Unger v. United States, 3:00cv117 (D. Conn. 4/30/2001), 3:00cv117.
| Decision Date | 30 April 2001 |
| Docket Number | 3:00cv117. |
| Parties | JAN DAVID UNGER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Connecticut |
The plaintiff, Jan David Unger, brought this action against the United States under the Federal Torts Claim Act ("FTCA"). The plaintiff alleges that as part of a pattern and practice engaged in by agents of the United States government, said agents intruded on his solitude and seclusion in violation of his state common law right to privacy, and caused him to suffer loss of liberty, inconvenience, annoyance, humiliation, and severe emotional distress. Currently pending is the government's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure [doc.# 12]. For the reasons set forth below, the government's motion will be granted.
For the purposes of the present motion, the Court must assume the following allegations of the plaintiff to be true. At all times relevant to this case, the plaintiff was a citizen of the United States residing in Norwalk, Connecticut, and was engaged in lawful business activities which required frequent travel throughout the world but particularly between the United States and Germany. On at least seven occasions between October 1, 1998, and late June of 1999, as the plaintiff arrived at Newark International Airport from Dusseldorf, Germany, business trips, the plaintiff was detained for questioning and his luggage was intensively searched.
Specifically, the plaintiff brings this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and 2671 through 2680. The plaintiff alleges that the defendant's agents have "flagged" him in Immigration and Naturalization Service ("INS") and/or Customs computers, without cause or justification, resulting in invasions upon his person, inconvenience, annoyance, humiliation, and severe emotional distress.
The government has moved to dismiss the complaint on grounds that the plaintiff's claims are barred by the discretionary function exception to the FTCA, that the plaintiff's constitutional claims are not cognizable pursuant to the FTCA, and because the plaintiff has failed to state a claim pursuant to the law of New Jersey.
The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept as true the well pleaded allegations of the complaint. Albright v. Oliver, 510 U.S. 266, 268 (1994). In addition, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1973). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The United States government is immune from suit except to the extent the government has waived its sovereign immunity. The FTCA is a limited waiver of sovereign immunity, providing a remedy against the federal government for claims based on the negligence of its employees. Sicignano v. United States, 127 F. Supp.2d 325, 328 (D. Conn. 2001). This waiver is subject to a number of statutory exceptions, including the provision known as the discretionary function exception ("DFE"). The DFE bars FTCA liability for any claims "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." 28 U.S.C. § 2680(a).
Although this exception within the FTCA could be viewed as the government giving with one hand and taking away with the other, there are legitimate policy concerns behind the exception:
The legal uncertainties surrounding government responsibility for torts committed by its agents reflect a number of political and doctrinal factors, including the multiplicity of conflicting values at stake. Among others, these values include society's interests in encouraging government to act vigorously without undue caution, deterring unreasonably risky conduct, avoiding judicial control of discretionary and policy decisions entrusted to the politically accountable branches, protecting the public fisc from excessive claiming attracted by government's uniquely deep pockets, and vindicating and exemplifying the rule of law. Striking a just balance among these goals has proven exceedingly difficult.
Peter H. Schuck, The Discretionary Function Exception in the Second Circuit, 20 QLR 55 (2000).
The present case is no exception in terms of the difficulty of striking a just balance between the competing goals of the government's right to protect its borders and the citizen's right to privacy. The first determination to be made, therefore, is whether the INS and Customs Service agents were acting with discretion when they took the plaintiff to a room for questioning, and subsequently searched his luggage.
The Supreme Court has provided a two-step analysis to determine if an action is exempted from liability under the DFE. In Berkovitz v. United States, 486 U.S. 531 (1988), the Court held that in examining the nature of the challenged conduct, a court must first consider whether the action is a "matter of choice for the acting employee." The Supreme Court instructed that the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.
According to Berkovitz, a court must then determine whether the employee's judgment is the kind that the discretionary function exception was designed to shield. The impetus behind the discretionary function exception enacted by Congress was to prevent suits in tort from becoming the medium for judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy.
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