This opinion will address only the first of those contentions, which is alone sufficient to doom Mazur's claim.
In this instance any tort claim that Mazur might assert against the United States could well be said to have accrued on October 1, 1992, because her potential eligibility for permanent residence in the United States under the AA-1 visa lottery program was conditioned on the complete processing of her application before the September 30, 1992 fiscal-year-end date on which that program ended. Mazur might well be held to have had knowledge of the fact that she had been injured (and of course of the additional fact that the United States itself had caused that injury) when that October 1, 1992 date passed without her being advised that her application had been approved.
But it is unnecessary to go that far to bar Mazur's claim here. Under her own allegations (Complaint P9), she was told in January 1993 that her application would be denied and that she would be notified when she had to appear for a deportation hearing. After she then retained counsel (Complaint P12), on September 8, 1993 her lawyer wrote the INS official involved confirming that the official had said that Mazur's case had "fallen between the cracks." At the very outside, then, any tort claim by Mazur had then accrued ( United States v. Kubrick, 444 U.S. 111, 120-22, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979)), so that the two-year time clock established by 28 U.S.C. § 2401(b) ("Section 2401(b)") for filing an administrative claim began to tick not later than that date (cf. Winskunas v. Birnbaum, 23 F.3d 1264, 1266-67 (7th Cir. 1994)). With Mazur's administrative claim not having been filed until January 25, 1996--as the United States says, "well beyond the prescribed two-year limitations period by even the most generous of calculations"--limitations have "forever barred" the claim and hence this lawsuit under Section 2401(b) ( Goodhand v. United States, 40 F.3d 209, 212 (7th Cir. 1994)).
In an effort to escape that result, Mazur's counsel has responded to this Court's request for the citation of authority in support of her claim by urging that her claims did not accrue until either October 11, 1995 (when the INS formally denied her application for adjustment of status) or October 25, 1995 (when the INS commenced formal deportation proceedings). But that misses the fundamental distinction between the fact of injury, when the injured party's claim ripens, and the effect of injury, which may take place later. In that respect this case is conceptually parallel to such cases as Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), for the unequivocal notice to Mazur in January 1993 that her application would be denied and that she would be told when to appear for deportation corresponds to the notice given to Ricks that he would be denied tenure (the action that the Supreme Court held had triggered the ticking of the limitations clock), even though his employment was not actually terminated by reason of the denial of tenure until later. As Ricks, id. at 258 (citations and footnote omitted, emphasis in original) put it:
In sum, the only alleged discrimination occurred--and the filing limitations periods therefore commenced--at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure--the eventual loss of a teaching position--did not occur until later. The Court of Appeals for the Ninth Circuit correctly held, in a similar tenure case, that "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." It is simply insufficient for Ricks to allege that his termination "gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination."