Welch v. U.S.

Decision Date31 May 2005
Docket NumberNo. 04-1863.,04-1863.
Citation409 F.3d 646
PartiesRicardo Antonio WELCH, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Todd Michael Stenerson, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, D.C., for Appellant. Neil Ray White, Assistant United States Attorney, Office Of The United States Attorney, Baltimore, Maryland, for Appellee.


Debra A. Drake, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, D.C., for Appellant. Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Before MICHAEL and DUNCAN, Circuit Judges, and FREDERICK P. STAMP, JR., United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge MICHAEL and Judge STAMP joined.


DUNCAN, Circuit Judge.

Ricardo Antonio Welch, Jr. was detained for 422 days under an immigration statute that this court later determined was unconstitutional as applied to him due to its failure to provide for a bail hearing.1 Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002). Welch's successful challenge to his detention led to a court-ordered hearing at which an immigration judge released him on bail. Welch now brings this action, claiming that his detention constituted tortious false imprisonment under Maryland law, an action for which he contends the United States is liable under the Federal Tort Claims Act ("FTCA"). The district court dismissed Welch's claim for lack of subject matter jurisdiction, holding that the United States had not waived its sovereign immunity because his claim fell under the so-called "due care" exception to the FTCA. 28 U.S.C. § 2680(a). Because we agree with the district court and find that the due care exception applies to the facts of Welch's false imprisonment claim, we affirm.


The material facts of this case are not in dispute. Welch is a native and citizen of Panama. At the age of ten, he entered the United States with his family and has been a permanent legal resident of this country since that time. While he was never granted citizenship, both of his parents and two of his three siblings are American citizens. Welch served in the United States Navy and Naval Reserve from 1986 through 1994, when he was honorably discharged. He is now a resident of the State of Maryland, where he lives with his wife, two sons, and step-daughter, all of whom are American citizens.

In 1993, Welch was arrested after being involved in an altercation on a basketball court. He was charged with a series of state felonies stemming from the incident, including assault and weapons charges. He pled guilty to the charges in 1994 and was sentenced to five years in prison. He ultimately served three years in a Maryland state correctional facility and was released in October, 1996.

After Welch's initial plea, the United States Department of Justice ("DOJ") instituted deportation proceedings against him under two subsections of the Immigration and Naturalization Act. See 8 U.S.C. § 1251(a)(2)(A)(iii)(authorizing deportation for conviction of an "aggravated felony"); 8 U.S.C. § 1251(a)(2)(C)(authorizing deportation for unlawful possession of a firearm).2 In August, 1997, following his release, an immigration judge ordered Welch deported to Panama pursuant to § 1227(a)(2)(A)(iii). Welch appealed the order to the Board of Immigration Appeals, and the appeal was denied on July 8, 1998. In October, 1998, the DOJ took Welch into custody and placed him in detention pending his deportation. The removal process was delayed however, as the Immigration and Naturalization Service ("INS") did not receive the necessary paperwork from the Panama Consulate in order to complete deportation proceedings.

While Welch remained in detention, on April 22, 1999, the state charges for which he had pled guilty were vacated in state court on collateral review. On that same day, Maryland entered into an agreement with Welch in which the felony charges were dropped and he instead pled guilty to six misdemeanor charges of simple assault and one misdemeanor charge of illegally wearing or carrying a handgun. The court imposed a sentence of less than one year and credited Welch for the time served previously, which resulted in no new time in detention.

The DOJ ceased its attempt to deport Welch based upon his prior felony convictions but moved to reopen the removal proceedings on the ground that the plea to the new firearm conviction rendered him deportable under 8 U.S.C. § 1227(a)(2)(C). On October 28, 1999, the Board of Immigration Appeals granted the motion. The DOJ continued to detain Welch based upon the Immigration and Naturalization Act's mandate of such detention pending a final removal determination. See 8 U.S.C. § 1226(c).

While in detention, Welch filed a petition for a writ of habeas corpus with the District Court of Maryland, contending that his indefinite detention without the possibility of bail by the DOJ violated his Fifth Amendment due process rights. At the same time, he applied for naturalization as a United States citizen. The district court granted the habeas petition, holding that § 1226(c) "violate[d] Welch's substantive due process right[s] ... to receive a bail hearing in which a judge would determine his flight risk and threat to the community." Welch, 101 F.Supp.2d at 356. The court ordered that the DOJ provide Welch with a bail hearing, which an immigration judge conducted on June 7, 2000. After the hearing, the judge granted Welch his release.

The DOJ appealed that decision, and on June 19, 2002, this court affirmed the district court's decision, but on slightly different grounds. Welch, 293 F.3d at 218-28. While declining an invitation to rule on the constitutionality of § 1226(c) in all cases, we held that the provision was unconstitutional as applied to Welch. Id. Following this decision, on July 15, 2002, an immigration judge granted Welch's petition to cancel his removal proceedings. The government did not appeal, thus ending the threat of deportation.

On June 4, 2002, Welch presented an administrative claim to the INS seeking damages for his unlawful imprisonment from April 22, 1999 until June 7, 2000. His administrative claim was denied on April 23, 2003.3 On October 15, 2003, Welch filed a complaint under the FTCA against the United States in the United States District Court for the District of Maryland, again alleging false imprisonment. The United States moved to dismiss under FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction, alleging in part that the United States had not waived sovereign immunity under the FTCA for Welch's claim. The district court granted the motion to dismiss, and it is this decision we now review.


We review a district court's dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction de novo. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). On appeal, Welch argues that his 422-day detention by the United States constituted false imprisonment under Maryland law. He contends that the FTCA provides a waiver of sovereign immunity by the United States for such false imprisonment claims, and that the district court erred in determining that Welch was unable to bring his claim due to the due care exemption to the FTCA.


As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). All waivers of sovereign immunity must be "strictly construed ... in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). For that reason, it is the plaintiff's burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute's waiver exceptions apply to his particular claim. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). If the plaintiff fails to meet this burden, then the claim must be dismissed. Medina v. United States, 259 F.3d 220, 223 (4th Cir.2001).

The FTCA effects a limited waiver of the United States' sovereign immunity for "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." 28 U.S.C. § 1346(b)(1). The scope of this waiver is limited by a series of specific exceptions outlined in the Act, each of which is considered jurisdictional. Medina, 259 F.3d at 223-24. Two such exceptions apply here, and their inter-relationship controls our analysis. Specifically, the waiver of sovereign immunity under the FTCA does not apply to:

any claim 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.

28 U.S.C. § 2680(a). The first clause of § 2680(a), the due care exception, prevents the United States from being held liable for actions of its officers undertaken while reasonably executing the mandates of a statute.

In addition to § 2680(a), § 2680(h) exempts claims for certain intentional torts, including those for false imprisonment, from the waiver of sovereign immunity. However, the statute was amended in 1974 to provide an exception to this exemption, stating that sovereign immunity is waived if certain intentional torts, including false imprisonment, are committed by an investigative or law enforcement officer of the United States. We have previously held that INS agents meet the criteria of an "investigative or law...

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