Medina v. USA.

• Decision Date: 04 April 2001
• Docket Number: No. 00-2156,00-2156
• Citation: 259 F.3d 220
• Parties: (4th Cir. 2001) RAFAEL MEDINA, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 220

259 F.3d 220 (4th Cir. 2001)

RAFAEL MEDINA, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 00-2156

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 4, 2001

Decided: July 27, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge.

(CA-99-1498-A)

COUNSEL ARGUED: Edward Scott Rosenthal, ROSENTHAL, RICH & COSTLE, L.L.P., Alexandria, Virginia, for Appellant. Lawrence Joseph Leiser, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINS and KING, Circuit Judges, and Frederic N. SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded with instructions by published opinion. Judge King wrote the opinion, in which Judge Wilkins and Judge Smalkin joined.

OPINION

KING, Circuit Judge:

Rafael Medina was arrested by agents of the Immigration and Naturalization Service ("INS") and subjected to deportation proceedings, which the INS subsequently dismissed. After exhausting his administrative remedies under the Federal Tort Claims Act, 28 U.S.C. SS 1346(b), 2671-2680 ("FTCA"), Medina brought suit in the Eastern District of Virginia on the theory that the INS agents involved had arrested him without probable cause, thereby committing various torts under Virginia law. The district court granted summary judgment to the Government, and Medina appeals. Because we conclude that the district court lacked subject matter jurisdiction in this case, we vacate the summary judgment and remand with instructions that Medina's complaint be dismissed.

I.

A.

Medina was a resident of Virginia and a Venezuelan diplomat assigned to the Embassy of Venezuela in Washington, D.C. In September 1996, Medina's former fiancee accused him of various crimes, and he was indicted in Virginia for attempted rape, sexual battery, burglary, petit larceny, and simple assault and battery. Over Medina's objections, Venezuela refused to waive his diplomatic immunity and instead recalled him to Venezuela. Determined to defend himself against the charges, Medina renounced his diplomatic status and surrendered to the jurisdiction of the Circuit Court for the City of Alexandria. On May 29, 1997, Medina was acquitted by a jury of all charges except the misdemeanor of simple assault and battery under Virginia Code S 18.2-57, for which he was fined $2,000 and ordered to pay the state's costs of prosecution. In considering the charge, the jury was instructed that, under Virginia law, simple assault and battery is "any bodily hurt, however slight, done to another in any angry, rude or vengeful manner." J.A. 187.

Because of the unusual circumstances surrounding Medina's case, the Washington Post published an article about the verdict, noting that, although he had been acquitted of most charges, Medina was convicted of "misdemeanor assault" of "his former fiancee[.]" J.A. 104. The article also stated that "[t]he misdemeanor conviction is unlikely to affect Medina's immigration status[.]" When INS Special Agent Stephen C. Adaway read the newspaper article, however, he was unconvinced by the Post's legal conclusions. Adaway decided to pursue an inquiry into whether Medina had committed a crime involving moral turpitude ("CIMT") within the meaning of 8 U.S.C. S 1227(a)(2)(A)(i), rendering him subject to deportation. Upon examining the record of Medina's state court conviction, Adaway concluded that Medina had committed a CIMT based on the"nature of the relationship between Mr. Medina and the victim, his fiancee, and the nature of the associated charges[.]" J.A. 96. After reaching this conclusion, Adaway requested, through proper channels, an arrest warrant from the INS Assistant District Director of Investigations. The Assistant Director reviewed and approved Adaway's request, issuing an INS warrant on June 23, 1997, for Medina's arrest. J.A. 56. See 8 C.F.R. S 239.1(a)(3) (authorization for Assistant Director to issue arrest warrants).

Adaway and other INS agents executed the warrant at Medina's residence in Arlington, Virginia, on the morning of July 2, 1997. Medina surrendered peaceably and was detained until later that afternoon, when he posted a $7,500 bond. On July 10, 1997, Medina filed a motion to terminate the deportation proceedings on the ground that simple assault and battery was not a CIMT. The INS eventually agreed with Medina, and on August 15, 1997, it filed a "nonopposition" to Medina's motion. Soon thereafter, an Immigration Judge granted Medina's motion and terminated the proceedings.

