IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31130

TRINITY MARINE PRODUCTS, INC., formerly known as Trinity Marine 

Baton Rouge, Inc.,

 Plaintiff–Appellant,

v.

UNITED STATES OF AMERICA, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

Before STEWART, Chief Judge, and BARKSDALE, and PRADO, Circuit 

Judges.

EDWARD C. PRADO, Circuit Judge:

In 1999, Plaintiff–Appellant Trinity Marine Products, Inc. (“Trinity”),

was indicted for illegally storing hazardous waste without a permit. This 

charge, however, was dismissed in 2003, and it was subsequently revealed

several years later that two of the federal agents involved in the investigation 

and prosecution had used the case as a means to engage in an extramarital 

affair with one another. It was also disclosed that one of these agents had 

committed perjury and obstructed justice in attempting to conceal the affair

and the true motivation for the prosecution against Trinity. Trinity filed an 

United States Court of Appeals

Fifth Circuit

FILED

February 8, 2016

Lyle W. Cayce

Clerk

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No. 14-31130

2

administrative claim in 2012 and a complaint in federal court in 2013 under 

the Federal Tort Claims Act (“FTCA”) alleging malicious prosecution. Based 

on the recommendation of a magistrate judge, the district court dismissed 

Trinity’s FTCA claim as time barred. Because we hold that the district court 

erred by failing to equitably toll the statute of limitations, we affirm in part 

and reverse in part. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1996, agents from the Federal Bureau of Investigation (“FBI”), 

Environmental Protection Agency (“EPA”), United States Marshal Service, 

Coast Guard, and Louisiana State law enforcement executed a search warrant 

on a facility owned by the Canal Refining Company (“Canal”). Vidrine v. United 

States, 846 F. Supp. 2d 550, 555 (W.D. La. 2011). This facility was managed by

Hubert P. Vidrine Jr. and used by Trinity to transport oil. Id. at 555, 574–75.

The warrant was based on the belief that Canal was illegally accepting and 

receiving hazardous materials without the required permits. See id. at 573.

Among the agents involved in executing this warrant were Keith Phillips 

of the EPA and Ekko Barnhill of the FBI. Id. at 574. While they were working 

on the case, Agents Phillips and Barnhill began having an affair. Id. at 585.

According to Agent Barnhill, they were only physically intimate while working 

together on the Canal case, as the investigation offered an opportunity for 

them to be together without raising the suspicions of Agent Phillips’s wife. See

id. at 624.

In 1999, a federal grand jury indicted Vidrine and Trinity for violating 

42 U.S.C. § 6928(d)(2), which makes it illegal to store “hazardous waste . . . 

without a permit.” See Vidrine, 846 F. Supp. 2d at 555, 561. The key to the 

Government’s case was the testimony of Mike Franklin, a hydrocarbons broker 

who happened to be at the Canal refinery facility when the search warrant was 

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executed. See id. at 580, 582. According to Agent Barnhill’s notes from a 1998 

interview, Franklin “obtained samples of the product TRINITY wanted to sell. 

These samples were given to [a laboratory] for testing. Results of the test 

showed one of the sampled products to be over 1000 ppm of chlorinated 

solvents.” Id. at 583 (emphasis omitted). These test results were essential to 

the Government’s case because federal regulations provide that “[i]f the used 

oil contains greater than or equal to 1,000 ppm total halogens, it is presumed 

to be a hazardous waste.” 40 C.F.R. § 279.53. Chlorinated solvents are a type 

of halogen. See Vidrine v. United States, No. 6:07-CV-1204, 2012 WL 253124, 

at *35 (W.D. La. Jan. 26, 2012).

No such test results were ever found to exist, however. Vidrine, 846 F. 

Supp. 2d at 594. Instead, each of the samples for which test results were 

available contradicted Franklin’s allegations. Id. In light of these and other 

problems with Franklin’s story and credibility, the court barred his testimony. 

Id. at 597. With its key witness excluded, the Government moved to voluntarily 

dismiss the charges. Id. at 580 n.62.

