Casillas, et. al v. USA, et. al

Filing 46

ORDER granting 31 Motion to Dismiss Case for Lack of Jurisdiction; finding as moot 31 Motion for Summary Judgment; denying 32 Motion to Strike; adopting 40 Report and Recommendations. ORDERED this action is DISMISSED & closed; Clk to enter judgment accordingly. Signed by Judge David C Bury on 3/18/09.(JEMB, )

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A. United States of America, Defendant. vs. Jose and Adelina Casillas, Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) CV-07-395-TUC-DCB ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before this Court is the Report and Recommendation of Magistrate Judge Estrada, Plaintiffs' Objections and Defendant's Response to Objections. After conducting a de novo review of the record, this Court will: adopt the Report and Recommendation (RR), grant Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, deny

Defendant's Motion for Summary Judgment, deny Plaintiffs' Motion to Strike Defendant's Pleadings, and dismiss this action. The Court will adopt in its entirety the Magistrate Judge's

thoroughly documented recitation of the facts and historical background of this action. OBJECTIONS MAGISTRATE ERRED BY NOT STRIKING DEFENDANT'S RULE 56 FACTS This argument is moot because the Magistrate Judge recommended that the Court grant the Motion to Dismiss before addressing the Motion for

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Summary Judgment.

This case will be dismissed pursuant to Fed.R.Civ.P.

12(b)(1), not Rule 56. B. MAGISTRATE ERRED IN FINDING THE Rule 56 MOTION MOOT The Motion for Summary Judgment was rendered moot when the

Magistrate Judge determined to recommend granting the Motion to Dismiss. When a motion to dismiss is based on more than one ground, the court should consider the Rule 12(b)(1) challenge first because the other grounds will become moot if the court lacks subject matter jurisdiction. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, §1350 (2004 ed.) C. MAGISTRATE ERRED IN FINDING NO PRIVATE STATE ANALOGUE The Magistrate Judge recommended that the Court grant the

Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1), finding no private state analogue for governmental law enforcement actions. The FTCA provides for governmental liability for negligent or wrongful acts or omissions of a federal employee acting within the scope of his or her employment "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. § 1346(b); see also 28 U.S.C. § 2674 ("The

United States shall be liable...relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances,..."). The Supreme Court has noted that "[t]he broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not leave just treatment to the caprice and legislative burden of individual private laws." Indian Towing Co. v. United States, 350 U.S.

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61, 68 (1955); see also Rayonier Inc., v. United States, 352 U.S. 315 319-320 (1957)("Congress, in adopting the FTCA, sought to prevent the unfairness of allowing `the public as a whole' to benefit `from the services performed by Government employees,' while allocating `the entire burden' of government employee negligence to the individual, `leav[ing] him destitute or grievously harmed.'"). The Magistrate Judge found that Plaintiffs conceded that there was no private party analog to seeking a search warrant by a member of law enforcement. The Magistrate Judge went on to find that "[o]ther courts that have addressed this issue have held that the act of applying for a search warrant has no analogous counterpart for private citizens and, thus, there is no liability under the FTCA for such action. See

Washington v. Drug Enforcement Admin., 183 F.3d 868, 873 (8th Cir. 1999); Wright, 963 F.Supp. at 16-17 (`the discrete act of applying for such a warrant is not reviewable under the FTCA.')" (RR at 16.) This objection is meritless. D. MAGISTRATE ERRED IN FINDING A DISCRETIONARY FUNCTION EXEMPTION The Magistrate Judge also recommended granting the Defendant's Motion to Dismiss, finding that the discretionary function exemption barred suit again the government in this instance. The FTCA waives sovereign immunity for specified tort actions arising out of the conduct of federal employees. 28 U.S.C. § 2674; v. United States, 140 F.3d 1238, 1241 (9th Cir. 1998). Fang

That waiver,

however, is limited.

Id. Liability cannot be imposed if the tort claims

stem from a federal employee's exercise of a "discretionary function." 28 U.S.C. § 2680(a). The question whether the discretionary-function

exception bars a particular claim is resolved by applying a two-prong

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test.

Id.

For the first prong, it must be decided whether the

challenged conduct is discretionary, that is, whether it "involv [es] an element of judgment or choice." Fang, 140 F.3d at 1241 (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)(inspection of polio

vaccines)). "This element is not met `when a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow.' " Id. (quoting Berkovitz, 486 U.S. at 536). Id. If the act is not

discretionary, the government is not immune.

The second prong, if the challenged conduct is discretionary, it "must be determined whether that judgment is of the kind that the

discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536. "Only those exercises of judgment which involve

considerations of social, economic, and political policy are excepted from the FTCA by the discretionary function doctrine." Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000). "The primary focus of the

second prong of the test is on `the nature of the actions taken and on whether they are susceptible to policy analysis.' " Fang, 140 F.3d at 1241 (quoting United States v. Gaubert, 499 U.S. 315, 325(1991)(federal savings and loan regulators)). "When a statute, regulation or agency

guideline allows a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Weissich v. United States, 4 F.3d 810, 814 (9th

Cir.1993) (citing Gaubert, 499 U.S. at 324), cert. denied, 512 U.S. 1219 (1994). The discretionary function exception applies even if the conduct is negligent or constitutes an abuse of discretion. States , 346 U.S. 15, 33 (1953). When the Dalehite v. United function

discretionary

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exception

is

applicable,

it

must

be

applied,

even

if,

through

application, it becomes a shield for carelessness and poor judgment. National Union Fire v. United States, 115 F.3d 1415, 1422 (9th Cir.

