Ysasi v. Rivkind, s. 87-1422

• Decision Date: 02 September 1988
• Docket Number: 88-1019,Nos. 87-1422,s. 87-1422
• Citation: 856 F.2d 1520
• Parties: Lauro T. YSASI, Plaintiff-Appellant, v. Perry RIVKIND, District Director of the Immigration and Naturalization Service, Alan Nelson, Commissioner of the Immigration and Naturalization Service, United States of America and Robert Adams, Defendants-Appellees. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1520

856 F.2d 1520

Lauro T. YSASI, Plaintiff-Appellant, v. Perry RIVKIND, District Director of the Immigration and Naturalization Service, Alan Nelson, Commissioner of the Immigration and Naturalization Service, United States of America and Robert Adams, Defendants-Appellees.

Appeal Nos. 87-1422, 88-1019.

United States Court of Appeals, Federal Circuit.

Sept. 2, 1988.

Nora Leto, of Florida Rural Legal Services, Inc., Bartow, Fla., argued for plaintiff-appellant.

Jacob M. Lewis, of the Civil Div., Dept. of Justice, Washington, D.C., argued for defendants-appellees. With him on brief were Richard K. Willard, Asst. Atty. Gen., Robert M. Merkle, U.S. Atty., and John F. Cordes, Washington, D.C.

Before SMITH, BISSELL and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.

Lauro T. Ysasi appeals from judgments of the United States District Court for the Middle District of Florida dated October 9 1986 and May 15, 1987 granting summary judgment in favor of the United States and three officials of the Immigration and Naturalization Service (INS) and denying Ysasi's claim for damages arising out of the seizure of his truck by United States Border Patrol (Border Patrol) agents. ¹ We affirm-in-part, vacate-in-part and remand.

BACKGROUND

Ysasi, a migrant farm worker, was stopped by Border Patrol agents on September 30, 1983 while driving his truck in Florida. Ysasi admitted to them that his brother-in-law, a passenger in the truck, was an illegal alien, that he had picked him up in Victoria, Texas shortly after his illegal entry into the United States, and that he had transported him from Texas to Ohio and then to Florida in search of work. Based on this information, the Border Patrol agents seized Ysasi's truck pursuant to 8 U.S.C. Sec. 1324(b), which allows seizure of vehicles used in the commission of acts listed in 8 U.S.C. Sec. 1324(a). ² Section 1324(a) makes it a crime to transport an undocumented alien in furtherance of the alien's violation of the immigration laws. ³ Ysasi was officially notified by letter dated October 4, 1983 that his truck had been seized.

As a means of seeking return of his truck, Ysasi requested and was granted a personal interview with a Border Patrol agent in accordance with 8 C.F.R. Sec. 274.5(c) (1983). Following the interview on October 12, 1983, the agent determined, based on Ysasi's admissions and his sworn written statement, that there had been probable cause to seize the truck and informed Ysasi that the truck would not be returned to him. Ysasi then filed an administrative claim for return of the truck with the INS pursuant to 8 C.F.R. Sec. 274.10 (1983). On October 31, 1983, General Motors Acceptance Corp. (GMAC), which had a lien on the truck, filed a Petition for Remission or Mitigation with the INS pursuant to 8 C.F.R. Sec. 274.14 (1983). Ysasi thereafter requested waiver of the required bond, which at that time was $250.00. The INS, without instituting judicial forfeiture proceedings, informed Ysasi by letter dated November 4, 1983 that his truck was being remitted to GMAC and that his claim would not be considered. It indicated that consideration had been given to the large amount of GMAC's lien.

Thereafter, Ysasi filed an administrative claim with INS for damages in the amount of $8,052.53. When that claim was denied, Ysasi filed suit in the district court claiming damages for (1) negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680 (1982), (2) breach of an implied contract of bailment under the Tucker Act, 28 U.S.C. Sec. 1346(a)(2) (1982), and (3) due process and equal protection violations under the theory of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (Bivens), 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Ysasi's complaint named as defendants Perry Rivkind, in his official capacity as District Director of the INS, Alan Nelson, in his official capacity as Commissioner of the INS, and the United States.

