Hernandez v. United States

• Decision Date: 11 August 2011
• Docket Number: No. EP–11–CV–027–DB.,EP–11–CV–027–DB.
• Citation: 802 F.Supp.2d 834
• Parties: Jesus C. HERNANDEZ, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

802 F.Supp.2d 834

Jesus C. HERNANDEZ, et al., Plaintiffs,

v.The UNITED STATES of America, et al., Defendants.

No. EP–11–CV–027–DB.

United States District Court, W.D. Texas, El Paso Division.

Aug. 11, 2011.

Maria Guadalupe Guere Bentacour, pro se.

Robert C. Hilliard, Rudy Gonzales, Jr., Hilliard Munoz Gonzales, LLP, Corpus Christi, TX, Cristobal M. Galindo, Cristobal Galindo, PC, Houston, TX, for Plaintiffs.

Harold E. Brown, Jr., Assistant U.S. Attorney, San Antonio, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID BRIONES, Senior District Judge.

On this day, the Court considered Defendant the United States of America's (“the United States” or “the Government”) “Motion to Dismiss the First Through Ninth and Eleventh Claims of the Plaintiffs' Original Complaint,” filed in the above captioned cause on June 6, 2011, under Federal Rule of Civil Procedure 12(b)(1).¹ Therein, the Government petitions the Court to dismiss with prejudice Plaintiffs Jesus C. Hernandez, et al.'s First through Ninth and Eleventh claims filed in Plaintiffs' Original Complaint for lack of subject matter jurisdiction. Also before the Court are Plaintiffs' Response ² and the Government's Reply filed June 20, and June 28, 2011, respectively. For the reasons stated below, the Court is of the opinion that the Government's Motion should be granted.

FACTS AND PROCEDURAL POSTURE

On Monday, June 7, 2010, fifteen-year-old Sergio Adrian Hernández Güereca (“Hernández”) and a group of friends were playing in the cement culvert that separates the United States from Mexico near the Paso Del Norte Port of Entry, one of four international ports of entry linking El Paso, Texas, with Ciudad Juarez, Chihuahua, Mexico. The young boys were playing a game in which they would touch the barbed-wire fence between the United States and Mexico and then run back down the incline. While playing, United States Border Patrol Agent, Jesus Mesa, Jr., aka Jesus Meza, Jr. (“Agent Mesa”), detained one of the boys. Hernandez retreated to the Mexican side of the border and observed Agent Mesa from underneath a pillar of the international bridge. Agent Mesa then pointed his weapon at Hernandez and shot his firearm across the border at least twice. Hernandez was fatally injured, having been shot at least once in the face. Additional United States Border Patrol agents subsequently arrived on the scene, but failed to render aid to Hernandez. All agents then left the scene. Eventually, Mexican police arrived and pronounced Hernandez dead.

On January 17, 2011, Plaintiffs filed their Original Complaint with the Court alleging that the Government, unknown federal employees, and various federal agencies ³ were liable under the Federal Tort Claims Act (“FTCA”), the Alien Tort Statute (“ATS”), and the United States Constitution for Hernandez's death. On June 8, 2011, Plaintiffs filed an Amended Complaint, which is different from the Original Complaint in two regards: (1) it names Agent Mesa and (2) it describes how Plaintiffs would serve process upon Agent Mesa.

On June 9, 2011, the Court entered an order granting the Government leave to file the instant Motion in excess of ten pages and held that Plaintiffs' First Amended Complaint did not moot the Government's Motion to Dismiss. On June 18, 2011, Plaintiffs filed their Motion for Leave to file their Second Amended Complaint. On June 27, 2011, the Court granted Plaintiffs' Motion for Leave to file their Second Amended Complaint and held that Plaintiffs' Second Amended Complaint also did not moot the instant Motion.

The claims before the Court on this Motion are Claims One through Nine and Eleven. Plaintiffs bring their First through Seventh Claims under the FTCA. The First Claim alleges wrongful death under the FTCA against the United States based on assault and battery; the Second Claim alleges wrongful death under the FTCA against the United States based on negligence; in their Third Claim, Plaintiffs allege under the FTCA that Agent Mesa, acting in his official capacity, used excessive and deadly force against Hernandez; the Fourth Claim is under the FTCA and alleges that unknown federal agents, acting in their official capacity, negligently adopted policies that violated Plaintiffs' constitutional rights; the Fifth Claim is against the United States for negligent failure to adopt policies to protect Hernandez's constitutional rights under the FTCA; in their Sixth Claim, Plaintiffs bring a cause of action against the United States under the FTCA for intentionally failing to adopt policies that would prevent a violation of Plaintiffs' constitutional rights; and the Seventh Claim alleges a cause of action against the United States under the FTCA for intentionally failing to adopt policies to prevent a violation of Plaintiffs' constitutional rights.

