Zhang v. United States, CASE NO. C19-1211-RSM

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Decision Date04 May 2020
Docket NumberCASE NO. C19-1211-RSM
PartiesHUIFANG ZHANG, et. al, Plaintiffs, v. UNITED STATES OF AMERICA, et. al, Defendants.

HUIFANG ZHANG, et. al, Plaintiffs,
al, Defendants.

CASE NO. C19-1211-RSM


May 4, 2020



This matter comes before the Court on Defendants' Partial Motion to Dismiss, Dkt. #8. The Court finds oral argument unnecessary to resolve the underlying issues. Having reviewed Defendants' Motion, Plaintiffs' Response, Defendants' Reply, and the remainder of the record, the Court GRANTS IN PART Defendant's Partial Motion to Dismiss and dismisses Plaintiffs' claims as set forth below.


Pro se Plaintiffs Shunichi Takahashi and Huifang Zhang bring this action on behalf of themselves and their minor children, I.G. and D.G., against the United States of America, the U.S. Department of Homeland Security ("DHS"), the U.S. Customs and Border Protection ("CBP"),

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and Kevin K. McAleenan in his official capacity as both Acting Secretary of the U.S. Department of Homeland Security and Commissioner of U.S. Customs and Border Protection ("the Government"). Mr. Takahashi is a Japanese citizen and I.G. and D.G. are U.S. citizens. At the time of the alleged incident, I.G. and D.G. were a year and seven months old and seven months old, respectively. Dkt. #1 at ¶¶ 56-57. Ms. Zhang was a U.S. permanent resident at the time and became a U.S. citizen the following year.

On September 29, 2015, Plaintiffs were traveling back to the United States from Canada. Id. at ¶ 14. Plaintiffs claim that at the border checkpoint in Blaine, Washington, CBP officer Paul J. Carter initiated a secondary inspection of Mr. Takahashi because he did not have an admission stamp on his passport. Id. at ¶¶ 15-16. Mr. Takahashi was detained for seven hours in a small room where he allegedly faced repeated racial discrimination and humiliation from border agents. Plaintiffs claim that Officer Carter engaged in fraudulent and malicious questioning and threatened Mr. Takahashi into signing a sworn statement that was not genuine and did not reflect what Mr. Takahashi actually said. Id. at ¶¶ 18-20. On the basis of this fraudulent sworn statement, CBP revoked Mr. Takahashi's Visa Waiver Program ("VWP") status and denied him admission into the United States. The statement listed Mr. Takahashi as an investor in a U.S. company who performs direct sales and installation of lighting equipment, which Mr. Takahashi claims is false. Plaintiffs also claim that CBP never explained why it forgot to stamp Mr. Takahashi's passport on his last trip across the border, which was the reason for his detainment. When Mr. Takahashi pointed out the false statements in the CBP report, the CBP officers allegedly revised the charge to "intending immigrant as having 2 US citizen children." Id. at ¶¶ 22-24; Dkts. #1-5, #1-6.

Plaintiffs allege that during Mr. Takahashi's seven-hour detainment, Ms. Zhang was also detained with the couple's two minor children while CBP officers refused to return their passports.

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Dkt. #1 at ¶¶ 25-26. Ms. Zhang and her children were forced to sit on the floor from 5pm until midnight without food, baby formula or water. At midnight, Officer Carter forced Ms. Zhang and the two children to return to Canada. Ms. Zhang, I.G. and D.G. were able to enter the U.S. without issue a few days later. Id. at ¶ 90. As a result of the detention, Plaintiffs claim that they suffer from post-traumatic stress disorder and anxiety disorder and that both children have experienced behavior regression. Id. at ¶¶ 56-58.

On August 6, 2019, Plaintiffs filed this action against the Government claiming (a) violations of the Administrative Procedure Act, the Fourteenth Amendment, and the Fifth Amendment; (b) racial discrimination claims under the Constitution, the Immigration and Nationality Act, and the 1964 Civil Rights Act; and (c) negligence claims under the Federal Tort Claims Act. Id. at ¶¶ 34-75. Plaintiffs request declaratory and injunctive relief to vacate Mr. Takahashi's charge of inadmissibility to the United States, expunge inaccurate information from his record, and damages totaling $3 million. Id. at ¶¶ 76-80.

