Simon-Timmerman v. United States of America et al
Filing
21
OPINION AND ORDER granting 10 Motion to Dismiss. Signed by Judge Jay A Garcia-Gregory on 6/5/2012. (ASJ) Modified on 6/6/2012 to add word "opinion" (ab).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS SIMON TIMMERMAN,
Plaintiff
CIVIL NO. 11-1816(JAG)
v.
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
GARCIA-GREGORY, D.J.
Before
(“USA”)
the
motion
Court
to
stands
dismiss
the
Carlos
United
Simon
States
of
America’s
Timmerman’s
(“Simon”)
complaint. Simon filed his complaint pursuant to the Federal
Tort
Claims
Act,
28
U.S.C.
2671
et.
seq.
(“FTCA”).
For
the
reasons outlined below, the motion to dismiss is hereby GRANTED.
BACKGROUND
Simon filed his complaint on August 18, 2011. USA filed its
motion to dismiss on February 1, 2012. Simon timely opposed
USA’s motion to dismiss.
Simon’s complaint alleges that on August 11, 2009, he was
negligently arrested by U.S. Immigration and Customs Enforcement
(“ICE”) agents at the Luis Munoz Marin Airport in San Juan,
Puerto Rico. Simon further avers that he was negligently
Civil Case No. 11-1816 (JAG)
prosecuted by the United States Attorney’s Office for the
District of Puerto Rico.
The complaint states that Simon was traveling from
Venezuela to Puerto Rico and upon his arrival at the Luis Munoz
Marin Airport he presented himself for admission into the United
States. Simon was arrested by ICE officers for possession of
DVD’s depicting alleged female minors engaged in sexually
explicit conduct. Simon avers that the customs agents took him
to a detention facility, presented the case for prosecution,
pursued and participated actively in the federal criminal case
against him, and persisted in their attempt to convict him
despite lacking evidence that there were minor females involved
in the films.
Eight months after Simon’s arrest an arrest warrant against
him was issued. The arrest warrant was issued pursuant to an
affidavit subscribed to by Alek Pacheco, an ICE agent. Simon
states that the USA filed a motion for dismissal of the charges
against him in light of the exculpatory evidence produced during
his jury trial. Simon further states that ICE never interviewed
any female in the DVD, nor contacted any females to verify their
age and/or identity. The complaint states that USA relied on the
guesswork of a retained expert who provided an opinion of the
female’s age.
2
Civil Case No. 11-1816 (JAG)
3
STANDARD
Pursuant to Fed.R.Civ.P. 12(b)(1), a defendant may move to
dismiss an action for lack of subject matter jurisdiction. As
courts of limited jurisdiction, federal courts have the duty of
narrowly
construing
jurisdictional
grants.
See
e.g.,
Alicea-
Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.P.R. 1998). Since
federal courts have limited jurisdiction, the party asserting
jurisdiction has the burden of demonstrating the existence of
federal jurisdiction. See Murphy v. United States, 45 F.3d 520,
522 (1st Cir. 1995); Droz Serrano v. Caribbean Records Inc., 270
F.Supp.2d 217 (D.P.R. 2003). When deciding whether to dismiss a
complaint for lack of subject matter jurisdiction, the Court
“may consider whatever evidence has been submitted, such as the
depositions and exhibits submitted in this case.” See Aversa v.
United
States,
99
F.3d
1200,
1210
(1st
Cir.
1996).
Motions
brought under Rule 12(b)(1) are subject to the same standard of
review as Rule 12(b)(6) motions. Torres Maysonet v. Drillex,
S.E., 229 F.Supp.2d 105, 107 (D.P.R. 2002).
Rule
12(b)(1)
is
the
proper
vehicle
for
challenging
a
court’s subject matter jurisdiction. Valentin v. Hospital Bella
Vista, 254 F.3d 358, 362 (1st Cir. 2001). “This rule is a large
umbrella,
overspreading
a
variety
of
different
types
of
challenges to subject-matter jurisdiction. Some challenges-those
grounded
in
considerations
of
ripeness,
mootness,
sovereign
Civil Case No. 11-1816 (JAG)
4
immunity, and the existence of federal question jurisdiction are
good examples.” Id. at 362-363.
ANALYSIS
The
federal
alleging
FTCA
provides
government's
harm
caused
a
“carefully
sovereign
by
limited
immunity
United
States
for
waiver”
of
certain
employees
or
the
claims
agents.
Carroll v. U.S., 661 F.3d 87, 93 (1st Cir. 2011)(citing Bolduc
v. United States, 402 F.3d 50, 62 (1st Cir. 2005)). Said waiver
allows civil actions against the government “for injury or loss
of
property
...
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 omission occurred.” 28 U.S.C. § 1346(b)(1). The waiver also
has exceptions and, where they apply, “the federal courts lack
subject
matter
jurisdiction
over
torts
against
the
United
States.” Wood v. United States, 290 F.3d 29, 36 n. 4 (1st Cir.
2002); Montijo–Reyes v. United States, 436 F.3d 19, 24 (1st Cir.
2006).
One
of
these
exceptions
is
the
discretionary
function
exception. The discretionary function exception bars:
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
Civil Case No. 11-1816 (JAG)
5
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
function
Supreme
Court
exception
has
“marks
observed
the
that
boundary
the
discretionary
between
Congress'
willingness to impose tort liability upon the United States and
its
desire
to
protect
certain
governmental
activities
from
exposure to suit by private individuals.” Carroll, 661 F.3d at
99 (citing United States v. S.A. Empresa De Viacao Aerea Rio
Grandense
(Varig
Airlines),
467
U.S.
797,
808
(1984).
