Moshen Omar v. Scott Blackman , 590 F. App'x 162 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-4542
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MOSHEN OMAR,
Appellant
v.
SCOTT BLACKMAN, Former Acting District Director Philadelphia District US
Immigration and Naturalization Service; KENNETH JOHN ELWOOD, Former Acting
District Director Philadelphia District US Immigration and Naturalization Service;
THEODORE NORDMARK, Assistant District Director for Deportation and Detention
Philadelphia District US Immigration and Naturalization Service; STEVEN
FARQUHARSON, District Director Boston District US Immigration and Naturalization
Service; KENT FREDERICK, Chief Counsel Philadelphia District; FRED J.
MCGRATH, Chief Counsel Boston District; HELEN MOORE, Senior Counsel Office of
Chief Counsel Boston District; JAMES SLOVIK, US Department of Homeland Security;
JOHN/JANE DOE, US Department of Homeland Security/US Immigration and
Naturalization Service Philadelphia District; CHARLES COBBS, US Department of
Homeland Security Boston District; KAREN-ANNE HAYDON, US Department of
Homeland Security Boston District; DAO L. KUREK, US Department of Homeland
Security Boston District; JAMES LARNER, US Department of Homeland Security
Forensic Document Laboratory; JASON B. DOE, US Department of Homeland Security;
JOHN/JANE DOE, US Department of Homeland Security Boston District
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. 2-10-cv-01071)
District Judge: Honorable C. Darnell Jones, II
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 8, 2014
Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.
(Filed: October 9, 2014)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Moshen Omar appeals the District Court’s order granting the defendants’ motion
to dismiss his federal civil rights claims because they were time-barred. For the reasons
stated below, we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
A native of Egypt, Omar arrived in the United States in 1990 and was granted
lawful permanent resident status in 1994. During the course of Omar’s subsequent
naturalization process, the former Immigration and Naturalization Service (INS)
investigated an apparent forgery on Omar’s 1994 petition to remove the conditions on his
residency. Based on the evidence of forgery, the INS initiated removal proceedings, and
because Omar failed to attend his removal hearing, the immigration judge presiding
issued an in absentia removal order against him. In February 1998, INS agents arrested
Omar pursuant to the removal order, and he was not released from INS custody until
March 1999.
2
After his release, Omar continued to challenge the basis for his removal with little
success until he directly challenged the evidence of forgery by submitting his own expert
report asserting that the allegedly forged signature was in fact authentic. Based on this
new evidence, a different immigration judge reopened his removal proceedings, and on
April 14, 2006, the immigration judge terminated Omar’s removal proceedings.
On April 10, 2008, Omar’s attorney sent letters to the chief counsel of the United
States Immigration and Customs Enforcement (ICE) in Philadelphia and Boston,
asserting Omar’s right to relief under the Federal Torts Claims Act and under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). On
September 11, 2009, ICE notified Omar that his claims were denied, and that he could
sue the United States within six months of the date on the letter denying his claims.
Omar filed a complaint in federal court on March 11, 2010. He later amended his
complaint, asserting various claims under 42 U.S.C. §§ 1983, 1985, and 1986 as well as
under Bivens against individual defendants allegedly involved in his removal proceedings
and detention. On September 23, 2013, the District Court dismissed Omar’s claims for
lack of jurisdiction because it found that all his claims were time-barred by the applicable
limitations periods and that equitable tolling should not apply.
II.
We have jurisdiction to review the District Court’s order pursuant to 28 U.S.C.
§ 1291. We exercise plenary review of the District Court’s dismissal of Omar’s claims
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on statute of limitations grounds. Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000). We
assume the truth of the facts alleged in the complaint and draw all reasonable inferences
from those facts in favor of Omar, as the non-moving party below. Id.1
III.
The first issue we must decide is the limitations periods that govern Omar’s
various claims. Section 1986 expressly provides that claims must be filed “within one
year after the cause of action has accrued.” For §§ 1983 and 1985 actions, “we look to
the general, residual statute of limitations for personal injury actions” from the state
where the federal court sits unless the state limitations period is inconsistent with the
Constitution or federal law. See Lake, 232 F.3d at 368. We must also account for the
state’s tolling rules. Id. The same rules apply to Bivens actions. See Napier v. Thirty or
More Unidentified Fed. Agents, 855 F.2d 1080, 1087 (3d Cir. 1988); see also King v. One
Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000). Therefore, in
Pennsylvania, actions brought under §§ 1983 and 1985 and Bivens are subject to a two-
year limitations period. See 42 Pa. Cons. Stat. § 5524.
1
We note at the outset that the District Court improperly concluded that, because
Omar’s claims were untimely, it lacked jurisdiction. We have consistently applied
equitable tolling principles to federal civil rights claims. See, e.g., Lake v. Arnold, 232
F.3d 360, 370 (3d Cir. 2000). In doing so, we have shown that the statute of limitations
applicable to these claims is not jurisdictional. Cf. Shendock v. Dir., Office of Workers’
Comp. Programs, 893 F.2d 1458, 1466 (3d Cir. 1990) (“Equitable tolling or estoppel
simply is not available when there are jurisdictional limitations.”). But even if the
District Court erred, “we may still uphold its decision if correct under the appropriate
standard of review.” S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260,
271 (3d Cir. 2003).
