United States Court of Appeals

For the First Circuit

No. 13-2266

ROBERTO CARLOS DOMINGUEZ,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Chief Judge,

Lynch and Thompson, Circuit Judges.

Gerald A. Phelps for appellant.

Brian Pérez-Daple, Assistant United States Attorney, with whom

Carmen M. Ortiz, United States Attorney, was on brief, for

appellee.

August 27, 2015

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HOWARD, Chief Judge. Plaintiff-appellant Roberto Carlos

Dominguez filed suit seeking money damages against the United

States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.

§§ 1346(b)(1), 2671 et seq. Dominguez alleged that in 1998 and

1999 he was wrongfully detained and deported as an unauthorized

alien despite his true status as a United States citizen. The

district court dismissed the case as time barred on the

government's motion, thereby rejecting Dominguez's attempt to use

the discovery rule as shelter for his claims. Concluding that

delayed accrual is foreclosed by the factual allegations in

Dominguez's complaint, we affirm.

We construe the facts alleged favorably to the plaintiff,

and, viewed through that lens, the complaint and attached exhibits

present the following facts. See Yacubian v. United States, 750

F.3d 100, 107-08 (1st Cir. 2014). Federal immigration authorities

detained Dominguez from July 1998 through September 1999. In the

course of numerous interrogations, Dominguez told Immigration and

Customs Enforcement ("ICE") agents that he was born in Lawrence,

Massachusetts, but the agents failed to investigate his citizenship

status beyond the immigration file and ignored his claim of a

United States birthplace. After an administrative hearing before

an Immigration Judge ("IJ") in September 1999, Dominguez was

ordered removed to the Dominican Republic. ICE agents told him

that if he ever returned to America he would be incarcerated.

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Dominguez lived in the Dominican Republic for the next

ten years. At some point, friends and family told him to go to the

United States Embassy to see what, if any, paperwork he could

obtain in order to return to the United States. Dominguez did so,

and after submitting a United States birth certificate and other

documentation, he was granted a U.S. passport. He returned to this

country in September 2009, and for about a year he lived in fear

that he again would be deported or thrown in jail. In November

2010, Dominguez met with a lawyer to "give himself up" but instead

allegedly learned that his detention and deportation at the hands

of the federal government had been illegal. Dominguez did not

pursue relief until February 2012 when he first filed a damages

claim through administrative channels as required under the FTCA. 

See 28 U.S.C. § 2675(a). Meanwhile, in October 2011, federal

authorities had asked the Commonwealth of Massachusetts to detain

him and also had required Dominguez to surrender his U.S.

passport.1

In his complaint, Dominguez faults the government for,

among other things, failing to investigate his claims of U.S.

citizenship in 1998-1999 thereby causing his illegal detention and

removal as a United States citizen. He attached to the complaint

a purported Massachusetts birth certificate showing that he had

1

 At argument before us, the government represented that

Dominguez is not in custody and that no removal proceedings are

pending against him.

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been born in Lawrence, Massachusetts on November 9, 1979.2

Dominguez asserted claims against the United States and three

individual federal employees who had been involved in his detention

and deportation or in issuing the 2011 detention letter. The

individual defendants later were dismissed from the case, leaving

the federal government as the sole defending party.

After conducting a hearing on the government's motion to

dismiss, the district court granted the motion and entered a final

judgment of dismissal in September 2013. We review the court's

decision de novo. Sanchez v. United States, 740 F.3d 47, 52 (1st

Cir. 2014).

The FTCA permits suits against the government for torts

caused by the wrongful acts of any government employee while acting

within the scope of his office or employment. See 28 U.S.C.

§§ 1346(b)(1), 2645. Plaintiffs have two years from the time of

accrual to file a claim with the appropriate agency and then, if

the claim is denied, six months after the denial to file suit. See

id. § 2401(b). Therefore, if Dominguez's detention and deportation

in 1998 and 1999 constituted the accrual conduct, his decade-plus

delay in filing an agency claim in February 2012 would, of course,

2

 The government identifies several discrepancies which, it

claims, undermine the validity of the Massachusetts birth

certificate document and stands by its initial reliance on

documents in the immigration file to show Dominguez's Dominican

Republic citizenship. It is unnecessary for us to decide the

validity of the document.

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bar his federal suit. Application of the federal discovery rule is

Dominguez's only hope, and it quickly fades.

