The short version, in 2007 a naturalized U.S. citizen named Davino Watson was convicted for selling cocaine, pleaded guilty, and served his time. He was an adult, but barely. Instead of being released in 2008 he was snatched up by ICE who kept him in custody for 3½ years, all the time he was saying he’s a citizen and trying to find a pro-bono lawyer since he couldn’t afford one, and immigration court wouldn’t appoint him one. Eventually his pro se defence makes its way up to the Second Circuit, who gives him a pro-bono lawyer and suddenly this kid, who was arrested in New York, finds himself released for no reason, alone and penniless in rural Alabama!
That was 2011. Fast forward two years and he has proof of citizenship and lawyers. He files for administrative damages for the ordeal from DHS, which DHS denies after another year. The very day after DHS denies his claim, he sues the government for tort because they never really checked if he was a citizen - they could have literally called his parents the first day. Four years later, the Second Circuit rules 2-1 that Mr. Watson would have needed to sue the government for tort way back in 2010 when he was still pro se and in ICE detention.
What?
I was reading the Wikipedia article on immigrant detention in the United States when I came across the following statement (Wikipedia, 2019):
In one case, a man was held in immigration detention for more than three years[SUP][57][/SUP].
…
57.[1]a b[/SUP] Mica Rosenberg. “U.S. man held in immigration detention for three years”. Reuters.
My curiosity peaked, I visited Reuters and read Ms. Rosenberg’s article. A Jamaican-born and naturalized U.S. citizen named Davino Watson, convicted in 2007 for selling cocaine in New York, was transfered at the end of his sentence to ICE detention in Buffalo. Mr. Watson then spent 3½ years in detention awaiting deportation proceedings, without counsil, repeatedly claiming that he was a naturalized citizen. A judge eventually appointed counsil and by 2011 Mr. Watson was a free man, and the news story dated November 5, 2014 says he was suing the government for unlawful detention (Rosenberg, 2014).
I thought to myself, why would ICE ignore his claims of being a naturalized citizen? Did they even check? Doesn’t he get a certificate? Also 2011 to 2014 is three years but the statute of limitations for federal (ICE) tort claims is two years. I wonder how the case turned out?
I did a quick Google Search for “Davino Watson” and landed on an article from about a year ago from Prison Legal News, a website and magazine run by ex-prisoners “dedicated to protecting human rights”. That site said ICE checked his parent’s names in their database, found two unrelated Jamaicans with slightly different names, and proceeded to detain Mr. Watson for the next 3½ years, over his protests, until the deportation proceedings reached the Second Circuit. That court appointed pro-bono counsil who “quickly proved that Watson was in fact a U.S. citizen”. At some later point Mr. Watson retained a Chicago attorney named Mark Flessner and sued under FTCA, I assume this was around November of 2014 per the Reuters article who mentioned the same attorney. The district court threw out malicious prosecution and awarded $82,500 in damages for the first 27 days of false imprisonment. The Second Circuit overturned that judgement on appeal, saying the false imprisonment tort was untimely (Clarke, 2018). Prison Legal News also gave the case citation.
I followed the citation to see why the district court limited damages to the first 27 days, and why Mr. Watson waited three years after his release to file suit. The appellate opinion is recent enough to be hosted on the Second Circuit’s official website (Watson v. United States, 2017). The limitation of damages was deemed moot as the Second Circuit disqualified the false imprisonment claim as untimely.
In reading the case for clues as to why Mr. Watson waited so long to file suit for tort, I noticed this:
“In any event, ICE released Watson in November 2011 into rural Alabama (where he knew nobody), without money, and without being told the reason for his release. Removal proceedings technically continued for more than a year, ending at last when the BIA [(Board of Immigration Appeals)], responding to this Court’s remand, issued an unpublished decision […] and accordingly terminated Watson’s removal proceedings.”
That’s nice, the kid lives in New York and once they realize he is a U.S. citizen and can’t be detained or deported, they let him go in Alabama.
It then says:
“Watson filed an administrative claim for damages with DHS on October 30, 2013, which was denied approximately one year later. He initiated this lawsuit in the Eastern District of New York on October 31, 2014.”
