16‐3981 Flores v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________

August Term, 2017

(Submitted: November 22, 2017 Decided: March 15, 2018)

Docket No. 16‐3981

_______________

EDUARDO FLORES, PATRICIA FLORES,

Plaintiffs‐Appellants,

– v. –

UNITED STATES OF AMERICA,

Defendant‐Appellee. _______________

B e f o r e:

KATZMANN, Chief Judge, WALKER, CALABRESI, Circuit Judges.

_______________

Plaintiffs Eduardo and Patricia Flores (husband and wife) appeal from the decision of the United States District Court for the Eastern District of New York (Wexler, J.) awarding summary judgment to the Government dismissing the Floreses’ claims brought under the Federal Tort Claims Act (“FTCA”). The district court concluded that the FTCA’s two‐year statute of limitations barred Mr. Flores’ claims, that his claims were not saved by the continuing violation

doctrine or equitable tolling, and that Mrs. Flores had failed to exhaust her administrative remedies. We find no error and AFFIRM the judgment of the district court. _______________

Sandra Lynn Greene, Greene Fitzgerald, Advocates & Consultants, York, PA, for Plaintiffs‐Appellants.

Robert B. Kambic, Varuni Nelson, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendant‐ Appellee. _______________

PER CURIAM:

This appeal calls on us principally to decide whether claims brought under

the Federal Tort Claims Act (“FTCA”),

(b), 2671‐2680, were

timely filed in federal district court. We conclude that the district court

committed no error in finding that the claims were filed outside of the statute’s

two‐year statute of limitations and were not saved by the continuing violation

doctrine or equitable tolling. We accordingly AFFIRM the judgment below.

Plaintiff‐Appellant Eduardo Flores, a native of Ecuador, legally entered the

United States in 1978 but overstayed his visa. He subsequently applied for legal

permanent resident (“LPR”) status, which the Immigration and Naturalization

2

Service (“INS”) granted on July 3, 1979. INS stamped his Ecuadorian passport the

same day with an insignia reading “temporary evidence of lawful admission for

permanent residence valid until 1‐2‐80.” App. 24.

Approximately five months later, on November 9, 1979, INS denied Mr.

Flores’ application for adjustment of status and gave him until December 9, 1979

to voluntarily depart from the country. Mr. Flores remained, and on January 17,

1994, an immigration judge (“IJ”) ordered that Mr. Flores be deported. The Board

of Immigration Appeals (“BIA”) dismissed Mr. Flores’ appeal on August 15,

2000.

On or about August 12, 2008, Mr. Flores was arrested at his home and

placed into immigration detention. He was held for approximately three months

until he was placed on supervised release.1 Mr. Flores subsequently filed a

1 The Order of Supervision stated in relevant part that the conditions of release were imposed “[b]ecause the Department [of Homeland Security] has not effected your deportation or removal during the period prescribed by law,” and required, inter alia, that Mr. Flores not travel outside a certain geographical radius without first notifying the department at least 48 hours in advance. App.

84.

3

motion with the BIA to reopen his removal proceedings. The BIA granted the

motion and Mr. Flores moved in immigration court to terminate the removal

proceedings.

The IJ granted Mr. Flores’ motion by decision and orders dated December

2, 2010, finding that Mr. Flores had been granted LPR status by virtue of the

stamp placed in his passport on July 3, 1979, and that status had not been

properly rescinded. Although the Government initially sought to appeal the IJ’s

decision, it withdrew its appeal, and the BIA closed the case by order dated May

3, 2011.

On November 4, 2011, Mr. Flores received a notice from the United States

Citizenship and Immigration Services (“USCIS”) requesting that he report to its

Manhattan location on November 11, 2011 for a “[r]eview of your IJ decision, and

LPR status.”

. The notice stated that “it is important that you keep this

appointment” and “if you are unable to do so, state your reason, sign below and

return this letter to the office below at once.”

Mr. Flores appeared at the

interview and, at its conclusion, was given a second stamp in his passport

4

indicating that he was a lawful permanent resident. He received his lawful

permanent resident card (“green card”) in November 2012.