The discovery rule applies to certain FTCA claims "under

circumstances where the fact or cause of an injury is unknown to

(and perhaps unknowable by) a plaintiff for some time after the

injury occurs, and which will sometimes dictate that a claim

accrues well after the time of the injury." Rakes v. United

States, 442 F.3d 7, 19 (1st Cir. 2006); see Sanchez, 740 F.3d at

52. For such claims, the cause of action accrues once the

plaintiff knows, or in the exercise of reasonable diligence should

have known, the factual basis of the cause of action, which

includes the existence of an injury and its probable causal

connection to the federal government. McIntyre v. United States,

367 F.3d 38, 52 (1st Cir. 2004); Callahan v. United States, 426

F.3d 444, 451 (1st Cir. 2005). This objective inquiry focuses on

when a person similarly situated to the plaintiff would have

discovered necessary facts in the exercise of reasonable diligence. 

See Sanchez, 740 F.3d at 52; McIntyre, 367 F.3d at 59.

Dominguez's own factual allegations in his complaint

place the time of accrual well before February 2010, the date that

is two years prior to his agency filing. He alleges that he knew

of his United States birthplace at the time of his deportation in

1999 and also that his detention and deportation by the United

States government were based on his status as an unauthorized

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alien. He alleges that he knew that, even though he had told

federal officials of his United States citizenship status, the

immigration proceedings continued and resulted in his removal from

this country as a foreigner. Dominguez further alleges that, while

in the Dominican Republic, he took steps to return to his alleged

homeland and even acquired and delivered a Massachusetts birth

certificate to the embassy. All of this he knew prior to September

2009 when he returned to the United States. 

These are more than enough facts to charge a reasonable

person with knowledge, and certainly would put a person on at least

inquiry notice, in 1999 or soon thereafter of the putative injury

and its probable causal connection to the federal government. 

Under any accounting, accrual occurred before September 2009 when

Dominguez returned to the United States with a U.S. passport and

birth certificate in hand. This dooms his federal lawsuit. 

Dominguez asserts, however, that while he knew he had

been deported in 1999, he remained in the dark about the illegal

nature of his deportation and its probable connection to the

failures of ICE agents. He contends that it was not until November

2010 when he met with a lawyer for the first time that the

necessary basis for the cause of action became known to him. This

argument goes nowhere. Federal law does not allow a potential

plaintiff to await confirmation from an attorney before the

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limitations period begins to run. See Sanchez, 740 F.3d at 52;

Rakes, 442 F.3d at 20 n.8; Callahan, 426 F.3d at 451. 

In an attempt to keep the door slightly ajar, Dominguez

asserts a type of duress or fraud argument that skews application

of the reasonable person inquiry under the federal discovery rule. 

He claims that the 1999 threats of imprisonment should he return to

the United States (and other vague allusions of "negligence, fraud,

threats, and intimidation" by ICE agents) overpowered his mind and

rendered him unable to link the government misconduct to his injury

until 2010 when legal counsel cleared the cloud. The trouble is,

he relies on Massachusetts law (a single case) to advance his

anemic argument, see Riley v. Presnell, 565 N.E.2d 780 (Mass.

1991), when it is federal law that governs the statute of

limitations accrual question for FTCA claims. See, e.g., United

States v. Kubrick, 444 U.S. 111, 123 (1979); Sanchez, 740 F.3d at

52; see also Rakes, 442 F.3d at 19 n.7 (collecting cases). And,

federal law is to the contrary. Cf. Rakes, 442 F.3d at 24-27

(demonstrating that the concepts of duress and fraudulent

concealment pertain to tolling doctrines under federal law and are

not part of the discovery rule calculus).

Dominguez also contends that the government's ongoing

refusal to acknowledge his citizenship status constitutes a

continuing tort that delays accrual of his FTCA claim until he is

adjudicated a United States citizen. However, not only was his

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administrative complaint based only on the government's conduct in

1998-1999, but also he offers no argument as to how he could

possibly be entitled to such an adjudication of his citizenship in

the face of the IJ's 1999 deportation ruling that he neither

appealed to the Board of Immigration Appeals nor sought to reopen. 

With this essential link lacking, Dominguez's continuing violation

theory is a nonstarter. Cf., Fisher v. United States, 959 F.2d

230, 1992 WL 63516, at *4 (1st Cir. 1992) (per curiam) (unpublished

disposition) (holding that false arrest with its ongoing effects is

not a continuing tort and thus accrues at the time of arrest).

Finally, we note that any peripheral argument based on

equitable tolling, see United States v. Kwai Fun Wong, 575 U.S. __,

135 S. Ct. 1625 (2015), either has been waived for lack of

development, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990), or is so embedded in his discovery rule arguments such that

they fall together, see, e.g., Sanchez, 740 F.3d at 53-54 (holding

that the plaintiff's patent lack of diligence forecloses equitable

tolling of FTCA claim). 

Because we resolve this case on statute of limitations

grounds, we do not reach the government's other assorted bases for

dismissal. The judgment of the district court is affirmed. 

Costs are awarded to the appellee.

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