### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50629

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 U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D April 16, 2013 Ly l e W . Cay ce Clerk Case: 12-50629 Document: 00512209753 Page: 1 Date Filed: 04/16/2013No. 12-50629

Before REAVLEY, JOLLY, and SMITH, Circuit Judges. PER CURIAM: * The issue o n appeal is whether the district court erred i n d i s m issing Appellants’ claims on the groun d t h a t the claims were time-barred under the statute of limitations of the Federal Tor t C l a i m s 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. O rtega is a M e x i c an n ational and was lawfully present in the United States as a tempor ary r e s i d e nt wh e n federal agents erroneously deported him t o Mexico. A warrant of removal was issued against M r. O rtega, for reasons unknown to both the Ort e g a s a n d the Government. Apparently based on this warrant of removal, on May 2 8, 2008, U nited States federal agents entered the Ortegas’ gated a nd l ocked r esidence in El Paso, Texas. According to the Ortegas, federal agents stated that they had a w a r r a n t a n d that Mr. Ortega h ad been

o r d ered deported. The agents took Mr. Ortega t o the International B r i d g e between El Paso and Ciuaded Juarez, Mexico, and t old him to w alk a cross. Mr. Ortega spent the n ext 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 i n Ciudad Juarez, Mrs. Ort ega submitted a Freedom of Information Act (FOIA) request to U

. S. C itizenship and Immigration Services (USCIS). On May 15, 2 009, Mrs. Ortega received 17 pages of documents in response to her F O IA r e q u est. The Ortegas s tate that these d o c u m e n t s p u t 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

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 12-50629 Document: 00512209753 Page: 2 Date Filed: 04/16/2013No. 12-50629

was erroneous. The Government c o ncedes on appeal that there w as never a removal order. On February 2 2 , 2011, the Ortegas filed a n otice of claim with USCIS under the FTCA. USCIS denied the claim on the ground that the statute of limitations had run. T h e O r tegas filed suit in federal district c ourt. 1 The G o v ernment moved to dismiss under Rule 12(b)(1), which motion the distric t court granted, also on the basis that the statute of limitations had run. In particular, the district c o urt c o nclu d e d th at “ [b ]ecause Plaintiffs were aware that [Mr. Ortega] had been injured and who i nflicted the injury as of May 28, 2008, their c laims 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 M ay 28, 2008 and had enough fac t s ab out the injury’s cause to investigate their legal rights,” and thus “they could h ave subsequently discovered there was

no d eportation order and r epresentations to the contrary w ere therefore false.” Acc o r d i n gly, because more than two years had passed between Mr. Ortega’s deportation o n M ay 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. I I. We review a district court’s grant of a Rule 12(b)(1) motion to dismiss for lack o f subject matter jurisdiction de novo . United States v. Renda Marine, Inc. , 6 6 7 F

. 3 d 651, 6 55 (5th Cir. 2012). “The burden of p roof 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 s uit was tim ely filed , m eaning within s ix m onths of U SCIS’s d ecis ion, as required und er 28 U

. S. C. § 2401(b)

. There is no dis p ute that the O rtegas m et this d ead line; the only d is p ute is over the tim ing of their February 2011 claim w ith U SCIS.

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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 b arred unless it is presented in writin g to the appropriate Federal agency within two years after such claim accrues.” The Ortegas do not dispute that M r . Ortega was arrested and d eported on May 2 8, 2008, nor do they d i s pute that they filed their administrative c laim under the FTCA more than two y ears later on February 22, 2011. They argue only that under the discovery rule their claims accrued later

on May 15, 2009 (less than t w o years before the filing of their administrative claim), b ecause that is w h e n they learned that federal agents’ r emoval of Mr. Ortega was not conducted pursuant to a v alid removal order. Accordingly, the salient issue before us i s when the statute o f 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 m oment a plaintiff’s legally p rotected inte r est is invaded. This i njury usually coincides with the tortious act.” D uBose v. Kansas City S. Ry. Co. , 7 29 F.2d 1 026, 1 028–29 (5th Cir. 1984). “Often, however, plaintiffs m ay b e unaware that they have been injured, even t h o u gh the t ort has been completed. C ourts thus developed the ‘discovery rule ’ t o mitigate the harshness of applying statutes of limitations strictly in cases involving medical malpractice, o ccupational diseases, and other types o f latent injuries.” Id. at 1029. The Supreme Court provided guidance on the discovery rule in United Sta t e s v . Kubrick , 444 U.S. 111, 1 00 S. Ct. 352 (1979). In Kubrick , the Supreme Court rejected th e argument that a claim does not a ccrue until the plaintiff learns or forms a reasonable o pinion that he has been wronged. 444 U.S. at 118, 100 S. Ct. at 358. The C ourt stated that where the plaintiff discovered the fact of his injury or i t s c a u s e sometime after the injury to ok place, he benefits from a later accrual date; but where he merely learned o f his legal rights sometime after h i s i n j u r y, 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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( “A c a u se of action under federal law accrues within the meaning o f § 2401(b ) when th e plaintiff knows or has reason to know of the injury which is the basis

o f t h e a ction,” which point in time i s determined by ascertaining both “[t]he existence of the injury” and “causation, that i s , the connectio n b etween the injury and the defendant’s actions.” (internal quotations and c itations o mitted)); In re FEMA Trailer Formal d ehyde Prods. Liab. Litig. , 646 F.3d 185, 189 (5th Cir. 2011) (stating that u n d er 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, t h r o u gh the Government’s FOIA response, that Mr. Ortega’s removal w as c onducted without

a valid removal o rder. We disagree. Th i s was n ot the case o f a latent injury. See D uBose , 729 F .2d at 1029. The Ortegas knew that they had suffered injuries immediately after M r. Ortega’s arrest and d e portati o n on May 28, 2 008, 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, t h e facts that the Ortegas learned through the Government’s F OIA r e sponse in May 2 00 9 go to when the Ortegas overcame “ignorance of [their] legal rights,” which are the sort of facts that do not e stablish accrual. Kubrick , 444 U.S. at 122, 100 S. Ct. 359. On appeal, the Ortegas are c areful not to aver that they merely learned at

a later date tha t t h e y h ad a cause of action. Instead, they argue that they did not discover that there was any injury at a l l until they l earned that there had been n o 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 th e i n jury is circular. For the reasons given above, the discovery rule is inapposite here.

5 Case: 12-50629 Document: 00512209753 Page: 5 Date Filed: 04/16/2013No. 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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