Vidrine filed an administrative claim under the FTCA in 2005 and a 

complaint in federal court asserting a malicious-prosecution claim in 2007. Id.

at 556–57. Vidrine’s complaint alleged, among other things, that Franklin was 

not a credible witness and that there was “no tangible, physical evidence to 

corroborate” Franklin’s assertions. It did not contain any allegations regarding 

Agent Barnhill and Agent Phillips’s affair. During the course of litigation in 

Vidrine’s federal case, the district court unsealed the grand jury transcripts 

from the underlying criminal case. In light of this new evidence, Vidrine filed 

an amended complaint in 2009 that added the allegation that Agent Phillips 

provided false testimony to the grand jury. The amended complaint also did

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not mention the affair or allege that it was the motivation for the investigation 

or prosecution.

The case proceeded to a bench trial and in September 2011 the court

awarded Vidrine $1.677 million in damages for malicious prosecution. In its 

ruling, the court found that “Agent Phillips deliberately used his investigation 

and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his 

extra-marital affair with Agent Barnhill, and perhaps, to exert improper 

influence over the manner in which she investigated and reported upon this 

case.” Id. at 624. The court also found that Agent Phillips took further steps 

during discovery and the trial “to cover up the affair,” including perjuring 

himself and obstructing justice by repeatedly calling Agent Barnhill to “remind 

her he had testified that their relationship during the Vidrine investigation

was purely professional.” Id. at 626.

Trinity claims that it did not learn about the extramarital affair and its 

concealment until 2011 when one of its employees read a blog post which 

mentioned a Department of Justice press release regarding Agent Phillips. The 

July 27, 2011 press release stated that Agent Phillips had been indicted for 

perjury and obstruction of justice for falsely testifying in a deposition “that he 

did not have an affair with the FBI Special Agent, when, in fact, he did,” and 

“committ[ing] perjury when he testified falsely about the affair.” The press 

release also stated that Agent Phillips obstructed justice by “contact[ing] the 

FBI Special Agent to influence her not to disclose the existence of the affair.”

Agent Phillips pleaded guilty and admitted that “[w]hile under oath, [he]

testified falsely that he did not have an extramarital affair with FBI Special 

Agent A, testimony he knew at the time to be false” and that information about 

the affair “was material to the Vidrine civil matter at the time [he] testified 

falsely.”

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Trinity filed an administrative FTCA complaint on July 25, 2012—nine 

months after Vidrine’s FTCA claim was decided and roughly a year after it 

claims to have learned about the affair. Trinity then filed a lawsuit for 

malicious prosecution in federal court on August 23, 2013, invoking the 

discovery rule and equitable tolling of the statute of limitations. Trinity alleged 

that it had no reasonable basis to bring its malicious-prosecution claim until it 

discovered Agent Phillips’s deception in July 2011, and, therefore, its claim did 

not accrue until then. Trinity further alleged that due to Agent Phillips’s

concealment, it could not have discovered the basis for its claim “until at least 

March 2011, when an internal investigation conducted by the United States, 

for the first time uncovered evidence” that “an investigative and law 

enforcement officer intentionally had engaged in misconduct to conceal the 

improper motives for the criminal prosecution of Trinity.”

Reasoning that the FTCA’s two-year statute of limitations was

jurisdictional, a magistrate judge issued a recommendation that the complaint 

be dismissed for lack of subject-matter jurisdiction. The district judge adopted 

the magistrate judge’s recommendation and entered judgment for the 

Government. Trinity timely appealed. While briefing was pending in the 

present appeal, the Supreme Court decided United States v. Kwai Fun Wong

and held that “the FTCA’s time bars are nonjurisdictional and subject to 

equitable tolling.” 135 S. Ct. 1625, 1638 (2015).

II. JURISDICTION AND STANDARD OF REVIEW

The district court had “the jurisdiction to determine its own jurisdiction.”

Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1137 (5th Cir. 1980). 

To the extent the district court addressed the merits, it had original 

jurisdiction under 28 U.S.C. § 1346(b)(1). This Court has appellate jurisdiction 

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to review the district court’s final decision dismissing the complaint under 28 

U.S.C. § 1291.

The district court dismissed Trinity’s FTCA claim for lack of subject 

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), concluding 

that the FTCA’s statute of limitations was jurisdictional and had run. In the 

alternative, the district court concluded that even assuming the FTCA’s 

statute of limitations was not jurisdictional, equitable tolling would not apply 

in these circumstances.