Plaintiffs bring their Eighth and Ninth Claims under the United States Constitution. Under the Eighth Claim, Plaintiffs allege that the United States violated Plaintiffs' Fourth and Fifth Amendment rights, while Claim Nine alleges that the United States failed to adopt policies that would have prevented a violation of Hernandez's Fourth and Fifth Amendment Rights. Finally, Plaintiffs bring their Eleventh Claim under the law of nations against all Defendants, invoking the Court's jurisdiction under the ATS. The Court now addresses the instant Motion.

STANDARD

The Government files the instant Motion under Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), averring that the Court lacks subject matter jurisdiction over claims against the United States. A motion under Rule 12(b)(1) allows a party to challenge the subject matter jurisdiction of the district court to hear a case. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). The party asserting jurisdiction bears the burden of proving that jurisdiction exists. Id. If the party asserting jurisdiction does not meet its burden, the court must dismiss the action. See Fed R. Civ. P. 12(h)(3). A court should only grant a motion to dismiss for subject matter jurisdiction “if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming, 281 F.3d at 161.

DISCUSSION

The Government argues that Plaintiffs' First through Ninth and Eleventh claims should be dismissed because (1) the United States is the only proper Defendant as to those claims; (2) the United States has not waived sovereign immunity for Plaintiffs' claims under the FTCA because those claims arose in a foreign country; and (3) the United States has not waived sovereign immunity for Plaintiffs' claims under the ATS. Plaintiffs respond that the Court has subject matter jurisdiction over Plaintiffs' FTCA claims because those claims did not arise in a foreign country. Moreover, Plaintiffs aver that the ATS does waive the United States' sovereign immunity and cite Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), for that proposition. Finally, Plaintiffs seek leave to amend their pleadings a third time.

The Government replies that Plaintiffs' Response lacks merit as Plaintiffs have mischaracterized the United States Supreme Court's (“the Supreme Court”) interpretation of Sosa v. Alvarez–Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), in arguing that Plaintiffs' FTCA claims did not arise in a foreign country. Further, the Government contends that the Supreme Court did not hold in Rasul that the ATS waives the United States' sovereign immunity, but that custody at Guantanamo Bay, Cuba is not a bar to jurisdiction under the ATS. Finally, the Government does not address Plaintiffs' request for leave to amend their pleadings. The Court evaluates the Parties' arguments below.

As a preliminary matter, the Court notes that the United States is indeed the only party defendant as to Plaintiffs' FTCA and ATS claims. “Under the Westfall Act [28 U.S.C. § 2679(b)(1) ], federal employees have absolute immunity from suit for common-law tort claims related to acts undertaken within the scope of their federal employment.” Dolenz v. Fahey, 298 Fed.Appx. 380, 381 (5th Cir.2008). “[T]he Westfall Act provides that, if the Attorney General or his designee certifies that a federal employee was acting within the scope of his employment when an alleged act or omission occurred, then the lawsuit automatically is converted to one against the United States under the Federal Tort Claims Act, the federal employee is dismissed as a party, and the United States is substituted as the defendant.” In re Iraq & Afghan. Detainees Litig., 479 F.Supp.2d 85, 110 (D.D.C.2007); see also 28 § 2679(d)(1) (West 2011). Courts have applied the Westfall Act to claims under the ATS asserting violations of the law of nations. See In re Iraq & Afghan. Detainees Litig., 479 F.Supp.2d at 112.

On June 20, 2011, the United States filed a “Notice of Substitution and Application for Order Thereon,” wherein the Government agreed to substitute for Agent Mesa by operation of law as party defendant as to all of Plaintiffs' claims sounding in common law tort under the FTCA and the ATS pursuant to 28 U.S.C. § 2679. Plaintiffs did not oppose this substitution. Indeed, in their Response to the instant Motion, Plaintiffs state that “[n]ow that the United States has moved for substitution and filed the appropriate certification to the Court, Plaintiffs do not oppose substitution.” Therefore, the Court granted the Government's request, and in an Order dated June 24, 2011 (“June 24 Order”), the Court dismissed all claims against Agent Mesa under the FTCA and ATS. The result of the Court's June 24 Order is that the United States is now the only party defendant as to all of Plaintiffs' claims under the FTCA and ATS. Having established that the United States is the only party defendant as to all of Plaintiffs' claims, the Court now turns to the question of whether the United States has waived its sovereign...