Muniz et al v. Gallegos et al
Filing
195
Memorandum Opinion and Order granting 170 SEALED Motion to dismiss for lack of jurisdiction or in the alternative Motion for summary judgment filed by Matthew J. Richardson, United States B order Patrol, United States of America, Hugh Campbell, Randy L. Gallegos, Andre Dario, Robert Simon, Bradley Shaver, Stephanie Wrisley, Santiago Mateo-Deleon, Corey Bammer, Ramiro Corona, United States Department of Homeland Security, Dav id B. York. Because the Court lacks jurisdiction to consider Plaintiff's claims, this case must be dismissed. There is no need to consider the Federal Defendant's standing arguments or their alternative Motion for Summary Judgment. Judge Jack Zouhary on 10/19/12. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Maria Muniz-Muniz, et al.,
Case No. 3:09 CV 2865
Plaintiffs,
MEMORANDUM OPINION
AND ORDER
-vsJUDGE JACK ZOUHARY
United States Border Patrol,
Customs and Border Protection,
Department of Homeland Security, et al.,
Defendants.
INTRODUCTION
Plaintiffs in this case seek injunctive and declaratory relief for what they contend is a pattern
and practice of unconstitutional racial profiling by United States Border Patrol agents assigned to the
Sandusky Bay Station in Ohio. Specifically, Plaintiffs bring their claims against the Federal
Defendants under the Fourth and Fifth Amendments to the U.S. Constitution, as well as under
multiple civil rights statutes. Pending before this Court is the Federal Defendants’ Motion to Dismiss
and/or in the Alternative Motion for Summary Judgment (Doc. 170).
According to the Federal Defendants, this Court lacks subject-matter jurisdiction to consider
Plaintiffs’ claims and should therefore dismiss this case under Federal Civil Rule 12(b)(1) (Doc. 170
at 15–47). Alternatively, the Federal Defendants assert there is no genuine issue as to any material
fact regarding Plaintiffs’ constitutional claims, entitling them to judgment as a matter of law under
Federal Civil Rule 56(a) (Doc. 170 at 47–48). The matter has been fully briefed (Docs. 170, 187 &
191).
BACKGROUND
The United States Border Patrol is primarily responsible for patrolling international border
areas between Ports-of-Entry, including the 158-mile stretch between Ohio and Canada (Docs. 62-1
at 2; 181 at 7 & 17). The Border Patrol’s objectives include apprehending terrorists and weapons
illegally entering the United States, deterring illegal entry, reducing crime in border communities, and
identifying individuals in the United States without proper papers (Docs. 181 at 21; 185 at 16–17).
The Border Patrol station pertinent to this case is the Sandusky Bay Station (“SBY”), which opened
in February 2009 (Doc. 62-1 at 2). This station is accountable for carrying out Border Patrol day-today duties and responsibilities, including planning and conducting operations in Ohio.
In November 2010, the Border Patrol created a Primary Operational Domain (“POD”) for
SBY, which is “the area within a Sector’s geographically delineated area of operational responsibility
where stations routinely plan for and conduct daily operations which directly support the Sector’s
primary enforcement efforts” (Docs. 181 at 17; 170-3 at 1). In other words, the POD is where a
station sends its routine, daily patrols; for SBY, this stretches from Lucas County to Cuyahoga County
(Docs. 170-3 at 1; 181 at 17 & 33–34).
Plaintiffs argue the Border Patrol “has strayed far from its stated mission of protecting the
country’s northern border from ‘transnational threats’” (Doc. 187 at 7). According to Plaintiffs, SBY
agents use Hispanic appearance to initiate enforcement action. Plaintiffs note that in the three years
SBY has been open, between 61.8% and 85.6% of those apprehended have been Hispanic (Doc. 187
at 7), with “an alarming use of racial slurs” by agents in official Border Patrol correspondence; and
the two highest ranking SBY agents are unable to “consistently articulate race-neutral basis for
stopping and detaining suspected unauthorized aliens” (Doc. 187 at 7). The heart of Plaintiffs’ theory
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in this case is that “SBY patrols the area for suspicious persons with a deliberate focus on Hispanic
persons as is demonstrated both by its organizational culture of utilizing dehumanizing language when
describing Hispanic persons and . . . by the disparate impact experienced by Hispanic persons in
Ohio” (Doc. 187 at 9).
