Molina v. U.S. Department of Homeland Security, et al.

Filing 42

MEMORANDUM OPINION AND ORDER granting 15 MOTION for Summary Judgment by District Judge James A. Parker. (vv)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAYMOND MOLINA,
Plaintiff,
v.

Case No. 2:18-CV-00217 JAP/GJF

UNITED STATES OF AMERICA and
AGENT CHRISTOPHER M. HOLBROOK
in his individual and official capacity,
Defendant.

MEMORANDUM OPINION AND ORDER
On March 6, 2018, Plaintiff Raymond Molina brought a complaint against the
Department of Homeland Security (DHS) and Christopher M. Holbrook and FNU Lopez, two
current or former Department of Homeland Security (DHS) agents in their individual and official
capacities. Plaintiff asserted his claims under the Federal Tort Claim Act, 28 U.S.C. §§ 1346(b)
et seq. (FTCA). Plaintiff argued that Defendants Christopher M. Holbrook and FNU Lopez
(hereinafter, jointly DHS agents) in their official capacities and their individual capacities had
violated his Fourth and Fourteenth Amendment rights by arresting Plaintiff without probable
cause, by using unreasonable and excessive force during his arrest/detention, and by initiating
malicious prosecution. Plaintiff alleged that DHS was negligent in its training and supervision of
defendant officers.1 On July 24, 2018, DHS answered the Complaint.2

1

See COMPLAINT FOR VIOLATION OF CIVIL RIGHTS, ASSAULT, BATTERY, ABUSE OF PROCESS,
LOSS OF CONSORTIUM, INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS,
NEGLIGENT SUPERVISION AND TRAINING OF OFFICERS (Doc. No. 1).
2
DEFENDANT UNITED STATES DEPARTMENT OF HOMELAND SECURITY’S ANSWER TO
PLAINTIFF’S COMPLAINT (Doc. No. 10). As of the date of the filing of this Memorandum Opinion and Order,
Defendant Christopher Holbrook has not answered the Complaint.

1

On March 7, 2019, the United States filed a motion for summary judgment3 asking the
Court to dismiss all of Plaintiff’s claims against DHS for the following reasons: 1) Plaintiff
failed to name the United States as a defendant as required by the FTCA; 2) Plaintiff failed to
exhaust administrative remedies on his negligent training and supervision claim under 28 U.S.C.
§ 2675; and 3) Plaintiff failed to file his claims against the United States within the six (6) month
statute of limitations in 28 U.S.C. § 2401(b).
Plaintiff filed his response on March 21, 2019.4 The United States replied on April 4,
2019.5
On May 10, 2019, Plaintiff filed an unopposed motion asking the Court to substitute the
United States in place of DHS, to dismiss all claims against Defendant Agent Lopez without
prejudice, and to dismiss Plaintiff’s claims for negligent supervision and training of officers.6 On
May 14, 2019, the Court granted Plaintiff’s Motion to Substitute.7
In response to the Court’s request that the parties supplement their briefing on equitable
tolling, Plaintiff filed an additional brief on June 3, 2019,8 and the United States filed an
additional brief on June 13, 2019.9
As the Court’s May 14, 2019 Order resolved two of the United States’ arguments, the
United States’ only remaining argument is that Plaintiff’s Complaint is time barred under 28

