Nguyen v. U.S., No. 07-12874.

• Decision Date: 04 February 2009
• Docket Number: No. 07-12874.
• Parties: Andrew NGUYEN, MD, an individual, Andrew Nguyen, MD PA, A Florida Professional Association, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

556 F.3d 1244

Andrew NGUYEN, MD, an individual, Andrew Nguyen, MD PA, A Florida Professional Association, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 07-12874.

United States Court of Appeals, Eleventh Circuit.

February 4, 2009.

John W. Jolly, Jr., Jolly & Peterson, P.A., Tallahassee, FL, for Turner and Carlisle.

Beth M. Coleman, St. Petersburg, FL, Robert Anthony Rush, Rush & Glassman, Gainesville, FL, for Nguyen, Andrew Nguyen, MD PA.

Roy F. Blondeau, E. Bryan Wilson, U.S. Attorney's Office, N.D.FL, Tallahassee, FL, Marian B. Rush, Rush & Glassman, Gainesville, FL, for U.S.

Appeals from the United States District Court for the Northern District of Florida.

On Reconsideration

Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,^* District Judge.

CARNES, Circuit Judge:

Although neither party has petitioned for rehearing, we rescind our earlier opinion in this case, Nguyen v. United States, 545 F.3d 1282 (11th Cir.2008), and substitute this one for it.

This appeal brings us the question of whether the waiver of sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. § 1346(b), extends to claims of false arrest, false imprisonment, and malicious prosecution arising from the acts or omissions of federal investigative or law enforcement officers. See id. § 2680(h). The facts of this case show why Congress has chosen to waive the sovereign immunity of the United States in some circumstances, and the plaintiff's story illustrates the value of living in a country where a citizen may pursue claims against the government in those circumstances.

I.

Andrew Nguyen overcame a lot of obstacles on his way to becoming a citizen of the United States of America entitled to the full protection of its laws. He was born in Hanoi in 1938. When the communists took control of North Vietnam, he moved south at age sixteen. At age twenty-five, Nguyen completed a pre-medical education program at a college in Saigon. Later he earned a medical degree from a school in Saigon that was accredited by the American Medical Association. During the Vietnam War, Dr. Nguyen served as a combat physician in the South Vietnamese army for three years, eventually earning the rank of captain. He was injured in combat.

After the communists took over South Vietnam, Dr. Nguyen was arrested at the temporary hospital where he worked. Falsely accused of being a spy left behind by the CIA, he was imprisoned for a year. In prison he was forced to do hard labor that injured his back. When Dr. Nguyen was finally released from prison, he went to work at a private, 600-bed Chinese hospital in Saigon, serving as chief of the emergency room for two years and then as chief of internal medicine for another two years.

Dr. Nguyen attempted to escape from Vietnam more than once. In 1978 after his first escape attempt failed, the forty-year-old Dr. Nguyen was put in jail again, this time for nine months. After he got out, Dr. Nguyen began planning another escape, one that eventually included eighty-one people desperate to flee communist rule. Through a perilous, four-day sea voyage in an old boat burning gasoline that had been bought one gallon at a time on the black market, the group managed to escape to the seashore of Thailand. They spent months in a refugee camp there.

With the help of some relatives in this country, Dr. Nguyen then made his way to America. He was required to pass three examinations to get his American medical license. In the meantime he worked at a newspaper as a translator and also served at a VA hospital as a volunteer physician. He ultimately obtained two state medical licenses, one from Florida and the other from Massachusetts.

A friend of his put Dr. Nguyen in contact with a physician in Trenton, Florida who was selling his medical practice. When Dr. Nguyen bought the practice in 1984, he was the only licensed medical doctor in Trenton, which had a population of less than 1,500. See United States Bureau of the Census, United States Census of Population: 1990 General Population Characteristics, Florida 1-11-9, Table 1; id. 1980 Number of Inhabitants, Florida 1-11-22, Table 5. He eventually received hospital privileges at Shands Teaching Hospital and at North Florida Medical Center, both of which are located in a neighboring county.

The year 1986 was an important one for Dr. Nguyen. He became a citizen of the United States of America.

