Arteaga-Ruiz et al v. United States of America

Filing 41

MEMORANDUM DECISION AND ORDER granting 25 Defendant's Motion to Dismiss. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOSE ARTEAGA-RUIZ et al,
Case No. 4:14-cv-00061-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES,
Defendant.

INTRODUCTION
The Court has before it Defendant’s motion to dismiss (Dkt. 25). The motion is
fully briefed and at issue. For the reasons explained below, the Court will grant the
motion.
FACTUAL BACKGROUND
The only remaining plaintiff in this lawsuit is Jose Arteaga-Ruiz.1 He is the son of
Jose Arteaga-Arteaga and Lilia Ruiz-Arteaga. Arteaga-Ruiz was born in Michoacán,
Mexico on June 22, 1984, and he came to the United States in January 1985. His
biological mother, Lilia Ruiz-Arteaga, became a U.S. citizen on November 2, 1998.

1

Plaintiffs filed a notice of non-opposition indicating they do not wish to proceed with certain claims,
leaving only Jose Arteaga-Ruiz’s claims for negligence, false imprisonment, and intentional infliction of
emotional distress. See Pl.’s Notice of Non-Opposition to Def.’s Motion to Dismiss Specific Claims at 2,
Dkt. 35.
MEMORANDUM DECISION AND ORDER – 1

Pursuant to the Child Citizenship Act of 2000, Arteaga-Ruiz automatically acquired U.S.
citizenship on February 27, 2001. See 8 U.S.C. § 1431.
On October 9, 2007, Arteaga-Ruiz was in the custody of the Nevada Department
of Corrections (“NDOC”) for his conviction of attempted battery with substantial bodily
harm. That same day, the Department of Homeland Security (“DHS”) issued a detainer
to the NDOC, notifying them that an inquiry had begun as to whether Arteaga-Ruiz was
subject to removal from the United States. Around November 26, 2007, the NDOC
released Arteaga-Ruiz to the custody of Immigration Customs Enforcement (“ICE”)
pursuant to the DHS detainer.
From November 26, 2007 to December 4, 2007 – a total of eight days – DHS
detained Arteaga-Ruiz. During that detention, an ICE agent personally served ArteagaRuiz with a Notice to Appear (“NTA”). Def.’s Motion at 2, Dkt. 18-6. The NTA alleged
Arteaga-Ruiz: (1) was neither a citizen nor national of the U.S.; (2) was both a native and
citizen of Mexico; (3) became a lawful permanent U.S. resident on March 23, 2000; (4)
had been convicted in Nevada for an aggravated felony and crime of violence; and (5)
had been convicted of two crimes involving moral turpitude. Id.at 3.
After receiving the NTA, Arteaga-Ruiz waived many of his legal rights, including:
(1) the right to legal representation; (2) the right to question witnesses; (3) the right to
offer and object to evidence; and (4) the right to require the government to prove his
removability. Id. at 1, Dkt. 18-5. After reading the NTA, Arteaga-Ruiz admitted that all
the allegations contained therein were true and correct, and agreed that he was removable
from the United States as charged on the NTA. Id. at 2. Finally, Arteaga-Ruiz requested
MEMORANDUM DECISION AND ORDER – 2

removal to Mexico, where he indicated he would not be harmed or tortured. Id. ArteagaRuiz recognized that the consequences of signing the removal order would result in his
deportation from the United States, but nonetheless, submitted the order certifying that all
the information was true and correct. Id. at 2–3. On December 4, 2007, the Honorable
Ronald L. Mullins entered Arteaga-Ruiz’s removal order, and that same day he was
physically removed from the United States. Compl. at 5, Dkt. 1-8.
According to Arteaga-Ruiz, life in Mexico was difficult. See Pl.’s First Amended
Compl. at ¶ 5, Dkt.16. After spending three years in Mexico, he returned to the United
States in November 2010, following “a nearly week-long, life-threatening journey
through the desert without adequate food or water.” Id. at ¶¶ 10, 43. Upon his return to
the United States, an immigration attorney notified Arteaga-Ruiz on May 10, 2011 that
he acquired U.S. citizenship on February 27, 2001 under the Child Citizenship Act of
2000. Id. at ¶ 11. Thereafter, Arteaga-Ruiz and his parents initiated this lawsuit against
the United States alleging several claims. After amending his complaint and responding
to the government’s motion to dismiss, Arteaga-Ruiz now limits his claims to negligence,
false imprisonment, and intentional infliction of emotional distress.
LEGAL STANDARD
To invoke a court’s subject matter jurisdiction, a plaintiff needs to provide only “a
short plaint statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1).
The plaintiff must allege facts, not mere legal conclusion, in compliance with the
pleading standards established by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Assuming compliance with the standards, a
MEMORANDUM DECISION AND ORDER – 3