3
See UNITED STATES OF AMERICA’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN
SUPPORT (Doc. No. 15) (Motion). In its Motion, the United States stated it represented the interests of DHS only,
and “no other named Defendants.”
4
See PLAINTIFF’S RESPONSE TO THE UNITED STATES OF AMERICA’S MOTION FOR SUMMARY
JUDGMENT (Doc. No. 20) (Response).
5
See UNITED STATES OF AMERICA’S REPLY TO PLAINTIFF’S RESPONSE (DOC. 20) TO UNITED
STATES’ MOTION FOR SUMMARY JUDGMENT (Doc. 15) (Doc. No. 25) (Reply).
6
See PLAINTIFF’S UNOPPOSED MOTION TO SUBSTITUTE PARTY AND TO DISMISS (Doc. No. 33)
(Motion to Substitute).
7
See ORDER SUBSTITUTING THE UNITED STATES OF AMERICA DISMISSING AGENT LOPEZ, AND
DISMISSING CLAIM OF NEGLIGENT SUPERVISION AND TRAINING (Doc. No. 34) (Order).
8
See PLAINTIFF’S BRIEF IN SUPPORT OF EQUITABLE TOLLING (Doc. No. 36) (Brief on Equitable Tolling).
9
See UNITED STATES OF AMERICA’S RESPONSE TO PLAINTIFF’S BRIEF IN SUPPORT OF EQUITABLE
TOLLING (DOC 36) (Doc. No. 41) (Response on Equitable Tolling).

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U.S.C. § 2401(b). That issue is fully briefed.10 Because Plaintiff untimely filed his federal case,
and equitable tolling does not apply, the Court will grant the United States’ Motion for Summary
Judgment.
I. FACTS & PROCEDURAL HISTORY
The following facts are taken from Plaintiff’s Complaint, the United States’ Motion for
Summary Judgment, and Plaintiff’s Response.11 In addition, the Court takes judicial notice of
documents filed in the federal court docket in Agent Holbrook’s criminal case.12
On March 23, 2015 around 7:30 p.m., Plaintiff and his wife were driving to the United
States from Mexico when they were detained at the Santa Teresa Port of Entry by DHS agents.13
See Complaint (Doc. No. 1) at ¶ 7; Response (Doc. No. 20-2), Ex. 2, at 3. The DHS agents
arrested Plaintiff under an outstanding El Paso warrant. See Response (Doc. No. 20-2), Ex. 2 at
3.14 While escorting Plaintiff to a Customs and Border Protection (CBP) office, “Defendant
Holbrook intentionally lifted [Plaintiff] up by his cuffed hands simultaneously sweeping his feet
10

The briefing includes exhibits attached to Defendant’s Summary Judgment Motion and Plaintiff’s Response.
Attached to Defendant’s Summary Judgment Motion are (1) Plaintiff’s adverse decision letter from DHS, (2) a
declaration by a staff attorney for United States Custom and Border Protection as the records custodian, (3) a
February 23, 2016 letter from Plaintiff’s attorney to the DHS, and (4) a certified United States mail return receipt.
See Motion (Doc. No. 15), Ex. A-1, A-2, A-3, and A-4. Attached to Plaintiff’s Response is Agent Holbrook’s
indictment in case number CR 17-3181, and the United States’ Sentencing Memorandum in that case. See Response
(Doc. No. 20) Ex 1 & 2.
Both Plaintiff and the United States attached email correspondence filed under seal to their supplementary briefs
on equitable tolling. Because some of those emails appear to involve settlement negotiations, and because that
correspondence exceeded the scope of what the Court asked the parties to do, the Court did not consider that
correspondence when making its ruling.
11
See Fed. R. Evid. 201 (“a court may judicially notice a fact that is not subject to reasonable dispute because it . . .
can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).
12
In the United States’ Response on Equitable Tolling, the United States disputes some of Plaintiff’s asserted facts,
which Plaintiff derived from a Sentencing Memorandum authored by the United States in Agent Holbrook’s
criminal case. The Court will consider as evidence properly in the record the United States’ statements of fact in the
Information, Plea Agreement, and Sentencing Memorandum, filed in Agent Holbrook’s criminal case. See Asarco
LLC v. Union Pacific R. Co, 755 F.3d 1183, 1188 & n.5 (10th Cir. 2014) (observing that a court may take judicial
notice of filings in a district court’s docket when resolving motions to dismiss).
13
Defendant Christopher Holbrook is no longer a Customs and Border Protection employee. However, at the time of
his encounter with Plaintiff, he was employed by Customs and Border Protection as an agent, and so the Court will
address him as such.
14
The Court will reference the numbers on the document and not the numbers assigned by the electronic filing
system.