1997), cert.denied, 522 U.S. 1116 (1998). Here the Magistrate Judge found: Based upon the information Agent Kelley had at the time, she made the determination to seek a search warrant for the Casillas residence. This decision "involves a judgement and a choice grounded in policy considerations regarding the enforcement of the criminal laws toward protecting the public safety." Doherty, 905 F.Supp. at 56. Under the instant circumstances, the discretionary function exception applies to Plaintiffs' claims of negligent surveillance and investigation. Moreover, given the exigency of the situation, Agent Kelley's actions in obtaining the search warrant involving the overlooked errors in the SW affidavit necessarily fall within the discretionary function exception as well. See Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir. 1983) ("We will not permit a suit for damages occasioned by activities that are not meaningfully separable from a protected discretionary function."); see also Gasho, 39 F.3d at 1345 ("That the conduct of the agents may be tortious or motivated by something other than law enforcement is beside the point, as governmental immunity is preserved `whether or not the discretion involved be abused.'")(citing 28 U.S.C. §2680(a)). (RR at 20-21.) Plaintiffs object to this finding because they contend that Agent Kelley acted in excess of her authority.1 Defendant responds:

Agent Kelly was clearly working with tribal officers in connection with a crime that occurred on the reservation and that had moved off the reservation when the suspect fled to Tucson. There is no question that Agent Kelly had authority to investigate federal crimes on or off the reservation. She also was clearly within her authority to obtain a federal search warrant for a reservation crime within her investigative jurisdiction and to execute it on or off the reservation in accordance with the command in the warrant. There is no Plaintiffs cite to Olson v. United States, 362 F.3d 1246 (2004), a case that has been vacated and remanded. Id. at 546 U.S. 43 (2005).
1

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any

testimony in the record that she "dispatched" the tribal officers to assist her, or that they were otherwise without authority as federal law enforcement officers to assist in the execution of the warrant. To the extent that Plaintiffs seek to allege that the tribal officers were not so authorized, then their conduct clearly falls within the assault, false imprisonment, and false arrest exception of the FTCA, and there can be no liability for their actions. The record is quite clear that when the tribal officers learned from Agent Kelly's phone call that the warrant had been issued, they proceeded to execute the warrant and had completed the search by the time she arrived at the Plaintiffs' residence. (Response at 3-4.) The Federal Tort Claims Act expressly excludes from its application claim based on an act or omission of a government employee,

exercising due care in the execution of a statute or regulation, whether valid or not, or based on the exercise or performance, or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or government employee, whether or not the discretion is abused. United States v. Varig Airlines, 467 U.S. 797, 813 (1984); Alfrey v.

Berkovitz, 486 U.S. at 536; Gaubert, 499 U.S. at 322-23; United States, 276 F.3d 557, 561 (9th Cir. 2002); 14 Fed. Juris. 3d §3658.1 (2006); 35A Am. Jur.2d FTCA §34 (2007).

Prac. & Proc

Based on a review of the record, there is no evidence to support the claim that Agent Kelley was acting in excess of her authority. objection is overruled. CONCLUSION To dismiss claims or the action as a whole, this Court must resolve that it lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). When a Defendant challenges subject matter jurisdiction, the Thomson v. This

Plaintiff bears the burden of establishing jurisdiction. Gaskill, 315 U.S. 442 (1942); Tosco Corp. v.

Communities for a Better

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Env't, 236 F.3d 495, 499 (9th Cir.

2001).

The Plaintiff must carry this

burden by a preponderance of the evidence. APWU v. Potter, 343 F.3d 619, 623 (2nd Cir. 2003). In the case of factual or substantive subject

matter jurisdiction attacks, the court will not presume that Plaintiff's factual allegations are true and will not accept conclusory allegations as true, but may instead weigh the evidence before it and find the facts, so long as this factfinding does not involve the merits of the dispute. White v. Const. Lee, 227 F.3d 1214, 1242 (9th Cir. Co. v. 2000); Zappia Middle East 2000);

Emirate Abu Dhabi, 215 F.3d 247, 253 (2d Cir.

Nesbit v.

Gears Unl., 347 F.3d 72, 77 (3d Cir. 2003), cert.

denied, 541

U.S. 959 (2004). The Court may receive and consider extrinsic evidence and in doing so, is allowed broad discretion. Warren v. Fox Family

Worldwide, 328 F.3d 1136, 1141 n.5 (9th Cir. 2003). The Court adopts the Magistrate Judge's findings that there is no private party analog to seeking or applying for a search warrant and the Government is immune under the FTCA's discretionary function exception from Plaintiffs' claims of negligence in investigation, surveillance, and application for the search warrant. The discretionary function exception also bars Plaintiffs' claims of intentional torts occurring during execution of the search warrant. Because all of Plaintiffs' claims are

barred, the Court lacks federal subject matter jurisdiction. Accordingly, after conducting a de novo review of the record, IT IS ORDERED that the Report and Recommendation of Magistrate Judge Estrada is ADOPTED in its entirety. IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike Defendant's Pleadings in Support of Summary Judgment and Motion to Dismiss for Failure to State a Claim (Doc. No. 32) are DENIED.

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IT IS FURTHER ORDERED that Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 31) is GRANTED and Defendant's Motion for Summary Judgment (Doc. No. 31 ) is DENIED as moot. IT IS FURTHER ORDERED that this action is DISMISSED and closed. The Clerk of this Court shall enter final judgment accordingly.

DATED this 18th day of March, 2009.

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