plaintiff’s factual allegations are accepted as true unless challenged by the defendant. See
5C CHARLES ALAN WRIGHT ET AL., Federal Practice and Procedure § 1363, at 107 (3d
ed. 2004).
Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of
subject matter jurisdiction under Rule 12(b)(1) in one of two ways. See Leite v. Crane
Co., 749 f.3d 1117, 1121 (9th Cir. 2014). The first is known as a “facial” attack, and it
accepts the truth of the plaintiff’s allegations but asserts that they are insufficient on their
face to invoke federal jurisdiction. Id. The second method is known as a “factual” attack,
and it does not assume the truth of plaintiff’s allegation but instead challenges them by
introducing extrinsic evidence, requiring the plaintiff to support his jurisdictional
allegations with “competent proof.” Id.
It its motion, the Government assumes that the allegations in the amended
complaint are true, but challenges the sufficiency of those allegations. See Def’s Motion
at 1 n.2, Dkt. 18. Although the Government brings the motion under Rules 12(b)(1) and
(6), the motion actually rests on a claim that the Court lacks subject matter jurisdiction to
hear all of Arteaga-Ruiz’s claims. See Def.’s Reply at 1, Dkt. 40. Therefore, the Court
will treat the motion as a facial challenge to the Court’s subject matter jurisdiction.
ANALYSIS
1.

Overview of the Federal Tort Claims Act
“Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). Courts strictly
construe waivers of sovereign immunity and resolve all ambiguities in favor of the
MEMORANDUM DECISION AND ORDER – 4

sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996). Additionally, “a waiver of sovereign
immunity must be ‘unequivocally expressed’ in statutory text.” F.A.A. v. Cooper, __
U.S. __, 132 S.Ct. 1441 (2012) (internal citation omitted).

It is the Plaintiff’s burden to

show Congress’s unequivocal waiver of sovereign immunity. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994): Prescott v. U.S., 973 F.2d 696, 701 (9th Cir.
1992).
The Federal Tort Claims Act (“FTCA”) represents an unequivocal, but limited,
waiver of the government’s sovereign immunity. By statute, federal jurisdiction is
established over civil suits for money damages against the United States:
for injury or loss 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 commission occurred.
28 U.S.C. § 1346(b). As the party seeking to establish jurisdiction, Arteaga-Ruiz must
therefore demonstrate that Nevada law would recognize a cause of action in negligence,
false imprisonment, and intentional infliction of emotional distress against a private
individual for like conduct.
Congress has carved out several exceptions to the FTCA’s waiver of immunity.
See 28 U.S.C. § 2680. One of those exceptions is the discretionary function exception,
which provides that courts have no jurisdiction over any claim against the United States
“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
MEMORANDUM DECISION AND ORDER – 5

Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
For the reasons discussed below, the Court concludes that Arteaga-Ruiz’s claims are
barred by the discretionary function exception of § 2680(a) to the FTCA’s waiver of
sovereign immunity. Arteaga-Ruiz has thus not met his burden to establish that the
United States has waived sovereign immunity for his claims, and the Court lacks subject
matter jurisdiction.
2.

Discretionary Function Exception to the FTCA’s Waiver of Sovereign
Immunity
The “discretionary function exception” provides that the FTCA’s waiver of

sovereign immunity does not extend 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). Under Ninth Circuit authority, on a motion to dismiss, “the United
States bears the burden of proving the applicability of one of the exceptions to the
FTCA’s general waiver of immunity.” Prescott v. U.S., 973 F.2d 696, 702 (9th Cir.
1992).
An act falls within the discretionary function exception if: (1) the challenged act
involves a “matter of choice,” and (2) the judgment “is of a kind that the discretionary
function was designed to shield.” Id. at 703 (quoting Berkovitz v. U.S., 486 U.S. 531, 536
(1988)). Both prongs must be satisfied for the discretionary function exception to apply.
MEMORANDUM DECISION AND ORDER – 6

Id. However, governmental conduct cannot be discretionary if it violates a legal
mandate. Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000)
Regarding the first prong of the analysis, “the challenged action [must be] a matter
of choice for the acting employees . . . .” Id. The “nature of the conduct,” not the “status
of the actor” governs whether the exception applies. Id. Under the second prong, for the
discretionary exception to apply, “the United States must prove that each and every one
of the alleged acts of negligence (1) involved an element of judgment and (2) the
judgment was grounded in social, economic, or political policy.” Id.
3.