Because the district court held that the FTCA’s statute of limitations was 

jurisdictional, it concluded that Trinity, as the claimant, bore the burden of 

showing that the limitations period had not run. However, after the district 

court made its ruling, the Supreme Court held in Wong that this is not the 

case. See 135 S. Ct. at 1638 (“[W]e hold that the FTCA’s time bars are 

nonjurisdictional . . . .”). Accordingly, the district court should have considered 

the Government’s motion to dismiss under Rule 12(b)(6) rather than 12(b)(1),

see Fed. R. Civ. P. 12(b), and held that the FTCA’s statute of limitations is an 

affirmative defense for which the Government has the burden of proof, see Sec. 

Indus. Ins. Co. v. United States, 702 F.2d 1234, 1251 (5th Cir. 1983). That the 

district court considered this matter under Rule 12(b)(1), however, does not 

require reversal where “a remand would only require a new Rule 12(b)(6) label 

for the same Rule 12(b)(1) conclusion.” Morrison v. Nat’l Austl. Bank Ltd., 561 

U.S. 247, 254 (2010). Nor must we reverse because the district court erred in 

determining which party bore the burden of proof. Rather, “this court may 

‘affirm the district court’s judgment on any grounds supported by the record.’”

United States ex rel. Farmer v. City of Hous., 523 F.3d 333, 338 n.8 (5th Cir. 

2008) (quoting Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp., 

509 F.3d 216, 221 (5th Cir. 2007)).

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The district court also made summary judgment rulings. For instance, it 

held that even if the FTCA’s statute of limitations was not jurisdictional and 

equitable tolling could apply, Trinity would not be entitled to equitable tolling.

This holding was unrelated to the district court’s examination of its jurisdiction 

and necessarily relied on evidence outside the pleadings. Specifically, the 

district court held that “there is no evidence that Trinity Marine did anything 

between the date that the indictment was dismissed and the date this suit was 

filed that might be perceived as diligent pursuit of its legal remedies” and 

found Trinity’s conduct particularly troubling “when its inaction is compared 

with the actions taken by Mr. Vidrine.”

“Although the district court did not explicitly inform the parties that it 

was converting the motion to dismiss into a summary judgment motion, 

‘appellate courts may take the district court’s consideration of matters outside 

the pleadings to trigger an implicit conversion.’” Bellotte v. Edwards, 388 F. 

App’x 334, 337 (4th Cir. 2010) (per curiam) (quoting Bosiger v. U.S. Airways, 

510 F.3d 442, 450 (4th Cir. 2007)); see also, e.g. Exxon Corp. v. Md. Cas. Co., 

599 F.2d 659, 661 (5th Cir. 1979). Under Rule 12(d), a district court may 

convert a motion to dismiss to a motion for summary judgment so long as it 

gives the parties a “reasonable opportunity to present all the material that is 

pertinent to the motion.” Fed. R. Civ. P. 12(d). 

Here, the parties had ample notice that the district court might consider 

the extra-pleading material included with the Government’s motion to dismiss. 

Moreover, Trinity filed its own motion for summary judgment that relied on

evidence outside the pleadings. Thus, we consider the district court to have 

implicitly converted the Government’s motion to dismiss into a motion for 

summary judgment. Summary judgment is appropriate where, after “[t]he 

evidence of the non-movant is . . . believed, and all justifiable inferences are to 

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be drawn in his favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 

(1986), no genuine issue of material fact exists and the moving party is entitled 

to judgment as a matter of law, Fed. R. Civ. P. 56(a).

III. DISCUSSION

The district court held that Trinity’s malicious-prosecution claim 

accrued on dismissal of the indictment and that because the FTCA’s statute of 

limitations was jurisdictional it could not be equitably tolled. The district court 

also held that even if it could be tolled, Trinity had not met its burden of 

establishing that equitable tolling would be appropriate. Finally, the district 

court rejected Trinity’s arguments that the statute of limitations should be 

tolled under the doctrines of judicial and collateral estoppel. Trinity appeals 

these rulings.

