Castro v. U.S.

• Decision Date: 20 February 2009
• Docket Number: No. 07-40416.,07-40416.
• Citation: 560 F.3d 381
• Parties: Monica CASTRO, For Herself and as Next Friend of R.M.G., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

560 F.3d 381

Monica CASTRO, For Herself and as Next Friend of R.M.G., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 07-40416.

United States Court of Appeals, Fifth Circuit.

February 20, 2009.

Susan Leigh Watson (argued), Texas RioGrande Legal Aid, Edinburg, TX, Javier N. Maldonado, San Antonio, TX, for Plaintiff-Appellant.

John Albert Smith, III (argued), Corpus Christi, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Plaintiffs-Appellants Monica Castro for herself and as next friend of R.M.G., a minor child (collectively "Castro"), brought suit against the United States of America ("the Government") under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. Castro alleged, inter alia, that the Government's negligence caused the wrongful deportation of R.M.G., a U.S. citizen. The Government filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively, for summary judgment pursuant to Rule 56. The district court held that the Government is protected from suit due to 28 U.S.C. § 2680(a), the discretionary function exception of the FTCA. Subsequently, the district court entered a final judgment dismissing Castro's tort claims for lack of subject matter jurisdiction and dismissing her constitutional claims as moot. Castro timely appealed.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts in this case are not in dispute. Castro, a United States citizen, moved with her parents from Corpus Christi, Texas to Lubbock, Texas when she was approximately fifteen years old. Around that time, Castro met Omar Gallardo, an illegal alien and Mexican national. When Castro was sixteen, she and Gallardo moved together into a trailer near the trailer that Castro's parents rented. On December 4, 2002, Castro gave birth to her and Gallardo's daughter, R.M.G. R.M.G., who was born at the University Medical Center in Lubbock, is a citizen of the United States. Castro was seventeen at the time of R.M.G.'s birth.

Castro and Gallardo had a history of arguing with each other, and Castro contends that Gallardo abused her during the course of their relationship, although she informed neither her parents nor law enforcement authorities of this abuse. Castro maintained that Gallardo was a good father to R.M.G., and that he never abused their daughter.

On November 28, 2003, Castro and Gallardo got into an argument, and as a result, Castro called and asked her grandparents to come and pick her up. They came the following day, and Castro left the trailer; R.M.G. remained with Gallardo. Immediately thereafter, Castro commenced efforts to recover R.M.G. from Gallardo. Specifically, she contacted the Lubbock County Sheriff's Department, Texas Child Protective Services ("CPS"), and the Lubbock Police Department. The agencies told her that since she was married to Gallardo pursuant to a common-law marriage,¹ and because Gallardo was the child's father, Gallardo had as much right to R.M.G. as she did. Further, Castro was told that her issues with Gallardo constituted a civil dispute, and that she would have to hire a private attorney to seek a custody order. CPS did tell Castro that she could fill out an application to start the process for obtaining assistance from CPS, but that the process would take one to two days. Castro did not fill out the application because she said she did not want to wait one to two days.

On December 1, 2003, Castro, along with her aunt, Sophia Rodriguez, went to the Lubbock Border Patrol station to report that Gallardo was an illegal alien. They spoke with Border Patrol Agent Manuel Sanchez, and they told Sanchez that while Gallardo currently had R.M.G., Castro wanted to recover R.M.G. from him.² Agent Sanchez informed Castro that she needed to get a court order for temporary custody of R.M.G. However, Agent Sanchez said that if Castro was present when Border Patrol apprehended Gallardo and certain of his relatives, who were also illegal aliens, Border Patrol would leave R.M.G. with Castro, since they both were U.S. citizens. However, Castro did not wish to be present when Border Patrol went to the trailer because she was afraid of what Gallardo and his family would do to her. Accordingly, on the morning of December 3, 2003, Castro was not present when Border Patrol Agents arrived at the trailer Castro shared with Gallardo; rather, Castro watched the events unfold from her relatives' trailer across the street.

Border Patrol took Gallardo, three of his brothers, and his cousin to the Lubbock Border Patrol station. Since Gallardo had R.M.G. with him, R.M.G. was also taken to the station. Gallardo, R.M.G., and Gallardo's relatives were all placed in a holding cell at the station.