Plaintiff’s Negligence, False Imprisonment, and Negligent Infliction of
Emotional Distress Claims
A threshold issue to be determined in the first prong of the analysis for the

discretionary function exception is to identify precisely what conduct is challenged in
Arteaga-Ruiz’s negligence, false imprisonment, and intentional infliction of emotional
distress claims. In his First Amended Complaint, Arteaga-Ruiz alleges that ICE acted
negligently in “imprison[ing] him from November 26, 2007 to December 4, 2007, and
expell[ing] him from the U.S. without adequate investigation of his U.S. citizenship.”
First Amended Compl. at ¶ 52, Dkt. 16. Arteaga-Ruiz further alleges that ICE committed
tortious conduct by arresting and deporting him because it “should have known that [he]
was a U.S. citizen as it had all of the information available to make this determination.”
Id. at ¶ 53.
In his false imprisonment claim, Arteaga-Ruiz alleges immigration officers
“unlawfully confining Plaintiff Jose Arteaga-Ruiz from November 26, 2007 through
MEMORANDUM DECISION AND ORDER – 7

December 4, 2007.” Id. at ¶ 60. Arteaga-Ruiz also alleges in his false imprisonment
claim that the United States acted tortuously by deporting him to Mexico with the
“warning that he could not return for the rest of his life resulting in his confinement
outside of the U.S. for three years.” Id. at ¶ 61. Further, in his false imprisonment claim,
Arteaga-Ruiz alleges that after his return to the United States the Government
“effectively” confined him by having him believe he could be the “subject of federal
criminal prosecution and administrative removal.” Id.
In his intentional infliction of emotional distress claim, Arteaga-Ruiz alleges that
ICE’s conduct was both extreme and outrageous because “even though ICE itself
recorded nearly all of the information” necessary to ascertain Arteaga-Ruiz’s derivative
citizenship status, it failed to do so. Id. at ¶ 79. He further alleges, “ICE removed and
informed him that he could never re-enter the country, asserting a lifetime banishment of
a U.S. citizen.” Id. at ¶ 80.
At their core, Arteaga-Ruiz’s claims for negligence, false imprisonment and
intentional infliction of emotional distress all stem from ICE’s allegedly negligent
investigative activity concerning his immigration status, which led to his week-long
detention and removal from the United States to Mexico.
Addressing the first prong of the test – whether the challenged conduct was
discretionary – it is well established that “decision[s] [on] how to investigate, who to
investigate, and how to present evidence” are considered discretionary conduct. Sabow v.

MEMORANDUM DECISION AND ORDER – 8

U.S., 93 F.3d 1445, 1452 (9th Cir. 1996).2 Thus, the ICE agents’ conduct during their
investigation of Arteaga-Ruiz’s immigration status, the conclusions drawn from their
investigation, and the decision to remove him, are generally considered discretionary
conduct.
Arteaga-Ruiz argues that the ICE agents’ conduct falls outside the discretionary
function exemption because “Congress has specifically stated that ICE has no statutory
authority to arrest, detain or remove a United States citizen . . . .” Pl.’s Resp. at 3, Dkt.
34. Indeed, “governmental conduct cannot be discretionary if it violates a legal
mandate.” Nurse v. U.S., 226 F.3d 996, 1002 (9th Cir. 2000). Of particular relevance
here, the Ninth Circuit has specifically recognized that “the government must first present
clear, convincing, and unequivocal evidence of foreign birth,” before the burden “shifts
to the alien to show time, place, and manner of entry.” Murphy v. I.N.S., 54 F.3d 605,
609 (9th Cir. 1995) (emphasis in original). In other words, once Arteaga-Ruiz admitted
to being born in Mexico, the burden of persuasion shifted to him to prove the time, place,
and manner of his entry. Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980).

2

See, e.g., Wright v. U.S., 719 F.2d 1032, 1035 (9th Cir. 1983) (The decision whether or not to prosecute
a given individual is a discretionary function for which the United States is immune from liability.”);
Mirmehdi v. U.S., 689 F.3d 975, 984 (9th Cir. 2011) (“Because the decision to detain an alien pending
resolution of immigration proceedings is explicitly committed to the discretion of the Attorney General
and implicates issues of foreign policy, and because [Plaintiffs] do not allege that this decision itself
violated the Constitution, it falls within this exception.”); Sutton v. U.S., 819 F.2d 1289, 1295 (5th Cir.
1987) (concluding “decisions on when, where, and how to investigate and whether to prosecute” are
considered discretionary conduct); Mesa v. U.S., 123 F.3d 1435, 1438 (11th Cir. 1997) (“We readily
conclude that the decisions regarding how to locate and identify the subject of an arrest warrant and
regarding whether the person apprehended is in fact the person named in the warrant are discretionary in
nature and involve an element of judgment or choice.”); Smith v. U.S., 375 F.2d 243, 247–48 (5th Cir.
1967) (“The discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to
abandon a prosecution already started, is absolute.”).
MEMORANDUM DECISION AND ORDER – 9