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out from underneath him.” Id. This move is known as an “outside leg takedown” or a “mule
sweep.” Id. Because of Agent Holbrook’s actions, Plaintiff fell to the ground on his face and
received injuries including a fracture of his right orbital socket and several other facial bones.
Id.; see also Complaint (Doc. No. 1) at ¶ 14. He bled significantly, leaving a “noticeable pool of
blood on the floor.” Response, (Doc. No. 20-2), Ex. 2 at 3. An ambulance transported Plaintiff to
Mountain View Hospital for treatment. Id. Under CBP policy and training, the move used by
Agent Holbrook is appropriate only when an agent is addressing “actively assaultive behavior”
by a detainee. Id.
On February 23, 2016, through his attorney, Plaintiff filed a claim with DHS for
damages, injury or death on Standard Form 95 requesting $1,000,000 in damages. Motion (Doc.
No. 15-2), Ex A-1 at 1. DHS prepared a denial letter dated June 5, 2017 addressed to Plaintiff’s
counsel. As grounds for the denial of Plaintiff’s claim, DHS stated:
You have not provided sufficient documentation to substantiate any injury, loss or harm.
Moreover, there is insufficient evidence demonstrating that the alleged damages are
attributable to a negligent or wrongful act or omission of a Customs and Border
Protection employee while the employee was acting within the scope of his or her
employment.
Motion (Doc. No. 15-3) Ex. A-3 at 2. The letter advised Plaintiff’s counsel that if he was
“dissatisfied with this decision, [he] may file suit in an appropriate United States District Court
not later than six (6) months after the date of this notification.” Id. On June 6, 2017, the letter
was sent by certified mail to Plaintiff’s counsel. On June 8, 2017, Plaintiff’s counsel signed the
certified mail receipt. Motion (Doc. No. 15-4), Ex. A-3 at 1. Plaintiff did not seek
reconsideration of the denial.
After the denial letter, the CBP’s Office of Professional Responsibility continued to
investigate the March 23, 2015 event by examining videos and conducting interviews with

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eyewitnesses and Agent Holbrook. Response (Doc. No. 20-2), Ex. 2 at 4 (stating that Agent
Holbrook was interviewed on July 26, 2017 by the CBP’s Office of Professional Responsibility).
On November 7, 2017, the United States filed an Information against Agent Holbrook,
charging him with obstruction of justice in violation of 18 U.S.C. § 1519 for falsifying an official
document regarding his use of force against Mr. Molina. Response (Doc. No. 20-1), Ex. 1 at 1. In
a Sentencing Memorandum filed in Agent Holbrook’s criminal case, the United States identified
two occasions when Agent Holbrook gave false statements to agents investigating the incident.
First, on March 23, 2015, the day of the incident, Agent Holbrook wrote an official incident
report stating that he “used the minimal amount of force necessary to regain control of the
subject.” Response (Doc. No. 20-2), Ex. 2 at 4 (internal citation omitted). Second, on July 26,
2017, after DHS sent its denial letter, Agent Holbrook told investigators from the CBP’s Office
of Professional Responsibility that “he was not sure how [Plaintiff’s] fall occurred, denied
intentionally tripping [Plaintiff] and called the incident an accident.” Id. (internal citation
omitted).
On March 16, 2018, Agent Holbrook pled guilty to the charge of obstruction of justice.
See United States v. Holbrook, 2:17CR03181-001RB, Plea Agreement (Doc. No. 10). In his Plea
Agreement, Agent Holbrook admits that “he knowingly falsified his official report by claiming
(1) that [Plaintiff] was actively resisting arrest, (2) that Defendant Holbrook used ‘the minimal
amount of force necessary’, and (3) that [Plaintiff] fell to the floor only because his feet had
unintentionally tangled with Defendant Holbrook’s.” Id; see also Holbrook, 17CR03181 RB,
Plea Agreement at ¶ 7. “As part of the plea offer, the United States agreed that it would not seek
to charge the underlying criminal civil rights violation, 18 U.S.C. § 242 (Violation of Rights
Under Color of Law).” Response (Doc. No. 20-2), Ex. 2 at 1. On November 27, 2018, Agent