The district court dismissed District Director Rivkind, who was not appointed until three months after the seizure, from the case and on October 9, 1986, granted the government's motion for summary judgment. The court (1) held that Ysasi's claim for damages under the FTCA was barred by 28 U.S.C. Sec. 2680(c) (1982), which provides that the FTCA shall not apply to "[a]ny claim arising in respect of the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer," (2) held that Ysasi was not entitled to recovery under the Tucker Act because he had not "raised any genuine issue of fact suggesting gross negligence" which is a prerequisite to prevailing on a claim of loss by a gratuitous bailee, and (3) dismissed Ysasi's Bivens claim against Commissioner Nelson, finding that the allegations were insufficient to establish an affirmative link between Commissioner Nelson and any actions taken against Ysasi.

After the October 9 summary judgment, Ysasi moved to amend his complaint to add as defendants Ed O'Connor, Regional Commissioner of the INS, and Robert Adams, Chief Patrol Agent. The court modified the October 9 judgment and allowed Ysasi to amend his complaint to assert a Bivens claim against Adams because it found that the allegations were not "facially meritless." On May 15, 1987, however, the court dismissed Ysasi's Bivens claim against Adams stating that Ysasi had abandoned alternative remedies to challenge the forfeiture and that the existence of such alternative remedies barred a Bivens action. The court also held that, even if Ysasi was allowed to pursue his Bivens claims, Adams had qualified immunity for his decision to deny Ysasi's request for waiver of the bond.

Ysasi filed notices of appeal from the October 9 and the May 15 judgments in the United States Court of Appeals for the Eleventh Circuit. Pursuant to the Supreme Court's decision in Hohri v. United States, --- U.S. ---, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987), the appeals were transferred to this court where they were consolidated.

ISSUES

1. Whether the district court erred in concluding that the exception in 28 U.S.C. Sec. 2680(c) for "customs and other law enforcement officers" bars an action against the United States arising out of a seizure by Border Patrol agents.

2. Whether the district court erred in concluding that there were no genuine issues of material fact and that the government was entitled to judgment as a matter of law on Ysasi's Tucker Act claim for breach of an implied bailment contract.

3. Whether the district court erred in concluding that there were no genuine issues of material fact and that Border Patrol agent Adams was entitled to judgment as a matter of law on Ysasi's Bivens claim.

OPINION

A district court's grant of summary judgment will be affirmed when the record below reveals that there was no genuine issue as to any material fact and that the movant was entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); SRI Int'l v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1116, 227 USPQ 577, 581 (Fed.Cir.1985). "[T]he district court must view the evidence in a light most favorable to the nonmovant and draw all reasonable inferences in its favor and must resolve all doubt over factual issues in favor of the party opposing summary judgment." Id. (citations omitted). In all substantive law fields except those assigned exclusively to this court, the district court should follow the guidance of its particular circuit. U.S. v. (1) 1979 Cadillac Coupe De Ville, 833 F.2d 994, 997 (Fed.Cir.1987); Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422, 1438-40, 223 USPQ 1074, 1086-88 (Fed.Cir.1984). Accordingly, our review of the district court's holdings as to Ysasi's FTCA and Bivens claims, which are not matters within this court's exclusive jurisdiction, is governed by the law of the Eleventh Circuit rather than by the law of this court. Because, under 28 U.S.C. Sec. 1295(a)(2) (1982), this court has exclusive jurisdiction over an appeal from a final decision of a district court where the jurisdiction of that court was based, in whole or in part, on the Tucker Act, our review of the district court's holdings on that issue is governed by the law of this circuit. Atari, Inc., 747 F.2d at 1438-40, 223 USPQ at 1086-88.

I. FTCA Claim

The FTCA is a waiver of the sovereign immunity of the United States. It provides generally that the United States shall be liable, to the same extent as a private party, "for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. Sec. 1346(b); see 28 U.S.C. Sec. 2674 (1982). Section 2680(c) is an exception to the FTCA which in effect reimposes soverign immunity with respect to

Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer.

28 U.S.C. Sec. 2680(c).

Ysasi contends that application of section 2680(c) to section 1324 seizures by the Border Patrol division of the INS is unprecedented and that case law indicates that it is applicable only to seizures made pursuant to the tax laws or customs law. The government, on the other hand, argues that the phrase "any other law enforcement officer" appearing in section 2680(c) should be read broadly to encompass all federal law enforcement officers. We agree with the district court that the clear weight of authority favors the government's position.

In Kosak v. United States, 465 U.S. 848, 854, 104 S.Ct. 1519, 1523, 79 L.Ed.2d 860 (1984), the Supreme Court determined that section 2680(c) includes within its scope any claim " 'arising out of' the detention of goods, and includes a claim resulting from negligent handling or storage of detained property." While the Court expressly declined to decide what...