On March 23, 2000, Dr. Nguyen was sixty-two years old and had been practicing medicine in Trenton for sixteen years. The day started out like any other for him. He was in his office treating patients. A deputy from the Gilchrist County Sheriff's Office came into Dr. Nguyen's office and arrested him without warning or explanation. The deputy was accompanied by Robert Yakubec, an agent of the Drug Enforcement Agency, who removed from the wall a certificate that authorized Dr. Nguyen to prescribe controlled substances for his patients. The officers did not give the doctor a chance to explain whatever they thought he had done wrong. They told him that he had no choice but to go to jail. Dr. Nguyen informed his wife, who worked at the front desk, that he was being carried to jail. He got into the back of the police car and was taken there.

The two officers who photographed and fingerprinted Dr. Nguyen at the jail were patients of his. They took all of his personal belongings and issued him an inmate uniform. He was held in jail for about five hours. When he was released at the end of the day, Dr. Nguyen still did not know why he had been arrested.

Dr. Nguyen later learned that he had been arrested for six counts of delivery of a controlled substance in violation of Fla. Stat. § 893.13(1)(a), which makes it a crime to deliver a controlled substance "[e]xcept as authorized by this chapter." That chapter of the Florida Code authorizes medical doctors to dispense or prescribe controlled substances "in good faith and in the course of his or her professional practice only." Fla. Stat. § 893.05(1). The crime alleged in a six-count arrest warrant was that Dr. Nguyen had delivered Lortab and Valium, which contain the controlled substances hydrocodone and diazepam, "to a confidential source by use of a written order for said drug[s] not issued in good faith and in the course of his professional practice, contrary to section 893.13(1)(a)(2)." The not in good faith and not in medical practice elements were more specifically described in the affidavit underlying the warrant. It accused Dr. Nguyen of issuing prescriptions for those two controlled substances to a confidential informant "without any type of physical examination or medical need." From the warrant and affidavit it is clear that if the drugs were prescribed after physical examinations and in the course of Dr. Nguyen's medical practice, there was no crime. The parties agree about that.

Dr. Nguyen returned to work the day after his arrest hoping to practice medicine as he had done before, but he couldn't. A pharmacy informed him that he could no longer prescribe anything—not even cough syrup. His arrest was headline news in the local media. Patients began calling to ask if he was a criminal.

The charges against Dr. Nguyen were nol prossed on May 17, 2000, 55 days after the arrest, because of "insufficient evidence as to this defendant." That action did not undo the harmful domino effect the arrest had on his medical practice. Health insurance companies, whose payments had been fifty to sixty percent of his professional income, cancelled their contracts with him. That caused him to lose patients who paid with health insurance. The loss of those patients caused a financial strain on his practice, making it difficult for him to retain employees and to purchase equipment and supplies. As a result, he had to let one of his three employees go. Even after Dr. Nguyen got his prescription privileges back several months later, no health insurance provider would agree to contract with him again.

What happened to Dr. Nguyen's practice is what happens to the established professional practices of medical doctors who are caught committing crimes involving controlled substances. If the record before us is to be believed, however, Dr. Nguyen committed no crime. It is not just that the charges against him were dismissed on insufficient evidence grounds. It is more than that. The record, as it now exists, indicates that Dr. Nguyen's arrest was not based on any evidence of wrongdoing at all. All of the evidence that law enforcement officers had then, as well as now, showed that he was guilty of no crime.¹ They arrested him anyway.

Dr. Nguyen's arrest grew out of a three-month investigation led by DEA Agent Robert Yakubec, who was the head of a controlled substances task force targeting several physicians in the area. Three times during the investigation Dr. Nguyen prescribed Lortab and Valium, which contain controlled substances, to a patient who was also a confidential informant for the task force. On each of those occasions Dr. Nguyen or a member of his staff had first conducted a physical examination of the informant patient. All of the evidence the task force obtained during the investigation showed that those examinations had been performed each time. The task force even had tape recordings of that informant patient's office visits with Dr. Nguyen proving that a physical examination was conducted on each of the three visits. After every visit the task force had the informant patient sign an affidavit describing what had happened while she was in Dr. Nguyen's office, and in those affidavits she described the physical examinations that had been conducted before she got the prescriptions. Records in Dr. Nguyen's office not only showed that the patient had been examined but also that she was there with complaints about "nervousness," "insomnia," and "pain," which she told the doctor she had been experiencing for "months." Those...