November 2011 to October 30, 2013 is worst case two days before the deadline, but in 2013 he filed an administrative claim for damages with DHS, not tort under FTCA. Was the administrative claim required before the tort suit, and if so should the statute of limitations be tolled? What I can find online says yes, the two year statute of limitations only applies to the administrative claim, and after that is denied you get six months to sue for tort.
Reading further yet, I find that the Second Circuit thinks the false imprisonment claim accrued either when deportation proceedings began, in immigration court, on or before November 13, 2008. At that time Mr. Watson had no counsil and was already detained, since he had just completed his state sentence and was immediately moved into ICE custody. Certainly that was when the false imprisonment occurred, but the doctrine of equitable tolling should effectively pause the two year statute of limitations until he has access to council, right? No, says the Second Circuit!
“The district court’s grant of equitable tolling was based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsil, his depression, and ‘most significantly,’ the fact that government officials told Watson that he was not a U.S. citizen. App’x at 181-182. None of those reasons justifies equitable tolling.”
I could understand if the court tolled the limitations until he was appointed counsil, but it is clear from the opinion that Mr. Watson, a naturalized U.S. citizen originally arrested in high school, would have had to file a tort claim pro-se “while he [was] in immigration detention and fighting to prevent his deportation.” As a result of this failure on Mr. Watson’s part, there shall be no redress for 3½ years of unjustified detention.
To support this outrageous legal theory the Second Circuit cited Wallace v. Kato, Menominee Indian Tribe of Wisconsin v. United States, and Smith v. McGinnis.
Regarding Wallace, I agree that the risk of concurrent litigation is no defense for missing a deadline to file, but I fail to apply the rest of that case to this one as Wallace’s appeal was for a criminal case; Wallace would have had access to counsil when the “legal process” begins and false imprisonment ends (Wallace v. Kato, 2007). Besides, I think gross incompetence of counsil, such as literal nonexistence of counsil, might be a valid basis for equitable tolling in criminal cases. But Mr. Watson’s detention was part of removal hearings, a civil case. Unlike Wallace which was trying to overturn a criminal conviction by jury, Watson was never charged with a crime and never had a trial by jury.
I also agree that a mere mistake of law does not constitute extraordinary circumstance sufficient to justify equitable tolling (Menominee Indian Tribe of Wisconsin v. United States, 2016). But the Menominee tribe failed because they could not satisfy the “extraordinary circumstances” prong of the equitable tolling test, which the Supreme Court said means “both extraordinary and beyond its control”. The plaintiffs of that case knew they had a tort claim but mistakenly believed they were being represented in a concurrant class action suit, and the Supreme Court said such a misunderstanding of the law was entirely within plaintiff’s control. No such mistake of law is found here. Mr. Wallace claims he did not even know he could sue for tort until his lawyer informed him of such on July 31, 2014. It wasn’t reasonably within his control to know what he did not know, and it is extraordinary - a miscarriage of justice - for a U.S. citizen to be detained in a civil case, let alone to be detained without counsil for three years.
Then we have Smith v. McGinnis, quoted by the Second Circuit as saying “habeas petitioner’s ‘pro se
status . . . does not merit equitable tolling’”. I followed the cite and found that Smith simply punts the rationale to precedent, reading “Finally, Smith’s pro se status until March 1997 does not merit equitable tolling. See Turner, 177 F.3d at 392. Smith’s petition therefore was not timely” (Smith v. McGinnis, 2000).
I followed that cite for Turner, which involves a man convicted of sexual assault and sentenced to 20 years imprisonment (Turner v. Johnson, 1999). Turner petitioned the court for a writ of habeas corpus ten years after his conviction, which the district court ruled was untimely due to the new one-year statute of limitations legislated three years before Turner brought suit:
"We have held that neither a plaintiff’s unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.1991) (age discrimination case). It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason.
Turner does not indicate why he waited until March 1998 to pursue federal habeas corpus relief. He does not allege that he was unaware of any of his substantive claims until such time, and he does not allege that officials prevented him from seeking relief. Turner has failed to demonstrate that equitable tolling should apply to his case. The district court therefore did not err by dismissing Turner’s petition as time-barred."