On November 11, 2013, Mr. Flores, through counsel, sent administrative

claims to four federal entities pursuant to § 2675(a) of the FTCA. The statute

provides a limited waiver of the United States’ sovereign immunity from suit in

“circumstances where the United States, if a private person, would be liable to

the claimant in accordance with the law of the place where the act or omission

occurred.”

(b)(1). However, before an FTCA suit can be filed in

the district court, “the claimant shall have first presented the claim to the

appropriate Federal agency,”

§ 2675(a), and the statute makes clear 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,” id. § 2401(b).

After the relevant federal entities denied his claims, Mr. Flores and his

wife, Plaintiff‐Appellant Patricia Flores, filed this action in the district court in

November 2014. The Floreses cited the FTCA as the jurisdictional basis of their

suit and asserted that the actions of the United States set forth in the complaint

5

constituted false arrest and imprisonment, assault, battery, intentional infliction

of emotional distress, negligence, invasion of privacy, malicious prosecution, and

abuse of process under the laws of the state of New York.

The Government moved to dismiss for failure to state a claim or, in the

alternative, for summary judgment. The district court granted summary

judgment for the Government on September 30, 2016, holding that: (1) Mr. Flores

failed to timely present his administrative claims within the two‐year statute of

limitations; (2) the “continuing violation doctrine” did not apply to this action;

(3) Mr. Flores failed to establish entitlement to equitable tolling of the limitations

period; and (4) Mrs. Flores failed to exhaust her administrative remedies because

she never filed her own administrative claims with the Government. Flores v.

United States, No. CV 14‐6614,

, at *6‐8 (E.D.N.Y. Sept. 30, 2016).

The district court entered final judgment for the Government on September 30,

2016, and the Floreses timely appealed.

We review the district court’s grant of summary judgment de novo. Spak v.

Phillips,

(2d Cir. 2017). While we are “required to resolve all

ambiguities and draw all permissible factual inferences in favor of [the non‐

6

moving party],” Terry v. Ashcroft,

(2d Cir. 2003), “conclusory

statements, conjecture, or speculation by the party resisting the motion will not

defeat summary judgment,” Kulak v. City of New York,

(2d Cir.

1996).

The Floreses principally argue on appeal that the continuing violation

doctrine tolled the statute of limitations until the date that Mr. Flores received his

green card because it was only then that the Government could inflict no further

injuries. We disagree.

The continuing violation doctrine provides that “[w]hen a plaintiff

experiences a continuous practice and policy [that violates his or her rights], . . .

the commencement of the statute of limitations period may be delayed until the

last [violation].” Cornwell v. Robinson,

(2d Cir. 1994) (citations

and internal quotation marks omitted) (discussing the doctrine in the

, 1985 contexts); see also Syms v. Olin Corp.,

, 108‐09 (2d Cir.

2005) (discussing the doctrine in the FTCA context and the possible relevance of

state law in that context). Mr. Flores, however, has not shown a continuous

practice or policy that violated his rights. His injuries ceased after the IJ’s order

7

recognizing his LPR status became final on May 3, 2011, when the Government

withdrew its appeal. From that point on, Mr. Flores was not (and could not be)

subject to deportation, and was no longer (and could no longer be) subject to

supervised release.

The Floreses’ argument to the contrary, that Mr. Flores suffered injury by

attending the November 2011 interview with USCIS, is without basis. There is no

evidence in the record that the interview was for the purpose of revoking Mr.

Flores’ LPR status, and the scheduling notice sent by the Government does not

state that the interview was mandatory or that Mr. Flores would suffer any

repercussions for not reporting. Moreover, the record shows the Government

stamped Mr. Flores’ passport at the interview’s conclusion to evidence that he

was a lawful permanent resident—an undisputedly favorable development. The

Floreses’ speculation about USCIS’ motive for scheduling the interview

accordingly is insufficient to create a genuine dispute of material fact precluding

summary judgment. See Kulak, 88 F.3d at 70‐71.

8

CONCLUSION

We have considered the Floreses’ remaining contentions on appeal and

have found in them no basis for reversal. For the reasons stated herein, the

judgment of the district court is AFFIRMED.

9