4
The next question—when Omar’s claims accrued—is determined by reference to
federal law. See Wallace v. Kato, 549 U.S. 384, 388 (2007). “[I]t is the standard rule
that accrual occurs when the plaintiff has a complete and present cause of action, that is,
when the plaintiff can file suit and obtain relief.” Id. (internal alterations, quotation
marks, and citations omitted).
We need not dwell on the details of Omar’s individual claims because, as the
District Court correctly recognized, the absolute latest his claims could have accrued was
April 14, 2006, the date his removal proceedings were terminated and the latest date with
any relevance to his claims. Therefore, the limitations period for all Omar’s claims
expired nearly two years before he filed his complaint on March 11, 2010.
Omar contends that the District Court erred by failing to consider the effect of 42
Pa. Cons. Stat. § 5522 in deciding that his claims were time-barred. According to Omar,
the statute of limitations should have tolled when he sent letters to ICE in April 2008.
We disagree. Section 5522 provides that potential plaintiffs must give notice to
government units they plan to sue within six months of their injury. It also provides for a
six-month limitations period for actions against government officials, but this limitations
period does not apply to Omar’s claims. See Knoll v. Springfield Twp. Sch. Dist., 763
F.2d 584, 585 (3d Cir. 1985). Section 5522 says nothing about tolling the limitations
periods that apply here, and we decline to expand it to save Omar’s claims.
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Nor can equitable tolling save Omar’s claims from being time-barred. “Equitable
tolling is a rare remedy to be applied in unusual circumstances.” Wallace, 549 U.S. at
396. It is only appropriate “(1) where the defendant has actively misled the plaintiff
respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary
way has been prevented from asserting his or her rights; or (3) where the plaintiff has
timely asserted his or her rights mistakenly in the wrong forum.” Santos ex rel. Beato v.
United States, 559 F.3d 189, 197 (3d Cir. 2009) (internal quotation marks omitted). To
obtain the benefit of equitable tolling, a party also must show that “she exercised due
diligence in pursuing and preserving her claim.” Id. Omar does not allege that either the
first or second basis for equitable tolling applies here; rather, he contends that he
mistakenly pursued his claims in the wrong forum when he sent his claims notification
letters to ICE in April 2008.
Specifically, Omar argues that the District Court erred by failing to consider that,
even if he erroneously relied on § 5522’s notice requirement, his error warranted
equitable relief because it led him to file his claims in the wrong forum. Even if § 5522
applied to Omar’s claims, which it does not, his claims letters to ICE did not meet its
requirement of providing notice within six months of his injury. Nor do the letters make
any reference to § 5522. Under these circumstances, we cannot say that Omar exercised
due diligence in proceeding as he did.
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We also disagree with the premise of Omar’s argument: that he pursued his claims
in the wrong forum. Omar’s letters to ICE initially sought damages under the FTCA,
which required him to present his claim to the relevant agency within two years of his
claim’s accrual and initiate a lawsuit within six months of the agency’s mailing of notice
of final denial of his claim. See 28 U.S.C. §§ 2401(b), 2675(a). The agency was
therefore the correct forum for Omar’s FTCA claim. Even though Omar’s ICE letters
also referred to Bivens claims, nothing prevented him from initiating his independent
claims under §§ 1983, 1985, and 1986 or Bivens in federal court before or during the
pendency of ICE’s review of his FTCA claim. Tolling the statute of limitations to save
parallel claims that do not require exhaustion of administrative remedies would
unjustifiably extend the statute of limitations for those claims. See Johnson v. Ry.
Express Agency, Inc., 421 U.S. 454, 466 (1975). Omar’s is, at best, “a garden variety
claim of excusable neglect,” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990),
not the rare case that calls for application of equitable tolling.2
2
Omar’s final contention is that the District Court erred by dismissing his claims
against the non-moving defendants. The District Court reasoned that Omar abandoned
these claims because there was no evidence that he had attempted to effectuate service on
the non-moving defendants. Omar urges us to vacate this part of the District Court’s
order because he should have been given an opportunity to show good cause to excuse
his failure to serve these defendants. See Fed. R. Civ. P. 4(m). The Government argues
that the District Court simply noted the lack of evidence of service on the non-moving
defendants but did not dismiss the claims against these defendants. We find that any
error committed by the District Court was harmless because, as stated above, all Omar’s
claims are time-barred against all defendants involved in his removal proceedings.
7
Accordingly, we agree with the District Court and conclude that Omar’s claims
are time-barred and that equitable tolling does not apply to save his claims.
IV.
For the reasons set forth above, we will affirm the order of the District Court.
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