The bolding is mine, and of utmost importance. Mr. Watson does allege that he was unaware of his substantive claims until July 31, 2014. This should have been at least addressed in the Second Court opinion, and it is indirectly brought up in the dissent. Nevertheless it would seem this is precluded by Barrow v. New Orleans S.S. Ass’n so I looked at that case.
Barrow in turn deals with an illiterate union worker who says he was discriminated against upon the basis of his age (Barrow v. New Orleans S.S. Ass’n, 1991). His union referred him to the relevant government agency, who Barrow timely asked what his rights were. The agency did not send back a letter saying he had the right to sue until after the statute of limitations had passed; after receiving this letter Barrow obtained counsil and brought suit. The opinion reads:
“None of the circumstances Barrow cites are bases for equitable tolling[…] lack of knowledge of applicable filing deadlines is not a basis for tolling. Larson v. American Wheel & Brake, Inc., 610 F.2d 506, 510 (8th Cir.1979). Neither is a plaintiff’s unfamiliarity with the legal process nor his lack of representation during the applicable filing period. James v. United States Postal Serv., 835 F.2d 1265, 1267 (8th Cir.1988). Finally, because “ignorance of legal rights does not toll a statute of limitations,” Larson, 610 F.2d at 510, it is irrelevant whether that ignorance is due to illiteracy or another reason. Thus Barrow’s illiteracy, if in the record,3 is also not a basis for equitable tolling.”
Next I’m looking at James v. U.S. Postal Service. In this case a black postal worker sued USPS for alleged racial discrimination, whereas USPS said they fired James for threatening to kill his supervisor (James v. U.S. Postal Service, 1988). The Barrow court said this case shows that unfamiliarity with the legal process is not a valid basis for equitable tolling. James had filed an EEO complaint in January 1985, then before that agency made a decision appealed to the Merit Systems Protection Board, some sort of arbitration court I think, which on July 12 denied his claim on the merits. The Merit Board gave James until August 16, 1985 to ask for judicial review. Meanwhile the EEO complaint was denied on July 29, 1985 and gave James thirty days to file for civil action in federal court. James filed a pro se complaint in district court on October 3, 1985, then the court appointed counsel and the district court dismissed the complaint as untimely. On appeal, the Eighth Circuit declines to say whether the thirty day filing periods can be equitably tolled, but accepting arguendo that they could:
But even if the requirements for commencing an action in district court were subject to tolling, we find nothing in the record in this case to warrant the application of the doctrine. The only explanation offered for appellant’s noncompliance was that he was unassisted by counsel, unable to find a lawyer, and unfamiliar with the legal process. Those circumstances do not justify equitable modification of the requirements. See Larson v. American Wheel Brake, Inc., 610 F.2d 506, 510, 511 (8th Cir. 1979).
So, James v. U.S. Postal Service is just a punt to Larson.
Still searching for a reason, I look into Larson. That case involved a worker, Larson, who was fired and replaced with a younger worker who sued under the Age Discrimination Employment Act of 1967 (Larson v. American Wheel & Brake, Inc., 1979). Larson was fired in December of 1976 and contacted the appropriate government office to ascertain his legal rights at the end of May of 1977. The statute of limitations expired before the office replied, and their reply was to contact the Department of Labor. Larson did so near the end of July 1977 and obtained counsil and filed a lawsuit by August 8 of that year. The district court granted summary judgement for American Wheel & Brake on account of the statute of limitations, no doubt because Larson’s response to the motion for summary judgement failed to assert tolling of the limitations period:
“The affidavit clearly fails to adequately respond to a motion for summary judgment, yet after being notified of the court’s intention to treat the motion as one for summary judgment, Larson still did not offer additional information to the district court from which an inference could be drawn that there were equitable circumstances that would allow or require tolling of the limitations period.”
On appeal, Larson asserted equitable tolling of the limitations period, which the Eighth Circuit rejected (bolding mine):
“Noticeably missing from the record are any allegations that would justify, on an equitable basis, taking the limitations period protection away from American Wheel and Brake. Equity, in a pure sense, is as Justinian states, 'to live honestly, to harm nobody, to render every man his due.” Institutes 1, 1, 3. We obviously harm Larson if we bar his cause of action in this case; on the other hand, we harm American Wheel and Brake if we allow the cause of action. Thus, in balance, it appears that the tipping of the scales must be to "render every man his due.’
