuant to section 1983 and therefore should be governed by the same statute of limitations."); see also, e.g., Bakowski v. Kurimai, 387 F. App'x 10, 11 (2d Cir. 2003) (summary order) (applying Lounsbury and Conn. Gen. Stat. § 52-577 to Bivens claim). Assuming Rodriguez's abuse of Doe continued through the end of 2014, absent tolling, the statute of limitations on all her claims would have run by December 31, 2017. Under federal law, however, the accrual of FTCA and Bivens claims may be subject to equitable tolling. See United States v. Wong, 575 U.S. 402, 412, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015) (FTCA); Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998) (Bivens).


"Equitable tolling is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000). Granting equitable tolling is a discretionary "exercise of a court's equity powers." Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). This discretion is not absolute. Before a court may exercise discretion to grant equitable tolling, a litigant must demonstrate as a factual matter the existence of two elements: first, "that some extraordinary circumstance stood in [her] way" and second "that [she] has been pursuing [her] rights diligently." A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). The law prohibits a judge from exercising her discretion where these two elements are missing. If they are found to be present, however, then a judge brings discretionary considerations to bear in deciding whether to permit equitable tolling.

In this case, the district court neither purported to find facts nor to exercise its discretion in concluding that Doe is not entitled to equitable tolling. Instead, the district court approached the issue of equitable tolling in the prototypical summary judgment posture, drawing legal conclusions based on purportedly undisputed facts regarding the prerequisite elements to the exercise of equitable tolling. It concluded as a matter of law that "no genuine issue of material fact exists as to whether plaintiff's claims are ... subject to equitable tolling." Doe, 2022 WL 903368, at *10; see also id. at *2 (articulating the summary judgment standard); id. at *6 ("Construing the facts in favor of the non-moving party, as it must...."); id. at *8-9 (referring to "the undisputed evidence" and Doe's failure to "produce[] evidence to support a finding that she acted with diligence"). We hold that this was an error because a reasonable district court acting in a fact-finding capacity could determine that the prerequisites to equitable tolling —extraordinary circumstances and reasonable diligence—are present on this record.

First, the district court could reasonably conclude that an extraordinary circumstance stood in Doe's way of commencing this case sooner. Whether a plaintiff faced extraordinary circumstances depends not on "the uniqueness of a party's circumstances" or the outrageousness of what they endured, "but rather ... the severity of the obstacle impeding compliance with a limitations period." Smalls v. Collins, 10 F.4th 117, 145 (2d Cir. 2021) (quoting Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011)). "Among the extraordinary reasons that may justify equitable tolling of a statute of limitations is a defendant's efforts to threaten or retaliate against a plaintiff if she files a claim against him." Clark v. Hanley, No. 18-cv-1765 (JAM), 2022 WL 124298, at *4 (D. Conn. Jan. 13, 2022). For example, courts in this Circuit have found that a prisoner "may show extraordinary circumstances for purposes of equitable tolling where they allege specific facts showing that a reasonable fear of retaliation" by their jailers "prevented them from filing a timely complaint." Davis v. Jackson, No. 15-cv-5359 (KMK), 2016 WL 5720811, at *11 (S.D.N.Y. Sept. 30, 2016); see also Stone #1 v. Annucci, No. 20-cv-1326 (RA), 2021 WL 4463033, at *12 (S.D.N.Y. Sept. 28, 2021); Noguera v. Hasty, No. 99-cv-8786 (KMW), 2001 WL 243535, at *6 (S.D.N.Y. Mar. 12, 2001). Likewise, several courts have recognized that the psychological impact of long-term or extreme sexual abuse can constitute an extraordinary circumstance that prevents a victim from coming forward even for some time after the abuse has ceased. See, e.g., Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999); Kennedy v. Berkel & Co. Contractors, Inc., 319 F. Supp. 3d 236, 251-52 (D.D.C. 2018).


As the foregoing precedent demonstrates, the effect of a threat can depend on factors including the nature of the threat and the relative power of its source and its target. Sexual abuse perpetrated by an ICE agent against an undocumented immigrant may give the assailant's threats a similarly immobilizing effect as those of a prison official against someone in their custody. With these dynamics in mind, the district court could reasonably find on this record that years of violent sexual abuse and threats to Doe's life gave Doe a "specific and credible basis to fear retaliation" from Rodriguez and thereby constituted an extraordinary circumstance. Stone #1, 2021 WL 4463033, at *12. Doe testified that Rodriguez violently raped her on a regular basis for a period of seven years, scarred her with acts of physical violence, treated her like his "slave," and threatened to further harm and even kill her. Three times during the course of Rodriguez's abuse, Doe attempted suicide, and three times she terminated a pregnancy caused by his rapes. And even if these circumstances alone were not enough to impede Doe from coming forward, there was also the fact that Doe was an undocumented immigrant while Rodriguez was a government official with the power to hasten the deportation of her and her family members.

Nor does the fact that Rodriguez left ICE and stopped raping and contacting Doe in 2014 foreclose a conclusion that Rodriguez's power over Doe continued to be so severe as to prevent her from pursuing her claim. Shortly after the last time he allegedly raped her, Rodriguez told Doe that he would kill her if she spoke—a threat made real by the extensive violence Rodriguez had shown himself to be capable of and his intimate knowledge of Doe's life. The district court could therefore reasonably conclude from Doe's testimony that an extraordinary circumstance continued to stand in Doe's way even after Rodriguez and Doe were no longer in communication.

Despite not purporting to act in a fact-finding capacity, the district court implicitly rejected the inference of ongoing fear because Doe was ultimately able to talk about her experience once her father was facing deportation. Doe, 2022 WL 903368, at *8-9. But rejecting this inference would have required the district court to make an express factual determination. That is because the record also permits the factual conclusion that Doe's fear for her father's safety overcame her fear for herself and thereby allowed her to come forward when she did. A plaintiff's eventual willingness to come forward despite an ongoing fear of retaliation does not necessarily preclude a showing that the fear of retaliation constituted an extraordinary circumstance. If that were so, then plaintiffs with untimely claims would never be able to seek equitable tolling unless and until the threat fully dissipated. As she tells it, Doe was stuck choosing between the devil and the deep blue sea—one course risking her life, the other risking her father's. In this light, we cannot say that a reasonable district court judge engaging in fact-finding could only conclude that Doe's fear of retaliation was illusory or surmountable all along simply because she eventually managed to tell her story when circumstances changed.

Second, the district court could reasonably find that Doe exercised reasonable diligence in pursuing her claim as soon as she was able to. The extraordinary nature of the abuse Doe suffered does not absolve her of the independent requirement to show that she has been pursuing her rights diligently. See Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255-56, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016). At the same time, in analyzing the reasonable diligence prong, the Supreme Court has cautioned against the application of "an overly rigid.... approach." Holland, 560 U.S. at 653, 130 S.Ct. 2549. "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. (cleaned up). What could reasonably be expected from a plaintiff depends, of course, on the nature of the circumstances that she faces.

This is not a case where the plaintiff failed to exercise diligence "without any valid justification." Pace, 544 U.S. at 419, 125 S.Ct. 1807. Rather, as discussed above, the district court could reasonably determine that the fear and psychological impact caused by Rodriguez's assaults prevented Doe from being able to begin seeking redress for several years after the abuse ended, but that as soon as she was able to, she began taking steps to vindicate her rights, such as retaining counsel and filing administrative claims with the relevant agencies. Again, we cannot say that no district court acting as factfinder could reasonably find that Doe acted "as diligently as reasonably could have been expected under the circumstances." Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir. 2003) (emphasis in original).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss provisions of the Federal Tort Claims Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.