“The
exception, codified at 28 U.S.C. § 2680(a), immunizes conduct of
government
employees
administrative
that
decisions
arises
grounded
political
policy,
protecting
seriously
handicap
efficient
from
in
against
government
legislative
social,
economic,
liability
that
operations.”
and
and
would
Carroll,
661 F.3d at 99 (citing Wood, 290 F.3d at 36)(internal citations
omitted). Said protection is available even when an employee has
abused his or her discretion. Carroll, 661 F.3d at 99.
The applicability of the discretionary framework exception
is
determined
according
to
a
well-established
two-tiered
framework. Said exception applies if the conduct underlying the
FTCA claim (1) “involves an element of judgment or choice, and
Civil Case No. 11-1816 (JAG)
6
(2) was susceptible to policy-related analysis.” Sanchez ex rel.
D.R.-S. v. U.S.,671 F.3d 86, 93 (1st Cir. 2012)(citing Limone v.
United States, 579 F.3d 79, 101 (1st Cir.2009)(quoting Berkovitz
v. United States, 486 U.S. 531, 536, (1988))(internal citations
and
quotation
element
of
marks
judgment
omitted).
or
“Conduct
choice
if
does
a
not
involve
“‘federal
an
statute,
regulation, or policy specifically prescribes a course of action
for
an
employee
to
follow,’
because
‘the
employee
has
no
rightful option but to adhere to the directive.’” Sanchez ex
rel. D.R.-S., 671 F.3d at 93 (citing United States v. Gaubert,
499 U.S. 315, 322 (1991)). Furthermore, conduct is susceptible
to policy analysis if some plausible policy justification could
have
undergirded
whether
the
analysis.
the
conduct
Sanchez
ex
challenged
was
the
rel.
end
conduct;
product
D.R.-S.,
671
it
of
F.3d
is
a
not
relevant
policy-driven
at
93
(citing
Shansky v. United States, 164 F.3d 688, 692 (1st Cir. 1999)).
Thus, a court must first identify the conduct alleged to have
caused the harm and then determine whether the conduct can be
fairly described as discretionary, and if so, decide whether the
exercise or non-exercise of the granted discretion is actually
or potentially influenced by policy considerations. Carroll, 661
F.3d at 100(citing Fothergill v. United States, 566 F.3d 248,
252 (1st Cir. 2009)).
Civil Case No. 11-1816 (JAG)
7
If the challenged conduct is both discretionary and policybased, there is no subject-matter jurisdiction for the claim.
Carroll, 661 F.3d at 100 (citing Montijo–Reyes, 436 F.3d at 24).
First Circuit precedent places the burden on the plaintiff to
show that discretionary conduct was not policy-driven and, thus
falls outside the exception. Carroll, 661 F.3d at 100 n. 15
(citing Bolduc, 402 F.3d at 60, 62). However, the First Circuit
has noted that there exists a circuit split as to whether the
plaintiff or the government bears the burden of proof regarding
the
discretionary
function
exception.
Carroll,
661
F.3d
at
100(citing Hart v. United States, 630 F.3d 1085, 1089 n. 3 (8th
Cir. 2011)).
In this case, Simon identifies the harmful conduct as the
negligent investigation conducted by ICE agents, which caused
criminal charges to be filed against him. More specifically,
Simon states that government agents negligently investigated his
case
despite
the
fact
that
the
videos
they
took
from
Simon
included a disclaimer stating that the individuals depicted in
the video were over the age of 18 and listed the website with
the
custodian
of
records.
The
agents’
conduct
does
seem
to
involve an element of judgment or choice in not pursuing the
information contained in the videos.
has
clearly
established
that
However, the First Circuit
decisions
to
investigate
or
prosecute an individual fall squarely within the discretionary
Civil Case No. 11-1816 (JAG)
8
function exception. Torres-Dueno v. U.S., 165 F.Supp.2d 71, 74
(D.P.R. 2001)(citing Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir.
1993)(“[A]lthough law enforcement agents have a mandatory duty
to enforce the law, decisions as to how best to fulfill that
duty are protected by the discretionary function exception to
the FTCA.”); Kelly v. United States, 924 F.2d 355, 362 (1st Cir.
1991)(“Since decisions to investigate, or not, are at the core
of
law
enforcement
activity,
the
bureau
chiefs'
challenged
conduct involved precisely the kind of policy-rooted decisionmaking
that
Moreover,
section
the
2680(a)
decision
was
regarding
designed
how
to
to
safeguard.”).
carry
out
the
investigation is also protected. Torres-Dueno, 165 F.Supp. 2d at
74 (citing Horta, 4 F.3d at 21; Sloan v. United States Dep't of
Hous. and Urban Dev., 236 F.3d 756, 762 (D.C. Cir. 2001)(“[T]he
sifting of evidence, the weighing of its significance, and the
myriad
other
decisions
involve
elements
of
made
judgment
during
and
investigations
choice.”);
Sabow
v.
plainly
United
States, 93 F.3d 1445, 1453 (9th Cir. 1996); Pooler v. United
States, 787 F.2d 868, 871 (3rd Cir. 1986)(“Congress did not
intend
to
provide
for
judicial
review
of
the
quality
of
investigative efforts.”); Doherty v. United States, 905 F.Supp.
54, 56–57 (D.Mass. 1995); Reeves v. United States, 809 F.Supp.
92, 95 (N.D.Ga. 1992),
aff'd, 996 F.2d 1232 (11th Cir.1993)
(Unpublished table case)). As a result, Simon’s claims that ICE
Civil Case No. 11-1816 (JAG)
9
agents negligently investigated his case and handled evidence
are barred by the discretionary function exception.
As a result of the foregoing, the Court GRANTS the USA’s
motion to dismiss.
CONCLUSION
For the reasons explained above, USA’s motion to dismiss is
hereby GRANTED. Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of June, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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