Barely Late Negligence Claim Revived by First Circuit

BOSTON (CN) – The First Circuit breathed new life Wednesday into the negligence suit by a family whose notice of claim regarding a relative gunned down by immigration authorities appeared at a government office after 7 p.m. on the last day of a two-year window.

Because no federal officers were available to accept the claim, U.S. District Judge Gustavo Gelpi in Puerto Rico dismissed the suit in 2016 for lack of jurisdiction.

On Wednesday, a three-judge panel of the First Circuit in Boston vacated that ruling, saying the issue warrants additional scrutiny.

While the complaint does not specify where Elvin Osmel Rivera-Ortiz was killed on July 27, 2012, Judge Gelpi’s 2016 ruling notes that the man had been in a shootout with police while driving a vehicle. Local and federal law enforcement officers had been conducting a criminal investigation involving drug operations, the ruling continues.

Wednesday’s ruling focuses on the steps that Rivera-Ortiz’s family in the next two years to hold the United States liable. First, on May 20, 2014, Rivera-Ortiz’s mother mailed a notice of her tort claim to the FBI on May 21, 2014. She did not find out until June 10, however, should instead have been filed with immigration authorities at the U.S. Department of Homeland Security.

Ortiz-Rivera and her daughter in law say they sent the notice a second time to the address they found online, only to have this message too returned as undeliverable.

On July 24, the family fired off their letter to the correct address. The U.S. Postal Service did not attempt delivery meanwhile until July 28, 2018, at 7:22 p.m.

As noted in a footnote of the ruling, July 28 was the last day of the two-year statutory period because Rivera-Ortiz’s death on July 27 was a Sunday.

The Office of Immigration and Customs Enforcement finally accepted the letter on Aug. 1 and denied the claim. Once the family sued, this agency told the court that the claim was untimely and must be dismissed.

U.S. Circuit Judge David Barron signed the 19-page opinion that revives the case.

Jose Olmo Rodriguez, who represented the family, did not respond to phone calls or an email seeking comment.

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