A. Accrual 

Under the FTCA, tort actions are barred “against the federal government 

unless the claim is first presented to the appropriate federal agency ‘within 

two years after such claim accrues.’” Johnson v. United States, 460 F.3d 616, 

621 (5th Cir. 2006) (quoting United States v. Kubrick, 444 U.S. 111, 113 (1979)). 

“The general rule under the FTCA is that a tort action accrues at the time of a 

plaintiff’s injury.” Id. In Dubose v. Kansas City Southern Railway Co., we 

explained that the discovery rule governs the accrual of causes of action in 

federal cases where a plaintiff claims it was not aware of the injury or could 

not have discovered facts critical to ascertaining the injury’s cause. See 729 

F.2d 1026, 1030 (5th Cir. 1984). Under the discovery rule, “a claim accrues 

when a plaintiff knows both her injury and its cause.” In re FEMA Trailer 

Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 190 (5th Cir. 2011), abrogated 

on other grounds by Wong, 135 S. Ct. 1625. In cases of alleged malicious 

prosecution, numerous federal courts, including this one, have uniformly 

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concluded that a claim accrues with the termination of the criminal proceeding 

against the plaintiff. See, e.g., Brummett v. Camble, 946 F.2d 1178, 1184 (5th 

Cir. 1991).

There is no dispute that Trinity was aware of its injury no later than 

2003 when the criminal indictment was dismissed. The issue, then, is whether 

Trinity was aware of the causal connection between its injury and the 

defendant’s actions at this time. The causal-connection element is met if the 

plaintiff “had knowledge of facts that would lead a reasonable person (a) to 

conclude that there was a causal connection between the injury and [the 

defendant’s actions] or (b) to seek professional advice, and then, with that 

advice, to conclude that there was a causal connection.” Adrian v. Selbe, 364 F. 

App’x 934, 938 (5th Cir. 2010) (per curiam) (alteration omitted) (quoting 

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

In Ortega v. United States, 547 F. App’x 384 (5th Cir. 2013) (per curiam), 

this Court rejected a claim similar to the one Trinity makes here. The plaintiffs 

in Ortega argued that their FTCA claims, which alleged that they had been

illegally removed, “could not have accrued until May 15, 2009, at the earliest 

because that is when they learned . . . that Mr. Ortega’s removal was conducted 

without a valid removal order.” Id. at 387. Holding that their claims were 

nevertheless untimely, we reasoned that the plaintiffs’ contention “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” was really an “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.” Id. That the 

absence of a removal order no doubt strengthened the plaintiffs’ claim was 

irrelevant to accrual of the statute of limitations. Rather, we explained that:

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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. (alteration in original) (quoting Dubose, 729 F.2d at 1030).

This same principle applies with equal force here. Trinity knew that the 

charges against it were dismissed in 2003 and that any related injury had been 

caused by agents of the federal government. While information about Agent 

Phillips and Agent Barnhill’s affair certainly strengthens Trinity’s claim, it 

does not alter when the claim accrued. Accordingly, the district court correctly 

concluded that Trinity’s claim accrued before 2009.

B. Equitable Tolling

The fact that Trinity’s malicious-prosecution claim accrued as early as 

2003, however, is not fatal to its case. In Wong, the Supreme Court held that 

equitable tolling may be applied to claims under the FTCA. 135 S. Ct. at 1638.

“The doctrine of equitable tolling preserves a plaintiff’s claims when strict 

application of the statute of limitations would be inequitable.” Alexander v. 

Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (quoting United States v. Patterson, 

211 F.3d 927, 930 (5th Cir. 2000)). As “[t]he claimant,” Trinity “bears the 

burden of justifying equitable tolling.” Hood v. Sears Roebuck & Co., 168 F.3d 

231, 232 (5th Cir. 1999). This Court has recognized several grounds for 

equitable tolling, including where a plaintiff is unaware “of the facts giving rise 

to the claim because of the defendant’s intentional concealment of them.”

Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011). 

