Vickers v. USA

• Decision Date: 03 October 2000
• Docket Number: No. 99-55976,99-55976
• Parties: (9th Cir. 2000) MIRIAM L. VICKERS, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; IMMIGRATION ANDNATURALIZATION SERVICE, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 944

228 F.3d 944 (9th Cir. 2000)

MIRIAM L. VICKERS, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; IMMIGRATION ANDNATURALIZATION SERVICE, Defendants-Appellees.

No. 99-55976

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 7, 2000

Filed October 3, 2000

[Copyrighted Material Omitted] Connie Guerry, Pasadena, California, for the plaintiff-appellant.

Alejandro N. Mayorkas, United States Attorney, Leon W. Weidman, Assistant United States Attorney, Alarice M. Medrano, Assistant United States Attorney, and Julie Zatz, Assistant United States Attorney, Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court Central District of California. Stephen V. Wilson, District Judge, Presiding. D.C. No. CV 98-7540-SVW

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

BERZON, Circuit Judge:

After a domestic argument, Akanni Kendalla, a detention enforcement officer with the Immigration and Naturalization Service (INS), shot and seriously injured Miriam Vickers, another INS employee and his former wife, with his Service issued revolver. Ms. Vickers filed this action under the Federal Tort Claims Act, (FTCA), 28 U.S.C. S 2671 et seq., claiming that the United States should be held liable for her injuries. She contends that the INS was negligent in supervising and retaining Mr. Kendalla as a detention officer entitled to carry a Service-issued firearm, and in failing to investigate an alleged shooting incident involving Mr. Kendalla and a former girlfriend. As a result of these negligent actions by INS employees acting within the scope of their employment, Ms. Vickers maintains, Mr. Kendalla was in possession of the gun he used to shoot her, a gun he otherwise would not, and should not, have had.

The INS moved for summary judgment on the ground that its challenged conduct was a matter of choice or judgment and therefore within the FTCA discretionary function exception to government liability for torts, 28 U.S.C. S 2680(a), and also on the ground that its negligence, if any, was not a legal cause of Ms. Vickers' injuries. Ms. Vickers countered that the discretionary function exception shields none of the challenged conduct and that under California law she is entitled to a trial on the causation question. The district court granted the INS's motion on both grounds, and Ms. Vickers appealed.

I.

Mr. Kendalla and Ms. Vickers both began working for the INS in 1991, at the Terminal Island Detention Center in San Pedro, California. They soon met and began a personal relationship, and, in December 1992, they married. The marriage ended in divorce after ten months.

Thereafter, the INS found after an investigation, Mr. Kendalla began a relationship with Mercedes Callada-Ramirez, an inmate under Mr. Kendalla's guard at Terminal Island. The investigation, triggered by a complaint Ms. Callada-Ramirez filed in December 1994, further revealed the following facts, not here contested:

On at least two occasions during her detention, Mr. Kendalla released Ms. Callada-Ramirez from her cell while he was working the night shift. They then stole away to the detention center's processing and segregation area where they engaged in sexual relations. When the INS released Ms. Callada-Ramirez from detention to her father in New York, Mr. Kendalla encouraged her to come live with him and provided her with a ticket so that she could return to California. She accepted his offer and the two lived together in Long Beach until Mr. Kendalla left Ms. Callada-Ramirez in November 1994.

During the investigation of her complaint, Ms. Callada Ramirez also related to INS investigators a physical altercation that occurred while she was living with Mr. Kendalla after her release:

Q: O.K., beginning of November 1994, what happen [sic] then?

A [Ms. Callada-Ramirez]: He was being unfaithful. We had several fights. I shot at him with his revolver.

Q: You shot at him?

A: Yes, and he shot at me, we hit each other. . ..

Q: When you shot at him, was it with his own revolver?

A: Yes. . . .

Q: Did he shoot at you? Did he hit you or something?

A: No, he hit me.

When they later interviewed Mr. Kendalla, the investigators asked him whether he ever struck Ms. Callada-Ramirez; in reply, Mr. Kendalla insisted that "I never hit that wom[a]n."² There were no questions to Mr. Kendalla, however, about the shooting allegations, nor, as far as the record shows, was there any other attempt to investigate Ms. Callada-Ramirez's story regarding the off-duty firing of Mr. Kendalla's gun.³

The INS investigators deposed in this case offered no explanation of why they did not investigate the shooting incident, while INS managers testified that they would have considered the allegations, if reported to them, violations of Department of Justice policy governing the conduct of detention officers.

During its inquiry into Ms. Kendalla's relationship with Ms. Callada-Ramirez, the INS confiscated Mr. Kendalla's service weapon and reassigned him to work in a Los Angeles office as a file clerk. In December 1994, the investigators filed a report concluding that there was adequate evidence to substantiate Ms. Callada-Ramirez's allegations of on-duty and off-duty misconduct by Mr. Kendalla, including her allegations of sexual encounters during her detention at Terminal Island and of the personal and sexual relationship between the two after her release from detention. The INS report did not, however, include any reference to the alleged shooting incident. After the investigators presented the report, Donald Looney, INS deputy district director, reviewed the report and concluded that the INS should terminate Mr. Kendalla from his position for non-compliance with INS policies and instructions and for engaging in conduct unbecoming of a detention enforcement officer.

In November 1995, while the termination recommendation was still under consideration, the INS, for reasons not explained in the record, returned Mr. Kendalla to his duties and reissued his service weapon. In the meantime, Ms. Vickers and Mr. Kendalla began living with each other once more. The reconciliation, however, ended in tragedy: After an argument in February 1996, Mr. Kendalla shot Ms. Vickers in the back with his Service-issued revolver. Ms. Vickers sustained serious injuries, some of which may require life-long care. Mr. Kendalla was arrested following the shooting, and the INS finally dismissed him from his position.

The district court considered Ms. Vickers' tort claims against the INS in light of the FTCA's discretionary function exception, holding that the exception applies and bars the action. In an alternative holding, the district court decided that even if the INS was negligent and its negligence is actionable under the FTCA, its negligent acts and omissions did not, as a matter of law, cause Ms. Vickers' injuries because, among other reasons, Mr. Kendalla could have shot Ms. Vickers with another gun. The court therefore concluded that her claim failed as a matter of law and granted the INS's motion for summary judgment. This appeal followed.

II.

The Federal Torts Claims Act is a limited waiver of the United States' traditional sovereign immunity, authorizing certain civil tort suits against the government for monetary damages. See 28 U.S.C. SS 2671-2680. Specifically, the FTCA grants federal courts jurisdiction to hear claims for damages

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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. S 1346(b). While the FTCA thereby established "novel and unprecedented governmental liability, " Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957), Congress was careful "to protect the Government from liability that would seriously handicap efficient government operations. " United States v. Muniz, 374 U.S. 150, 163 (1963).

The FTCA's principal such protection is the discretionary function exception to liability, barring claims 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.

See 28 U.S.C. S 2680(a). By thus marking "the boundary between [its] willingness to impose tort liability upon the United States and its desire to protect certain government activities from exposure to suit by private individuals," United States v. Varig Airlines, 467 U.S. 797, 808 (1984), Congress aimed to "prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort." United States v. Gaubert, 499 U.S. 315, 323 (1991).

The more recent FTCA cases set forth a two-step standard, albeit a fairly general one, for applying the exception: The first inquiry is whether the challenged action involved an element of choice or judgment, for it is clear that the exception "will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz v. United States, 486 U.S. 531, 536 (1988). If choice or judgment is exercised, the second inquiry is whether that choice or judgment is of the type Congress intended to exclude from liability -that is, whether the choice or judgment was one involving social, economic or political...