Mesnaoui v. Berlowitz
| Decision Date | 13 February 2012 |
| Docket Number | No. C 11-03165 LB,C 11-03165 LB |
| Parties | HICHAM MESNAOUI, Plaintiff, v. JAMIE BERLOWITZ, et al. Defendants. |
| Court | U.S. District Court — Northern District of California |
[Re: ECF No. 19]
Pro se plaintiff Hicham Mesnaoui filed suit against two employees of the United States Department of State for violations of multiple international and domestic laws. The United States moved to substitute itself as the proper defendant in the case and also to dismiss Mr. Mesnaoui's complaint with prejudice. Pursuant to Civil Local Rule 7-1(b), the court finds that these matters are suitable for determination without oral argument and vacates the February 16, 2012 hearing. For the reasons stated below, the court GRANTS the United States's motions.
On June 27, 2011, Mr. Mesnaoui filed suit against Jamie Berlowitz and Christopher Bergaust, both of whom are or were federal employees. Complaint, ECF No. 1.1 In his complaint, Mr. Mesnaoui alleges that he is a Moroccan citizen; that his ex-wife (Maryam Bint Abrahman)fraudulently secured a passport for their minor child, Selma, from Mr. Bergaust, an employee of the U.S. State Department in Casablanca, Morocco; and that his ex-wife used this fraudulently obtained passport to kidnap Selma and bring her to the United States. See id. at 1-3. It appears from the complaint and attached documents that these events occurred sometime in or before August 2009. See id. at 4-16. Mr. Mesnaoui also alleges that in August 2009 Mr. Berlowitz, an employee of the U.S. State Department in San Francisco, California, took possession of the allegedly fraudulent passport. Id. at 2.
In so doing, Mr. Mesnaoui alleges that Mr. Berlowitz and Mr. Bergaust violated the "Moroccan nationality code," the United States - Morocco Free Trade Agreement, "international human rights," 18 U.S.C. § 241, and 8 U.S.C. § 1433, and otherwise abused their power. Id. In his prayer for relief, Mr. Mesnaoui seeks $20,000,000 in compensation for the "personal injury of me and my child and my senior parents" as well as various forms of non-monetary relief, including, that the fraudulently obtained passport be returned to him; that he be granted full custody of Selma and be allowed to take her home to Morocco; that the government investigate the forging of the passport; and that the government enforce various criminal, immigration and/or civil rights statutes. Id. at 3.
On December 20, 2011, the United States filed a motion to be substituted as the proper defendant in this action and to dismiss Mr. Mesnaoui's complaint. Motion, ECF No. 15. Mr. Mesnaoui opposed the motion. Opposition, ECF No. 24.
A. The United States's Motion to Substitute Party
Under the Federal Employees Liability Reform and Tort Compensation Act, otherwise known as the Westfall Act, a federal employee is immune from suit upon certification of the Attorney General that the employee was acting within the scope of his employment. See 28 U.S.C. § 2679(d)(1). As to the events alleged in Mr. Mesnaoui's complaint, the United States Attorney, pursuant to 28 U.S.C. § 2679(d) and 28 C.F.R. § 15.3, has certified that Mr. Berlowitz and Mr. Bergaust were acting within the course and scope of their federal employment. Certification, ECF No. 21. Such a certification is "prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident." Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995).Mr. Mesnaoui, as plaintiff, bears the burden of disproving the certification by a preponderance of the evidence. Id.
Pauly v. U.S. Dep't of Agric., 348 F.3d 1143, 1150-51 (9th Cir. 2003).
While Mr. Mesnaoui ostensibly opposes the United States's motion to substitute, he provides no evidence, let alone a preponderance of evidence, to disprove the United States Attorney's certification. See Opposition, ECF No. 24 at 3. Accordingly, the court grants the United States's motion. The United States is the only proper defendant, and Mr. Berlowitz and Mr. Bergaust are dismissed from this case. B. The United States's Motion to Dismiss
"The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota, 461 U.S. 273, 287 (1983) (citations omitted). Thus, "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Fed. Housing Admin. v. Burr, 309 U.S. 242, 244 (1940)). Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941), and citing United States v. Mitchell, 463 U.S. 206, 212 (1983) ().
Thus, in order for Mr. Mesnaoui's claims to be actionable, the claims must be ones for which the United States has waived sovereign immunity. As described above, Mr. Mesnaoui alleges a variety of claims, but none of them are ones for which sovereign immunity has been waived. They are barred for this reason.2
It would not be inconceivable, however, that Mr. Mesnaoui's claims for damages might be construed as ones brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), which "provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment." Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (citing Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995)).3 "Under the FTCA, the United States may be held civilly liable for the torts of its employees 'in the same manner and to the same extent as a private individual under like circumstances.'" Id. (quoting 28 U.S.C. § 2674). A claim under the FTCA must be:
[1] against the United States, [2] for money damages, . . . [3] for injury or loss ofproperty, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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).
Meyer, 510 U.S. at 477. Id. (citing Loeffler, 486 U.S., at 562).
Here, though, as the United States points out, Mr. Mesnaoui's potential FTCA claim is not one for which a private person could be liable. Under this "private party analog" element, a plaintiff must show that the claim asserted is analogous to a "comparable cause of action against a private individual." C.P. Chemical v. United States, 810 F.2d 34, 37 (2d Cir. 1987). "When considering whether a private analog exists, the issue is not whether a state or other governmental entity would be liable for the conduct alleged, but whether a private individual would be liable under analogous circumstances." Figueroa v. United States, 739 F.Supp.2d 138, 140 (citing United States v. Olson, 546 U.S. 43, 45-46 (2005)). "A comparable claim is stated where an analogy can be drawn between the conduct forming the basis of the claim against the federal government, and that which could form the basis of a cause of action against a private individual." Id. at 141 (citing C.P. Chemical, 810 F.2d at 37).
Determining whether a private analog exists is not as simple as it may seem. As the District Court in Figueroa v. United States, 739 F.Supp.2d 138 (E.D.N.Y. 2010) recently explained:
For example, a comparable private analog is stated where a government employee fails to maintain a safe path of travel at a federal facility. In such a case, the tortious conduct of an individual who fails to maintain his property is analogous to the conduct of the government employee who similarly fails in his duty to maintain safety on government property. See, e.g., Silverman v. United States, 2008 WL 1827920 *11-12 (E.D.N.Y. 2008). On the other hand, no private analog is necessarily stated, for example, where the FTCA claim is based only upon an alleged failure to enforce a Federal statute or government regulation. Chen [v. United States], 854 F.2d [622,] 626[ (2d.Cir. 1988)]. In such a case, no private conduct analogy can be drawn, and the FTCA claim is properly dismissed. See, e.g., Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996); Chen, 854 F.2d at 626. No FTCA claim is stated in the latter example because the action forming the basis of the claim, "is action of the type that private persons could not engage in and hence could not be liable for under local law." Chen, 854 F.2d at 626, quoting, Jayvee Brand v. United States, 721 F.2d 385, 390 (D.C. Cir. 1983).
Id. at 141. In discussing Figueroa, a court in the Southern District of Ohio also explained that:
The Figueroa court was quick to recognize that the "private party analog" question is fairly nuanced, and that it is not always fatal to an FTCA claim to find that the function performed by the governmental employee is "uniquely governmental." Some activities, such as operating a lighthouse or inspecting a mine for compliance with federal safety regulations, are performed only by governmental officials, but private persons can engage in similar functions such as warning people of dangers or inspecting mines for other purposes. Figueroa, 2010 WL 3704187, *3, citing United States v....
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