The Government has moved to partially dismiss Plaintiffs' claims for lack of subject matter jurisdiction and failure to state a claim. Dkt. #8. The Government seeks dismissal of all claims, with the exception of Plaintiffs' negligence claim under the FTCA as to Ms. Zhang and her minor children.


A. Legal Standards

1. Motion to Dismiss for Lack of Jurisdiction under 12(b)(1)

Federal courts are tribunals of limited jurisdiction and may only hear cases authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The burden of establishing subject-matter jurisdiction rests upon the party

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seeking to invoke federal jurisdiction. Id. Once it is determined that a federal court lacks subject-matter jurisdiction, the court has no choice but to dismiss the suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

As a general rule, the United States may not be sued unless it has waived its sovereign immunity. Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 (9th Cir. 2003). Accordingly, unless the United States consents to be sued, the Court lacks subject matter jurisdiction over claims against the federal government. United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) ("A court lacks subject matter jurisdiction over a claim against the United States if it has not consented to be sued on that claim.") (internal citations omitted). The doctrine of sovereign immunity applies to federal agencies and to federal employees acting within their official capacities. Hodge v. Dalton 107 F.3d 705, 707 (9th Cir.1997) (citing S. Delta Water Agency v. U.S., Dep't of Interior, 767 F.2d 531, 536 (9th Cir.1985)). The federal government's waiver of sovereign immunity "must be unequivocally expressed in statutory text, and will not be implied." Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted). Any limitations and conditions upon the waiver must be strictly observed, Hodge, 107 F.3d at 707, and the Court must construe any ambiguities in the scope of such waiver in favor of immunity. Lane, 518 U.S. at 192 (citing United States v. Williams, 514 U.S. 527, 531 (1995)).

2. Motion to Dismiss under 12(b)(6)

In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as true and makes all inferences in the light most favorable to the non-moving party. Baker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted).

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However, the court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 678. This requirement is met when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The complaint need not include detailed allegations, but it must have "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Absent facial plausibility, a plaintiff's claims must be dismissed. Id. at 570. Because Plaintiffs are proceeding pro se, their pleadings must be liberally construed. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

For the reasons set forth below, the Court finds dismissal of Plaintiffs' claims appropriate, except for Mr. Takahashi's negligence claim under the Federal Tort Claims Act. The Court finds that amendment of the Complaint would be futile with respect to those claims dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction, but the Court will permit Plaintiffs to amend the Complaint with respect to claims dismissed pursuant to Rule 12(b)(6) for failure to state a claim. For purposes of clarity, the Court has assigned counts to each of Plaintiffs' claims as set forth below.

B. Administrative Procedure Act Claims (Counts 1 and 2)

Plaintiffs bring claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq., for refusing to correct Mr. Takahashi's sworn statement, for revising his statement to a "new and groundless" charge, and for revoking his status under the VWP. Dkt. #1 at ¶¶ 40-44. Plaintiffs also bring claims under the APA as to Ms. Zhang and their citizen children for denying them entry into the U.S. and for failing to provide food, baby formula, and other necessities during

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their seven-hour detention. Id. at ¶¶ 35-37. The Government moves to dismiss for lack of subject matter jurisdiction and failure to state a claim. Dkt. #8 at 7-10.

1. Claims Related to Mr. Takahashi's VWP Status (Count 1)

A district court has subject matter jurisdiction over any sufficiently stated claims for relief under the APA. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63-65 (2004). Indeed, the Ninth Circuit has recognized that "Sections 701-06 of the APA supply a 'default rule . . . that agency actions are reviewable under federal question jurisdiction . . . even if no statute specifically authorizes judicial review.'" Allen v. Milas, 896 F.3d 1094, 1103 (9th Cir. 2018) (quoting ANA Int'l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004)). Nevertheless, the APA anticipates that Congress might abrogate this presumption of judicial review, such as when the statute precludes judicial review. I...

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