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Fed Agent's Lies About Affair Tolls Statute of Limitations: 5th Cir.

By Jonathan R. Tung, Esq. on February 11, 2016 | Last updated on March 21, 2019

The Fifth Circuit decided to err on the side of equity and toll a statute of limitations in favor of a corporation originally indicted for illegal storage of ultra-hazardous materials. According to the circuit court, the state failed to prove that the company definitely would have discovered that it was injured and how was injured.

And what was the supposed cause that exploded into this protracted debacle? A federal agent's perjuring himself over an extra-marital affair.

Vidrine's Claim

Back in 1999, Trinity Marine Products (Trinity) was indicted for the illegal storage of hazardous waste without a permit. The manager (a Hubert Vidrine) of the facility where the chemicals were allegedly "illegally" stored was also cleared. However, the charges were dropped when it was found out in the following years that two federal agents involved in the investigation of Trinity were actually intimately involved with each other and that at least one of them lied repeatedly to cover his tracks (this was in 2003).

A few years later, Vidrine filed a claimed under the Federal Tort Claims Act (FTCA). During that proceeding, court documents were unsealed, which detailed the agent's affair and intentional cover up. The complaint was amended to mention the federal agents lies -- but did not mention why they lied.

At bench trial, Vidrine secured a $1.67 million award for his injuries. The court found that the male agent lied and deliberately tried to cover up his affair.

Onward to Trinity

Trinity, you'll notice, did not mirror Vidrine's actions and file a FTCA claim -- until 2012. According to court documents, Trinity wasn't even aware of the federal agents' affair and its concealment until 2011 when one of Trinity's employees read a blog post mentioning the affair and a DOJ press release giving details. Trinity promptly filed a FTCA claim in 2012.

A magistrate judge found that Trinity essentially inflicted laches on itself and said that FTCA's time bars were non-jurisdictional rules that precluded any application of equitable tolling.

Circuit Rescue

The circuit partly agreed, but not in any way that mattered for the government. It is true, the circuit said, that Trinity was very definitely aware that its claim "accrued" in 2003 for FTCA purposes when its criminal indictment was dismissed. But it is not true that the government conclusively established Trinity would have, through reasonable diligence, both its injury and the reason why it was injured.

The reason this is important is because equitable tolling of a statute of limitations bar a claim will accrue "when a plaintiff knows both her injury and its cause. In re FEMA Trailer Formaldehyde Prods.

The fact of the matter is this: the blog piece was only written because there was an unsealing of court documents that had detailed the motive behind the FBI agents' lies. And since these lies were the cause of Trinity's eventual injury (criminal indictment), no reasonable due diligence would have uncovered them.

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