Muniz-Muniz v. U.S. Border Patrol

• Decision Date: 20 December 2013
• Docket Number: No. 12–4419.,12–4419.
• Parties: Maria MUNIZ–MUNIZ, et al., Plaintiffs, Rocio Anani Saucedo–Carrillo; Rosa Carrillo–Vasques; Alfonso Palafox; Jose Samuel Contreras Garcia; Jesus Rodriguez–Perez, individually and on behalf of a class of others similarly situated; Ohio Immigrant Worker Project; Farm Labor Organizing Committee, AFL–CIO, Plaintiffs–Appellants, v. UNITED STATES BORDER PATROL, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

741 F.3d 668

Maria MUNIZ–MUNIZ, et al., Plaintiffs,

Rocio Anani Saucedo–Carrillo; Rosa Carrillo–Vasques; Alfonso Palafox; Jose Samuel Contreras Garcia; Jesus Rodriguez–Perez, individually and on behalf of a class of others similarly situated; Ohio Immigrant Worker Project; Farm Labor Organizing Committee, AFL–CIO, Plaintiffs–Appellants,

v.UNITED STATES BORDER PATROL, et al., Defendants–Appellees.

No. 12–4419.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 20, 2013.

Decided and Filed: Dec. 20, 2013.

ARGUED:John T. Murray, Murray & Murray Co., L.P.A., Sandusky, Ohio, for Appellants. William C. Silvis, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF:John T. Murray, Leslie O. Murray, Michael Stewart, Murray & Murray Co., L.P.A., Sandusky, Ohio, Mark Heller, Eugenio Mollo, Jr., Aneel L. Chablani, Advocates For Basic Legal Equality, Inc., Toledo, Ohio, for Appellants. William C. Silvis, United States Department of Justice, Washington, D.C., for Appellees.

Before: GIBBONS and WHITE, Circuit Judges; GREER, District Judge. ^*

OPINION

GREER, District Judge.

The plaintiffs-appellants, five individuals and two organizations, appeal the district court's grant of a motion to dismiss their claims for prospective, injunctive relief for lack of subject matter jurisdiction. We REVERSE and REMAND.

I.

The individual plaintiffs are a part of a group of individuals who allege that they were illegally stopped, searched, and/or detained by officers of the United States Border Patrol for the Sandusky Bay Station in Ohio, based upon their Hispanic appearance, race and ethnicity. The two organizational plaintiffs are organizations that advocate on behalf of migrant workers. The defendants are the United States Border Patrol, the Department of Homeland Security, and a number of the Border Patrol's officers (the “federal defendants”).

The district court summarized the factual allegations as follows:

The United States Border Patrol is primarily responsible for patrolling international borders between Ports–of–Entry, including the 158–mile stretch between Ohio and Canada. The Border Patrol's objectives include apprehending terrorists and weapons illegally entering the United States, deterring illegal entry, reducing crime in border communities, and identifying individuals in the United States without proper papers. The Border Patrol station pertinent to this case is the Sandusky Bay Station (“SBY”), which opened in February, 2009. This station is accountable for carrying out Border Patrol day-to-day duties and responsibilities, including planning and conducting operations in Ohio.

In November, 2010, the Border Patrol created a Primary Operational Domain (“POD”) for SBY, which is “the area within a Sector's geographically delineated area of operational responsibility where stations routinely plan for and conduct daily operationswhich directly support the Sector's primary enforcement efforts.” In other words, the POD is where a station sends its routine, daily patrols; for SBY, this stretches from Lucas County to Cuyahoga County.

Plaintiffs argue the Border Patrol “has strayed far from its stated mission of protecting the country's northern border from ‘transnational threats.’ ” According to Plaintiffs, SBY agents use Hispanic appearance to initiate enforcement action. Plaintiffs note that in the three years SBY has been open, between 61.8% and 85.6% of those apprehended have been Hispanic, with “an alarming use of racial slurs” by agents in official Border Patrol correspondence; and the two highest ranking SBY agents are unable to “consistently articulate race-neutral basis for stopping and detaining suspected unauthorized aliens.” The heart of Plaintiffs' theory in this case is that “SBY patrols the area for suspicious persons with a deliberate focus on Hispanic persons as is demonstrated both by its organizational culture of utilizing dehumanizing language when describing Hispanic persons and ... by the disparate impact experienced by Hispanic persons in Ohio.”