B.

On November 17, 1998, Medina filed an administrative claim for damages pursuant to the FTCA, which the INS denied on April 13, 1999.¹ Thereafter, Medina, on October 6, 1999, filed his complaint in the district court. The four bases for recovery embodied in the complaint were: (1) assault and battery; (2) false arrest; (3) malicious prosecution; and (4) infliction of emotional distress. The court, by its June 19, 2000 Order, granted summary judgment to the Government, concluding that "probable cause existed to believe that plaintiff was deportable on the basis of being convicted of a crime of moral turpitude. Because each of the counts in this lawsuit emanates from the assumption that Adaway lacked probable cause . . . each count fails as a matter of law." J.A. 243-44. Medina now appeals, and we possess jurisdiction pursuant to 28 U.S.C. S 1291.

II.

The FTCA represents a limited congressional waiver of sovereign immunity for injury or loss caused by the negligent or wrongful act of a Government employee acting within the scope of his or her employment. The statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred. 28 U.S.C S 1346(b); Harris v. United States, 718 F.2d 654, 656 (4th Cir. 1983). The FTCA does not create new causes of action; instead, it"serves to convey jurisdiction when the alleged breach of duty is tortious under state law, or when the Government has breached a duty under federal law that is analogous to a duty of care recognized by state law." Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 969 (4th Cir. 1992). Since the INS officials' alleged torts occurred in Virginia, the substantive law of Virginia applies. See United States v. Neustadt, 366 U.S. 696, 706 n.15 (1961).

A.

Before we reach the merits of Medina's claim, we must be assured that Congress has waived sovereign immunity. Medina asserts a cause of action under S 1346(b). However, 28 U.S.C.S 2680 provides for various exceptions to the FTCA. If any of those exceptions apply, we are constrained to dismiss Medina's complaint -even though the Government has not raised the issue -inasmuch as the United States is immune from suit "without the consent of Congress." United States v. Bankers Ins. Co., 245 F.3d 315, 320 (4th Cir. 2001) (quoting Block v. North Dakota, 461 U.S. 273, 287 (1983)). Because the Govern ment's potential immunity from suit affects our jurisdiction, we first consider whether Congress has waived sovereign immunity in this instance. See Presidential Gardens Assocs. v. United States, 175 F.3d 132, 140 (2d Cir. 1999) ("[T]he Government's past failure to raise the defense of sovereign immunity in no way prevents this Court from considering the issue now."); United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000) ("[S]overeign immunity advances a jurisdictional bar . . . which the court may raise sua sponte[.]"); cf. Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997) ("We believe that, because of its jurisdictional nature, a court ought to consider the issue of Eleventh Amendment immunity at any time, even sua sponte.").

B.

1.

Pursuant to S 2680(h), certain types of intentional torts are exempted from liability under the FTCA. Three of Medina's four claims for relief -assault and battery, malicious prosecution, and false arrest -potentially implicate these exemptions. However, the S 2680(h) exemptions do not apply to (and the Government may be liable for) these torts when committed by federal investigative or law enforcement officers. We are satisfied that the INS agents involved meet this definition. See Caban v. United States , 728 F.2d 68, 72 (2d Cir. 1984) ("INS agents are `investigative or law enforcement officers' within the meaning of [S 2680(h)]."); compare 28 U.S.C. S 2680(h) (definition of "investigative or law enforcement officer") with 8 U.S.C. S 1357 (powers of INS agents).

2.

We nevertheless conclude that all of Medina's claims fall within another exemption in S 2680. Although the provisions of this subsection, S 2680(a), have also not been raised as a defense or a jurisdictional bar by the Government, S 2680(a) provides that the United States has not consented to liability for [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

Thus, pursuant to its provisions, S 2680(a) establishes two possible exceptions to the FTCA's general waiver of sovereign immunity: (1) if the INS officials exercised due care in the execution of their powers under 8 U.S.C. S 1226; or (2) if the INS officials were performing a discretionary function or duty in arresting Medina. Because we conclude that the INS agents were carrying out such a discretionary function, we need only address and answer the second inquiry.

C.

Federal courts have struggled somewhat in deciding (1) the...