Plaintiffs filed suit in December 2009, alleging racial profiling by the Border Patrol, individual
Border Patrol agents, the Village of Attica, the City of Norwalk, the Village of Plymouth, and local
law enforcement officers (Doc. 1). The Complaint was brought as a class action representing
individuals, the Ohio Immigrant Worker Project (“IWP”), and the Farm Labor Organizing Committee
(“FLOC”). Despite having filed suit as a class action, and completed months of discovery, Plaintiffs
did not move for class certification under Federal Civil Rule 23.
In July 2010, the Federal Defendants filed a Motion to Dismiss, or in the Alternative, for
Summary Judgment (Doc. 62). Plaintiffs opposed the Motion and requested discovery be permitted
under Federal Civil Rule 56(d) (Doc. 68). This Court questioned whether it had subject-matter
jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief, but denied the Federal
Defendants’ Motions without prejudice to permit discovery (Doc. 76).
In late April 2012, following a long period of discovery, Plaintiffs filed a Second Amended
Complaint, adding factual allegations against the Federal Defendants and naming two additional
Border Patrol agents in their official capacities (Doc. 143). Plaintiffs also dropped their request for
money damages and all claims against Federal Defendants in their personal capacities. Because all
claims against the Local Defendants (Attica, Norwalk, Plymouth, and local law enforcement officers)
have also been dismissed, the only active claims in this case are official capacity claims against the
Federal Defendants for declaratory and injunctive relief (Claims 1–3 & 10–13).
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The Federal Defendants now offer three reasons why this Court lacks subject-matter
jurisdiction: (1) there has not been a waiver of sovereign immunity (Doc. 170 at 15–20); (2) Plaintiffs
lack standing (Doc. 170 at 20–46); and (3) the statutory claims do not allow for suit against the United
States (Doc. 170 at 46–47).
Further, even if this Court finds it has subject-matter jurisdiction, the Federal Defendants argue
they are entitled to summary judgment on each of Plaintiffs’ claims. First, Plaintiffs cannot prevail
on their Equal Protection claim because they cannot demonstrate they were treated differently than
a similarly situated, but non-protected, class of individuals (Doc. 170 at 11). Second, Plaintiffs’
Fourth Amendment claims fail as a matter of law because each incident with the Border Patrol was
a consensual encounter -- not a seizure -- followed by probable cause to make an arrest, and further,
such claims cannot succeed because Plaintiffs cannot demonstrate an unconstitutional policy or
custom (Doc. 170 at 11). Third, Plaintiffs’ Due Process claims fail because Plaintiffs have not
sufficiently pled or provided evidence that the Federal Defendants violated a procedural or substantive
right under the Constitution (Doc. 170 at 11–12). Fourth -- and last -- Plaintiffs cannot prevail on
their conspiracy claims because the United States is not a “person” who can be sued under 42 U.S.C.
§§ 1983 or 1985 (Doc. 170 at 12).
Plaintiffs disagree with each contention, arguing jurisdiction is proper because their claims
fit within the waiver of sovereign immunity under the Administrative Procedure Act (“APA”), and
that the individual Plaintiffs have standing because they are likely to be subject to repeated racial
profiling by the Border Patrol (Doc. 187 at 6–7). Plaintiffs also argue the Organizational Plaintiffs
(IWP and FLOC) have standing on their own behalf “because their mission has been frustrated by the
Federal Defendants’ pattern and practice of racial profiling,” as well as on behalf of their constituents
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(Doc. 187 at 6). Plaintiffs lastly assert that summary judgment on their constitutional claims is
inappropriate because the record contains various disputes of material facts.