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Holbrook was sentenced to 12 months and 1-day term of imprisonment. See Holbrook,
2:17CR03181-001RB, Judgment (Doc. No. 36).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if a “movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the non-moving party on the issue,” and
“[a]n issue of fact is material if under the substantive law it is essential to the proper disposition
of the claim.” Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citations
and internal quotations omitted). In reviewing a motion for summary judgment, the Court views
“the evidence and its reasonable inferences in the light most favorable to the non-movant.” Id.
As a sovereign, “[t]he United States and its officers enjoy immunity from suit except in
instances where the United States has expressly waived that protection.” Flute v. United States,
808 F.3d 1234, 1239 (10th Cir. 2015). In 1946, Congress enacted the FTCA, which waives the
United States’ sovereign immunity and permits individuals to sue the government for “personal
injury or death caused by the negligent or wrongful act or omission of any employee of the
United States while acting within the scope of his office or employment.” 28 U.S.C. §
1346(b)(1); see also Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1130 (10th Cir.
2011) (the FTCA “waives sovereign immunity and grants subject-matter jurisdiction to the
district courts”). The FTCA is the exclusive remedy for tort claims allegedly committed by
federal employees when acting in their official capacity. See 28 U.S.C. § 2679(b)(1). Courts
must narrowly construe the FTCA’s waiver of the United States’ sovereign immunity. Lehman v.
Nakishian, 453 U.S. 156, 161 (1981).

6

Two conditions govern the timing of a FTCA claim: an administrative exhaustion
requirement and a statute of limitations requirement. Barnes v. United States, 776 F.3d 1134,
1139 (10th Cir. 2015) (observing the administrative exhaustion requirement and the statute of
limitations in the FTCA act as chronological bookends to an FTCA claim). First, under 28
U.S.C. § 2675(a), before bringing an FTCA claim to federal court, a plaintiff must exhaust
administrative remedies by filing the claim with the appropriate agency. Bradley v. United States
ex. rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). Only after the claim is denied in
writing by the agency may a plaintiff bring the claim to federal court. McNeil v. United States,
508 U.S. 106, 113 (1993). The administrative exhaustion requirement is jurisdictional. Id. The
United States does not argue that Plaintiff failed to meet the administrative exhaustion
requirement.
Second, the FTCA provides a limitations period for filing a claim with a district court.
The statute of limitations requires a plaintiff to file a claim “within six months after the date of
mailing, by certified or registered mail, of notice of final denial of the claim by the agency to
which it was presented.” 28 U.S.C. § 2401(b). The statute of limitations requirement is not
jurisdictional but merely imposes a time limit. United States v. Kwai Fun Wong, 135 S.Ct. 1625,
1633 (2015).
Untimeliness is an affirmative defense. See Fed. R. Civ. P. 8(c)(1) (listing statute of
limitations as an affirmative defense). A defendant has the initial burden of showing a claim is
untimely. See Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (citing
Gomez v. Toledo, 446 U.S. 635, 640 (1980)); see also Roberts v. Barreras, 484 F.3d 1236, 1241
(10th Cir. 2007) (observing “the burden of proving all affirmative defenses rests on the