Here, an ICE agent personally served Arteaga-Ruiz with an NTA alleging he: (1)
was not a citizen or national of the United States; (2) was a native and citizen of Mexico;
(3) had been convicted of an aggravated felony and crime of violence3; and (4) had been
convicted of two crimes involving moral turpitude. Def.’s Motion, supra at 1. After
reading the NTA, Arteaga-Ruiz admitted all the allegations were true and correct, and
agreed he was removable as charged therein. Id. at 2.
By statute, an ICE agent has the “power” to arrest someone in the United States if
the agent has “reason to believe” that the person is in the United States in violation of any
immigration laws or regulations . . . .” 8 U.S.C. § 1357(a)(2). The only basis asserted by
Arteaga-Ruiz to support his negligence claim is failing to determine from various
documents that Arteaga-Ruiz was entitled to derivative citizenship. Arteaga-Ruiz does
not assert any claim of intentional misconduct on behalf of the ICE agents, and thus, this
is essentially a claim that the ICE agent failed to adequately perform a discretionary duty,
which falls squarely within the discretionary function exception. Accordingly, the ICE
agents’ decision to issue the NTA was a matter of judgment, and the first prong of the
discretionary function exception test is satisfied.
The Court next turns to whether the agents’ decisions were the kind the
discretionary function exception was designed to shield. Berkovitz, 486 U.S. at 536. “The
basis for the discretionary function exception was Congress’ desire to prevent judicial
second guessing of legislative and administrative decisions grounded in social, economic,

3

By statute, an alien who has been convicted of an aggravated felony and removed from the United States
is forever bared from reentry. See 8 U.S.C. § 1182(a)(9)(A)(i).
MEMORANDUM DECISION AND ORDER – 10

and political policy through the medium of an action in tort.” Id. at 536–37. (quoting
U.S. v. Varig Airlines, 467 U.S. 797, 814 (1984)). Properly construed, the exception
“protects only governmental actions and decisions based on considerations of public
policy.” Id. at 537. See Dalehite v. U.S., 346 U.S. 15, 36 (1953) (“Where there is room
for policy judgment and decision there is discretion”).
ICE is a federal agency tasked with enforcing “federal laws governing border
control, customs, trade and immigration to promote homeland security and public
safety.”4 ICE is charged with enforcing more than 400 federal statutes.5 More
specifically, ICE is tasked with “preventing terrorism and combating the illegal
movement of people and goods.”6 The Ninth Circuit has recognized, “[i]nvestigations by
federal law enforcement officials . . . clearly require investigative officers to consider
relevant political and social circumstances in making decisions about the nature and
scope of a criminal investigation.” Sabow, 93 F.3d at 1453. Of particular importance
here, the Ninth Circuit has acknowledged, “the decision to detain an alien pending
resolution of immigration proceedings is explicitly committed to the discretion of the
Attorney General and implicates issues of foreign policy . . . .” Mermindi v. U.S., 689
F.3d 975, 984 (9th Cir. 2001). See also Douglas v. U.S., 796 F. Supp. 2d 1354, 1369
(M.D. Fla. 2011) ( “Operating with limited resources, ICE must weigh various policy

4

Who We Are Overview, U.S. Immigration & Customs Enforcement, http://www.ice.gov/about (last
visited Oct. 1, 2015).
5
What We Do Overview, U.S. Immigration & Customs enforcement, http://www.ice.gov/about (last
visited Oct. 1, 2015).
6
Id.
MEMORANDUM DECISION AND ORDER – 11

considerations in deciding which suspected aliens to detain, how to detain them, and how
to investigate claims of citizenship by detained aliens.”).
The ICE agents’ discretionary conduct in investigating Arteaga-Ruiz’s
immigration status, analyzing the information received, and in deciding whether to issue
an NTA charging Arteaga-Ruiz were susceptible to policy analysis. Thus, the second
prong of the discretionary function exception has been satisfied. Accordingly, ArtegaRuiz’s negligence, false imprisonment, and intentional infliction of emotional distress
claims are barred by the discretionary function exception to the FTCA’s waiver of
sovereign immunity.
ORDER
IT IS ORDERED:
1. Defendant’s Motion to Dismiss (Dkt. 25) is GRANTED.
2. The Court will enter a separate judgment in accordance with Fed. R. Civ. P.
58.

DATED: February 22, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER – 12