STANDARDS OF REVIEW
Motions to dismiss for lack of subject-matter jurisdiction under Federal Civil Rule 12(b)(1)
fall into two general categories: facial attacks and factual attacks. See United States v. Ritchie, 15
F.3d 592, 598 (6th Cir. 1994); Ohio Nat’l Life Ins. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
A factual attack, which the Federal Defendants assert in this case (Doc. 170 at 15 n.5), does not
question the sufficiency of the pleading itself. Ritchie, 15 F.3d at 598. Rather, a factual attack is “a
challenge to the factual existence of subject matter jurisdiction.” Id. “On such a motion, no
presumptive truthfulness applies to the factual allegations . . . and the court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear the case.” Id. (internal citation
omitted). Plaintiffs, as the parties asserting jurisdiction, have the burden under a Rule 12(b)(1)
motion, and jurisdiction must be established by a preponderance of the evidence. Golden v. Gorno
Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005).
Pursuant to Federal Civil Rule 56(a), summary judgment is appropriate where there is “no
genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of
law.” This burden “may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). When considering a motion for summary judgment, this Court must draw all
inferences from the record in the light most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the
evidence or determine the truth of any matter in dispute; rather, the Court determines only whether
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the case contains sufficient evidence from which a jury could reasonably find for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
DISCUSSION
This Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Claims
•
Plaintiffs’ Constitutional Claims under the APA are Barred by
Sovereign Immunity
Plaintiffs assert three separate constitutional claims against the Federal Defendants under the
APA (Claims 1–3). The Federal Defendants contend these claims are barred by the doctrine of
sovereign immunity, which holds “the United States is immune from suit unless it consents to be
sued.” United States v. City of Detroit, 329 F.3d 515, 520 (6th Cir. 2003) (citing Hercules, Inc. v.
United States, 516 U.S. 417, 422 (1996)). As the Sixth Circuit has acknowledged, the United States
“has waived its immunity with respect to non-monetary claims” under the APA, 5 U.S.C. § 702, which
provides:
[a]n action in a court of the United States seeking relief other than money damages and
stating a claim that an agency or an officer or employee thereof acted or failed to act
in an official capacity or under color of legal authority shall not be dismissed nor relief
therein be denied on the ground that it is against the United States . . . Provided, That
any mandatory or injunctive decree shall specify the Federal officer of officers (by
name or by title), and their successors in office, personally responsible for compliance.
Section 702’s waiver of immunity applies in cases brought under the APA, as well as under other
federal statutes. City of Detroit, 329 F.3d at 521 (citing A.E. Finley & Assocs. v. United States, 898
F.2d 1165, 1167 (6th Cir. 1990)). However, in this case, Plaintiffs assert there is no need for this Court
to decide whether a federal statute provides a basis for relief because their claims “fall squarely within
the contours of judicial review of agency actions contemplated by the APA” (Doc. 187 at 15).
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To prevail on this argument, Plaintiffs must convince this Court that their claims for relief seek
“judicial review of agency action” under the APA. See Blakely v. United States, 276 F.3d 853, 870
(6th Cir. 2002) (“By its own terms, [Section] 702 only applies where [a] party seeks judicial review
of agency action.”). Furthermore, Plaintiffs’ claims must satisfy 5 U.S.C. § 704, which limits the types
of actions reviewable under the APA. Specifically, Section 704 provides for review of two types of
actions: (1) agency action made reviewable by statute; and (2) final agency action for which there is
no other adequate remedy in a court.
As the Federal Defendants note, Plaintiffs cannot demonstrate that judicial review is
appropriate under the first type of Section 704 review because Plaintiffs have not identified an agency
action that is “made reviewable by statute.” Therefore, Plaintiffs must rely on the second type of
review by demonstrating they seek judicial review of a “final agency action for which there is no other
adequate remedy in a court.” Plaintiffs cannot make this showing because they fail to identify a
“specific agency action that has caused their alleged injuries” and instead “make broad, general
allegations about the Border Patrol and its enforcement operations” (Doc. 170 at 18). Federal
Defendants cite Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990), a case where the Supreme
Court held APA plaintiffs “must direct [their] attack[s] against some particular agency action that
causes [them] harm.” To be sure, courts may only “intervene in the administration of the laws [] when,
and to the extent that, a specific ‘final agency action’ has an actual or immediately threatened effect.”
Id. at 894.