7

defendant”). Once that burden is met, the burden shifts to the plaintiff to show a later accrual
date for the claim or to provide a factual basis for tolling the statute.
Equitable tolling “appl[ies] to suits brought against the United States under a statute
waiving sovereign immunity.” Kwai Fun Wong, 135 S.Ct. at 1631 (citing Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 95-96 (1990)). Because the statute of limitations in 28 U.S.C. §
2401(b) is not jurisdictional, a federal court may toll the FTCA time limit on equitable grounds.
Id. When a defendant has deceived a plaintiff or has concealed facts material to a plaintiff’s
cause of action, equitable tolling may delay the running of a statute of limitations. See Glus v.
Brooklyn E. Dist. Terminal, 359 U.S. 231, 232 (1959).
Equitable tolling is a “discretionary matter for the district court” that “’is granted
sparingly.’” Chance v. Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018) (quoting Impact Energy Res.,
LLC v. Salazar, 693 F.3d 1239, 1246 (10th Cir. 2012)). “’[G]enerally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances stood in his way.’” Id. (quoting
Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012) (emphasis and further
citation omitted)). Both requirements are distinct elements that a litigant must establish.
Menominee Indian Tribe of Wisconsin v. United States, --- U.S. ----, 136 S.Ct. 750, 756 (2016).
The party arguing the applicability of equitable tolling “bears a strong burden to show specific
facts to support his claim of extraordinary circumstances and due diligence.’” See Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307
(11th Cir. 2008)).

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III. ANALYSIS
As a preliminary matter, the United States disputes most of Plaintiff’s facts, arguing that:
(1) Plaintiff failed to cite to evidence in support of the facts surrounding the encounter; (2)
certain purported facts are not supported by the evidence; or (3) most of the facts are not material
to the equitable tolling analysis. Response on Equitable Tolling (Doc. No. 41) at 9. These
arguments are unfounded. Many of the facts the United States disputes were asserted by the
United States in a Sentencing Memorandum filed in Agent Holbrook’s criminal case. The United
States offers no explanation for why facts it once proclaimed incontrovertible are now disputed.15
More important, these facts are properly in the record. They are attached to Plaintiff’s Response
and the Court has taken judicial notice of them.
Both parties agree on the timeline of events. On June 6, 2017, DHS sent to Plaintiff’s
counsel by certified mail a final denial of Plaintiff’s administrative claim based on Agent
Holbrook’s excessive use of force. The letter stated that if Plaintiff decided to file an FTCA
claim in federal court, he must do so within six months of the date of mailing of that letter. On
June 8, 2017, Plaintiff’s counsel acknowledged receipt of the denial letter with his signature. To
be timely, Plaintiff should have filed his FTCA claim in federal court by December 6, 2017.
However, it was not until March 6, 2018, that Plaintiff filed his Complaint. Because Plaintiff
filed his FTCA claim three months after the six-month statute of limitations deadline, the United
States argues that the Court should dismiss Plaintiff’s FTCA claim.16 In opposition, Plaintiff

15

For example, Plaintiff states that it is undisputed that a witness to the incident submitted a statement that
Defendant Holbrook’s’ action appeared to be intentional and not negligent and it cites the United States’ Sentencing
Memorandum in Defendant Holbrook’s case. However, now the United States disputes this fact, stating that it is
unsupported by the evidence. See Response on Equitable Tolling (Doc. No. 41) at ¶5.
16
Initially, the United States claimed that the statute of limitations requirement was jurisdictional. In its Response on
Equitable Tolling, the United States appears to have abandoned that claim as unsupported by the law.

9

argues that he has diligently pursued his rights and extraordinary circumstances warrant
equitable tolling.
A. Extraordinary Circumstances Based on Fraudulent Concealment
To show extraordinary circumstances, a litigant must show that the circumstances that
caused his delay “are both extraordinary and beyond [his] control.” Menominee, 136 S.Ct. at
756. Plaintiff asserts that he has shown extraordinary circumstances through evidence that Agent
Holbrook and the United States fraudulently concealed material facts crucial to Plaintiff’s claim.
A party asserting equitable tolling based on fraudulent concealment must show each
prong of the following test: “(1) the use of fraudulent means by the party who raises the ban of
the statute; (2) successful concealment from the injured party; and (3) that the party claiming
fraudulent concealment did not know or by the exercise of due diligence could not have known
that he might have a cause of action.” See Robert L. Kroenlein Trust ex rel. Alden v. Kurchhefer,
764 F.3d 1268, 1281 (10th Cir. 2014). Plaintiff argues that Agent Holbrook’s conviction for
obstruction of justice based on his misrepresentations about his use of excessive force against
Plaintiff on March 23, 2015 is prima facie evidence of fraudulent concealment.
The record supports Plaintiff’s assertion that Agent Holbrook fraudulently concealed
material facts. Agent Holbrook admitted in his criminal proceeding that he falsified two official
reports by claiming that he had not used excessive force against Plaintiff. However, it is not
Agent Holbrook who seeks summary judgment against Plaintiff, it is the United States. Plaintiff
must show that the United States used fraudulent means to conceal Plaintiff’s cause of action.
Plaintiff appears to allege that when the United States sent its denial letter, the United
States was concealing its knowledge of Agent Holbrook’s use of excessive force. According to
Plaintiff, this was a form of fraud. However, Plaintiff also admits that he knew that “the

