IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 16, 2013

Lyle W. Cayce

Clerk

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

2

 Case: 12-50629 Document: 00512209753 Page: 2 Date Filed: 04/16/2013
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).

1This 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.

3

 Case: 12-50629 Document: 00512209753 Page: 3 Date Filed: 04/16/2013
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

4

 Case: 12-50629 Document: 00512209753 Page: 4 Date Filed: 04/16/2013
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.

5

 Case: 12-50629 Document: 00512209753 Page: 5 Date Filed: 04/16/2013
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.

6

 Case: 12-50629 Document: 00512209753 Page: 6 Date Filed: 04/16/2013