This leaves the second type of review -- whether Plaintiffs can demonstrate a “final agency
action.” The APA defines “agency action” as “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act.” See 5 U.S.C. § 551(13).
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Plaintiffs argue their allegations of unlawful stops, detentions, and apprehensions by the Border Patrol
clearly qualify as “sanctions” under Section 551(13) (Doc. 187 at 13). This Court agrees. The APA
expressly holds that sanctions include “conditions[s] affecting the freedom of a person,” the
“imposition of penalty,” and “taking other compulsory or restrictive action.” See 5 U.S.C. §
551(10)(A), (C) & (G). There is no doubt restraining, interrogating, and arresting individuals “affects”
their freedom, as well as constitutes “restrictive action.” See Indus. Safety Equip. Ass’n. v. EPA, 837
F.2d 1115, 1119–20 (D.C. Cir. 1988) (construing “sanction” under the APA broadly to include an
agency’s penalizing of a party through adverse publicity). Moreover, arresting individuals -- lawful
or otherwise -- is a penalty, which in this case was imposed by the Federal Defendants.
There is also evidence suggesting the agency action in this case was not final. To be deemed
“final,” agency action must satisfy two conditions: (1) it must mark the consummation of the agency’s
decision-making process; and (2) it must be one by which rights or obligations have been determined,
or from which legal consequences will follow. Bennett v. Spear, 520 U.S. 154, 177–78 (1997).
Although Federal Defendants argue there is no “final” action in this case, they fail to explain how
restraining, interrogating, and arresting individuals does not consummate their decision-making
process regarding these individuals, or how their actions do not determine the individuals’ “rights or
obligations” from which legal consequences will follow. Simply put, this Court is persuaded
otherwise.
Although Plaintiffs have identified a final agency action that can be challenged under the APA,
they have not satisfied the requirement that there be “no other adequate remedy.” Indeed, Federal
Defendants note at least three plausible avenues of relief for the claims in this case. First, Plaintiffs
may seek relief by suing those individuals, in their personal capacities, who purportedly caused their
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injuries. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396–97 (1971) (implying
a private right of action for damages where no other federal remedy is provided for the vindication of
constitutional rights). Plaintiffs argue that a Bivens action would be inadequate because the relief they
seek in this case is non-monetary (Doc. 187 at 20–21), and that injunctive relief would serve as a better
deterrent “to stop the unlawful seizures and profiling of Hispanics by the Border Patrol and their
encouragement of local law enforcement agencies to assist them in apprehending individuals based
on Hispanic appearance” (Doc. 187 at 21).
That argument, however, is inconsistent with the Supreme Court’s repeated holdings that
Bivens actions are an effective deterrent to constitutional violations. See, e.g., Carlson v. Green, 446
U.S. 14, 20–22 (1980). “It is almost axiomatic that the threat of damages has a deterrent effect . . .
surely particularly so when the individual official faces personal financial liability.” Id. at 21 (internal
citation omitted). As the Supreme Court acknowledged, “underlying the qualified immunity which
public officials enjoy for actions taken in good faith [under Bivens] is the fear that exposure to personal
liability would otherwise deter them from acting at all.” Id. at 21 n.7 (citing Butz v. Economou, 438
U.S. 478, 497 (1978)). A Bivens action would therefore provide adequate relief.
Second, Plaintiffs could also pursue claims under the Federal Tort Claims Act (“FTCA”)
against those individuals who violated Plaintiffs’ constitutional rights.
Plaintiffs provide no
explanation why an FTCA claim would be inadequate in this case. Finally, a specific statutory
provision exists that permits the Attorney General to file a civil action to eliminate any alleged “pattern
or practice” of unconstitutional conduct. See 42 U.S.C. § 14141. To the extent Plaintiffs believe the
Federal Defendants are racially profiling Hispanics, Section 14141 also provides adequate relief.
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Because Plaintiffs have not satisfied the requirement that there be “no other adequate remedy,”
they have not identified a final agency action that is reviewable under Section 704. Accordingly, the
APA cannot serve as a waiver of the United States’ sovereign immunity in this case, and as such, this
Court lacks jurisdiction for Claims 1–3.