10

Department of Justice had begun a civil rights investigation of Agent Holbrook.” See Brief on
Equitable Tolling (Doc. No. 36 at 5). If Plaintiff knew the United States was investigating Agent
Holbrook, then Plaintiff must have known that it had suspicions about Agent Holbrook’s
behavior. This information undermines Plaintiff’s argument.
When examined, it becomes clear that Plaintiff is claiming that the United States
fraudulently concealed evidence supporting Plaintiff’s claim, not the existence of the claim.
Plaintiff reasons that he did not and could not know that there was evidence other than his own
recollection to support his claim until the United States filed charges against Agent Holbrook. Id.
at p. 5 (stating that only after the US Attorney’s office filed charges could the Plaintiff know
“there existed strong evidence to prove, beyond a reasonable doubt, that Agent Holbrook had
battered Mr. Molina and used excessive force”). Plaintiff states that while he knew he had a
claim, he “was in a bind in terms of evaluating the strength and value of a suit for damages.” Id.
According to Plaintiff, the United States had a legal obligation to turn over all evidence it
possessed about the incident before Plaintiff filed a federal lawsuit, and the United States’ failure
to do so was a form of concealment. Plaintiff offers no legal or factual support for this argument.
The United States counters that Plaintiff confuses the merits of his FTCA claim with the
existence of evidence to support his claim. The United States asserts that even if “strong
evidence” was concealed, which it denies, Plaintiff’s supposed beliefs regarding his own claim
can never be extraordinary circumstances because those beliefs are within Plaintiff’s control. The
United States submits that even if Plaintiff did not possess all evidence surrounding the
encounter between him and Agent Holbrook, Plaintiff still had an obligation to file a claim
within the six-month statute of limitations. Caselaw supports this argument.

11

Courts have found extraordinary circumstances warranting equitable tolling when there
has been an active misrepresentation about a plaintiff’s cause of action that prevented a plaintiff
from meeting the statute of limitations. See Pliler v. Ford, 542 U.S. 225, 234 (2004) (remanding
case for further proceedings on whether a litigant had been affirmatively misled about the legal
effect of a recharacterization of a motion); Chance, 898 F.3d at 1035 (collecting cases of active
misrepresentation); Spottsville v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (applying
equitable tolling when state habeas court affirmatively misled petitioner by instructing him to file
his appeal with the wrong court). Extraordinary circumstances are also present when litigants
delay filing a claim in federal court because of “rel[iance] on actual binding precedent that is
subsequently reversed.” Menominee, 136 S.Ct. at 754. Plaintiff has pled no facts demonstrating
that he did not know he had a cause of action or that he relied on binding precedent to his
detriment.
Plaintiff’s argument rests on the sufficiency of his evidence. However, courts have
declined to find extraordinary circumstances when a plaintiff knows of his or her cause of action
but lacks direct knowledge of all evidence. See Bennett v. Coors Brewing Co., 189 F.3d 1221,
1235 (10th Cir. 1999) (finding that “[e]quitable tolling is not warranted where an employee is
aware of all of the facts constituting discriminatory treatment but lacks direct knowledge of the
employer’s subjective discriminatory purpose”) (internal quotation marks and citation omitted));
State of Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 695 (10th Cir. 1981)
(examining the equitable tolling doctrine and finding that discovery of the fraud, not the
possession of hard evidence, begins the statute of limitations); see also Ryan v. United States,
534 F.3d 828, 832 (8th Cir. 2008) (extraordinary circumstances not present when twins who
were switched at birth in 1946 and had suspected the switch since the 1970s could have