Shortly thereafter, Castro arrived at the station and requested that her daughter be returned to her. However, Gallardo informed the Border Patrol Agents that Castro had walked out on him and R.M.G. and that he wanted R.M.G. to remain with him. At the direction of Greg Kurupas, who was the agent-in-charge, Agent Sanchez contacted Debbie Perkins-McCall of the Texas Department of Family and Protective Services ("DFPS") in Lubbock. Since there was no evidence that R.M.G. was abused or neglected, Agent Sanchez was informed that DFPS would not get involved.³ Meanwhile, Border Patrol processed Gallardo and his relatives and prepared to repatriate them back to Mexico. While in custody, Gallardo admitted he was in the United States illegally and chose to reinstate an earlier deportation order. The transport to Mexico from Lubbock left at 3:15 p.m. daily, and Border Patrol made plans to send Gallardo and his relatives at that time.

Around 1:30 in the afternoon, Castro and her relatives retained an attorney, Lisa Trevino, in order to obtain a temporary custody order. Trevino drafted the necessary paperwork and proceeded to the courthouse to get a judge's signature on the order. Trevino told Agent Kurupas that she was working on obtaining a judge's signature on a temporary custody order; however, the agent told her that the repatriation transport had to leave by 3:15 p.m. By the time the transport left, Trevino had been unable to obtain a judge's signature. Trevino never filed any documents with the state court regarding the custody of R.M.G., and she did not further pursue a custody order for Castro.

The transport left Lubbock around 3:15 p.m. on December 3, 2003 with Gallardo onboard, along with R.M.G. In September 2006, Gallardo was detained in the Amarillo area on charges of illegal reentry. While he was in custody, Gallardo and Castro came to an agreement whereby R.M.G., who was living in Mexico with Gallardo's parents, would be returned to the custody of Castro. R.M.G. was returned to Castro's custody on December 1, 2006.

Castro filed a lawsuit on February 10, 2006, in the United States District Court for the Southern District of Texas on her own behalf and as next friend of her daughter, R.M.G. In her original complaint, Castro sought monetary damages and injunctive relief pursuant to the Fourth, Fifth, and Tenth Amendments of the United States Constitution, as well as claims of negligence, intentional infliction of emotional distress, and false imprisonment against the United States pursuant to the FTCA. The district court dismissed Castro's constitutional claims for monetary relief, holding that such claims were barred by the doctrine of sovereign immunity. Castro then filed her First Amended Complaint on May 19, 2006. In this complaint, Castro asserted claims for injunctive relief under the Fourth and Fifth Amendments of the United States Constitution as well as claims of negligence, intentional infliction of emotional distress, false imprisonment, abuse of process, and assault pursuant to the FTCA. Castro also asserted a claim for injunctive and declaratory relief pursuant to 8 U.S.C. § 1101, et. seq.

On November 14, 2006, the Government filed a motion to dismiss pursuant to Rule 12(b)(1), and in the alternative, motion for summary judgment pursuant to Rule 56. The Government argued, inter alia, that the district court did not have subject matter jurisdiction over Castro's tort claims because they are barred by the discretionary function exception to the FTCA. On February 9, 2007, the district court granted the Government's motion to dismiss for lack of subject matter jurisdiction; the court also held that Castro's claims for relief under the Fourth and Fifth Amendments and her claim for injunctive relief pursuant to 8 U.S.C. § 1101, et. seq. were moot and therefore dismissed them as well. On April 4, 2007, the district court dismissed Castro's only remaining claim which sought declaratory relief "in the form of determination of the validity of any statute, regulation, policy or other procedure relied on to detain and deport Plaintiff R.M.G." for lack of standing. That same day, the district court entered its final judgment dismissing the action in its entirety with prejudice.

Castro timely filed her notice of appeal. The only issue Castro raises on appeal is whether the district court erred in dismissing her FTCA claims for lack of subject matter jurisdiction.

STANDARD OF REVIEW

"Whether the district court lacked jurisdiction to consider the government's conduct in this case is a question of law, subject to de novo review by this court." Buchanan v. United States, 915 F.2d 969, 970 (5th Cir.1990) (citing Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987)). The party asserting jurisdiction bears the burden of proof for a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). A motion under 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove a plausible set of facts that establish subject-matter jurisdiction....