Moshen Omar v. Scott Blackman
590 F. App'x 162
3rd Cir.2014Background
- Omar is a native of Egypt who arrived in the U.S. in 1990 and became a lawful permanent resident in 1994.
- INS investigated forgery on Omar’s 1994 petition to remove residency conditions, triggering removal proceedings.
- Omar received an in absentia removal order after missing a removal hearing; he was arrested in 1998 and confined until March 1999.
- A different immigration judge reopened proceedings and terminated removal on April 14, 2006, based on new evidence of forgery.
- In 2008 Omar sent letters to ICE asserting FTCA and Bivens claims; ICE denied them in 2009 and advised seeking relief within six months.
- Omar filed suit on March 11, 2010; in 2013 the district court dismissed all claims as time-barred, with no equitable tolling applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What limitations periods apply to Omar’s claims | Omar argues tolling or dates outside standard periods. | Defendants contend a two-year Pennsylvania-based limit applies and accrual was 2006. | All claims time-barred under two-year limit; no tolling. |
| Did § 5522 toll the statute or require tolling of other periods | § 5522 tolled or extended the period. | § 5522 does not toll or apply to these claims. | § 5522 did not toll accrual for Omar’s claims. |
| Was equitable tolling available to save Omar’s claims | Omar should receive tolling due to mistaken forum filing. | No due diligence and no applicable equitable tolling. | Equitable tolling not warranted. |
| Did the incorrect forum for claims affect outcome | FTCA forum was appropriate, and Bivens could be pursued in court. | Claims could not be saved by filing in wrong forum; parallel claims tolled only if remedies exhausted. | Even if forum issue, claims remained time-barred. |
Key Cases Cited
- Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000) (equitable tolling applied to federal civil rights claims; not jurisdictional)
- Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080 (3d Cir. 1988) (accrual and tolling considerations for Bivens/§1983)
- King v. One Unknown Fed. Corr. Officer, 201 F.3d 910 (7th Cir. 2000) (accrual principles for federal actions)
- Wallace v. Kato, 549 U.S. 384 (2007) (accrual occurs when a plaintiff has a complete and present cause of action)
- Knoll v. Springfield Twp. Sch. Dist., 763 F.2d 584 (3d Cir. 1985) (§ 5522 does not toll applicable limitations periods)
- Johnson v. Ry. Express Agency, Inc., 421 U.S. 454 (1975) (tolling for excusable neglect does not generally extend limitations)
- Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling and due diligence standards)
- Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d 1458 (3d Cir. 1990) (notes on non-jurisdictional tolling principles)