12

discovered the basis for their claims by conducting an inquiry and filing their FTCA claim before
2002).
For similar reasons, Plaintiff cannot meet the other two prongs of the fraudulent
concealment test. Because Plaintiff has admitted that he knew that he had a cause of action, he
cannot show that the United States concealed that cause of action from him. If anything, the
United States’ ongoing investigation of Agent Holbrook buttressed Plaintiff’s claims. As
Plaintiff has not met his burden in showing fraudulent concealment, he has not established the
extraordinary circumstances element of the equitable tolling test.
B.

Diligence

A failure to meet one element of the equitable tolling test, is fatal to the claim. See Sigala
v. Bravo, 656 F.3d 1125, 1129 (10th Cir. 2011) (without addressing the diligence prong,
dismissing Plaintiff’s claim when he failed to meet his burden of showing extraordinary
circumstances). Nonetheless, the Court will address Plaintiff’s argument that he has shown
diligence.
The United States reasons that because Plaintiff knew he had a cause of action, Plaintiff
had an obligation to pursue it within the six-month statute of limitations and his failure to do so
shows he was not diligent. Alternatively, the United States maintains that, even if Plaintiff
legitimately did not know that he had a viable cause of action before the United States charged
Agent Holbrook, after the United States charged Agent Holbrook Plaintiff still had
approximately a month to meet the filing deadline.17
“The diligence required for equitable tolling is reasonable diligence, not maximum
feasible diligence.” Holland, 560 U.S. 631, 653 (2010) (citation and internal quotation marks

17

Plaintiff’s counsel does not deny that he had notice that the United States charged Agent Holbrook.

13

omitted). To establish diligence, a plaintiff must “allege with specificity the steps he took to
diligently pursue his federal claims.” Yang, 525 F.3d at 930 (internal quotations marks omitted).
Significantly, Plaintiff has not stated specifically the steps he took to diligently pursue his claim.
While there is some evidence that Plaintiff diligently pursued his claim prior to DHS’s denial
letter, there is no evidence that Plaintiff actively pursued the claim thereafter. Plaintiff’s counsel
apparently concedes that after the United States charged Agent Holbrook, Plaintiff’s counsel
knew Plaintiff had a viable claim, yet he did not file a claim despite 30 days remaining before
expiration of the limitations period. The Tenth Circuit has found that a “one-month time period
provide[s] ample opportunity to serve the defendants in a timely fashion.” Phannensteil v.
Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d 1155, 1158 (10th Cir. 2007).
Plaintiff’s counsel justifies his failure to file Plaintiff’s FTCA case by the limitations
deadline on the ground that he was engaged in a complex and time-consuming legal case
mandating his presence at hearings. Plaintiff’s counsel concludes that the “revelation could not
have come at a worse time for Mr. Molina.” Brief on Equitable Tolling at 6. Plaintiff has cited no
law, and the Court cannot find any, supporting a proposition that a lawyer’s heavy case load is
proof that the lawyer is diligent and excuses the lawyer’s failure to timely file a lawsuit. While
there is some case law18 indicating that an attorney’s gross failure to perform essential services
might establish extraordinary circumstances, Plaintiff’s counsel has not argued that, nor has the
United States.
This appears to be an unfortunate instance of an attorney failing to take an appropriate
and necessary step on behalf of his client. Therefore, the Court reluctantly and regretfully will
grant the Motion.

18

See, e.g., Holland, 560 U.S. at 652-53 (finding that an attorney’s egregious misconduct may establish
extraordinary circumstances).

14

IT IS THEREFORE ORDERED THAT the UNITED STATES OF AMERICA’S
MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No.
15) is GRANTED, and a separate summary judgment in favor of Defendant United States of
America will be entered.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

15