Appendix — Wracsaricht v. United States

2

a.

-

LAZAR T. WRACSARICHT, et al.

al.,

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Plaintiffs-Appellants, NO. 81-3210

vs. MEMORANDUM

UNITED STATES OF AMERICA, et

De fendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

District Judge Walter T. McGovern,

Presiding

{Argued and Submitted June 8, 1982)

Before: WRIGHT, SKOPIL and ALARCON, Circuit

Judges.

We affirm the dismissal of this damage suit

brought under the Federal Tort Claims Act.

Plaintiff was born in the United States

in 1917. As a child, he was taken to Yugo-

Slavia where he remained until 1972, when

he applied for a United States passport.

While that application was pending, he re-

- 3% -

turned to this country on a business visa

under his Yugoslav passport.

For the next three years, his attempts

to establish his citizenship through the INS

were futile. In 1975, he prevailed in dis-

trict court. We affirmed in an unpublished

memorandum. (Wracsaricht v. United States,

Nov. 11, 1977). Thereafter, appellant re-

ceived his passport.

In 1979, he reviewed his INS and Depart-

ment of State files and discovered that he

had been the subject of a potential trade

for an American skyjacker held by the Yugoslav

government. The State Department's effort

to block his passport appliction had pro-

tracted his administrative proceedings.

In May, 1980, he filed a complaint under

the Pederal Tort Claims Act (PTCA), in which

he alleged subaission of appropriate admin-

istrative claims in 1979, four years after

his citizenship was recognized. The district

~ 3S

court dismissed the suit because his admin-

istrative claims had been untimely under 28

U.S.C. § 2401(b).

Claims under the FTCA are barred unless

submitted to the appropriate federal agency

within two years of accrual. Generally, a

claim accrues at the time of injury. United

States v. Kubrick, 444 U.S. lll, 120 (1979).

When the injury is not readily apparent, the

claim accrues when the claimant learns or

should have learned of the injury and its

cause. Davis v. United States, 642 F.2d 328,

331 (9th Cir. 1981), cert. denied, 102 S.Ct.

1273 (1982).

Evaluated under the general rule, plain-

tiff's cause of action matured in 1975 when

the State Department interfered with his pass-

port application. It was barred when no ad-

ministrative claims were filed by 1977:

Plaintiff urges our application of the

so-called discovery rule, arguing that even

- 36 -

ay

~

if his injury was apparent in 1975, he was

not aware of the cause until 1979.

Plaintiff's complaint alleges no facts

to support his contention that he could not

have discovered the cause of his injury within

two years by the exercise of reasonable

diligence. He does not charge the government

with deliberately withholding the informa-

tion detailing the government's involvement

in his INS case. See Davis v. United States,

642 F.2d at 331-32 (no showing of fraudulent

concealment); see also Ware v. United States,

626 F.2d 1278 (5th Cir. 1980).

Sufficient information was available

as early as 1975 in his file in the Seattle

Immigration Office. He says only that fol-

lowing recognition of his citizenship in

1975, his concern over the length of the

bureaucratic delay was removed from His mind.

Although other circuits have applied

the discovery rule to cases not involving

29 «

medical malpractice injuries, Stoleson v.

United States, 629 F2d 1265 (7th Cir. 1980),

Liuzzo v. United States, 485 F. Supp. 1274

(E.D. Mich. 1980), this court has not, and

we decline to do so here.

AFFIRMED.

i a ‘ 7 ieabh A),

IN THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF WASHINGTON AT TACOMA

LAZAR T. WRACSARICHT, et al.,

Plaintiffs, NO. C80-

480M

vs. ORDER

UNITED STATES OF AMERICA,

et al.,

]

]

]

]

]

]

]

Defendants. ]

]

THIS COURT having reviewed all matters

arising under this cause makes the following

findings and rules:

PLAINTIFF'S CLAIMS UNDER 42 U.S.C.

$$1983, 1985(3)

1. Plaintiff‘e Original Complaint al-

leged violations under 42 U.S.C. Section

19834

2. Plaintiff's First Amended Complaint

alleged violations under 42 U.S.C. section

1985(3).

3. Defend nt has moved this court to

dismiss the above-mentioned claims for im-

- 39 -

_—

Cope

proper subject matter jurisdiction, and

failure to allege class based animus.

4. 42 U.S.C. §1983 provides a remedy

for deprivation of rights under the color

of state law, not federal law. Seibert v.

Raptist, (5th Cir. 1979) 594 F.2d 423.

5. 42 U.S.C. §1985(3) applies only when

there is some racial or class based discrim-

inatory animus behind the conspirators' ac-

tion. Griffin v. Breckenridge, (1971), 403

U.S. 88, 102.

6. Plaintiff has failed to show any

deprivation of rights under the color of

state law, therefore Defendant's Motion to

Dismiss all claims under 42 U.S.C. §1983 for

Failure to State a Claim for Which Relief

can be Granted, pursuant to Rule 12(b)(6),

Federal Rules of Civil Procedure, is GRANTED.

7. Plaintiff has failed to show class-

based discriminatory animus, therefore Defen-

dant's Motion to Dismiss all claims under

ae

42 U.S.C. §1985(3) for Failure to State a

Claim for Which Relief can be Granted, pur-

suant to Rule 12(b)(6) Federal Rules of Civil

Procedure, is GRANTED.

8. All previous orders regarding the

claims under 42 U.S.C. §§1983, 1985(3) are

vacated.

PLAINTIFF'S CLAIMS UNDER 28 U.S.C.

§§1346(b) and 2671, et seq.

1. Plaintiff's Original Complaint alleg-

ing damages under the Federal Tort Claims

Act failed to show that Plaintiff ever filed

any administrative claim and, thus, was in-

sufficient under 28 U.S.C. §2675(a).

2. Plaintiff's First Amended Complaint

alleged that administrative claims were

filed, and either denied, or the mandatory

time period expired.

3. Plaintiff's Amended Complaint does

not specify the dates when the administra-

tive claims were filed, nor denied.

a tae

be te

ee

4. Defendant has moved this Court to

dismiss this claim for failure to exhaust ad-

ministrative remedies, or in the alterna-

tive, to bar such claim because the statute

of limitation precludes claims brought after

@ two year period.

5. Subsequent to Judge Sharp's finding

of citizenship in 1975 Plaintiff had two

years to file an administrative claim against

the federal agencies. Plaintiff has not

adequately explained why administrative

claims were not filed until 1979.

6. Plaintiff's failure to submit timely

claims precludes adjudication pursuant to

the Federal Tort Claims Act Statute of Limi-

tations, 28 U.S.C. §2401(b).

7. Defendant's Motion to Dismiss all

claims under 28 U.S.C. §§1346(b), 2671 et

seg., pursuant to Rule 12(b)6, Federal Rules

of Civil Procedure, is GRANTED.

8. All previous orders regarding the

- 42 -

claims under 28 U.S.C. §§1346(b), 2671 et

seg., are vacated.

The Clerk of the Court is instructed to

send uncertified copies of this Order to

all counsel of record.

DATED this 5 day of February, 1981.

JACK E. TANNER

JUDGE

o £3-=

T