Velez-Diaz v. US, No. 06-2537. This case was first before the First in Velez-Diaz v. Vega-Irizarry, 421 F.3d 71, 77-80 (2005) (our coverage here). Let me get on a soapbox for a second, and say that reading this case makes me understand why people in the “ghetto” wear shirts that say “stop snitching.” Here are the facts:
This is an appeal from the district court's dismissal of a case under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (2000), arising out of the death of Antonio Velez-Garcia. Velez, arrested for drug possession in January 2003, agreed to serve as an undercover FBI cooperating witness. He was murdered by a gang member in March 2003 while assisting the FBI in a sting operation directed against gang-related drug trafficking in Puerto Rico. Claiming that the FBI agents had mishandled Velez' assignment, his family first sought damages in a suit against named FBI agents in their individual capacities...
and here is the conclusion
Velez' death while helping law enforcement agents is a tragedy, and one might prefer that his relatives had their day in court. This is so even though undercover work in the drug world is inherently high risk and winning a such a law suit would normally not be easy. But the filing requirements are clear; six months was ample time to file; and that must be the end of the matter.
Obviously, crime is bad (and also illegal in many states), but is getting murdered in the course of cooperating with the government better?
Anyway, in the case below, the First said that the government could substitute in for the FBI agents. Then, at the District Court, the government said that this case had to be administratively exhausted under the FTCA. But, “As it happens, the plaintiffs had filed an administrative claim against the United States simultaneously with their federal law suit against the agents, and the administrative claim had been denied by a letter dated April 19, 2005, even before this court decided the initial appeal in Velez-Diaz I.” This administrative claim was denied. The District Court dismissed Velez-Diaz I because it was filed before the administrative denial. The District Court dismissed a second suit, Velez-Diaz II, because it had been filed over six months from the denial. Got it? Damned if you do, and damned if you don’t.
The First says that these are really difference cases, and so things filed in one case, can’t be deemed to be amendments in another, and no appeal was taken from the dismissal. So, the only way that they can prevail is by appealing from the second dismissal (for being too late). The First concludes that FRCP 6(e)’s mailbox rule does not apply to exhaustion letters such as those issued under 28 U.S.C. § 2401(b).
This would seem to be a case where the government would want seek to waive at least the exhaustion requirement, simply to show potential snitches that the government at least will make an effort to protect them. But, it didn’t, and the government has sent a disturbing message to potential informants.