Douglas Gary Housley, Plaintiff-appellant, v. United States of America, John C. Lawn, Individually and Asdirector of the Drug Enforcement Administration, Williamwebster, Individually and As Director of the Federal Bureauof Investigation, David Paull, L. Anthony White, Otheragents of the Department of Justice Yet Unknown, Defendants-appellees, 35 F.3d 571 (9th Cir. 1994)

Before: GOODWIN, NORRIS, and O'SCANNLAIN, Circuit Judges

MEMORANDUM^** 

Plaintiff Housley claims that defendants violated his statutory and constitutional rights by performing illegal searches and unauthorized electronic surveillance. In his complaint, Housley pleaded multiple counts sounding in state law, federal constitutional law,¹  and federal statutory law.²  He named as defendants the United States, and the following persons in their individual and official capacities: John Lawn (Director of the Drug Enforcement Agency), William Webster (Director of the Federal Bureau of Investigation), David Paull (DEA agent), Anthony White (Assistant United States Attorney). The district court dismissed Housley's complaint for failure to state a claim.³ 

Defendants claim that the complaint should be dismissed because defendants Lawn, Webster, and Paull are entitled to qualified immunity, and defendant White is entitled to prosecutorial immunity. But in his complaint, Housley alleges that defendants Lawn, Webster, and Paull personally and flagrantly violated clearly established statutory and constitutional law. If he can make this factual showing, defendants cannot benefit from qualified immunity. In addition, Housley argues that defendant AUSA White violated Housley's constitutional rights by covering-up the illegal searches and that these acts stand outside the scope of White's role as prosecutor. Because plaintiff can conceivably prove some set of facts that would deprive defendants of immunity, Housley's complaint should not have been dismissed on immunity grounds. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief").

In addition, defendants argue that Housley's FTCA claims and statutory wiretapping claim are time-barred. Housley's claims against the United States and the individual defendants in their official capacities are governed by a two-year statute of limitations under the Federal Tort Claims Act.⁴  Housley's statutory wiretapping claim is also governed by a two-year statute.⁵  Defendants argue that at the latest, Housley should have found out about the searches by the time of his conviction in July 1986. Since he did not take legal action until September 1988, defendants argue that his FTCA and wiretapping claims are time-barred.

But Housley alleges in his complaint that the reason why he did not file his claim until September 1988 was because defendants successfully concealed their unlawful actions until May 1988. Housley alleges that he has made a diligent effort at all times to uncover defendants' illegal activities and that the sole cause for delay in filing his suit is attributable to defendants' concealment.

If Housley can prove these facts, the discovery rule would toll the statute of limitations, and his FTCA and statutory claims would not be time-barred. See Raddatz v. United States, 750 F.2d 791, 796 (9th Cir. 1984); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977). Accordingly, the district court erred in dismissing these claims on statute of limitations grounds at the Fed. R. Civ. P. 12(b) (6) stage of the litigation.⁶ 

The district court's judgment dismissing Housley's complaint is VACATED, and the cause is REMANDED for further proceedings.