Castro v. U.S., No. 07-40416 (5th. Cir. 6/2/2010)
| Decision Date | 02 June 2010 |
| Docket Number | No. 07-40416.,07-40416. |
| 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 |
Appeal from the United States District Court for the Southern District of Texas.
Before: JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
Monica Castro, for herself and as next friend of R.M.G., her minor child (jointly "Castro"), sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., alleging, inter alia, that the government's negligence caused the wrongful deportation of R.M.G., a U.S. citizen. The government moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively, for summary judgment pursuant to Federal Rule of Civil Procedure 56. The district court held that the government is protected from suit by 28 U.S.C. § 2680(a), the discretionary function exception of the FTCA. In a comprehensive and well-reasoned opinion, the court entered a final judgment dismissing Castro's tort claims for lack of subject matter jurisdiction and dismissing her constitutional and injunctive claims as moot. Castro v. United States, 2007 U.S. Dist. LEXIS 9440 (S.D. Tex. Feb. 9, 2007) (Jack, J.).
A divided panel of this court reversed and remanded. Castro v. United States, 560 F.3d 381 (5th Cir. 2009). The court granted rehearing en banc, thus vacating the panel opinion. Castro v. United States, 581 F.3d 275 (5th Cir. 2009). Concluding that the discretionary function exception applies, we affirm the judgment of the district court.
The pertinent facts are not in dispute and are cogently set forth in the district court's and panel's opinions. Although, like the district court, we "[do] not condone the Border Patrol's actions or the choices it made," Castro, 2007 U.S. Dist. LEXIS 9440, at *27, the district court was correct in concluding that, because plaintiff's tort claims are barred by the discretionary function exception to the FTCA, the court was without subject matter jurisdiction, and the government's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) should be granted.
Correctly noting that the burden on a rule 12(b)(1) motion is on the party asserting jurisdiction—here, Castro—the court, in a comprehensive and convincing order, carefully explained that the two prongs of United States v. Gaubert, 499 U.S. 315, 322-23 (1991), are satisfied . . . [T]he Border Patrol Agents' decision to let R.M.G. accompany her father back to Mexico was the product of a judgment or choice, and the Border Patrol Agents' conduct in the situation was not mandated by any statute, regulation or policy . . . . [T]he Border Patrol Agents' decision was unequivocally subject to policy analysis, as it involved the use of government resources and necessarily involved a decision as to what the Border Patrol should do with a United States citizen child in the unique circumstances presented by such a case.
Castro, 2007 U.S. Dist. LEXIS 9440, at *22-*23, *33.
We affirm, essentially for the reasons given by the district court, the dismissal of the FTCA claims for want of jurisdiction. We also agree with the district court's explanation that the constitutional claims are moot, as is the claim for injunctive relief.
AFFIRMED.
I concur in Judge Stewart's astute dissent. If the Border Patrol agents exceeded the scope of their authority, the discretionary function exception would not apply and Monica Castro's tort claims would not be barred by sovereign immunity. But, even if the Border Patrol agents acted within the scope of their authority and the discretionary function exception applied, Castro's claims for false imprisonment, abuse of process, and assault would not be barred by sovereign immunity. The law enforcement proviso waives sovereign immunity for those claims.
"Generally, sovereign immunity bars suits against the Government." Ashford v. United States, 511 F.3d 501, 504 (5th Cir. 2007). The Federal Tort Claims Act waives "the Government's sovereign immunity for torts committed by its employees in circumstances where, if the Government were a private person, the Government would be liable under state law." Martin v. Halliburton, 601 F.3d 381, 390-91 (5th Cir. 2010) (citations omitted); see 28 U.S.C. § 1346(b)(1). This general waiver of sovereign immunity is circumscribed by a list of exceptions in 28 U.S.C. § 2680. Ashford, 511 F.3d at 504. Pertinent to this appeal are the discretionary function and intentional tort exceptions.
Under § 2680 sovereign immunity is not waived when the claim is "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty" (the discretionary function exception) or when the claim arises "out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" (the intentional tort exception). 28 U.S.C. § 2680 (a) & (h). The law enforcement proviso in § 2680(h), however, provides an exception to these exceptions. See Nguyen v. United States, 556 F.3d 1244, 1255-56 (11th Cir. 2009); Sutton v. United States, 819 F.2d 1289, 1297 (5th Cir. 1987); see also § 2680(h). The proviso waives sovereign immunity "with regard to acts or omissions of investigative or law enforcement officers" for "any claim arising. . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." § 2680(h). If the law enforcement proviso applies, sovereign immunity is waived and the discretionary function and intentional tort exceptions will not bar a plaintiff's claims for relief. Nguyen, 556 F.3d at 1256-57 (); see Sutton, 819 F.2d at 1297 ().
Monica Castro alleged the following torts against the United States: negligence, intentional infliction of emotional distress, false imprisonment, abuse of process, and assault. The district court correctly found that the law enforcement proviso applies to Castro's claims for false imprisonment, abuse of process, and assault. Neither party contests that finding. Because the law enforcement proviso applies, sovereign immunity is waived. The court has subject matter jurisdiction over these claims and the district court's holding to the contrary is in error.
For these reasons and for the reasons stated by Judge Stewart, I dissent.
CARL E. STEWART, Circuit Judge, joined by HAROLD R. DeMOSS, JR., Circuit Judge, dissenting:
With undisputed knowledge of the United States citizenship of baby girl R.M.G., Border Patrol agents in Lubbock, Texas, took R.M.G. into custody with her undocumented father, Omar Gallardo, when he was detained for removal. Monica Castro, R.M.G.'s United States citizen mother, pleaded with the Border Patrol to turn over her daughter and allow her to remain in the United States. Castro also frantically sought to secure a temporary custody order in a matter of hours. But on the very same day that R.M.G. and Gallardo were detained, and although Gallardo did not have a custody order in his favor, the Border Patrol deported R.M.G. and Gallardo to Mexico. Castro could not locate her daughter for the next three years.
The majority acknowledges the novel facts of this case, but minimizes their importance to the legal inquiry. The majority further erroneously applies the principles of Rule 12(b) according to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and disregards the Supreme Court's instruction to "narrowly construe[ ] exceptions to waivers of sovereign immunity . . . in the context of the sweeping language of the [FTCA]." Dolan v. U.S. Postal Serv., 546 U.S. 481, 492 (2006) (internal citations and quotation marks omitted). I therefore respectfully dissent.
On behalf of herself and R.M.G., Castro brought state law claims of negligence, intentional infliction of emotional distress, and false imprisonment against the United States under the Federal Tort Claims Act ("FTCA"). Castro plausibly alleged that the Border Patrol exceeded the scope of its authority under the Immigration and Nationality Act of 1953 ("INA"), 8 U.S.C. § 1101 et seq., and the Fourth and Fifth Amendments. The discretionary function exception to the FTCA does not shelter against liability for unauthorized actions by government agents, yet the majority nonetheless applies the discretionary function exception without any inquiry into whether the Border Patrol agents acted in excess of their authority. In my view, the order granting the Government's Rule 12(b)(1) motion to dismiss based on the discretionary function exception should be vacated and the case remanded for an evaluation of whether the Border Patrol acted outside of its authority.
The FTCA provides consent for suit against the United States "for injury. . . 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). One exception to the FTCA's consent-to-be-sued is the discretionary function exception, 28 U.S.C. § 2680(a), the purpose...
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