Larson has not alleged (1) that his employer failed to post the appropriate notices concerning age discrimination as required by section 627 of the Act;[SUP]4[/SUP] (2) that he was misled by the Department of Labor concerning the filing of his complaint; (3) that he was unaware of the facts that would give rise to his cause of action under the Act; (4) that he filed a state age discrimination suit thus giving notice to his employer; (5) that any affirmative conduct of American Wheel and Brake provides a basis for the tolling of the period all of which have been mentioned by courts as equitable circumstances that might be considered concerning the issue of tolling a limitations period. See respectively (1) Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir. 1978) and Edwards v. Kaiser Aluminum & Chem. Sales, Inc., 515 F.2d 1195 (5th Cir. 1975); (2) White v. Dallas Independent School Dist., 581 F.2d 556, 561-62 (5th Cir. 1978) and Page v. U. S. Indus., Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), Cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); (3) Bickham v. Miller, 584 F.2d 736, 737-38 (5th Cir. 1978) and Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 930-31 (5th Cir. 1975); (4) International Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979).
Nor does Larson allege any other facts that might create equitable circumstances that would require or allow tolling of the limitations period in this case.
[…]
4
29 U.S.C. § 627 provides:
Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Secretary setting forth information as the Secretary deems appropriate to effectuate the purposes of this chapter.
To go in order, the apparent purpose behind (1) would be that the law provided Mr. Larson with an opportunity to know his rights, whereas no such law exists to inform Mr. Watson of his rights for tort claims while languishing in ICE detention. Regarding (2) and (5), the equivalent, if such an equivalent existed for Mr. Watson, would be Mr. Watson asking ICE to appoint him council, ICE providing such counsil, and such counsil misleading Mr. Watson, which obviously doesn’t apply. Regarding (3), this applies to Mr. Watson who claimed he was unaware that he had a cause of action until July 31, 2014. (4) doesn’t apply as removal proceedings are not a state matter.
Pursuing option (3), I find in Bickham v. Miller a rather reasonable idea, rooted in Reeb v. Economic Opportunity Atlanta, Inc., that the commencement of the filing period for sex-based discrimination can be “delayed in certain instances until a complainant learns or could be reasonable expected to learn of the discriminatory act” (Bickham v. Miller, 1978; citing Reeb v. Economic Opportunity Atlanta, Inc., 1975). In Bickham case it was clear that the lower court already found that plaintiff should have known or did not try hard enough to find out that she needed to file suit within thirty days of the alleged discrimination, so that case was not remanded. With Reeb the case was remanded.
It would seem to me that somewhere down the line, this reasonable basis for equitable tolling has been overlooked by the majority of the Second Circuit. What do you Dopers think?
~Max
Wikipedia. (2019, July 20). Immigration detention in the United States. Retrieved from Immigration detention in the United States - Wikipedia
Rosenberg, M. (2014, November 5). U.S. man held in immigration detention for more than three years. Reuters. Retrieved from U.S. man held in immigration detention for more than three years | Reuters
Clarke, M. (2018, July 2). Second Circuit Reverses Judgment in Favor of U.S. Citizen Held 3½ Years in Immigration Detention. Prison Legal News, p. 34. Retrieved from https://www.prisonlegalnews.org/news/2018/jul/2/second-circuit-reverses-judgment-favor-us-citizen-held-3-years-immigration-detention/
Watson v. United States, 865 F.3d 123 (2d Cir. 2017)
Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750 (2016)
Wallace v. Kato, 549 U.S. 396 (2017) (9 MB PDF)
Smith v. McGinnis, 208 F.3d 13, (2d Cir. 2000)
Turner v. Johnson, 177 F.3d 392 (5th Cir. 1999)
Barrow v. New Orleans Steamship Association, 932 F.2d 473 (5th Cir. 1991)
James v. U.S. Postal Service, 835 F.2d 1265 (8th Cir. 1988)
Larson v. American Wheel & Brake, Inc., 610 F.2d 506 (8th Cir. 1979)
Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978)
Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975)
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