The principal issue before this Court is whether Agent Phillips’s 

intentional concealment of his extramarital affair with another investigator

should equitably toll the statute of limitations. This Court has previously 

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considered several cases in which a plaintiff asserts that it was prevented from 

bringing a timely claim due to the defendant’s intentional concealment of 

material facts. In such cases, this Court has held that the limitations period 

may be tolled “by proving two elements: first, that the defendants concealed 

the conduct complained of, and second, that the plaintiff failed, despite the 

exercise of due diligence on his part, to discover the facts that form the basis 

of his claim.” Texas v. Allan Constr. Co., 851 F.2d 1526, 1528 (5th Cir. 1988) 

(alteration omitted) (quoting In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 

1169 (5th Cir. 1979)).

The first of these factors is plainly met in this case. Agent Phillips lied 

under oath and was ultimately charged with, and imprisoned for, perjury and 

obstruction of justice for his attempts to conceal the affair and material facts 

relevant to the Trinity prosecution. Trinity argues that the second factor is also 

met in this case because no amount of diligence would have revealed Agent 

Phillips’s deceptions prior to the release of the government’s internal 

investigation in 2011. The Government objects and contends that equitable 

tolling should not apply because Trinity failed to take action for eight years 

following the dismissal of the indictment, during which time its co-defendant, 

Vidrine, filed suit and succeeded on its malicious-prosecution claim.

While the Government is correct to point out that equitable tolling “is 

not intended for those who sleep on their rights,” Covey v. Ark. River Co., 865 

F.2d 660, 662 (5th Cir. 1989), this Court held in Beef Industries that “[t]he mere 

filing of a similar lawsuit, without more, does not necessarily give ‘good ground’

[to support the plaintiff’s lawsuit] because that suit might well be frivolous or 

baseless,” Beef Indus., 600 F.2d at 1171. Rather, as we explained in Allan 

Construction: “To justify summary judgment, . . . defendants would have had 

to prove that the plaintiffs had access to information that would independently 

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verify the allegations in the [similar lawsuit’s] complaint.” 851 F.2d at 1533. 

Put another way, a defendant can establish that summary judgment is 

warranted only if it “demonstrate[s] conclusively:” (1) “that the plaintiffs, 

through the exercise of reasonable diligence, would have discovered adequate 

ground for filing suit,” id. (quoting Beef Indus., 600 F.2d at 1171), and (2) either 

that there is no evidence of reasonable diligence, or, if the plaintiff produces 

“some evidence of its diligence,” that “no reasonable jury could consider [the 

plaintiff’s] attempts reasonably diligent,” id. at 1534.

A claim for malicious prosecution under the FTCA is dependent on the 

substantive law of the state where the claim arose, Cleveland ex rel. Cleveland 

v. United States, 457 F.3d 397, 403 (5th Cir. 2006), in this case, Louisiana. 

Under Louisiana law, a claim of malicious prosecution requires showing both

an “absence of probable cause” and “the presence of malice.” Miller v. E. Baton 

Rouge Par. Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987). Further, 28 U.S.C. 

§ 2680(h)’s “law enforcement proviso” precludes FTCA malicious-prosecution 

claims unless the claim is premised on the “acts or omissions of [federal] 

investigative or law enforcement officers.” Thus, the only evidentiary basis for 

a viable malicious-prosecution FTCA claim “well grounded in fact” within the 

meaning of Allan Construction, would be evidence to support Vidrine’s 

allegations that federal law enforcement officers maliciously instigated the 

prosecution despite a lack of probable cause. 

The Government argues that Trinity would have discovered evidence to 

independently verify Vidrine’s allegations had it exercised reasonable diligence

when Agent Phillips’s grand jury testimony in the underlying criminal case 

was unsealed in 2007 and then referenced in Vidrine’s amended complaint in 

2009. However, neither the unsealed grand jury testimony nor Vidrine’s 

amended complaint conclusively establish that Trinity would have discovered 

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evidence to verify Vidrine’s allegations that federal law enforcement officials 

maliciously instigated the case against Vidrine and Trinity despite a lack of 

probable cause. For instance, the judge who presided over the underlying 

criminal case, after reviewing the grand jury testimony, concluded that it did 

not, on its face, contain evidence of impropriety. Even Vidrine’s 2009 amended 

complaint, which referred to the grand jury testimony, stated that the 

allegation was not based on concrete evidence but rather “upon information 

and belief” and states: “If subsequent discovery proves this to be true, then the 

conduct of such . . . employees of the Government . . . would constitute [a] . . . 

conspiracy to maliciously prosecute Mr. Vidrine.” Although the grand jury 

testimony was later found to be “replete with misrepresentations, falsehoods, 

omissions, hyperbole, and inflammatory statements,” Vidrine, 846 F. Supp. 2d 

at 639, information about the affair as the motive to perpetuate an 

investigation lacking probable cause was only discovered as a result of the 

Government’s internal investigation, which did not become available until July 

2011—less than two years before Trinity filed its administrative claim. 

