Opinion
No. 07-3458-cv.
January 8, 2009.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the district court judgment is AFFIRMED.
FOR APPELLANT: Valery Tourchin, Brooklyn, New York, pro se.
FOR APPELLEE: Benton J. Campbell, United States Attorney for the Eastern District of New York, Varuni Nelson, Assistant United States Attorney, Scott Dunn, Assistant United States Attorney, Brooklyn, New York.
PRESENT: HON. RALPH K. WINTER, HON. ROBERT A. KATZMANN, HON. REENA RAGGI, Circuit Judges.
Plaintiff-Appellant Valery Tourchin, pro se, appeals from the June 14, 2007 judgment of the United States District Court for the Eastern District of New York (Gershon, J.) dismissing his complaint as time-barred. We assume the parties' familiarity with the underlying facts and the procedural history of the case.
This Court reviews de novo a district court's determination that a plaintiff's claims are barred by the statute of limitations. See Kronisch v. United States, 150 F.3d 112, 120 (2d Cir. 1998). The Federal Tort Claims Act provides 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." 28 U.S.C. § 2401(b). An FTCA claim accrues at the time of the plaintiff's injury, "although in certain instances, particularly in medical malpractice cases, accrual may be postponed until the plaintiff has or with reasonable diligence should have discovered the critical facts of both his injury and its cause." Barrett v. United States, 689 F.2d 324, 327 (2d Cir. 1982).
Here, Tourchin's January 2005 administrative claim, seeking damages for his detention by immigration authorities from October 2001 through August 2003, was untimely. To the extent that Tourchin argues that his claim did not accrue until he discovered that his detention was unauthorized, this type of argument has been explicitly rejected. See United States v. Kubrick, 444 U.S. 111, 123 (1979) (holding accrual of FTCA claim occurs when plaintiff becomes aware of the injury, not when plaintiff becomes aware that injury resulted from negligence). Tourchin's claim therefore accrued when he became aware of the injury, the date on which he was detained, not when he discovered that his detention was unlawful. See Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir. 1988) (finding action accrues when plaintiff learns of existence and cause of his injury); see also Knudsen v. United States, 254 F.3d 747, 751 (8th Cir. 2001) (finding FTCA claim accrues once injury is known, even if the plaintiff does not yet know that "the injury is legally redressable").
Tourchin has also failed to demonstrate his entitlement to equitable tolling. In the district court, Tourchin presented no grounds on which the limitations period could be equitably tolled, but alleges for the first time on appeal that he relied on the Government's and his former attorney's statements that his detention was authorized, the Government concealed the unauthorized nature of his detention, and that the conditions of his detention rendered him unable to determine that he was being improperly detained. As a general rule, this Court does not consider arguments raised for the first time on appeal. See Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005). However, even if these allegations had been raised below, it is not clear that they present the extraordinary circumstances that warrant equitable tolling and, in any event, Tourchin has failed to show that he acted with the required diligence. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). Tourchin filed his petition for a writ of habeas corpus in April 2002, over two and a half years before the administrative claim was filed, and he has failed to explain satisfactorily why he was unable to file an administrative claim during this time.
The statute of limitations also bars Tourchin from seeking damages for property loss arising from his detention, as these losses were consequential to his detention, not the result of a separate tortious act of the Government. The additional claims raised in Tourchin's brief were not presented to the district court and, as discussed above, this Court generally does not address claims raised for the first time on appeal. Finally, although Tourchin's complaint stated that he was raising claims pursuant to the Fourth and Fifth Amendments, in addition to the FTCA, he has not raised any argument relating to these claims and they are therefore abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).
We have considered all of Tourchin's arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.