Muniz–Muniz v. United States Border Patrol, No. 3:09–cv–2865, 2012 WL 5197250, at *1 (N.D.Ohio Oct.19, 2012).

Plaintiffs filed their original class action complaint on December 10, 2009, seeking equitable relief and monetary damages under Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. §§ 1983, 1985, and 1986. The original complaint named as defendants the chief of the Border Patrol's district sector, which oversees the Sandusky Bay Station, and 15 “John Doe” Border Patrol agents in their official and individual capacities and alleged that the Border Patrol agents had engaged in a practice of racial profiling of Hispanics in violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the Fourth and Fifth Amendments. The complaint included allegations of a conspiracy between the Border Patrol and three local municipalities, their police chiefs and individual officers, to violate the civil rights of Hispanics by profiling them for stops, seizures and detentions and for violations of the Fourth and Fourteenth Amendments.

Three months after filing the original complaint, plaintiffs filed a first amended complaint naming the Border Patrol, Customs and Border Protection, Department of Homeland Security, and additional Border Patrol agents in their individual and official capacities. The first amended complaint added the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, as an additional source of jurisdiction. The defendants filed motions to dismiss. The federal defendants asserted lack of standing and lack of subject matter jurisdiction, arguing that a plaintiff can only challenge “final agency actions for which there is no adequate remedy in a court” and that the APA does not waive sovereign immunity with regard to constitutional torts or negligence actions. The plaintiffs requested an opportunity to complete discovery and the district court denied the motions to dismiss and permitted discovery. The court stated that it was “skeptical” whether it had subject matter jurisdiction, noting that “the APA remedies under § 702 must be paired with other jurisdictional statutes to waive sovereign immunity ... [and the INA] do[es] not support a private right of action.”

At the urging of the district court in an effort to simplify and expedite the discovery process, plaintiffs agreed to dismiss without prejudice their claims against the local law enforcement agencies and officers and their claims for monetary damages. Plaintiffs retained the express right to file an amended complaint reasserting the dismissed claims. In February, 2012, after some discovery in the case, plaintiffs were granted leave to file a second amended complaint reasserting the previous claims against the local police agencies. Plaintiffs ultimately settled all their claims with the local agencies. After the district court denied plaintiffs' request to file a third amended complaint to add claims under the Federal Tort Claims Act (“TCA”), 28 U.S.C. § 2671 et seq., the federal defendants renewed their motion to dismiss, or in the alternative for summary judgment, arguing that the court lacked subject matter jurisdiction because the United States had not waived sovereign immunity under the APA and that plaintiffs lacked standing. The district court granted the motion to dismiss, determining that it lacked subject matter jurisdiction because plaintiffs had failed to establish a waiver of sovereign immunity. It did not address the standing issue raised by the federal defendants.

II.

We review de novo the dismissal of a complaint for lack of subject matter jurisdiction. Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 619 (6th Cir.2010) (citing Davis v. United States, 499 F.3d 590, 593–94 (6th Cir.2007)). Without a waiver of sovereign immunity, a court is without subject matter jurisdiction over claims against federal agencies or officials in their official capacities. Reed v. Reno, 146 F.3d 392, 397–98 (6th Cir.1998).

III.

Plaintiffs challenge the district court's holding that it lacked subject matter jurisdiction over plaintiffs' claims for prospective, non-monetary, injunctive relief because there was no waiver of sovereign immunity. More specifically, plaintiffs take issue with the district court's conclusion that although the United States has waived its immunity for non-monetary damages under § 702 of the APA, plaintiffs must also show that their claims for relief seek judicial review of agency action as defined by § 704 of the APA. The federal defendants, however, argue that the court should not consider the merits of plaintiffs' argument because they did not raise it in the district court. They argue, alternatively, that this Court should affirm on the grounds that plaintiffs lack standing to present or to pursue their equitable claims.

“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Munaco v. United States, 522 F.3d 651, 652–53 (6th Cir.2008) (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). In other words, “[t]he United States cannot be sued at all without the consent of Congress.” Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). Sovereign immunity “extends to agencies of the United States” or “federal officers [acting] in their official capacities.” Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir.1993); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994). A waiver of sovereign immunity may not be implied and exists only when Congress has expressly waived immunity by statute. United States v. Nordic Village, Inc., 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).

Before we can address the question whether § 702 of the APA waives sovereign immunity for plaintiffs' claims, we must...