Nurse v. USA

• Decision Date: 07 June 2000
• Docket Number: No. 98-56971,98-56971
• Citation: 226 F.3d 996
• Parties: (9th Cir. 2000) KATUSHA NURSE, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, and 30 UNKNOWN EMPLOYEES OF THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, in official and individual capacities, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 996

226 F.3d 996 (9th Cir. 2000)

KATUSHA NURSE, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, and 30 UNKNOWN EMPLOYEES OF THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, in official and individual capacities, Defendants-Appellees.

No. 98-56971

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 7, 2000--Pasadena, California

Filed September 12, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Carol A. Watson, Manes & Watson, Los Angeles, California, for the plaintiff/appellant.

Alejandro N. Mayorkas, Leon W. Weidman, and John K. Rubiner, Office of the United States Attorney, Los Angeles, California, for the defendants/appellees.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding D.C. No.CV-98-3096 R (AJWx)

Before: Stephen Reinhardt, Marsha S. Berzon, Circuit Judges, and Charles R. Breyer, District Judge.¹

OPINION

BREYER, District Judge:

Appellant Katusha Nurse appeals the district court dismissal of her complaint. Upon review, we find that appellant's complaint states valid claims for relief under both theFederal Tort Claims Act ("FTCA"), 28 U.S.C.S 2671, et seq.,and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). We reverse in part, affirm in part, and remand the case for further proceedings.

BACKGROUND

Appellant Katusha Nurse filed a complaint in United States District Court on April 23, 1998. Appellant's complaint alleges that she suffered severe emotional distress after she was unlawfully stopped, arrested and searched during a trip from Canada to the United States. Specifically, appellant's complaint alleges the following facts:

On August 24, 1996, appellant, a black woman and Canadian citizen, traveled from British Columbia to the United States. When she arrived at the airport in Vancouver, appellant was detained, arrested and searched by ten unknown agents of the United States Customs Service ("Vancouver defendants"). Appellant alleges that the officers lacked either probable cause or reasonable suspicion for the arrest and search, and that the officers' actions were motivated by appellant's race.

After the detention and search, the Vancouver defendants released appellant, and she flew to Los Angeles International Airport, where she was again detained, arrested and searched without probable cause or reasonable suspicion. Again, appellant alleges that she was held and searched by ten unknown customs agents ("LAX defendants"), and that the agents discriminated against her on the basis of her race.

Appellant also alleges that her mistreatment in Vancouver and Los Angeles was caused by the negligent and intentional acts and decisions of ten other federal officials ("policymaking defendants"), who were stationed and headquartered somewhere in the United States. According to the complaint, these officials "established, promulgated and enforced rules, regulations, policies, directives, guidelines, and practices which they knew, or should have known, were unlawful and discriminatory and would result in the false arrests and detentions and unlawful searches of persons, particularly persons of color, traveling to and from the United States." Further, appellant charges that these officials negligently employed, trained, and supervised other customs agents, including those who detained and searched her in Vancouver and Los Angeles.

Appellant's complaint states four causes of action against the United States and the 30 unknown federal agents: (1) false arrest/imprisonment and invasion of privacy, pursuant to the FTCA; (2) negligence, pursuant to the FTCA;

(3)"constitutional violation" against the Vancouver defendants and the LAX defendants, pursuant to Bivens, supra; and (4) "constitu-tional violation" against the policy-making defendants, pursuant to Bivens, supra. Appellant bases her Bivens claims on alleged violations of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. She sues the 30 individual defendants in both their official and individual capacities.

On July 13, 1998, appellee United States of America moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and to strike portions of the complaint pursuant to Federal Rule of Civil Procedure 12(f). The district court dismissed appellant's entire complaint without leave to amend on October 2, 1998. This appeal followed.

STANDARD OF REVIEW

We review the district court's determination of subject matter jurisdiction de novo. See Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996). In reviewing the district court's dismissal, we must accept as true the factual allegations in the complaint. See United States v. Gaubert, 499 U.S. 315, 327 (1991). We review the district court's decision to strike matter pursuant to Federal Rule of Civil Procedure 12(f) for abuse of discretion. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 114 S.Ct. 1023 (1994).

DISCUSSION

Appellant's complaint states two types of claims for relief: FTCA claims and Bivens claims. We will address these claims separately.

I. FTCA Claims

Appellant's claims against the United States and against the individual defendants acting in their official capacities arise under the FTCA, 28 U.S.C. S 2671, et seq. The FTCA 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. See Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). 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." 28 U.S.C. S 2674.

However, the FTCA's waiver of immunity is limited by a number of statutory exceptions. See 28 U.S.C. S 2680. If appellant's causes of action fall within one or more of these exceptions, then the federal courts lack subject matter jurisdiction to hear her claims. See Donahue v. United States Dept. of Justice, 751 F.Supp. 45, 47 (S.D.N.Y. 1990). To determine whether the district court's dismissal of appellant's complaint was proper, we must review each of appellant's FTCA claims to decide whether it falls within one of the statutory excep-tions to the Act. Specifically, we must review appellant's FTCA claims based on the acts of the policy-making defendants, the LAX defendants and the Vancouver defendants. We discuss each of these claims below.

A. FTCA Claims Based on Acts of the Policy-Making Defendants

First, appellant sues the United States pursuant to the FTCA, claiming that the policy-making defendants negligently and intentionally established policies that would result in false arrests and unlawful detentions and searches, and negligently supervised their employees. Appellees argue that the alleged actions of the policy-making defendants fall within the FTCA's "discretionary function exception, " 28 U.S.C. S 2680(a), and that appellant's FTCA claim based on these acts is therefore barred.

The discretionary function exception precludes claims against the United States which are "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 was abused." 28 U.S.C. S 2680(a). In order to determine whether the discretionary function exception applies, the court must engage in a two-step inquiry. First, the court must determine whether the challenged conduct involves an element of judgment or choice. See Berkovitz v. United States, 486 U.S. 531, 536 (1988). Second, if the conduct involves some element of choice, the court must determine whether the conduct implements social, economic or political policy considerations. See Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994).

The Supreme Court has indicated that the "basis for the discretionary function exception was Congress's desire to `prevent judicial "second-guessing" of legislative and administrative decisions grounded in' " public policy. Berkovitz, 486 U.S. at 536-37 (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). When a statute or regulation allows a federal agent to act with discretion, there is a "strong presumption" that the authorized act is based on an underlying policy decision. United States v. Gaubert , 499 U.S. 315, 324 (1991). Notably, to be protected from suit, the challenged decision "need not actually be grounded in policy considerations" so long as it is, "by its nature, susceptible to a policy analysis." Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (emphasis added). The determination of whether given conduct falls within the discretionary function exception must focus on the "nature of the conduct, rather than the status of the actor." Gaubert, 499 U.S. at 536 (quoting Varig, 467 U.S. at 813).

Appellant's complaint alleges that the policy-making defendants engaged in two types of tortious activities: (1) negligent supervision and training of the Vancouver and LAXemployees; and (2) negligent and intentional establishment of policies that resulted in unlawful arrests, detentions, and searches. As discussed below, the first group of activities involve discretionary functions, as that term is used in section 2680(a). The second group may be non-discretionary, and we reverse for that reason.

First, the complaint challenges the policy-making defendants' allegedly negligent and reckless employment, supervision and training of the Vancouver and LAX defendants. These acts fall squarely within the discretionary function exception. See Gager v. United States, 149 F.3d 919 (9th Cir. 1998) (government's decision to forego employee training was a discretionary one); Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995) ("Issues...