•
Plaintiffs’ Conspiracy Claims Under the Civil Rights Statutes are
Barred by Sovereign Immunity
In addition to their constitutional claims, Plaintiffs assert four separate conspiracy claims
against the Federal Defendants in their official capacities under 42 U.S.C. §§ 1983, 1985(3), and 1986
(Claims 10–13). However, Plaintiffs’ reliance on Section 1983 is misplaced, as that provision neither
authorizes suits challenging actions taken under color of federal law, nor waives the United States’
sovereign immunity. See Strickland ex rel. Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997);
see also Hall v. United States, 773 F.2d 703, 707 (6th Cir. 1985) (“Federal officials do not violate
[S]ection 1983 by acting under color of federal law.”). Indeed, the “actual nature and character” of
the Federal Defendants’ actions in this case -- even assuming they conspired with state authorities -were federal, not state. Strickland, 123 F.3d at 866.
Unlike Section 1983, the scope of Section 1985(3) “is considerably broader and can reach
conspiracies composed of federal officers or federal employees.” Federer v. Gephardt, 363 F.3d 754,
758 (8th Cir. 2004) (citing Hobson v. Wilson, 737 F.2d 1, 19–20 (D.C. Cir. 1984)). In other words,
there is no requirement that the offending conduct be committed under color of state law. However,
sovereign immunity bars Section 1985(3) claims brought against the United States and its officers
acting in their official capacity. See, e.g., Davis v. U.S. Dep’t of Justice, 204 F.3d 723, 726 (7th Cir.
2000); Aff’l Prof’l Home Health Care v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Mousseaux v.
United States, 28 F.3d 786, 787 (8th Cir. 1994). The same is true for Plaintiffs’ claims under Section
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1986. See Davis, 204 F.3d at 726 (“Sovereign immunity . . . bars [Section] 1985(3) and 1986 suits
brought against the United States and its officers acting in their official capacity.”); Aff’l Prof’l Home
Health Care, 164 F.3d at 286. Plaintiffs have not met their burden of demonstrating a waiver of that
immunity, and therefore Claims 10–13 cannot proceed in this Court.
•
Plaintiffs’ Claims Are Not Subject to the “Ultra Vires Exception” to
Sovereign Immunity
Plaintiffs summarily argue that their claims in this case fall under the so-called “ultra vires
exception” to sovereign immunity (Doc. 187 at 21). See Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 689–90 (1949). Larson articulated two circumstances, not relevant in this case,
where the requested specific relief would not implicate sovereign immunity: (1) where the officers’
actions are beyond their statutory authority; and (2) where the statute conferring power upon the
officers is unconstitutional. See TransAmerica Assur. Corp. v. Settlement Capital Corp., 489 F.3d 256,
260 n.2 (6th Cir. 2007). To invoke the exception, Plaintiffs “must do more than simply allege that the
actions of the officer are illegal or unauthorized.” Danos v. Jones, 652 F.3d 577, 583 (5th Cir. 2011)
(internal quotation omitted). The complaint must allege sufficient facts “to establish that the officer[s]
[were] acting ‘without any authority whatever,’ or without any ‘colorable basis for the exercise of
authority.’” Id. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)).
The Second Amended Complaint fails to meet this standard, as there is no allegation that 8
U.S.C. § 1357 is unconstitutional, or that the federal officers were acting without authority. In fact,
Plaintiffs’ theory in this case is directly opposite: the Border Patrol authorizes its SBY agents to
maintain “a practice of profiling individuals of Hispanic and Mexican appearance for questioning and
detention” (Doc. 187 at 6), and Plaintiffs wish to change that alleged practice by Border Patrol agents
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under Section 1357. But Plaintiffs are not challenging Defendants’ activities as outside the scope of
their statutory authority. For these reasons, Plaintiffs’ ultra vires argument is unconvincing.
CONCLUSION
Because this Court lacks jurisdiction to consider Plaintiffs’ claims, this case must be dismissed.
Accordingly, there is no need to consider the Federal Defendants’ standing arguments or their
alternative Motion for Summary Judgment. The Motion to Dismiss is granted.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
October 19, 2012
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