Further, trial testimony in the Vidrine civil case provided evidence that Agent 

Phillips continued to conceal the affair well into 2011. Thus, the Government 

has not met its burden of conclusively establishing that Trinity would have 

discovered evidence to support the allegations in Vidrine’s complaint through 

the exercise of reasonable diligence prior to 2011. Accordingly, the district 

court’s holding in this regard must be reversed. 

C. Judicial and Collateral Estoppel

Trinity argues that the district court erred in finding that the statute of 

limitations should not be tolled under the equitable doctrines of judicial and 

collateral estoppel. The doctrine of judicial estoppel prevents “litigants from 

asserting contradictory positions for tactical gain.” Republic of Ecuador v. 

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Connor, 708 F.3d 651, 654 (5th Cir. 2013). Judicial estoppel applies only if “the 

following elements are present: (1) the party against whom judicial estoppel is 

sought has asserted a legal position which is plainly inconsistent with a prior 

position; (2) a court accepted the prior position; and (3) the party did not act 

inadvertently.” Reed v. City of Arlington, 650 F.3d 571, 574 (5th Cir. 2011).

Trinity argues that the Government should be judicially estopped from 

asserting that Trinity had a factual basis for its malicious-prosecution claim 

because the Government vigorously defended itself on the merits in the Vidrine

litigation. However, asserting that one plaintiff’s case is weak in one 

proceeding is not inconsistent with arguing that a second plaintiff’s case is 

untimely. Further, the court did not accept the Government’s prior position in 

Vidrine. Instead, the court in Vidrine awarded the plaintiff a nearly $1.7 

million judgment. Accordingly, judicial estoppel does not apply because the 

Government has not taken an inconsistent position that has been adopted by 

a court.

Under the doctrine of collateral estoppel, “once a court has decided an 

issue of fact or law necessary to its judgment, that decision is conclusive in a 

subsequent suit based on a different cause of action involving a party to the 

prior litigation.” United States v. Mendoza, 464 U.S. 154, 158 (1984). A plaintiff 

seeking to invoke this doctrine “offensively” must establish four elements: 

(i) The issue under consideration in a subsequent action must be 

identical to the issue litigated in a prior action; (ii) The issue must 

have been fully and vigorously litigated in the prior action; (iii) The 

issue must have been necessary to support the judgment in the 

prior case; and (iv) There must be no special circumstance that 

would render [estoppel] inappropriate or unfair.

Kariuki v. Tarango, 709 F.3d 495, 506 (5th Cir. 2013) (alteration in original)

(quoting United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994)). 

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Here, Trinity fails to establish the first element because the issue in this 

case is not “identical to the issue litigated in [the] prior action.” Id. In essence, 

Trinity argues that the Government should be estopped from arguing that 

Trinity had a factual basis to investigate a potential malicious-prosecution 

claim because the court in Vidrine found that Agent Phillips went to great 

lengths to cover up the affair while the Vidrine case was ongoing and that 

Agent Phillips’s extramarital affair “was, at least in part (if not in whole), a 

motivation for Agent Phillips’[s] continued pursuit of Hubert Vidrine [and 

Trinity], without probable cause.” Vidrine, 846 F. Supp. 2d at 624–25. But this 

argument overlooks the fact that the Government is not contesting Agent 

Phillips’s fraudulent concealment; instead, they are contesting Trinity’s lack of 

diligence in pursuing its claim. The diligence issue, which pertains to 

timeliness under the equitable-tolling doctrine, was never at issue in the 

Vidrine litigation. Thus, the equitable-tolling diligence issue is not identical to 

the issue in the Vidrine litigation and collateral estoppel does not apply.

IV. CONCLUSION

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

part and REVERSED in part, and this matter is remanded for further 

proceedings consistent with this opinion. 

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